Xcyton Diagnostics Limited vs Dtdc Courier And Cargo Limited

1.THE complainant has filed this complaint for a direction to the opposite party (for short, the ''OP'') to pay Rs. 1,98,347.52 ps. towards the value of the lost goods with interest and for damages and costs.

THE facts in this case are as follows: The complainant is a Company manufacturing ''HIV -Chex Elisa Kit'', the first indigenous kit in India for detection of antibodies to HIV 1 and 2. The complainant is also a manufacturer of kits like HEP -Chex C, which is an Elisa for detection of Hepatitis -C. The kits manufactured by the complainant are highly sensitive and have to be stored in cold storage. The said kits during transportation have to be kept in corrugated boxes with ice, called cool -gels. The further case of the complainant is that immense care has to be taken to handle the kits during transportation, inasmuch as the cool -gels are designed to keep the temperature cool between 2 and 8 Degree Centrigrade only between the range of about 24 hours to 120 hours. The cool -gels for transporting the kits from Bangalore to Patna and also from Bangalore to Calcutta are packed to last about 72 hours, which is the adequate time for transportation with reference to the distance. In support of this time schedule, the complainant has produced a letter written by the O.P. providing for special rates for bulk parcels. A copy of the said letter is produced by the complainant and marked as Exhibit C -1.

The further case of the complainant is that the O.P. which is engaged in the business of carrier and transporting goods from one place to another is aware of the fact that the goods which are to be delivered to the consignee are perishable and have to be delivered within the time schedule failing which the goods would become unusable and would malfunction. The further case of the complainant is that the O.P. is aware of the fact that the time is the essence of the contract and the O.P. was bound to deliver the said goods within the time frame agreed.

THE complainant in the course of regular business had booked a consignment in Consignment No. B03007929 dated 14.5.2002 to be delivered to M/s. Life Care Medical Complex Private Limited, No. 1/2A, Hazra Road, Calcutta -700 026 and the said goods were to be delivered within 72 hours from the time the goods were loaded on 14.5.2002. A copy of the Invoice is produced by the complainant along with the complaint, which is marked as Exhibit D -10. The case of the complainant is that when it had contacted the O.P. it was informed that the consignment has been delivered to the consignee on 17.5.2002. To the surprise and shock of the complainant, the complainant came to know that the consignment had not been delivered to the consignee as the same had been held up by the Calcutta Sales Tax Authorities for pre -Way Bill and that the clearance had to be obtained by the complainant. Immediately thereafter, the complainant sent their Marketing Manager at Calcutta on 22.5.2002, obtained necessary clearance and handed over the consignment to the O.P. at Calcutta on 23.5.2002. As the goods sent were not delivered by the O.P. to the Consignee within the time schedule, the complainant had sent another consignment on 21.5.2002 and the same was delivered to the consignee on 23.5.2002 without any such clearance or Sales Tax problem.

WHEN the complainant came to know that the O.P. has made a mis -statement on 17.5.2002 that the consignment dated 14.5.2002 has been delivered to the consignee, has made the consignee to suffer the loss due to non -delivery of the goods within the time schedule, i.e., 72 hours. When the complainant wrote a letter dated 19.6.2002 to the O.P. complaining about the negligence of the O.P. and making claim on the O.P. for the loss of goods, the O.P. in their letter dated 7.6.2002 admitted their negligence and liability and they undertook to settle the claim of the complainant. A copy of the letter dated 7.6.2002 is produced by the complainant as Exhibit C -11. The complainant had booked another consignment with the O.P. vide Consignment No. B02957464 dated 30.5.2002 to be delivered to Bihar State AIDS Control Society, Patna. The said consignment was not delivered within the time schedule. But the O.P. was trying to deliver the said consignment beyond the schedule. By that time, the said goods were non -functional and unusable. The fact that they were negligent in not delivering the said consignment to the consignee within the time schedule had been admitted by the O.P. in their letter referred to above, i.e., Exhibit C -11. The reason given by the O.P. for not delivering the said goods at Patna is due to the confusion in the delivery address. The Complainant in the complaint states that the said reason is no reason because the O.P. has been furnished with a list of consignees with their telephone numbers. The further case of the Complainant is that the consignee at Patna refused to take delivery of the goods as by that time the goods were non -functional and unusable.

THE case of the complainant is that due to the negligence on the part of the O.P. in not delivering the goods to the consignee due to the facts narrated above, the complainant is made to suffer a loss to the extent of Rs. 1,98,347.52 ps. which is the value of the goods transported from Bangalore to Calcutta and from Bangalore to Patna. The further case of the complainant is that they have also suffered mental agony and hardship. It is also the case of the complainant that the non -delivery of the goods within the time schedule also has affected their reputation and, therefore, they are entitled for damages for loss of reputation, mental agony and hardship.

THE O.P. has filed its version. In the version the O.P. has not disputed that they have undertaken to transport the goods from Bangalore to Calcutta and also from Bangalore to Patna and deliver the said goods to the consignees. The O.P. has also not disputed their letter dated 1.3.2002, i.e., Exhibit C -1, which provides for Rates for Transportation and the time schedule. The O.P. has also admitted their letter dated 7.6.2002, vide Exhibit C -11, wherein they have admitted their negligence in not delivering the goods within the time schedule. The defence put forward by the O.P. is that instead of paying the charges for transportation of the goods from Bangalore to Calcutta and from Bangalore to Patna, the complainants have filed this complaint alleging ''Deficiency in Service'' and, therefore, the complaint is liable to be dismissed. Both the parties have filed their Affidavits in support of their case.

THE point that arises for consideration is; Whether the complainant is entitled for payment of money as claimed by the complainant from the O.P. ?

THERE is no reason to refer to certain documents produced by both the parties, since the said documents are not disputed by either of the parties. It is seen from Exhibit C -1 that the O.Ps. have undertaken to deliver the goods within the time schedule. The time schedule as seen from Exhibit C -1 is that the goods transported from Bangalore are to be delivered at Calcutta and Patna to the consignees within 72 hours. It is not the case of the O.Ps. that they were not aware of the sensitiveness of the goods transported. The O.P. was carrying on the business of transporting the goods belonging to the complainant to the various places in the country since four years prior to the filing of the complaint. The O.P. has not produced any material to show that they were not aware of the sensitiveness of the goods which they had undertaken to transport from Bangalore to other places. Further, if the goods were not delivered within the time schedule, the goods will become non -functional and unusable. In the instant case, admittedly, one consignment was booked for transportation from Bangalore to Calcutta on 14.5.2002. The said consignment could have been delivered to the consignee within 72 hours from the time the goods were loaded to the carrier at Bangalore. On 17.5.2002 the O.P. had informed the complainant that the goods were delivered to the consignee, but, in fact, they were not delivered and the reason for non -delivery of the goods is that the goods had been held up by the Calcutta Sales Tax Authorities for pre -Waybill and that the clearance had to be obtained by the complainant. If the said goods were held up at the instance of the Sales Tax Authorities on 16th or 17th May, 2002 and if the same was informed on the very same day, the complainant could have taken steps to see that such clearance was not required and to make arrangements to deliver the goods to the consignee. But, in the instant case, no such information was furnished to the complainant either on 16th or on 17th. Further, the complainant had sent another set of goods on 21.5.2002 to the consignee as the earlier Consignment had not reached the consignee and the second consignment was delivered to the consignee without insisting for any clearance by the Sales Tax Authorities. The delay in delivery made the goods transported non -functional and unusable, as they could not be used beyond 72 hours. Even in the case of goods transported to Patna, admittedly the said goods were not delivered within the time schedule. The reason given by the O.P. for non -delivery of the goods within 72 hours was the alleged confusion in the address to which the goods were to be delivered. This reason cannot be accepted as a valid reason because the complainant had furnished the names of the consignees and their telephone numbers to the O.P. at the time of booking the goods for transportation. This fact is not disputed by the O.P. If at all if there was any confusion regarding address the same could have been ascertained by contacting either the consignee or the consignor over telephone. But no such attempts have been made by the O.P. knowing fully well that the goods were perishable and were to be delivered within the time schedule.

AS far as the statement made by the O.P. with regard to the goods to be delivered at Calcutta is concerned, the same is a negligent statement. It is a mis -statement made negligently which caused heavy damage to the complainant since there is a delay in delivery, which resulted in making the goods non -functional and unusable. If the O.P. or their officials who were in -charge of transportation had taken reasonable care to inform the complainant that the goods were delivered immediately on 16th or 17th, the Complainant would have taken steps to clear the problem, if any, with the Sales Tax Authorities. In the instant case, instead of informing the Complainant that the goods were not delivered, it had informed that the goods were delivered, though there was no such delivery of goods to the Consignee, knowing fully well that the goods were perishable. In the instant case, the O.P. had failed to take reasonable care, which was expected of. Therefore, we are of the considered view that the O.P. is liable to make good the loss suffered by the complainant.

FOR the reasons stated above, we are of the considered view that the complainant is entitled for recovery of Rs. 1,98,347.52 which is the value of the goods from the O.P. The complainant has also prayed for damages for mental agony and hardship and also for loss of reputation. In the instant case, as we are proposing to award interest on the amount ordered to be paid to the complainant, we are of the view that no damages could be awarded in favour of the complainant.

IN the result, we pass the following Order: (1) The complaint is allowed directing the O.P. to pay Rs. 1,98,347.52 ps., to the complainant with interest at 18% per annum from 17.5.2002 (i.e., the date on which the goods were required to be delivered to the consignee) till the date of realization. (2) The O.P. is also directed to pay a sum of Rs. 10,000 as costs of these proceedings to the complainant. Complaint allowed.