State Consumer Disputes Redressal Commission
M/S Trackon Courier Pvt. Ltd. vs Neera Mehta on 9 July, 2015
First ADDITIONAL BENCH
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1121 of 2012
Date of institution: 24.08.2012
Date of Decision: 09.07.2015
M/s Track on Courier private Limited, C-114, Naraina Industrial Area
Phase I, New Delhi 110020 through its Assistant General Manger.
. .....Appellant/Complainant
Versus
1. Dr. Neera Mehta, MD, wife of Dr. Sunil Mehta MD, C/o Mehta
Children Hospital, OPPOSITE Guru Devi Dass Gurdwara, Landran
Road, Kharar, Distt. Mohali (Punjab).
......Respondent/Opposite Parties
2. Mr. K.S. Narang, AGM, Track on Courier private Limited, S.C.O.
No. 107-08, Sector 47-C, Chandigarh.
3. Trackon Courier private Limited, C/o Simran Courier Services,
Near Akali Dafter Road, Kharar, (Pb.)- 140301
..........Performa Respondents
First Appeal against order dated
18.07.2012 passed by the District
Consumer Disputes Redressal
Forum, SAS Nagar.
Before:-
Sh. J.S. Klar, Presiding Judicial Member
Sh. Harcharan Singh Guram, Member
Present:-
For the appellant : Sh. Hoshiar Singh, Advocate
For respondent No.1 : Sh. Ashok Sharma, Advocate
For respondent No.2 & 3 : Dispensed with
Harcharan Singh Guram, Member
ORDER
This appeal has been preferred by appellant (the Opposite Party No.1 in the complaint) against the respondents of this appeal ( respondent F.A. No. 1121 of 2012 2 No.1 is the complainant and respondent No.2 & 3 in the appeal are OP No.2 & 3 in the complaint) assailing order dated 18.07.2012 passed by the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short the 'District Forum') in C.C. No. 175 dated 18.05.2012, vide which, the complaint filed by the complainant was allowed and the OPs were directed to refund the price of Sarees to the tune of R. 20,000/- and booking charges of Rs.200/- with interest thereon @ 9% p.a. w.e.f. 07.10.2010 till the date of actual refund along with compensation for deficiency in service to the tune of Rs. 5,000/- with litigation costs of Rs.2500/- to the complainant.
2. Brief facts of the case are that complainant Smt. Neera Mehta w/o Dr. Sunil Mehta wanted to send parcel to Jalandhar and approached Opposite Party No.3, having the office on Kharar on 07.10.2010. It was further alleged that the said parcel was given to the OP No.3, containing two Sarees having approximate value of Rs. 20,000/-, which were to be delivered to her sister along with other important documents at Jalandhar. The OP No.3 charged consideration for the same and issued receipt of parcels without mentioning the amount in the receipt so charged. On their representation and questioning the OPs, she was informed by the OP that a special charge had been taken from her for sending the parcel to Jalandhar, but it was not mentioned in the receipt as per policy of the company. After having received the acknowledgment of booking of her parcel, she could not read the instructions as per terms and conditions mentioned in the First page. From the perusal of the receipt issued by OP No.3, it was found by her that no terms and conditions were printed on the back side of the receipt issued by OP. She asked the representative of the OP No.3 to provide the brochure in order to go through the terms and conditions for booking of parcel through their courier F.A. No. 1121 of 2012 3 agency but the representative of the OPs informed her that the receipt issued to her itself contained the brochure of the company containing terms and conditions. It was further submitted that the parcel was not delivered at Jalandhar destination to her sister nor the same was ever returned to her and it remained undelivered till the date of filing the complaint. She paid many visits to their office situated at Chandigarh but she was assured by the representatives of the OPs that her parcel would be delivered and advised her to wait for some more time. However on 16.11.2011, when she visited Chandigarh office of OPs Mr. K.S. Narang, A.G.M of OPs company informed her that the parcel had been lost and assured her that the company would send her demand draft of Rs.20,000/- in her favour being the costs of sarees within one week. On failure to get any relief from the OPs regarding her loss, the Legal notice dated 02.01.2012 was sent by her through her counsel to the OPs. It was averred that even after receipt of legal notice, the OP did not deem it fit to reply the same and rather ignored the same. On failure to get any reply for her legal notice, she was compelled to file her consumer complaint in District Forum Mohali and made the prayer therein for issuance of directions to OPs to pay her compensation of Rs. 1 lac along with interest calculated at 18% per annum on account of mental agony and harassment suffered by her at the hands of the OPs on account of indulging in unfair trade practices and deficiency in services. She also sought payment of litigation expenses to the tune of Rs.25,000/-
3. Upon notice, OPs No.1,2 & 3 submitted the joint reply by taking preliminary objections that they are engaged in carrying on packages on certain terms and conditions, which are printed on the booking receipt or air way bill. All the conditions as stipulated on the reverse of the booking receipt F.A. No. 1121 of 2012 4 had to be filled. As per wording written on the front page of the booking receipt, the same was written in bold letters which reads as "READ TERMS AND CONDITIONS OVERLEAF CAREFULLY". The following was also mentioned 'If not covered by special risk charges, claim value of this shipper shall in no circumstances would exceed Rs.2000/- for parcels and Rs.100/- for packet of documents. It was further submitted that the complainant being educated lady had very carefully gone through the said conditions and only on being satisfied, she had booked her parcel with them on 07.10.2011. As per clause 4, it states that sender must indicate the actual and correct nature of goods and clause 6 makes it mandatory that in case of valuable parcels consignor should declare the value and pay guarantee charges@ 1% (FOV) for which separate receipts were issued by them. In absence of said receipts of having paid guarantee charges, no claim would be entertained. It was submitted that the complainant had not fulfilled any of these terms and conditions and hence she was barred under law to take advantage of her wrong. It was further submitted that in absence of any pre declared consignments, she was at the most liable to get four times the courier charges paid by her or as per norms of courier industry Rs.100/- in case of packet of documents or Rs.2000/- in case of parcel. It was further submitted that the allegation of loss of sarees worth Rs. 20,000/- suffered by her was levelled without any supporting evidence. It was admitted that the consignment was lost beyond the control and means of the OPs, while in transit and contents of the said parcel were never declared or disclosed by her at the time of booking the same with them. No evidence had been furnished by her that she had declared the contents and value of the consignment, which she had booked with them. In view of such circumstances, the complaint was liable to be F.A. No. 1121 of 2012 5 dismissed on this ground alone. It was stressed that present complaint was filed only to harass them and in obtaining illegal gains from them and which amounted to gross abuse of the process of law, which fact was evident from the unreasonable claim of Rs.1 lac made by the complainant against them. It was further stated that the complaint filed by the complainant was barred for lack of territorial jurisdiction, as per terms and conditions written in the receipt, if the disputes arose therein from booking of said assignment, it was subject to the jurisdiction of the city of Delhi and thus filing of her complaint in the District Forum Mohali, is barred. It was further submitted that the complaint filed by the complainant raises disputed questions of facts which would not be possible for the District Forum to adjudicate in the summary jurisdiction under the Consumer Protection Act. On merits, it was stated that the amount charged for booking the parcel for a sum of Rs.200/- was normal charges which was charged considering the weight of the parcel and there were no special charges, as alleged in the complaint. Since the complainant did not declare the contents and value of the consignment in question, hence there was no reason of charging any special charges on the said parcel. It was further stated that no educated lady would agree to acknowledge the receipt of booking of parcel without any amount being mentioned in it when the consignment value was of approximately Rs20,000/-. It was further submitted that the courier receipt with a common number, comes in four leafs; first copy pertains to POD (proof of delivery), second copy usually being used for accounts copy; third copy would be given to as receiver's copy and fourth copy would be given as shipper's copy which would be meant for the customer booking the consignment. All the terms and conditions would be usually mentioned on the back of shipper's copy i.e. on the back of customers F.A. No. 1121 of 2012 6 copy. It was further admitted that since the receipt issued pertains to the old booking record of this particular receipt was not available with them. In view of above submissions, the OP sought the dismissal of the complaint.
4. The complainants tendered in evidence her affidavit of Ex.CW1/1, copies of cash memo dated 30.08.2010 Ex.C-1; courier receipt dated 07.10.2010 Ex.C-2; letters written by the complainant to OPs dated 08.12.2010, 16.11.2011 and 01.11.2010 Ex.C-3, Ex.C-5 and Ex.C-6; status report of the parcel sent through courier Ex.C-4; postal receipt Ex.C-6/1; legal notice dated 02.01.2012 Ex.C-7; postal receipts Ex.C-7/1to Ex.C-7/3; registered AD envelope received back undelivered Ex.C-7/4; AD receipt Ex.C- 7/5. In order to rebut the evidence of the complainant. OP tendered in evidence affidavit of Assistant General Manger K.S. Narang Ex.RW1/1; copy of consignee receipts Ex.R-1 including terms and conditions of the consignment and closed the evidence. District Forum heard the arguments and perused the record of the parties and allowed the complaint by the aforesaid order.
5. Aggrieved by the order of the District Forum the OPs had filed the present appeal.
6. We have heard the arguments of the parties and perused the record of the District Forum file, which was called at the stage of admission.
7. During the course of arguments, the counsel for the appellant argued that our Commission had decided the case in First Appeal No.1899 of 2011 titled as Praveen Kumar son of Ratan Lal v/s Trackon Courier and First Appeal No.1269 of 2011titled as Hanish Kumar v/s DTDC Courier and Cargo Limited and First Appeal No.1300 of 2011 titled as Rohit Goyal v/s Trackon F.A. No. 1121 of 2012 7 Courier Pvt. Ltd, that only costs pertaining to parcel to the extent of Rs.2000/- would be at maximum payable or can be awarded against them.
8. The counsel for the complainant now in the respondent in the appeal argued that the citation given by the counsel for the appellants pertains to those receipts in which the terms and conditions were specifically printed and the consignor at the time of booking of their articles had counter signed the receipts. In the instant case, the complainant did not sign the receipt, and on that receipt, even no terms and conditions were printed on the back side of the receipt given to her. She had enclosed that receipt with her complaint. In the absence of any express terms and conditions on the booking receipt, no contract came into existence between the parties. In the above referred cited cases, there were express terms and conditions printed on the receipt which constituted the contract between the parties, where as in the present case there are no such terms and conditions contained on the booking receipt to constitute a contract between the parties.
9. During the course of arguments, the counsel of the complainant produced the original receipts and the same was perused by us. We find that no signatures are there of the complainant on the said receipts and no booking amount was mentioned in the said receipt and also no terms and conditions are printed/ written on the said receipts on its reverse side so as to constitute contract between the parties.
10. We have also gone through the above said citations and observed that these citations are not applicable in the instant case as no terms and conditions were mentioned in the receipt given by the appellants to the complainant at the time of booking of her parcel for their office situated at Kharar. Moreover, from the perusal of written reply submitted by the OPs, it F.A. No. 1121 of 2012 8 was admitted by them that no record of this booking receipt was available with them. In absence of any record placed by the OPs to rebut the evidence placed by the complainant by way of booking receipts, wherein no terms and conditions were mentioned on the back side of the booking receipts, we are of the opinion that in absence of any terms and conditions, existing on the back side of the booking receipts, the citations submitted by the counsel for the appellant are not applicable to the facts and circumstances of the case in hand.
11. We have also gone through the order passed by the District Forum and our observation is that the same is legally sustainable. In view of the above, we find that the present appeal is not having any merit and the same is dismissed.
12. The appellant/opposite party had deposited a sum of Rs. 13,850/- at the time of filing this appeal in this Commission. Registry is hereby directed to remit this deposited amount along with interest, if any, in favour of respondent No.1/complainant by way of demand draft/cheque after 45 days from the date of receipt of certified copy of the order.
14. The arguments in this appeal were heard on 03.07.2015 and order was reserved. Now the order be communicated to the parties as per rules.
15. This appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar)
Presiding Judicial Member
(H.S. Guram)
July 9, 2015 Member
SK
F.A. No. 1121 of 2012 9