GARRY RANA vs DIRECTOR, DTDC House

THIS is an appeal against the order of the learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as District Forum-II) dated 9.1.2006 in Complaint Case No. 434 of 2005: Garry Rana v. The Director, DTDC House and Another.

BRIEFLY the case of the complainant is that he had booked a courier containing an application for delivery at Himachal Pradesh Public Service Commission (for short hereinafter to be referred as H.P.P.S.C.), Nigam Vihar, Shimla on 30.4.2005. This application was required to reach the H.P.P.S.C. on 2.5.2005. The O.P. No. 2 while booking the courier assured the complainant that the courier will be delivered to the addressee by the due date. For booking the courier, a receipt dated 30.4.2005 duly signed was given to the complainant and it also reflected that the complainant had made the payment of Rs. 40 for sending the courier. On 2.5.2005, the complainant visited the office of O.P. No. 2 to check if the courier had been delivered and he was assured and informed that the needful has been done. However, on 21.5.2005, the complainant received a letter (Annexure C-1) from H.P.P.S.C. intimating him that his application had been received after last date prescribed for receipt of the applications and it was, therefore, rejected and consequently, he had been debarred from appearing in the competitive examination of H.P.P.S.C. The complainant further alleges that the Himachal Pradesh Government had notified and amended the H.P. Judicial Services Rules on 20th March, 2005 in consultation with the High Court fixing minimum age of eligibility to appear in the said judicial examination at 22 years and the maximum at 30 years. Resultantly, the maximum age limit to appear in H.P.P.S.C. judicial examination has been reduced by five years, which has further limited the scope of the complainant. On visiting the O.P. No. 2 in this connection, the complainant was informed that his courier was delivered on 3.5.2005. Alleging this delay in delivering the courier as deficiency in service, the complainant had filed the complaint praying for award of a sum of Rs. 2.5 lacs as compensation for mental harassment, spoiling of bright future perspective, opportunity of gaining social status on higher side and another amount of Rs. 2,000 being the amount deposited by him as fee for filing application and also Rs. 40 for courier service along with interest @ 18% per annum till payment along with costs of litigation. The O.Ps. in their written statement took preliminary objection that the complaint is not maintainable as the claim against the O.Ps. can be filed only within one month. It is also the case of the O.Ps. that they are liable to pay only Rs. 100 as damages, which was amicably decided between them and the complainant at the time of booking the consignment. The O.P. has conceded that the consignment was booked on 30.4.2005 but has emphasized that it was not disclosed at the time of booking that what was lying inside the consignment and it is denied that any undertaking was given by the O.Ps. to the complainant about the date of delivery of the courier. It has also been stated that normally it takes 4 to 5 days for a courier like this to be delivered at Shimla.

In their analysis of the complaint, the learned District Forum - II has observed that there is no evidence on record to show that the O.P. No. 2 had assured the complainant that the courier would be delivered to the designated place/address on 2.5.2005. The only piece of evidence in this regard is the affidavit of the complainant himself but this in the absence of any corroborated evidence did not find much favour with the learned District Forum-II. Nonetheless, the learned District Forum-II observed that there appears to be some sort of deficiency in service on the part of O.Ps. In their further observation, the learned District Forum-II has noted that Shimla is not such a place, which could not be reached timely i.e., in a day or so and thus, if the person assigned the duty to deliver the courier, would not have been negligent and careless, the courier could very conveniently be delivered to the addressee at Shimla on 2.5.2005. At the same time, the learned District Forum-II has also observed that the complainant should have been little more careful and vary enough to see that in the matter of submission of his application, right in time, he took some extra positive measures to get delivered his application in person or through courier and specifically conveyed to the O.P. No. 2 about the urgency of the matter involved but the complainant, as it seems, did not make any extra payment to ensure the delivery of the courier to the addressee by, on or before 2.5.2005, which was the last date of receipt of the application by the H.P.P.S.C. In view of the aforesaid observations, the learned District Forum-II held that some amount of deficiency in service is there on the part of the O.Ps. in taking little more time than required for the delivery of the courier.

THE learned District Forum-II also took cognizance of the expression of regret made by O.P. No. 1 in Annexure C-9 and concluded that there is a clear admission of deficiency in service, even though the O.P. had tried to term this deficiency in service as unintended delay. Regarding the quantum of compensation to be allowed to the complainant, the learned District Forum-II observed that an affidavit of Shri Amit Shankdhar on behalf of O.Ps. deposed that O.Ps. are liable to pay Rs. 100 as damages, which was amicably decided between the complainant and the O.Ps. at the time of booking the consignment. It is further observed that the complainant has not denied this statement made on oath on behalf of the O.Ps. and further the complainant has not produced on record receipt dated 30.4.2005 against which he had paid a sum of Rs. 40 to O.P. No. 2 for booking his application for delivery to H.P.P.S.C. from where the learned District Forum-II could know the maximum amount, which the complainant could recover on account of deficiency in service. The learned District Forum-II, therefore, held that the complainant was entitled to only Rs. 100 as damages on account of deficiency in service on the part of the O.Ps. in not delivering the consignment in question speedily and urgently on 2.5.2005. While coming to this conclusion, the learned District Forum-II placed reliance on the law laid down by the Hon''ble Apex Court in the case of Bharati Knitting Co. v. DHL Worldwide Express Courier, II (1996) CPJ 25 (SC), and Smt. Seema Gupta v. Blaze Flash Couriers (Pvt.) Ltd., 1997 (2) CPC 73. Consequently, the learned District Forum-II vide impugned order accepted the complaint and directed the O.Ps. to pay Rs. 100 on account of deficiency in service and Rs. 500 as costs of litigation.

AGGRIEVED by this order of the learned District Forum-II, the complainant has filed this appeal. The appeal was taken on board and the record of the complaint case was summoned from the learned District Forum-II. Notices were sent to the respondents. Mr. Varinder Arora, Advocate appeared on behalf of the appellant/complainant. However, none appeared on behalf of the respondent Nos. 1 and 2 despite service who were then proceeded against ex parte. Mr. Varinder Aroa, learned Counsel for the appellant/complainant submitted that the O.Ps. have admitted their delay in Annexure C-9. He reiterated that for a town like Shimla, which is well connected both by rail and road, 4-5 days time taken by the courier agency to deliver the courier is excessive. He also reiterated that the O.P. No. 2 had given categorical assurance to the appellant/complainant that the courier will be delivered to the addressee on or before 2.5.2005. Regarding the quantum of compensation, the learned Counsel for the appellant/complainant submitted that no such agreement had taken place between the appellant/complainant and the O.P. No. 2 that the costs of damages due to delay in delivery of the courier will be restricted only to Rs. 100. He further submitted that on the receipt, on the front page, letters "P.T.O." were not printed and no condition stating that in case of delay in delivery of courier, compensation is restricted only to Rs. 100 was brought to his notice. In the end, the learned Counsel for the appellant/complainant submitted that the adverse impact of the delay in delivery of his application by the courier agency on the career profile of the complainant is enormous. He, therefore, prayed that exemplary compensation should be awarded, as prayed for in the complaint and the appeal be allowed.

WE have gone through the evidence on record and the impugned order in minute detail. WE find that the receipt for booking the courier has neither been produced by the appellant/complainant nor by the O.Ps. The onus of proving that the compensation is restricted to Rs. 100 lay on the O.Ps. However, there is no cogent evidence to prove that there is any contract/agreement between the appellant/complainant and the respondents/O.Ps., which restricts the compensation to be paid in case of delay in delivery of the courier, only to Rs. 100. In the absence of any contract/agreement on record, the ratio of the cases of Bharti Knitting Company (supra) and Smt. Seema Gupta (supra) cannot be applied to the instant case. It is incumbent on the part of the O.Ps. to prove by cogent and irrefutable evidence that the compensation awarded cannot be beyond Rs. 100. However, no such evidence has been led on record by the respondents/O.Ps. It is also clear that the appellant/complainant had sent through the courier an application for H.P.P.S.C. Judicial Exam, the last date of submission for which was 2.5.2005. It is also common knowledge that the distance between Chandigarh and Shimla, being whatever it is, a courier agency should not take more than two days to deliver the courier. Since the courier contained application of the appellant/complainant, his anxiety, in the application, reaching H.P.P.S.C. on time, can be well understood. It is also on record that even the O.P. No. 1 has conceded in Annexure C-9 that there was delay on the part of the courier agency in delivery of the application to H.P.P.S.C. Clearly there is an adverse impact of the delay in delivering the application to H.P.P.S.C. on the career profile of the appellant/complainant. The delay in delivery of the application is duly admitted by the respondents/O.Ps. In the absence of any document confirming a contractual agreement that payment of compensation is restricted only to Rs. 100, we are of the clear opinion that the compensation awarded in the instant case by the learned Forum-II is on the lower side.

CONSIDERING all aspects of the case and submissions of the appellant/complainant as well as the evidence on record, in our considered opinion, compensation of Rs. 5,000 in the instant case will meet the ends of justice. Consequently, the appeal is allowed. The impugned order is set aside and the respondents/O.Ps. are directed to pay compensation of Rs. 5,000 to the appellant/complainant along with costs of litigation quantified at Rs. 500. It is further directed that these amounts be paid to the appellant/complainant within two months of the receipt of certified copy of this order failing which interest @ 6% per annum will be payable from the date of this order till actual payment. The complaint is disposed of in the aforesaid terms. Copies of this order be sent to the parties free of charge. Appeal allowed.