State Consumer Disputes Redressal Commission
M/S Sri Hanuma Silk Weavers ... vs 1. M/S Gati Ltd., Rep. By Its Regional ... on 11 December, 2009
BEFORE THE CIRCUIT BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT: TIRUPATHI F.A.No.707 OF 2007 AGAINST C.D.NO.67 OF 2005 DISTRICT CONSUMER FORUM KADAPA Between M/s Sri Hanuma Silk Weavers Co-operative productionand Sales Society Ltd., rep. by its vice President, Appannapalli Village and Post, Khajipet Mandal, Kadapa Dist. A.P. Appellant/ opposite party A N D 1. M/s GATI Ltd., rep. by its Regional Manager, Regd. Office at 1-7-293, M.G.Road, Secunderabad (Amended as per orders in I.A.No.59/2006 dt.13.4.06) 2. M/s GATI Ltd., rep. by its Branch Manager (Agent) Beside Sivalayam Lane, NGO Colony, Kadapa (Amended as per orders in I.A.No.59/2006 dt.13.4.06) Respondents/complainants Counsel for the Appellant Sri A.Srinath Counsel for the respondents Sri A.Venkatesh QUORUM: THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT & SRI R.LAKSHMINARSIMHA RAO, MEMBER
FRIDAY THE ELEVANTH DAY OF DECEMBER TWO THOUSAND NINE Oral Order ( As per R.Lakshminarsimha Rao, Member) *** The complainant is the appellant. The appeal is filed challenging the order of the District Forum Kadapa in C.D.No.67 of 2005.
The facts of the case as set out in the complaint are that the appellant, a weavers society was running its business under the name and style of M/s Sri Hanuman Silk Weavers Production and Sales Society Limited at Appannapalli village of Kadapa District. The society was dealing in business of manufacturing of duping cloth and various types of superior fine silk cloths etc. Veekay International Private Limited has placed an order dated 16.9.2003 with the appellants society for supply of 10,000 mtrs Indian silk handloom duping cloth. Accordingly the appellant society had sent 10,000 mtrs of cloth on 13.10.2003 through the respondent no.2 to Kolkata. The cloth was booked with the respondent no.2 in 9 bundles packed in gunny bags and each bundle contained 1 to 12 pieces of handloom silk duping cloth. In all, all the nine bundles contained 100 pieces of flat rolls of duping silk cloth to an extent of 3165.90 mtrs at the rate of Rs.224/- per meter.
The total cost of the cloth was valued at Rs.7,09,161.60. The respondent no.2 issued receipt bearing docket no.104654420 dated 13.10.2003 assuring the appellant that the consignment would be delivered on or before 18.10.2003 at Kolkata. Even after 10 days the goods were not delivered to the consignee.
On intimation by the consignee, the appellant approached the respondent no.2 who informed the appellant that their godown caught fire and thereby goods worth therein Rs.25 lakhs was burnt and destroyed. The police Chinnachowk registered a case in crime No.162 of 2003 on 15.10.2003 against the then authorized agent/franchise of respondent no.1. The then agent of the respondent no.2 GATI transport Kadapa branch informed the appellant and other customers that the police had taken custody of the goods in the godown and the same would be delivered back to them in existing condition, after disposal of the criminal case. The vice president of the appellant was asked to come and check the goods and on doing so, it was found that there was only 90 pieces of Indian Silk duping cloth against the total 9 gunny bags and instead of 100 pieces 10 pieces were found missing from 9 bundles. The goods available in the godown of the respondent no.2 were not worthy of resale as it had lost its fine quality because of not keeping it in proper condition.
The appellant requested the respondent no.2 to pay the cost of the goods. The respondent no.2 promised that it would pay compensation to all the customers for the damages caused to their goods. The market price of silk duping at the relevant time was Rs.224/- per meter as was existing on the date of booking of the consignment with the respondent no.2. The cost of 10 missing pieces was valued at Rs.70,806/- and the total loss suffered by the appellant society was to the tune of Rs.7,09,161.60ps. The respondent no.1 being the principal of respondent no.2 is vicariously liable for the acts of the respondent no.2 to pay damages, compensation and costs to the appellant society. The appellants claimed Rs.8 lakhs towards compensation.
The respondents resisted the claim by filing counter. It was stated that the complaint is not maintainable. The appellant is not consumer. The appellant had signed the receipt containing an arbitration clause.
The appellant and the respondent agreed upon a clause that the jurisdiction would be conferred on the courts in Secunderabad. The godown was caught fire. The police registered a case and filed charge sheet against G.Gangadhar. The police had taken custody of the entire goods that were available in godown at the time of the fire accident. The goods available in the godown could not be delivered to the appellant because of the pendency of the criminal case. The respondents made efforts to get released the goods from the custody of court. On a petition filed by them, the court directed to release the goods as also directed the respondents to give back the goods to the respective customers.
The appellant is at liberty to take back the goods as per the invoice. The complaint is not maintainable for non-joinder of necessary parties. The consignee is not made a party to the proceedings. As per the invoice the appellant would lose his right over the property as the owner. Hence, the appellant cannot claim damages against the respondents. The respondents company have been recognized in the market as M/s GATI Limited but not as shown in the cause title of the complaint. As per the provisions of the Carriers Act, it is mandatory to issue notice before initiating any legal proceedings against the respondents. The appellant has not issued any notice to the respondents. Hence, prayed for dismissal of the complaint.
The District Forum allowed the complaint with a direction to the respondents to pay an amount of Rs.50,000/- towards damages and Rs.50,000/- towards the cost of the missing goods.
Dissatisfied with the quantum of amount awarded towards the damages and cost of the missing goods, the appellant has filed the appeal contending that the amount so awarded is inadequate in view of the total loss resulting in the damage to the entire goods of the appellant. The District Forum had ignored the report of the Commissioner that the goods were totally damaged and they were beyond any use due to the negligent act of the respondent.
The point for consideration is whether the appellant is entitled to the enhancement of compensation?
It is not in dispute that the appellant booked the goods at Kadapa to be delivered at Kolkota. It is also not in dispute that the goods entrusted to the respondent no.2 could not be delivered on account of a fire accident at their office at Kadapa. The goods entrusted by the appellant to the respondent no.2 are 9 bundles packed in gunny bags with each bundle containing 10 to 12 pieces of handloom silk dupion, all the nine bundles contained 100 pieces of flat rolls of dupion silk measuring 3165.90 mtrs at the rate of Rs.224/- per meter. Ex.A1 is the consignment note issued by the respondent no.2 for a sum of Rs.5,6678/- for the consignment worth Rs.70,09,094.40ps. The invoice under Ex.A2 is also the document that goes to show the worth of the handloom dupion silk cloth is about Rs.70,09,094.40ps. The parties are not at dispute with regard to the occurrence of the fire accident at the godown of the respondent no.2 as also the date of the fire accident i.e., 3.10.2003 to the effect an employee of the respondent no.2 has lodged complaint before the police Chinachowk P.S. Kadapa. Hence, the consignment worth Rs.70,09,094.40ps that was sent by the appellant to Veekay International Kolkata as also the fact of the godown of the respondent no.2 catching fire on 3.10.2003 has been established.
It is the contention of the appellant that after it has come to know about the fire accident that occurred in the godown of the respondent no.2, a request on behalf of the appellant was made to the respondent no.2 to return the goods that were left after the fire caused damage.
It is also the contention of the appellant that it has requested the respondent no.2 to settle the damages caused to the goods and pay compensation. However, the appellant has not stated as to what happened to the request for settlement of claim. A perusal of Ex.A6 a copy of petition filed by the respondent no.2 before the II Addl. Judl. Magistrate of First Class, Kadapa would show that the application was filed u/s 451 R/w 457 of Cr.P.C. seeking permission for return of the property.
The court has passed an order with a direction to return the property to the respondent no.2 who in turn was directed to hand over the properties to their respective owners. The respondent no.2 has addressed letters dated 16.8.2005 to the Vice President of the Appellants society requesting him to send an authorized representative for initiating talks to arrive at an amicable settlement. It appears that the appellant has not taken any initiative to send its authorized representatives for coming to a conclusion as to the aspect of payment of amount by the respondents.
The objection of the respondents is that no notice as provided u/s 10 of the Carriers Act was issued by the appellant before the complaint was filed before the District Forum. It is true, Sec.10 requires a notice to be issued for initiation of the proceedings against a common carrier for loss of goods or injury to goods entrusted for carriage. The object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make the good the loss occasioned. The respondent no.2 had addressed letter dated 16.8.2005 requesting the appellant to send its representative for holding talks to come to a settlement in regard to the amount payable by them to the appellant. Therefore, the respondents were aware of the damage caused to the goods pertaining to the appellant society. Hence, there was sufficient compliance of requirement of Sec.10 of the Carriers Act. The respondents have not preferred any appeal against the order of the District forum holding that there was compliance of Sec.10 of the Carriers Act by the appellant.
Having found that the appellant had sustained damage to its property on account of negligence exhibited by the respondent no.2 in terms of Sec. 9 of the Carriers Act, we proceed to entertain the contention of the parties as to the amount to be determined that is payable by the respondents to the appellants. The onus of proof shifts on the appellant the moment the goods entrusted to the respondents was found partly damaged. It is for the appellant to show the worth of the goods left in the godown after the fire accident. Therefore, it is incumbent upon the appellant to establish the worth of the goods that were directed to be returned to it by the respondent no.2 by virtue of order passed under Ex.B4 passed by the II JMFC, Kadapa was than that what was claimed before the District Forum.
The number of packages as seen in Ex.B4 described under column no.2 pertaining to the appellant is packed in 9 carton boxes against the availability of the goods mentioned in Ex.B4. The Commissioner appointed by the District Forum has filed his report under Ex.C1 stating that total 10 pieces of H.L. Silk was misplaced. The Commissioner has filed his report after 27.10.2005 on which date he had inspected the godown of the respondent no.2. Along with the Commissioner a Technical Officer T.Rajagopal Reddy, an employee with Seri Culture Department, Kadapa visited the Godown of the respondent no.2 and he opined that there were about 9 to 10 rolls of cloth in each bundle. According to him the condition of the dupion cloth at the time of his inspection was not good and the goods were to be marketed within 2 to 3 months and thereafter the cloth would lose its quality.
The respondent no.2 filed petition Ex.B4 on 29.3.2004. The appellant had not come-forward to take back the goods at the earliest point of time as the respondent no.2 had sought permission of the JMFC Kadapa to hand over the goods to attain such appellant as also to those persons who had sent their respective goods through the respondent no.2. The appellant had allowed the goods to the condition that what was described by the Commissioner as not marketable. The negligence on the part of the appellant contributed to the existing condition of the goods lying in for the loss of the dupion cloth as also on account of the damage caused to the dupion cloth that was left available after the fire accident in the godown of the respondent no.2. The appeal is allowed accordingly.
In the result the appeal is allowed in part directing the respondents no.1 and 2 jointly and severally to pay an amount of Rs.2,00,000/- with interest @ 9% per annum from the date of complaint till payment and Rs.2,000/- towards costs. Time for compliance four weeks.
Sd/-
PRESIDENT Sd/-
MEMBER Dt.11.12.2009 KMK