Delhi

North

CC/265/2016

MADHAV TIWARI - Complainant(s)

Versus

X FAS LOGISTICS PVT. LTD. - Opp.Party(s)

14 May 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.:265/2016

 

Sh. Madhav Tiwari,

Shri Kailaseshwar Mahadev Mandir,

Sant Nagar, East of Kailash,

New Delhi110065.                               …                                   Complainant

 

                                                          Vs

 

X Fas Logistics Pvt. Ltd.

Through its Director,

75, 1^st floor, Rani Jhansi Road,

New Delhi-110055.                                                 …                             Opposite Party

 

ORDER

14/05/2024

 

Ashwani Kumar Mehta, Member:

 

1.       The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged in the instant Complaint, are that:-

a. the consigner namely Rajnish Kumar Gaind,  booked a courier     from the OP/courier company from for delivery to the consignee/complainant Sh. Madhav Tiwari R/o Shri Kailaseshwar Mahadev Mandir, Sant Nagar, East Of kailash, New Delhi-110065 vide AWB No: 91078289 on 02 May, 2015. The abovesaid courier was containing the reply to objections filed by the consigner before Hon'ble high court of Delhi.

b. The Complainant/consignee requested several times to consigner to handover the copy of the reply to objections filed by the consigner before Hon’ble high court of Delhi or handover the copy of the proof of service through which abovementioned document was dispatched/delivered but he refused on one pretext or another by saying that the same has been sent to you and will be delivered to you shortly.

c. later on, when the copy of reply to objections/proof of service was not supplied to consignee/Madhav Tiwari by the consigner/Rajnish kumar gaind, the Complainant applied before Hon'ble High court of Delhi for obtaining certified copy of Reply to the objections along with proof of service and the same was made available to consignee/complainant on 23/04/16.

d. After obtaining the certified copy of reply to objections, the complainant came to know that the said reply to objection was sent by the consigner through courier namely X Fas Logistics Pvt. Ltd. as the courier receipt was placed as proof of service. After coming to know this fact, consignee/Madhav tiwari immediately contacted the OP, in order to know the status of dispatch/delivery of his consignment dated 02/05/15 on 23/06/16 and even visited the website of X fas Logistics Pvt. Ltd/OP and found that website was displaying the status of delivery of the said courier, as delivered on 04/05/15 to consignee/complainant.

e. the complainant even contacted the OP to lodge a complaint against the person/official who has given such fake report of delivery by forging the signature of complainant as the same was never ever delivered to complainant but no action was taken by the OP/opposite party in this regard.

f. the OP has not delivered the parcel/consignment to complainant till date and has not taken satisfactory measurements to give details of the person/official who have given such false report of delivery. On account of non-delivery of the packet/consignment by the OP, the complainant has been made to suffer a lot as he has to spend his money for obtaining certified copy of reply to objections apart from mental shock and harassment caused to him.

g. The complainant has also sent a legal notice dated 24-06-2016 to the OP under Registered cover demanding compensation of Rs. 20,000/- but the OP did not bother to respond.

2.       The Complainant has also enclosed a Copy of the legal notice, postal receipt and proof of delivery praying for directions to the OP to pay (1) compensation amounting to Rs. 20,000 on account of inconvenience, mental agony and harassment  & (2) litigation costs amounting to Rs.33,000/- to the complainant.

 

3.       Accordingly, notice was issued to the OP and in response, the OP has filed its reply stating that the complaint of the complainant is liable to be dismissed on the following grounds that:-

a.   the complainant is not a 'consumer' as defined under section 2(d) of The Consumer Protection Act, 1986 which stipulates that "consumer” means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment….”. Thus, only the person, who has purchased any goods against a sale consideration, has a right to invoke the jurisdiction of this commission. The Complainant has not submitted any bill along with the copy of complaint evidencing the purchase/availment of service from the OP.

b.   as per the version of the complainant, parcel was booked by Shri Rajnish Kumar Gaind. Therefore, the complainant is neither the consumer nor has availed any services from the OP.

c.   the complaint of the complainant is further not maintainable as no loss or injury caused to complainant.

d.   in para 7 of the judgment in the case titled as Consumer Unity v.     Bank of Baroda [I (1992) CPJ 18(NC)], it has been stated that :-

"Under this clause compensation can be awarded to the consumer only in respect of any loss or injury found to have been suffered by him due to the negligence of the opposite party. It is of essence of this provision that the loss or injury for which compensation is to be adjudged and awarded should be found to have been caused by the negligence on the part of the opposite party. The Complainant has therefore to establish that there was negligence on the part of the opposite party and that as a consequence thereof loss or injury was suffered by him."

 

         e.   It has been decided by the Hon'ble NCDRC and Supreme Court that the compensation claimed should commensurate with the loss or damages suffered by the Complainant. In the present case, the Complainant has failed to give bifurcation and justification of the compensation of Rs. 19.60 lacs claimed by the Complainant. Case laws relied are as follows:-

 

(i) Ramesh Kumar Sihan Hans v. Goyal Eye Institute decided by Hon'ble National Commission vide its order dt. 30.3.2012.

  (ii)  Smt. Sujata Nath Vs. Popular Nursing Home decided by Hon’ble   National Commission vide order dated 08.07.2011 confirmed by Hon'ble Supreme Court in Civil Appeal No.8642 of 2011.

(iii) Tara Devi Vs. Sri Thakur Radha Krishna Maharaj (1987) 4 SCC 69 & Nandita Bose Vs. Ratanlal Nahata (1987) 3 SCC 705.

 

6.  This  Forum has no jurisdiction to entertain the present complaint for the reasons that no cause of action ever arose in favour of the complainant and against the OP. Therefore the present complaint is liable to be dismissed on this ground alone with heavy cost for falsely roping the OP in the present case.
7. The complainant has not availed any services from the OP.  The courier was booked by Shri Rajnish Kumar Gaind and the complainant has only been stated to be consignee of goods, thus the complainant has no locus to file the present complaint.

4.       The OP has also filed parawise reply on merits denying all the allegations levelled in the complaint. However, after perusing the reply, relevant para(s) are discussed below:-

a.  the contents of para no. 6 of the complaint are wrong and incorrect and hence vehemently denied that the complainant ever contacted the OP to lodge a complaint against the person/official who has given such fake report of delivery by forging the signature of complainant as the same was never ever delivered to the complainant. The complainant has falsely alleged that the report was fake or the signatures on the delivery report were not his. The malafide of the complainant is evident as on one hand, he has stated that he has not been served with the courier and on the other hand, he has stated that the delivery report bears his forged signatures. The complainant be put to strict proof of all the averments as made in the complaint. The complaint of the complainant is further not maintainable as he is alleging that there is forgery of signatures. The forgery and proving of forgery does not falls within the domain of the consumer forum and thereby the complaint of the complainant is not maintainable and the same is liable to be dismissed.

b. the contents of para no. 7 of the complaint are wrong and incorrect and hence vehemently denied that the parcel/consignment has not been delivered to the complainant.  The complainant be put to strict proof of the same and the complainant has failed to file any document on record to show that he has not been served with the consignment. The consignment was almost one and half year old and the OP have no documents in respect of the service/report/docket. As a matter of policy, OP retain the data for the period of three months and after said period date/documents are weeded out. The complaint of the complainant, thus, cannot be maintainable and the same is liable to be dismissed as the complaint is hopelessly delayed and the same has been filed without any cause of action.

5.       While filing the reply to the complaint, the OP has also filed an Application Under Order VII  Rule 11 CPC Read With Section 151 CPC read with Consumer Protection Act, 1986 seeking the Dismissal Of Complaint raising following issues:-

1. the complainant is not a 'consumer' as defined under section 2(d) of The Consumer Protection Act, 1986. As per the said section, "consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment ….”. Thus, only the person, who has purchased any goods against a sale consideration, has a right to invoke the jurisdiction of this  Forum.  The Complainant has admittedly not submitted any bill along with the copy of complaint evidencing the purchase/availment of service from the OP.  As per the version of the complainant, parcel was booked by Shri Rajnish Kumar Gaind, thus the complainant is neither the consumer nor has availed any services from the OP and thus the present complaint against the OP as preferred by the complainant is not maintainable and the same is liable to be dismissed. Thus, the Complainant is not a consumer as defined under section 2(d) of the Consumer Protection Act, 1986, who can invoke the jurisdiction of this Forum. Accordingly, in the present complaint, the complainant cannot be termed as 'Consumer’ and is debarred from raising the jurisdiction of this Forum.

ii.   the complaint of the complainant is not maintainable as the      complainant has failed to follow the provisions of The Carrier Act, 1865 before filing the present complaint. The complainant has violated the mandatory provisions of section of The Carrier Act, 1865 and thus the complaint of the complainant is not maintainable. The National Commission followed its earlier decision in the case of Delhi Assam Roadways Corporation v. B.L. Sharma (First Appeal No. 107 of 2001) decided on 12th December, 2002 and held that in the absence of a notice under Section 10 of the Carriers Act, 1865, the complaint cannot be entertained under the Consumer Protection Act against a common carrier. The special leave petition filed against the decision in the case of B.L. Sharma (supra) was dismissed by recording that the Court saw no reason to interfere with the reasoning of the National Commission.

iii.  The Hon'ble Supreme Court in case titled as Arvind Mills vs Associated Roadways AIR 2004 SC 5147 has held that the fact that the remedies under the Consumer Protection Act are in addition to and not in derogation of any other law does not mean that the rights under the Carriers Act can be exercised, except in accordance with the manner provided under the Act. Sections 9 and 10 form an integral scheme by which a common carrier is fastened with liability irrespective of proof of negligence. Merely because the procedure under the Consumer Protection Act is summary in nature, does not in any way warrant the abrogation of the requirement to serve notice under Section 10 of the Carriers Act before fastening any liability under that Act on the carriers.

6.       The complainant has also furnished reply to the above application filed by the OP, stating that:-

1.  the complainant is a consumer as defined under section 2(d) of the consumer protection act 1986 which read as consumer" means any person who (i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised under any ....or for any commercial purpose; or (ii) [hires of or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such services other than the person who [hires of or avails of ] the services for consideration paid or promised, or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.
2. The above definition of consumer itself includes beneficiary of goods and services hence complainant is a consumer under consumer protection act 1986 in accordance with section 2(1)(d)(ii) of the act.
3.      The judgement relied upon by OP in para 4 & 5 of the      

application is not applicable to the facts and circumstances

of the present dispute and hence denied.However, before

filing a complaint before this forum a legal notice dated

24.06.2016 was duly served upon the OP company.

7.       The complainant has also filed Rejoinder to the written statement/reply of the OP refuting the averments of the OP and affirming the allegations levelled in the complaint, stating that :-

1.  Written statement filed by the OP is not legally tenable in the eyes of law as the OP is a Private Limited company and no resolution passed by the board of Directors has been filed by the OP and no certificate of registration under company act has been filed. Further in the authority letter, which is annexed with the written statement as ANNEXURE" A", one Mr. Vinay kumar Pandit has been authorized to sign all documents on the behalf of X fas Logistics Pvt. Ltd but on the first page of the written statement one sh. Vinay chanchal has been authorized to sign file and verify the written statement and deposed thereto.
2.  the judgement relied upon by the counsel for OP counsel in para 7 of the WS is not applicable to the present facts and circumstance of the case, however, it stated in 2012(2) CPC 71 NC that “respective carrier gave wrong information about delivery of consignment .......OP is directed to pay compensation of Rs. 2 Lacs for committing deficiency in service”. (sic)
3.  the contents of para 9 of WS of the OP are false and denied. it was held in Professional courier service V/s Ayyakannu 2005(2)CPC46T.N that "non delivery of letter sent through courier service. liability not limited to Rs 100 only as receipt not signed by complainant. Further in 1998(2) CPC39W Bengal, it is held that" Courier liability cannot be restricted in terms of consignment note ".
4.  the contents of para 10 of WS of the OP is false and  vehemently denied that the complainant has claimed compensation of Rs 19.60 lacs from the OP, however, the complainant has claimed only Rs.20,000/- as damages due to non-Delivery of consignment to the complainant and  Rs.33,000/- as litigation expenses. The case laws relied upon are not applicable to the present facts and circumstances.
5. the contents of para 11 of WS of the OP is false and denied that this forum has no jurisdiction to try and entertain the present complaint of the complainant for the reason that no cause of action arose in favour of the complainant. Cause of action arose in favour of the complainant firstly when a consignment is booked by Rajnish kumar Gaind.  It again arose in favour of the complainant when the same was not delivered to the consignee and it again arose in favour of complainant when wrong report of delivery is published on website of OP and the cause of action is still continuing and the cause of action has arisen day by day.

8.       Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that:-

I.  The definition of Consumer defined in section 2(1)(d)(ii) of the Consumer Protection Act, 1986 act includes beneficiary of goods and services and the complainant, being consignee of the consignment is beneficiary and therefore, is a consumer in accordance with the provisions of Consumer Protection Act, 1986.

II. The complaint filed is within the jurisdiction of this commission and this commission is fully competent to decide the dispute on the basis of available records.

III. The complainant has also sent a legal notice dated 24-06-2016 to the OP prior to filing the instant complaint before this commission which is also considered as intimation/notice under section 10 of the Carriers Act, 1865.

IV. The OP has not filed any proof of delivery of consignment to the complainant on the ground that it retains the data for the period of three months and after said period date/documents are weeded out. This explanation given by the OP does not sound convincing as it is the arrangement made by the OP  for record management as per its own convenience and it does not provide any immunity.  In the present digital age, there is no need to retain the physical copies of records and it can be saved digitally for future reference. In addition, the POD could have been uploaded on the website in PDF or other digital format to avoid retaining physical copies of PODs. Since the OP has failed to produce POD of consignment meant for complainant, the allegations stand proved.

9.       In view of the above observations, we are of the considered view that the complainant has suffered directly due to deficient service of the OP in terms of the deficiency defined in the Act which includes any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Therefore, we feel appropriate to direct the OP to pay:-

1.  Rs.20000/-( Rs. Twenty Thousand only) to the Complainant, within 30   days of the date of receipt of this order, alongwith interest @ 9% per annum w.e.f. 19-10-2016 till the date of payment as compensation for the mental  pain, agony and harassment caused by the OP;
2.  Rs.10,000/- (Rupees Ten Thousand Only) to the complainant as Litigation cost.

 

(10)    It is clarified that the aforesaid amount shall be paid by the OP within 30 days from the date of receipt of this order as directed above at para 9 (i) & (ii) failing which the OP shall be liable to pay interest @12% per annum on the entire awarded amount from the date of expiry of 30 days period.

 

(11)    The Application filed under Order VII  Rule 11 CPC Read With Section 151 CPC read with Consumer Protection Act, 1986 filed by the OP seeking the Dismissal Of Complaint is also disposed off.

 

(12)    Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

ASHWANI KUMAR MEHTA                                          HARPREET KAUR CHARYA

Member                                                                 Member       

                                                  DCDRC-1 (North)                                                     DCDRC-1 (North)   

                                                           

DIVYA JYOTI JAIPURIAR

                                                      President

DCDRC-1 (North)