State Consumer Disputes Redressal Commission
M/S Trackon Courier Private Limited vs Amritpal Kaur & Ors. on 4 November, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1495 of 2007.
Date of Institution: 16.11.2007.
Date of Decision: 04.11.2011.
M/s Trackon Courier Private Limited, 59, Community Centre, Naraina
Industrial Area Phase-I, New Delhi-110020 through its Assistant General
Manager.
.....Appellant.
Versus
1. Amritpal Kaur (wrongly mentioned in appeal as "Amarjit Pal Kaur")
W/o Gagandeep Singh Virk, R/o village Dubbi Majri, Tehsil Bassi
Pathana, District Fatehgarh Sahib.
2. M/s Trackon Courier (Franchisee) Upper Storey, HDFC Bank, SCF 67,
Sector-11, Panchkula (Haryana).
3. M/s Sood Enterprises, Cinema Road, near Bhola Sweets, Sirhind,
District Fatehgarh Sahib.
...Respondents.
First Appeal against the order dated
10.10.2007 of the District Consumer
Disputes Redressal Forum, Fatehgarh
Sahib.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Hoshiar Singh, Advocate for
Sh. Sanjeev Sharma, Advocate.
For respondent no.1 : Sh. Gopal Sharma, Advocate.
For respondents no.2&3 : Exparte.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
M/s Trackon Courier Private Limited, appellant (In short "the appellant") has filed this appeal against the order dated 10.10.2007 passed by the learned District Consumer Disputes Redressal Forum, Fategarh Sahib (in short "the District Forum").
2. Facts in brief are that Mrs. Amritpal Kaur (wrongly mentioned in appeal as "Amarjit Pal Kaur") respondent no.1/complainant (hereinafter called First Appeal No.1495 of 2007 2 as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and respondents no.2 & 3, alleging that she was suffering from neurosis (Brain Haemorogical) disease and has been taking treatment from Dr. Alok Agnihotri, M.D. (Homoeo), Ex-Principal, Education & Research, Chunni Kalan, Fatehgarh Sahib. The medicine was brought by courier service of the appellant and respondents no.2 & 3. One term of the medicine was packed on 06.09.2006 (as per shipper's copy) for its delivery to respondent no.3, but it did not reach the destination. Respondent no.1 developed serious complications in the absence of the medicine prescribed by the doctor, due to misplacement on the part of the appellant. Physical condition of respondent no.1 worsened in the absence of the prescribed medicine due to non receipt of the medicines.
3. Respondent no.1 sent notice to the appellant and respondents no.2 & 3 on 17.08.2006 and appellant and respondents no.2 & 3 wrote a letter no.RSS 08-30-2006 dated 26.08.2006 to the counsel for respondent no.1 and demanded the details of the consignment for further proceeding with the matter. Counsel for respondent no.1 sent a letter dated 02.09.2006, giving details of the consignment i.e. copy of consignment bearing no.33479778 dated 06.08.2006, copy of the letter bearing no.RSS 08-30-2006 sent by counsel of respondent no.1 and the postal receipts. Respondent no.1 asked the appellant and respondents no.2 & 3 on telephone, but no response was given and finally, they refused.
4. The appellant and respondents no.2 & 3 failed to deliver the consignment to respondent no.1 which amounts to deficiency in service on their part. It was prayed that the appellant and respondents no.2 & 3 be directed to deliver the said consignment to respondent no.1 and also to pay compensation to the tune of Rs.2.00 lacs.
5. In the reply filed on behalf of appellant and respondents no.2 & 3, preliminary objections were taken that the Forum should dismiss the First Appeal No.1495 of 2007 3 complaint, as the present complaint is gross abuse of the process of law. Respondent no.1 is not a consumer as defined under the Act. Respondent no.1 has not hired the services of appellant and respondents no.2 & 3, nor she paid any consideration and she has no locus standi to file the complaint. It was found that the sender of the packet had specifically asked for holding packet at Sirhind, as there was no service for village Dubbi Majri, Tehsil Bassi Pathana, District Fatehgarh Sahib. The packet in question was to be collected by the representative of the consignee from the office of respondent no.3. The packet reached Sirhind within the stipulated period, but no one came to take delivery for more than six days and the same was returned to the original station as 'unclaimed'. After this, someone claiming to be representative of the consignee, started threatening and tried to extort money from respondent no.3. Senior officers of the appellant based at Chandigarh offered to re-collect the material from Panchkula, but the consignee was only interested in extorting an handsome amount and did not want to settle for anything else.
6. The sender of the consignment who is consumer never complained or demanded any compensation, as he was aware of the entire ground reality and fully satisfied with the response of the appellant and respondents no.2 & 3.
7. On merits, it was submitted that respondent no.1 has not hired the services and is not a consumer. Respondent no.1 was given sufficient time over telephone and on her personal visits to the office, she was explained that she has no legal right to demand anything from the appellant and respondents no.2 & 3. All other pleas were repeated and denying all other allegations, it was prayed that the complaint may be dismissed.
8. Parties led evidence in support of their respective evidence in support of their respective versions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for parties, the learned District Forum observed that the burden of proof that the courier reached Sirhind and First Appeal No.1495 of 2007 4 respondent no.1 was informed to take the consignment from Sirhind, was on the appellant and respondents no.2 & 3, but there is no evidence on this point. When the services of the courier was not available at the destination of the consignment of respondent no.1, then there was no justification for booking the consignment vide receipt Ex.C2 and courier did not reach the destination and it is deficiency in service on the part of the appellant and respondents no.2 & 3, and allowed the complaint, directing the appellant and respondents no.2 & 3 to pay Rs.50,000/- as compensation for mental agony, harassment along with interest @ 9% p.a. from the date of consignment and Rs.1000/- as costs.
11. Aggrieved by the impugned order dated 10.10.2007, the appellant has come up in appeal.
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant and respondent no.1.
13. Respondents no.2 & 3 has not contested the appeal and were proceeded against exparte.
14. It was contended on behalf of the appellant that respondent no.1 is not a consumer of appellant, as there is no privity of contract between the parties and the services of the appellant were never hired by respondent no.1 and the appellant is not liable to pay any compensation. It was further contended that no value of the medicine was mentioned on the packet and no evidence regarding the same was led before the District Forum and the District Forum without any basis awarded the compensation.
15. On the other hand, it was contended on behalf of respondent no.1 that the order of the District Forum is correct and there is no merit in the appeal and the same be dismissed.
16. We have considered the respective submission made by the learned counsel for appellant and respondent no.1 and have gone through the record carefully.
First Appeal No.1495 of 2007 5
17. Ex.C1 is the certificate of Dr. Alok Agnihotri as per which, respondent no.1 was suffering from Oligodengroglioma (a fatal Brain Haemorogical disease) and she needed regular treatment and he used to send the same through courier. Ex.C2 is the receipt/shipper's copy vide which, Dr. Agnihotri sent the medicine to Fatehgarh Sahib. Vide affidavit Ex.R2, Ms Anu Sood deposed that she is working as proprietor of respondent no.3 and she received the packet in question on 06.09.2006 at M/s Sood Enterprises, Cinema Road, near Bhola Sweets, Sirhind, as there was no service for village Dubbi Majri, Tehsil Bassi Pathana, District Fatehgarh Sahib. She informed respondent Amrit Pal Kaur on telephone for collecting the packet, but no one came to take the delivery. Ex.R1 is the affidavit of Vikas Dixit, Area Manager of Trackon Courier Pvt. Ltd., based at Ambala office and the said affidavit is on the terms of written reply.
18. The appellant or respondents no.2 & 3 have not led any other evidence to prove that respondent no.1 was intimated about the arrival of the packet and further sending the intimation to respondent no.1 to collect it. The receipt Ex.C2 clearly shows that the same was issued on behalf of the appellant and it was sent to one Mr. Virk Advocate and the destination was Fatehgarh Sahib. The perusal of the complaint as well as the affidavit of respondent no.1 shows that respondent no.1 has mentioned herself as wife of Gagandeep Singh Virk and it is nowhere mentioned that the said Gagandeep Singh Virk is an advocate, nor any affidavit of said Mr. Virk Advocate is on record, to complete the link/chain that the said courier was, in fact, sent to respondent no.1. As per respondent no.1, the medicine was to reach her village Dubbi Majri, whereas as per the appellant and respondents no.2 & 3, the said packet was sent to Sirhind and thereafter, it was not collected by respondent no.1 or her representative.
19. As discussed above, the courier was neither sent to respondent no.1, nor the destination in the receipt is of respondent no.1, but it is sent to some Mr. Virk, Advocate, Fatehgarh Sahib. It was for respondent no.1 to First Appeal No.1495 of 2007 6 complete the link and to prove that in fact, the said packet was sent by Dr. Agnihotri to her through Mr. Virk, Advocate and it was for her to prove who was Mr. Virk, Advocate? How the District Forum has come to the conclusion that the packet did not reach the destination or respondent no.1, is a matter of conjectures and surmises. The District Forum has altogether ignored the factual position as well as the evidence brought on record. As is established principle of law that it is for the complainant to prove its case but in our opinion, respondent no.1/complainant has miserably failed to prove that the said packet through appellant courier was sent to her. No value of the medicine was mentioned and the District Forum again, for the reasons best known to it, awarded compensation of Rs.50,000/- along with interest which is wholly unsustainable, illegal and perverse and against the facts and evidence on record.
20. In view of above discussion, the appeal filed by the appellant is accepted and the impugned order dated 10.10.2007 under appeal passed by the District Forum, is set aside. Consequently, the complaint filed by respondent no.1 is dismissed. No order as to costs.
21. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
22. The arguments in this appeal were heard on 01.11.2011 and the order was reserved. Now the order be communicated to the parties.
23. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member November 04, 2011.
(Gurmeet S)