State Consumer Disputes Redressal Commission
Y.Hari Babu, S/O. Y.Bhupathi, Hindu, ... vs 1. The Franchise Dtdc Courier And Cargo ... on 3 February, 2015
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BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION: HYDERABAD.
F.A.No.845/2013 against C.C.No.41/2012, District Forum-I, Chittoor.
Between:
Y. Hari Babu Yalla S/o Bhupathi, Hindu,
Aged 39 years, Sole Proprietor of Harichandana
Silks, D.No.2-250-3, Kadiri Road, Neerugattivaripalli,
Madanapalli, Madanapalli (Mandal), Chittoor (District).
..Appellant/
Complainant
And
1. The Franchisee, DTDC Courier & Cargo Ltd.,
Branch office at D.No.14-65 C, Opp. ICICI Bank,
CTM Road, Madanapalle, Chittoor.
2. The Super Franchisee, DTDC Courier & Cargo Ltd.,
District Office, Swathi Enterprises, D.No.245,
GN Mada Street, Tirupati, Chittoor.
3. The Regional Manager, DTDC Courier & Cargo Ltd.,
DTDC House, D.No.269, Lahari Towers, 1st Main
Albert Victor Road, Chamrajpet, Bangalore - 18,
Respondents/
Opposite parties.
Counsel for the Appellant: Mr.K.Sampath Kumar
Counsel for the Respondents: M/s.S.Pramod Kumar
QUORUM: SRI S.BHUJANGA RAO, HON'BLE MEMBER.
AND SRI R.LAKSHMINARASIMHA RAO, HON'BLE MEMBER.
TUESDAY, THE THIRD DAY OF FEBRUARY, TWO THOUSAND FIFTEEN Oral Order ( Per Sri S.Bhujanga Rao, Hon'ble Member.) *** The complainant filed the appeal dis-satisfied with the order dated 28- 12-2012 of the District Forum, Chittoor made in C.C.No.41/2012, whereunder the complaint filed by the appellant/complainant against the respondents/opposite parties alleging deficiency in service for not delivering one of the parcels was dismissed.
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For the sake of convenience the parties are described as they are arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The complainant is doing handloom silk saree business at Madanapalle and he booked 2 parcels with the 1st opposite party containing 13 silk sarees worth Rs.1,06,250/- in one box and 15 silk sarees worth Rs.69,650/- in another box to his customer M/s Rayyan Wedding Centre, Advocate Lane, Karunagapalle, Kollam District, Kerala on 29.07.2010 under consignment receipt No.H74290876. The invoice Bill No.139, dt: 29.07.2010 was issued to the said customer. The complainant was under the impression that both the said parcels were delivered to his customer and he asked his customer for payment of the value of the sarees contained in the 2 parcels but the complainant was informed that his customer had received only one parcel containing 13 silk sarees and did not receive another parcel containing 15 silk sarees. Immediately the complainant informed the said fact to the opposite parties and the opposite parties stated that they would enquire in to the matter and requested the complainant to wait for some time. Thereafter the complainant did not receive the value of the missed parcel or suitable reply from the opposite parties alleging that the said act of the opposite parties amounts to deficiency in service, the complainant approached the District Forum for a direction to the opposite parties to pay the value of the silk sarees worth Rs.69,650/- together with damages of Rs.5,00,000/- and cost of letters, legal notice at Rs.1,000/-. 3
Resisting the complaint, opposite parties filed written version denying the material allegations made in the complaint and contended that the complainant availed the services for commercial purpose and therefore C.P.Act does not attract to the facts of this case. They further alleged that the complainant did not disclose the contents of the parcels at the time of booking and did not fulfill the terms and conditions mentioned in the consignment note and that the 1st opposite party has no knowledge of the consignment and no bills or receipts were shown at the time of booking regarding the consignment. It is further alleged that if the contents of the consignment are valuable, the complainant ought to have insured the same before booking the parcels and he ought to have booked the same in open condition by showing the same to the booking authority. The DTDC is not responsible for any damage or loss of consignment in case of faulty and insufficient packing. It is further alleged that as per clause 5 of terms and conditions, the liability of DTDC is strictly limited to Rs.100/- if any loss or damage occurred to the consignment and prayed for dismissal of the complaint.
During the course of enquiry before the District Forum, in order to prove his case, the complainant filed evidence affidavit and got marked Ex.A1 to A6 and the opposite parties 1 and 2 also filed their evidence affidavit and got marked Ex.B1.
Upon hearing the counsel for both parties, on consideration of the material on record and on consideration of the evidence adduced by both the 4 parties, the District Forum came to the conclusion that there is no deficiency in service on the part of the opposite parties and that the complainant could not prove that he disclosed the contents in both the parcels to the booking clerk or got the goods insured before booking and that he failed to fulfil the terms and conditions of Ex.B1, consequently allowed the complaint, in part, directing opposite party No.1 to pay a sum of Rs.100/- to the complainant with interest at 9% p.a. from the date of complaint till the date of realization.
Aggrieved by the said order, the complainant preferred this appeal urging that the impugned order passed by the District Forum is without any documentary or material evidence on record, hence liable to be set aside. That the District Forum erred in observing that the liability of the opposite party is only restricted to Rs.100/-, the said conclusion is purely on assumptions and presumptions. That the District Forum has failed to observe that it shall be the responsibility of the respondent/opposite parties, as custodian of cargo entrusted to it, under service as defined in the Act. The respondent is negligent in transhipment of the cargo and further deliberately failed in tracking the same as such, they are very much liable for their negligence. That the District Forum erred in not considering Ex.A2 in a proper perspective. That the District Forum has failed to observe that the respondents have not explained properly about the missing of the parcel. No efforts have been made by them to trace the missing cargo, despite complaint from the appellant. That the District Forum failed in giving categorical finding on the aforementioned pleas taken by the appellant. That the District Forum has committed wrong in observing that there was no 5 positive evidence to prove the contents of the parcels. That the District Forum has committed material irregularity in observing that the appellant/complainant had accepted all the terms and conditions printed in the consignment note and that the respondents/opposite parties are not liable to pay anything except Rs.100/- as mentioned above. Therefore, the impugned order of the District Forum is liable to be set aside.
We heard the counsel for both the parties and perused the material placed on record including the written arguments filed by the respondents/opposite parties.
Now the point for consideration is whether the order of the District Forum is vitiated for mis-appreciation of fact or law?
The main contention of the respondents/opposite parties is that the complainant has availed the services for consideration for commercial purpose and therefore the complainant does not fall within the definition of 'consumer' as defined under Section 2(d)(i) of the Consumer Protection Act, 1986 and as such the complaint is not maintainable under the provisions of C.P.Act, 1986. The further contention of the opposite parties is that the allegations made by the complainant against the opposite parties cannot be proved without examining the witnesses and validity of documents which are relied upon by the complainant and the issues involved in this case can be determined only on elaborate oral and documentary evidence in civil suit therefore, the complaint is not maintainable on this ground also.
A perusal of the impugned order of the District Forum made it clear that the District Forum has considered the above contentions of the respondents/O.Ps raised before the District Forum and rejected the same and consequently passed the impugned order. The respondents/O.Ps have not questioned the impugned order by preferring any appeal, therefore, the 6 order of the District Forum rejecting the above contentions of the respondents/O.Ps has become final and binding on the respondents. The respondents/O.Ps are estopped from raising the above said pleas in the appeal preferred by the appellant/complainant questioning the finding given by the District Forum against them.
It is an admitted fact that the appellant/complainant booked 2 parcels with the opposite party No.1 to be delivered to his customer M/s Rayyan Wedding Centre, Advocate Lane, Karunagapalle, Kollam District, Kerala on 29.07.2010 under consignment receipt No.H74290876. The case of the complainant is that his customer received only one parcel containing 13 silk sarees worth of Rs.1,06,250/- but the other box containing 15 silk sarees worth Rs.69,650/- was not delivered to the customer. On the other hand, it is the contention of the respondents/opposite parties that the consignor has not disclosed the contents of the parcel at the time of booking by him therefore, the complainant has to prove that he booked parcels containing sarees mentioned above. That the opposite party No.1 had no knowledge of cost of the consignment and no bills or receipt were shown at the time of booking. The respondents/opposite parties further contend that if the contents of the consignment are valuable, the complainant ought to have insured the same before booking and that the consignor according to the terms is bound to declare the contents and value of the consignment while booking the consignment otherwise the DTDC has accepted the same at owner's risk only. The DTDC is not responsible for any damage or loss of consignment in case of faulty and insufficient packing. It is further alleged that as per clause 5 of terms and conditions, the liability of DTDC is strictly limited to Rs.100/- if any loss or damage occurred to the consignment, therefore, the impugned order is not liable to be set aside.
From the above contentions of the opposite parties, it is clear that they have not disputed about missing of one of the two parcels that were booked with them on 29-7-2010. In fact, the opposite parties have not specifically 7 stated in their written version as well as in the evidence affidavit that both the parcels were received by the consignee. Further in Ex.A4, letters dated 11-1-2011 and 08-2-2011 addressed by OP No.3 to the complainant, OP3 has categorically admitted that they have received email sent by the complainant with a request to investigate his complaint regarding missing of one consignment and they promised to investigate into his complaint. In the letter dated 08-2-2011, the OP 3 has mentioned:
"In this regard, we would like to inform you that there is an option of booking all the valuables in open condition which will be checked at the time of booking and at every point till it reaches the destination, which we are afraid that the same was not utilized in your case and in such cases, it becomes very difficult to pinpoint where exactly the service failure has occurred if any, as the consignment moves through different hands in linehaul"
From this letter, it is evident that they have not disputed about the missing of the parcel though they have stated that their investigations revealed that the said consignment was booked in good condition and delivered in the same condition without any remarks on the delivery run sheet but the O.Ps did not choose to file the alleged delivery run sheet in proof of their contention. In the written version, in the last but one para, the opposite parties have admitted that the complainant reported the matter to customer service support (CSS) against the non delivery of one box which fact came to know by opposite party No.3 and made an investigation regarding the said complaint and that after going through the track records, the said consignment was misplaced in the transit and the same was not traced. Under these circumstances, especially in view of the categorical admission made by the opposite parties, in their written version, about missing of the consignment, we have no hesitation to hold that one of the two consignments was misplaced in the transit and the same was not traced. 8
The contention of the complainant is that the opposite parties are liable to pay the value of the consignment that was lost but the opposite parties did not respond to the demand made by the complainant for payment of Rs.69,650/- being the cost of the misplaced consignment (Dharmavaram sarees 15 in number). Hence the opposite parties are liable to pay the said amount along with interest and compensation for causing mental agony to the complainant due to deficiency in their service.
The contention of the opposite parties is that according to the terms in the consignment note, which are binding on both the parties, that the consignor/complainant has not disclosed the contents of the parcel at the time of booking. The complainant booked two boxes which are closed and sealed but not in open condition at the time of booking. No declaration was given that the two boxes contained the valuable goods under the consignment. No bills were shown that the parcels containing sarees worth Rs.1,06,250/- and Rs.69,650/- respectively . As the above fact was not revealed, the consignments were accepted at owner's risk only. Further under clause 5 of the terms, the limited liability of DTDC for any loss or damages, is strictly limited to Rs.100/-. As such the opposite parties are not liable to pay more than Rs.100/- as ordered by the District Forum.
Ex.A2 is the original consignment note dated 29-7-2010 issued by the opposite party No.1 at the time of booking of the two parcels. No doubt it is printed on the first page of Ex.A2 that " liability for any loss or damage to the shipment is Rs.100/- only". The corresponding clause 5 limitation of liability is given along with other clauses on the reverse of Ex.A2. All the clauses are printed. A perusal of Ex.A2 clearly shows that it is not signed either by the complainant or his agent. Further it is not the case of the opposite parties that the terms printed on Ex.A2 are explained and read over to the complainant or his agent at the time of booking of the parcels. Therefore, in our considered view the printed terms and conditions on Ex.A2 are not binding on the complainant. As such the clause 5 of the 9 terms and conditions which is relied on by the opposite parties in support of their contention is not applicable to the facts of the present case. Therefore, basing on clause 5 of the terms and conditions, the opposite parties cannot be permitted to contend that their liability is limited to Rs.100/- only, especially in view of the fact that the terms and conditions of Ex.A2 are not binding on the complainant for the reasons mentioned above. Consequently we hold that the opposite parties are liable to pay the value of the consignment that was misplaced due to negligence of the opposite parties.
The complainant filed Ex.A1 a pair of invoices dated 26-7-2010 and 29-7-2010 in respect of the two consignments respectively. As per the invoice dated 26-7-2010, the value of the sarees under first consignment is Rs.1,06,250/- and the value of the sarees under second consignment is Rs.69,650/- which was misplaced. The case of the complainant as per the complaint and as per the evidence affidavit is that he has shown these two invoices to the opposite party No.1 at the time of booking of the two parcels. The opposite parties, either in their written version or in the evidence affidavit, have not specifically denied the above case of the complainant. Further, it is an admitted fact that the complainant got issued Ex.A5, registered notice to the opposite parties dated 16-3-2011 and the said notice was received by opposite party No.1 under the served postal acknowledgement. In the said notice the complainant has categorically stated that the value of the consignment containing sarees that was misplaced is Rs.69,650/-. Admittedly opposite party No.1 did not give any reply disputing or denying the contents of the said notice. Under these circumstances, the complainant has established that the value of the consignment containing Dharmavaram sarees 15 in number is Rs.69,650/-.
For all the aforesaid facts and circumstances, in our considered view, the consignment was lost due to negligence of the opposite parties, the opposite parties are therefore, liable to pay the value of the consignment i.e. Rs.69,650/- to the complainant along with interest. Since we are granting 10 interest on the value of the consignment from the date of the registered notice i.e. 16-3-2011, we are not inclined to award any compensation for the mental agony caused to the complainant due to the acts of the opposite parties.
For the aforesaid facts and circumstances, the appeal is allowed and the impugned order of the District Forum is set aside. The complaint filed by the appellant/complainant is allowed in part directing the opposite parties jointly and severally to pay Rs.69,650/- the value of the consignment along with interest at 9% p.a. from the date of the registered notice i.e. 16-3- 2011 till the date of realization, to the complainant. The respondents/O.Ps are directed to pay Rs.10,000/- to the complainant towards costs throughout.
MEMBER.
MEMBER.
JM Dt.03-02-2015.