State Consumer Disputes Redressal Commission
M.Kannan, Managing Director, ... vs D.Durai Singam, No.87, Village Street, ... on 30 June, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Tmt. VASUGI RAMANAN MEMBER II F.A.NO.218 /2009 (Against order in CC.NO.18/2007 on the file of the DCDRF, Chennai, North) DATED THIS THE 30th DAY OF JUNE 2011 1. M.Kannan, Managing Director, M/s.Franch Express Net Work Pvt. Ltd., 1/B, Manonmani Ammal Street, Off. Millers Road, Chennai - 10. 2. Shridi Sai Ram Agency, No.994, T.H.Road, Kaladipet, Chennai 19. Appellants/ Opposite parties. Vs. D.Durai Singam, No.87, Village Street, Thiruvottiyur, Chennai - 19. Respondent/ Complainant. The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to replace the camera with a new one of the same model namely Cannon power shot A5-10 3.2MP Digital Camera with 4x optical zoom and to pay Rs.10,000/- towards compensation for the loss of mental agony and to pay the litigation expenses of Rs.3,000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.23.07.2008 in CC.No.18 /2008. This appeal coming before us for hearing finally on 21.06.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order: Counsel for the Appellants/ Opposite parties: M/s.R.Madanagopal. Respondent/Complainant : M/s.R.Renga Ramanujam. A.K. ANNAMALAI, JUDICIAL MEMBER
1. The opposite parties are the appellants.
2. The complainant/ respondent, filed a complaint against the opposite parties, claiming direction for replacement of camera sent through the 2nd opposite party which was lost and not delivered, a sum of Rs.10,000/- towards the compensation for the loss and mental agony and Rs.3,000/- as litigation expenses.
3. The gist of the complaint, in brief as follows:
The complainant had sent a parcel containing brand new digital camera worth of Rs.10,000/- through the opposite partys courier service on 10.06.2006 to his son D.Manikandan residing at Virudhu Nagar. On enquiry after a week his son informed that the parcel was not delivered. Hence, the complainant contacted the 1st opposite party and through him Branch Manager at Madurai and other persons for several times. But, in the meanwhile one Mr.Chandra Mohan of Virudhunagar branch approached the complainants son and threatened him that the camera was stolen by somebody at Madurai and therefore, insisted him to receive Rs.1,000/- towards the compensation and settled the matter. Hence, the legal notice dated 07.09.2006 was sent to the opposite parties and there was no responsible the complainant as come forward with this complaint seeking remedies as stated above.
4. The opposite parties denying the allegations of the complainant in their written version and stated that at the time booking the parcel the complainant did not disclosed that the parcel contains a new digital camera worth of Rs.10,000/-. It is specifically mentioned at the office of the Franchise and as well as in the consignment note that valuables should not be sent through courier unless the same is declared and accepted by the opposite parties. The complainant alleged the purchase of camera from U.S.A. through another person on 20.11.2005 and sent it on 10.06.2006, which shows the present claim is filed taking advantage of the consignment was not delivered. For the legal notice sent the reply was sent on 18.09.2006 to the complainants counsel. The police complaint given by the complainant against the 2nd opposite party also ended as false. The opposite parties are not liable to replace the camera as no such camera was sent by this courier. The claim of Rs.10,000/- as compensation and Rs.3,000/- as litigation expenses does not arise. The consignment note specifically states that incase of non-delivery of consignment the liability of the opposite parties is restricted of Rs.100/- hence, this complaint to be dismissed.
5. On the basis of both sides materials and after an enquiry the District Forum allowed the complaint by directing the opposite parties to replace the camera with new one of the same model and to pay a sum of Rs.5,000/- as compensation for sufferings of hardships of mental agony and to pay Rs.1,000/- towards costs.
6. Aggrieved by the order of the District Forum the opposite parties have come forward with this appeal and in the grounds of appeal among other things are contended that the complainant failed to disclose the alleged camera in the parcel as valuable one sent to his son as the valuables are not supposed to be booked unless it is declared and the courier company specifically undertakes to deliver and the purchase of camera was not proved. The District Forum order to be set aside.
7. While, considering both sides arguments, averments and contentions and upon perusal of the documents it is not in dispute that the complainant had sent a parcel through the courier service of the opposite parties to his son at Virudhunagar from Chennai which was not delivered to the consignee/complainants son. Only dispute arose that the opposite parties denied that the missing the digital camera was not sent in the parcel and the complainant failed to disclose or declare the same and unless the courier service accepted the same for delivery he cannot made a claim except the liability for Rs.100/- alone as per the consignment note. The opposite parties have not filed any consignment note to prove the same. The complainant also filed only a copy of the receipt which containing the front portion of the receipt of Xerox copy marked as Ex.A2 for the proof of the sending the article through the 2nd opposite party. But, the complainant when came to know that the parcel was not delivered had taken steps for tracing the missing article and gave the complaint also to the police as admitted by the opposite parties in their written version and thereby it is clear that he sent a camera, through the parcel without disclosing the same to the courier service. Since there was no specific acceptance for the delivery of valuable items by the courier service they claim that their liability for non-delivery of item is only to the extent of Rs.100/- alone.
8. Even though, it is proved that the complainant has not declared the goods a valuable while sending the same through the 2nd opposite party to his son, since, he has filed the receipt for the alleged purchase of camera through 3rd party from U.S.A. as per the Ex.A1 and also taken steps for tracing of the missed article giving the complaint to the police and also by describing the details in his letter and legal notice through Ex.A3 and Ex.A4 it can be safely taken as construed that he had sent a camera in the parcel through the opposite parties and thereby taken pain for retrieval of the same. It is an admitted case of the opposite parties that the parcel was not delivered. In those circumstances it is very clear that there was deficiency of service on the part of the opposite parties who have not cared to explain under which circumstances. The article was not delivered by filing any of the materials from their side as evidence.
9. In those circumstance we feel the order of the District Forum to the extent of awarding compensation alone to be retained the compensation and costs and in respect of the direction for replace of the camera with new one to be set aside accordingly.
10. In the result, the appeal is allowed in part by modifying the order of the District Forum, Chennai North in C.C.No.18/2007 dated 23.07.2008 as follows. The opposite parties 1&2 are directed to pay sum of Rs.5,000/- as compensation for the non-delivery of the parcel booked by the complainant through them. 2) to pay a sum of Rs.1,000/- towards the costs. 3) the order to replace the camera with new one of the same model namely Canon Power Shot A5-10 3.2 MP Digital Camera with 4x optical zoom digital camera is hereby set aside. 4) no order as to costs in this appeal.
VASUGI RAMANAN A.K. ANNAMALAI M.THANIKACHALAM MEMBER II MEMBER (J) PRESIDENT