State Consumer Disputes Redressal Commission
Gati Ltd., vs Mrs. Harinder Bhullar, on 14 May, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1248 of 2011
Date of institution: 18.8.2011
Date of Decision: 14.5.2014
1. Gati Ltd., Registered Office, Gati Ltd., 1-7-293, M.G. Road,
Secunderabad 500 003.
2. Gati Ltd., Zonal Office, Plot No. 268, Udyog Vihar, Phase-IV,
Gurgaon, Haryana.
3. Gati Ltd., F-344, Industrial Area, Phase-8B, Opposite Elfin
Pharma, Mohali - 160071, Punjab
(Through Sh. Mohit Raj, Senior Associate Legal, Zonal Office,
Gurgaon).
.....Appellants/OP Nos. 1, 2 & 4.
Versus
1. Mrs. Harinder Bhullar, R/o # 1570, Ist Floor, Sector-69, S.A.S.
Nagar, Mohali.
...Respondent No.1/Complainant
2. Gathi Packers and Movers, No. 30, Ist Main A, Sudham Nagar,
Bangalore-560 027 (proceeded ex-parte being OP No. 3)
.....Respondent No.2/OP No. 3
First Appeal against the order dated 13.7.2011
passed by the District Consumer Disputes
Redressal Forum, SAS Naga (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Sh. Dinesh Malhotra, Advocate
For respondent No. 1 : Sh. N.K. Sethia, Advocate
For respondent No. 2 : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellants/OP Nos.1, 2 & 4 (hereinafter referred as "Ops") have filed the present appeal against the order dated 13.7.2011 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter referred as "the District 2 FIRST APPEAL NO. 1248 OF 2011 Forum") in consumer complaint No.83 dated 12.3.2010/22.3.2011 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as 'the complainant') was partly allowed with a direction to the Ops to pay a sum of Rs. 30,000/- alongwith interest @ 9% p.a. w.e.f. 26.11.2009 till the date of actual payment alongwith compensation of Rs. 20,000/- and litigation expenses to the tune of Rs. 4,000/-.
2. The complaint was filed by the complainant against the opposite parties on the allegations that consignment of household goods numbering 36 was booked with OP No. 3 in which the complainant was consignee. It was booked on 14.11.2009 vide consignment note No. 50137 from Bangalore to Mohali. OP No. 1 had allotted docket No. 456574315 to check the status of consignment online. It was checked on 25.11.2009 and its status was given "exception is damaged". Consignment reached Mohali on 26.11.2009 and on checking it was found that costly antique/household items were completely damaged and turned into wreckage. Accordingly, management of OP Nos. 1 and 3 was asked to reimburse the same at the prevalent market rates but nothing was done. The Complainant got a survey conducted from Surveyor and Loss Assessor, who assessed loss as Rs. 2,13,500/-, therefore, there was negligence and deficiency in service on the part of the Ops. Hence, the complaint with a direction to the Ops to pay a sum of Rs. 2,13,500/- cost of the goods, Rs. 1 lac as compensation, interest @ 12% p.a. w.e.f. 14.11.2009 and cost of litigation.
3FIRST APPEAL NO. 1248 OF 2011 3. The complaint was contested by OP Nos. 1, 2 & 4 whereas none appeared on behalf of OP No. 3, therefore, OP No. 3 was proceeded as ex-parte by the learned District Forum.
4. OP Nos. 1, 2 & 4 in their written reply took the preliminary objections that the complaint is not maintainable in view of Section 3 and 11 of the Carriers Act, 1865; the complaint was actuated with ill- conceived, malafide and extraneous reasons to defraud the Ops to cause wrongful gain to the complainant and wrongful loss to the Ops, therefore, the complaint was liable to be dismissed under Section 26 of the CP Act; the complainant had no locus-standi to file this complaint; the consignment was booked with OP No. 3 and not with OP Nos. 1, 2 & 4 and the present Ops were wrongly dragged in this litigation; the complainant had not come to the Forum with clean hands and had given false allegations. As on 19.11.2009 consignor M/s Bharat Residency Packers & Movers, No. 63/2 KPN, Extension Bailasipayam, New Extension, Bangalore had booked the consignment with Ops to the address of the complainant at Mohali vide docket No. 456574315 wherein the value of the goods was declared as Rs. 30,000/-. The complainant had issued legal notice through their counsel Sh. Nitin Kant Setia, Advocate, which was responded vide letters dated 21.12.2009 and 30.12.2009. The Ops did not have any liability under Clause 9(f), which finds mention on overleaf/receipt. Further the consignment was subject to risk covering by taking Shippers Risk or Carriers Risk. If the consumer chooses to take shipper risk, it means that the goods are covered under the insurance. In case it is of carrier risk then insurance is not necessary 4 FIRST APPEAL NO. 1248 OF 2011 and that the consignment are always booked on said to contain basis, therefore, it was not practically possible for the Ops to verify the contents, quantity and quality. On merits, booking of the consignment dated 14.11.2009 vide consignment No. 50137 qua 36 items have been admitted. It was further stated that on 19.11.2009 by M/s Bharat Residency Packers & Movers, Bangalore booked the consignment with the Ops on specified 35 items although value of Rs. 30,000/- from Bangalore to Mohali. Complainant has placed on the record the front side of the docket No. 456574315 and has not placed the backside of the docket containing terms and conditions of the transaction, which was booked at the risk of the consignee. The loss assessed by the Surveyor as Rs. 2,13,500/- is on the higher side. The Ops had appointed an independent surveyor to inspect the consignment which had been booked on 19.11.2009 at Bangalore by M/s Bharat Residency Packers & Movers, Bangalore and the boxes were never opened in the presence of the representative of the company. Whereas the complainant were not entitled to lay any claim for having breached the condition to open boxes in the absence of the representative of the Ops. Ultimately, it was stated that there is no merit in the complaint and the same be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CW-1/1, affidavit of Er. Manoj Kukreja Ex. CW-2/1, Surveyor report Ex. C-1, observation note Ex. C-2. On the other hand, the opposite parties had tendered into 5 FIRST APPEAL NO. 1248 OF 2011 evidence affidavit of Mohit Raj Ex. RW-1/1, blank receipt Ex. R-1, legal notice Ex. R-2, reply to legal notice Ex. R-3 alongwith annexures Ex. R-3/1 to R-3/3.
7. After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the learned District Forum vide impugned order observed that consignment was booked with OP No. 3 vide note No. 50137 dated 14.11.2009 and when it reached at destination, it was damaged and its assessment was assessed by Surveyor Er. Manoj K. Kukreja. Since the goods were transported and delivered to the complainant by OP Nos. 1, 2 & 4 at Mohali through Docket Form part of document Ex. R-1, therefore, they were the 'service providers' and the complainant is the consumer qua OP Nos. 1, 2 & 4 as services providers. There was deficiency in services as the goods had reached the destination in the damaged condition although the Surveyor had assessed the loss as Rs. 2,13,500/- but its declared value was Rs. 30,000/- whereas OP Nos. 1, 2 & 4 allowed the claim of Rs. 6,276/- only. There was no requirement of notice under Section 10 of the Carriers Act, otherwise legal notice can be termed as notice under Section 10 of the Carriers Act. Ultimately, the complaint was allowed as stated above.
8. Feeling aggrieved with the order passed by the learned District Forum, the appellants/OP Nos. 1, 2 & 4 have filed the present appeal.
9. We have heard the learned counsel for the appellants as well as respondent No. 1.
6FIRST APPEAL NO. 1248 OF 2011
10. However, in the grounds of appeal it is contended that no doubt that the complainant is dominus litus, to whom the party is to be impleaded. In this case, the consignor booked the consignment with OP No. 3, therefore, there was no direct dealing of the consignor with the appellants, therefore, no liability can be assigned to the appellants and the Forum of its own cannot make out a new case for the complainant when the judgment, it has been referred that there was some arrangement between OP No. 3 and OP Nos. 1, 2 & 4, which is based upon surmises and conjectures without any evidence on the record. There is cutting on the invoice whether it is 35 or 36 items. The relevant Section 3 & 11 of the Carriers Act have not been properly interpreted. All the goods were booked at Owner's risk, therefore, no liability can be assigned upon the appellant. The order so passed by the learned District Forum fixing the liability of the appellants/OP Nos. 1, 2 & 4 is incorrect and is liable to be set-aside.
11. Firstly coming to the preposition whether there was relationship of 'consumer' and 'service provider' between the parties. It is an admitted fact that the consignor was Apneet Bhullar booked consignment with OP No. 3 vide consignment note No. 50137 dated 14.11.2009 with regard to 36 items including the Car. There is a cutting from 36 to 35. Here we are not concerned with the cutting of the number of items but the point in issue is whether there is relationship of 'consumer' and 'service provider' between the complainant and Ops No. 1, 2 & 4. The complainant is consignee, therefore, she can maintain the complaint. Alongwith the consignment note docket No. 456574315 was issued by them from Gati OP No. 1, 7 FIRST APPEAL NO. 1248 OF 2011 2 & 4 giving the details of all the items and that OP Nos. 1, 2 & 4 had delivered the goods at Mohali vide delivery note Ex. C-2. In that letter, it has been mentioned that there was damage in transit and the amount assessed to be Rs. 6,276/- only and docket No. is the same as referred above. Therefore, after goods were booked with OP No. 3 vide consignment note No. 50137 dated 14.11.2009, one docket No. 456574315 was given by Gati, which shows that for transportation the goods were to be taken by OP No. 1, 2 & 4 and at the time of delivery a note was given by the representative of OP Nos. 1, 2 & 4, which is at Ex. R-1 that everything has been totally broken beyond repair. Your Service has been dismay and signed by the representative of Ops alongwith signatures of the consignor. Therefore, in case after getting the goods booked with OP No. 3, the same were taken over by OP Nos. 1 to 2 & 4 and they delivered the same at Mohali then certainly, there was relationship of consumer and service provider between the parties and the appellants cannot take the plea that there was no relationship of 'consumer' and 'service provider' as the goods were not directly handed over to them. As stated above, the goods were booked by Apneet Bhullar but in Ex. R-I it has been mentioned as Bharat Residency. When the goods are same, then how Bharat Residency can be the consignee. It seems to be a device between OP No. 3 on the one side and OP Nos. 1, 2 & 4 on the other side to evade their liability.
12. With regard to Section 3 of the Carriers Act, 1865, it has been mentioned that no one carrier shall be liable for the loss or damage to the property to be carried exceeding in value of Rs. 100/- 8 FIRST APPEAL NO. 1248 OF 2011 and under Section 11 State Government to add to the schedule. This Act was enacted in the year 1865 and new Carriers Act (Carriers by Road Act, 2007) had come into force w.e.f. 1.10.2007. This consignment pertains to the year 2009, therefore, when new Act has come in the year 2007 and according to Section 22 of the Carriers by Road Act, 2007, Carriers Act, 1865 was repelled, therefore, clauses of 1865 Act will not be applicable with regard to the value of the goods.
13. The Surveyor was appointed by the complainant, who assessed the loss as Rs. 2 lacs but the declared value of the goods was Rs. 30,000/-. The goods were totally damaged. In case the declared value is Rs. 30,000/- then the complainant will be entitled to that amount only and the amount as assessed by the Surveyor cannot be given. The District Forum has awarded the amount only to the extent, which was declared at the time of consignment. In case we go through the written statement filed by the Ops they have also stated that one independent Surveyor was appointed to inspect the consignment, which had reported on 19.11.2009 but no such report of any other Surveyor has been placed on the record by the Ops. The documents tendered are the affidavit of Mohit Rai alongwith documents Ex. R-1, legal notice Ex. R-2, reply and postal receipts Ex. R-3/1, 2 & 3. There is no rebuttal to the fact that the goods booked were not totally damaged. In that condition, the consignor is entitled to the declared value of the goods. Therefore, evidence brought on the record by the complainant is sufficient to say that the goods were totally damaged and the complainant was entitled to the declared 9 FIRST APPEAL NO. 1248 OF 2011 value of the goods whereas no contrary evidence has been proved on the record by the Ops.
14. With regard to Condition No. 9(f) printed on reverse of the receipt has been relevant, which reads as under:-
"(9)(f) GATI assumes no responsibility and/or liability in case material is outwardly intact at the time of affecting delivery. Loading a claims for damage shortages, breakage, leakage, pilferage etc., after taking delivery will not be entertained in any circumstances whatsoever. However, parties may insist for open delivery in case shipment is outwardly in damaged condition, to assess the loss, if any, by following the due process of law and the policy and procedure as defined by M/s GATI Ltd."
15. However, these are the general terms and conditions brought on the record. There is no evidence that these conditions were specifically brought to the notice of the consignor and that he had signed the terms and conditions after admitting the same to be correct. Otherwise in the consignment note No. 50137 dated 14.11.2009, no such conditions were published on its back, therefore, general terms and conditions of the consignment will not be applicable.
16. In case the goods have been damaged in transit then certainly the carrier is responsible. It was held by the Hon'ble Supreme Court in case "Nath Bros. Exim International Ltd. v. Best Roadways Ltd.", I (2000) CPJ 25 'after considering pronouncements of various High Courts observed that expression 'at owner's risk' does not exempt a carrier from his own negligence or negligence of his servants or agents. It was further laid down in the said case:
'From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms in the sense that the carrier has to deliver the goods 10 FIRST APPEAL NO. 1248 OF 2011 safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods on account of his own negligence or criminal act or that of his agent and servants'.
17. It was also held by the Hon'ble National Commission in "Unichem Laboratories Ltd. versus New India Assurance Co. Ltd. & Anr.", III (2006) CPJ 359 (NC). In that case loss/damage of goods entrusted for carriage - It is the duty of the carrier to take due care, so long as goods are in its custody - Expression 'at owner's risk' does not exempt carrier from his own negligence or criminal act or that of his servants or agents.
18. Therefore, in case we see the totality of the circumstances, the goods were damaged at the instance of the Ops, therefore, all the Ops jointly and severally liable to pay the damages. We do not see any infirmity in the order so passed by the learned District Forum, the same is hereby affirmed.
19. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
20. The arguments in this appeal were heard on 7.5.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
21. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
11FIRST APPEAL NO. 1248 OF 2011
22. Remaining amount shall be paid by the appellants to the respondent within 30 days from the receipt of the copy of the order.
23. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
May 14, 2014. (Harcharan Singh Guram)
as Member