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2006 DIGILAW 131 (HP)

STREAM LINE EXPRESS COURIER v. MUKESH SAHNI

2006-05-10

A.K.GOEL, NARINDER SINGH THAKUR, SAROJ SHARMA

body2006
ORDER: Justice Arun Kaur Goel (Retd.) President (Oral).: Shri Verma, learned counsel for the appellant submitted that the Impugned order passed by the District Forum below in complaint No. 772/2001, on 29.4.2004 cannot stand the test of judicial secrutiny. Per him the complaint as instituted was bad for non-joinder of necessary party i.e. Sh. Yogesh Mittal. In whose absence the complaint could not be effectively adjudicated upon. Therefore, on this ground alone this appeal deserves to be allowed. Alternatively per him he urged that the compensation assessed to the tune of Rs.1500/- as cost of litigation is also on higher side. Plea of limited liability to the extent of Rs.100/- only and nothing mere was also raised by Shri Verma in support of this appeal for modifying the impugned order. 2. Because learned counsel for the respondents was not present, therefore, with the assistance of Shri Verma, we have examined the file of the Forum below. Facts giving rise to this case are being briefly noted. On 7.7.2001 respondent sent a letter through the appellant. This was addressed to the Headmaster, Lawrance School, Sanawar. It was sent vide Annexure C-1. It was delivered on 18.7.2001. Case of the respondent set out in the complaint under Section 12 of the Consumer Protection Act, 1986 was, that when he handed over the letter for being delivered to the addressee, he was assured that it will reach on 8.7.2001: To similar effect is his stand in his evidence. On the materials on record, it is evident that the letter reached on 18.7.2001. Son of the respondent was studying in Lawrance School Sanawar. He had remitted draft of fee, last date for the payment whereof was 10.7.2001. Since, the amount was not received by the school authorities in time, as such, a fine of Rs.1595/- was imposed by the school authorities on account of late deposit of the fee. This also resulted in causing insult to both father and son. Since, there was deficiency in service on the part of the appellant complaint was filed for payment of Rs.1595/- with interest and cost etc. 3. When put to notice stand of the appellant was that the complaint was not maintainable because respondent was not a consumer, lend thus had no locus-standi to file the same. Complaint was bad for non-joinder of Shri Yogesh Mittal. 3. When put to notice stand of the appellant was that the complaint was not maintainable because respondent was not a consumer, lend thus had no locus-standi to file the same. Complaint was bad for non-joinder of Shri Yogesh Mittal. In this context, it may be noted that for his impleadment, M.A. No. 410/2004 has been filed by the appellant in this appeal before us. 4. Regarding this Yogesh Mittal, stand of the appellant in the appeal in reply to paragraph-3 of the complaint is extracted herein below:- "3. xxxxxxxx To the knowledge of replying respondent no letter was dispatched and get delivered as detailed in the para of the complaint. Replying respondent is the incharge of M/S Stream Line Express Courier, Branch Office Solan and under this capacity the replying respondent has entered into an agreement with Sh. Yogesh Mittal S/O Madan Lai Mittal, as detailed in the preliminary objection and he is the sole incharge and responsible for all the matter relating to the courier and the copy of the agreement to this effect is enclosed herewith the reply as Annexure R-1. The replying respondent is neither negligent nor any services has been rendered to the complainant. Hence this complaint is liable to be dismissed. 5. So far appellant is concerned, its case is of simple denial. However, Shri Yogesh Mittal had entered into agreement with its (i.e. the appellants franchisee Jai Singh Chauhan). This stand of the appellant is Self contradictory besides being mutually destructive. Reason being that on one it alleges that no letter was sent to its knowledge whereas it has been stated that agreement was entered into with the said person. Nothing is said either regarding C-1 or C-2. So far C-1 is concerned it’s originally is also on record. 6. Shri Verma, learned counsel for the appellant made an unsuccessful attempt to wriggle out all these documents. Suffice it to say in this behalf, it is also not the case of the appellant that C-1 and C-2 do not pertain to it. And or C-1 is not issued by and it was not delivered to the addressee on 18.2.2001 vide C-2. 7. Therefore, what was the arrangement between the Franchisee and the appellant and or Yogesh Mittal is wholly irrelevant in this case. So far present case is concerned; nothing has been filed by way of evidence on behalf of the appellant. And or C-1 is not issued by and it was not delivered to the addressee on 18.2.2001 vide C-2. 7. Therefore, what was the arrangement between the Franchisee and the appellant and or Yogesh Mittal is wholly irrelevant in this case. So far present case is concerned; nothing has been filed by way of evidence on behalf of the appellant. To the contrary respondent has filed detailed affidavit in support of the complaint wherein averments made in the complaint have been reiterated. In these circumstances order passed by the Forum below cannot be faulted with. So far sum of Rs. 1500/- by way of harassment and cost of litigation is concerned, we find it is on lower side. And it needs to be upheld keeping in view the falsity of the stand of the appellant. Plea of outer limit of Rs.100/- and nothing more is payable has been noted simply for being rejected. In this behalf we may also observe that parent sending a child to prestigious institution like Lawrance School, Sanawar when does not deposit the fee in time, puts not only himself but the child too a great humiliation and disrupte. It hardly needs to be pointed out that, this is one of the leading public schools of the country. 8. Faced with this situation Mr. Verma urged that Sh. Yogesh Mittal had entered into agreement with his client (as per copy enclosed) is responsible for all this which has resulted in his client being held responsible for the amount as ordered by the Forum below. Therefore at least liberty may be reserved to the appellant to have such recourse as is permissible under law against said Sh. Yogesh Mittal to recover this amount from him. Prayer seems to be innocuous. 9. Accordingly, while dismissing this appeal it is observed that if in law appellant can have any recourse against said Shri Yougesh Mittal, for recovery of the amount; this decision will not come in the way of his client. However application being M.A. No. 210/2004 is dismissed. Reason being that said Yogesh Mittal is not required to be before us or before the Forum below for deciding the dispute between the parties to the appeal. Cost on the parties. 10. No other point was urged. All interim orders passed from time to time shall stand vacated forthwith. However application being M.A. No. 210/2004 is dismissed. Reason being that said Yogesh Mittal is not required to be before us or before the Forum below for deciding the dispute between the parties to the appeal. Cost on the parties. 10. No other point was urged. All interim orders passed from time to time shall stand vacated forthwith. Office will make copy of this order available to the parties free of cost as Per Rules.