State Consumer Disputes Redressal Commission
M/S. Hirusah Cosmetics (P) Ltd.,85, Psk ... vs M/S. Kerala Roadways Ltd.,Rep. By Its ... on 6 June, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.206/2009 [Against order in C.C.No.108/2005 on the file of the DCDRF, Chennai (North)] DATED THIS THE 6th DAY OF JUNE 2011 M/s. Hirusah Cosmetics (P) Ltd., | Rep. by their Managing Director, | Appellant / Complainant 85, PSK Street, | Kancheepuram 631 501. | Vs.
1. M/s. Kerala Roadways Ltd., | Respondents / OPs Rep. by its General Manager, | KRS Towers, 1st Floor, HoH | 17/66-A, Indira Gandhi Road, | Calicut 673 001. | |
2. M/s.Kerala Roadways Ltd., | Rep. by its Area Manager, | 21/2, 1st Floor, Basin Water Works Street, | Chennai 600 079. | The appellant as complainant filed a complaint before the District Forum against the respondents/opposite parties praying for the direction to the opposite parties to pay Rs.66,398.68 along with interest at the rate of 24% per annum on Rs.31,398.68 from 11.04.2001 to till date of realization. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.23.09.2008 in C.C.108/2005.
This appeal coming before us for hearing finally on 25.05.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant /Complainant : M/s.C.S. Kiran, Advocate.
For the 1st Respondents/1st OP : Appeal dismissed against R1.
Counsel for the 2nd Respondent/2nd OP : Mr.T.N. Sugesh, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant is the appellant.
2. Facts leading to this appeal, in brief:
The complainant has booked 11 cartons of Agarbathis, valued at Rs.31,398.68, for transportation from Kancheepuram to Nasik as Self through the second opposite party by their lorry way bill No.9801417, dated 11.04.2001, raising the invoice in the name of M/s.Grace Agencies, Nasik. The documents were sent to Bank of Maharashtra, Nasik for collection to the M/s.Grace Agencies, Nasik.
3. As M/s.Grace Agencies, Nasik failed to make payment to the Bank, the complainant requested the opposite parties branch at Nasik to rebook the consignment, to the Kancheepuram undertaking to pay the freight charge on arrival and delivery. On 25.07.2001, the consignment was rebooked and on receipt of the lorry receipt, the complainant came to know that M/s.Grace Agencies, Nasik had paid Rs.965/- for transportation from Kancheepuram to Nasik and the reason is not known. The complainant while making arrangement to take delivery of the goods, on 16.08.2001, he had noticed the packing was different, thereby he doubted tampering committing theft, repacked, and leaving damaged goods alone.
Therefore, refusing to take back the consignment, when the complainant sought for the value of the consignment, despite through number of letters, including legal notice, there was no compliance, thereby opposite parties have committed deficiency, causing mental agony and in this view, the opposite parties are liable to pay the value of the consignment of Rs.31,398.68, with compensation of Rs.25,000/-. Thus, the claim.
4. The opposite parties admitting the booking of consignment by the complainant, as well rebooking of the same at the request of the complainant, resisted the claim, contending that the District Forum has no jurisdiction, that the case is barred by limitation, that the complainant is not a consumer since consignment was meant for commercial purpose, that the claim is not maintainable for want of notice under Section 10 of the Carriers Act, that further the complainant is also not a consumer since they have not paid freight charge, that in the rebooked consignment, there was no tampering or theft and the complainant himself had failed to take rebooked consignment, owing to the dispute between consignor and consignee and the consignee had written a letter to settle the dispute, thereby showing the opposite parties have not committed any deficiency in service, praying for the dismissal of the case, denying further averments also.
5. The District Forum based upon the pleadings, supported by affidavits, then going through the documents also felt, that this is a dispute between the consignor and consignee, that the opposite parties, since not committed any deficiency, cannot be made responsible and that the case is also not maintainable for want of notice under Section 10 of the Carriers Act, based upon the Supreme Court decision. In this view, the complaint was dismissed, as per the order dated 23.09.2008, which is impugned on various grounds, before us by the complainant, seeking the relief as prayed for.
6. There is no dispute between the parties, regarding the consignment sent by the complainant, through the opposite parties Carrier from Kancheepuram to Nasik and the rebooking of the same from Nasik to Kancheepuram, since the consignment was not taken delivery by the person for whom it was sent, though the consignment was Self. It is also an admitted fact, that the complainant had not paid the freight charges to carry the goods from Kancheepuram to Nasik whereas goods sent To pay, which was according to the opposite parties, paid by the person, at Nasik. After rebooking when the goods reached Kancheepuram, upon inspection, the complainant felt, there must be tampering, because of the packing pattern differed. Therefore, not willing to take the rebooked consignment, the complainant has corresponded with the opposite parties for payment, not accepted. In the meantime, M/s.Grace Agencies for whom goods were consigned, had written a letter to settle the claim. In view of this also, opposite parties washed their hands, claiming that they have not committed any deficiency, resulting unsuccessful complaint, before the District Forum.
7. The District Forum has dismissed the case on two grounds; (1) for want of notice under Section 10 of the Carriers Act and (2) that the dispute was only between the consignor and consignee and the opposite parties cannot be made liable, being the transporters. Though many defences were raised in the Written Version, unfortunately the District Forum has not decided all the points and therefore, we felt, it is our duty to decide the same.
8. As far as the limitation is concerned, we find no substance, since original complaint was filed in the month of March 2003, that is within two years from 16.08.2001, the date on which, the complainant had noticed the damage according to him, that should be the date of cause of action. Within the period of limitation, since case was filed in the month of March 2003 itself, there is no question of dismissing the complaint, as barred by limitation.
9. Admittedly, for carrying the goods, the complainant has not paid any freight charge, and as far as the complainant is concerned, it is free transportation without consideration and though the amount was paid by M/s.Grace Agencies, not accepted as correct by the complainant. In this view, without consideration, since service was undertaken by the opposite parties, the complainant cannot be construed as a consumer as rightly stated in the Written Version, which was not considered by the District Forum.
Therefore, the case can be dismissed, on the ground that the complainant will not come within the meaning of consumer, want of consideration for services.
10. A further defence was taken, that this is a commercial transaction, not coming before the Consumer Forum, which appears to be well founded. The cause title of the complaint and consigned goods would indicate, that the complainant had transported the goods for commercial purpose, aiming profit. It is not the case of the complainant also such as self-employment, even coming within the explanation or exception to the commerciality. Thus, prima facie on the basis of the averments, it is to be held, that the transaction relates to commercial activities, aiming profit and in that sense, the complainant cannot be construed as a consumer and therefore, the District Forum has no jurisdiction to decide the case and in this view also, the ultimate result of the dismissal of the complaint can be accepted.
11. The learned counsel for the appellant would contend that before lodging the claim, within the period contemplated under Section 10 of the Carriers Act, notice was not issued on 18.08.2001 and in this view, the finding of the District Forum, no notice issued, should be set aside, have to be accepted, that too, in view of the fact, not challenged, which document is also available, not considered by the District Forum properly.
12. As rightly recorded by the District Forum, the dispute appears to be between the consignor and consignee though the consignor described himself, as the consignee indicating Self. Because of this reason alone, as admitted by the Carrier, the original consignee though not named, paid the amount, but on seeing the invoice, M/s.Grace Agencies felt, discount was not given, as agreed, which can be seen, from the document dated 15.4.2002. Thus, it is made clear, because of the dispute between the consignor and consignee, goods was rebooked, for that, generally, Carrier cannot be held responsible. In this case, we are not very much concerned about the dispute between the consignor and consignee and we are concerned regarding the alleged damage to the goods. Therefore, it is for the complainant to make out a case at the initial stage, rebooked goods was not delivered or not reached the destination or he refused to take delivery, because of the damage condition unless the damage apparently admitted.
13. In the complaint itself as seen from Para 7, it is said after the consignment reached at Kancheepuram, they found that all the cartons opened, damaged and repacked manually with different plastic straps, and on that basis, the complainant suspected, that the goods have been stolen and repacked.
14. To prove the above fact, we do not have any evidence, except the uncorroborated assertion under challenge. Really the goods were damaged; nothing would have prevented the complainant, to give a requisition to the Carrier, which is permissible, for open delivery, thereby obtaining a certificate also, regarding the damage. In the absence of this procedure, unless it is proved that the goods are in damaged condition, namely Agarbathis, we cannot say that cannot be resold, therefore, the carrier is liable to pay the value. Even for rebooking, the complainant has not paid the charges and if we view this case, from this angle, Consumer Forum cannot have jurisdiction for want of hire charges.
15. It is the duty of the Carrier, and we do not have any doubt to preserve and deliver the goods as accepted. In case, handling of the goods, to package or otherwise, any damage had occurred, there is nothing wrong in repacking the goods, and delivering the same to the person conserved. On the ground of repacking when the consignor suspected the rebooked goods, it is for them, to seek the open delivery, which they failed. When the rebooked consignment is available, in tact, with the opposite parties, we cannot say that the opposite parties have committed any negligent or deficiency in service, for which, practically we have Nil evidence.
16. The learned counsel for the appellant urged before us that the opposite parties themselves have admitted the damage and therefore, they are liable to pay the value of the goods, seeking aid from the communication dated 2.1.2001 emanated from the first opposite party, which is marked as exhibit also. This letter was addressed to Nasik Office, based upon the repeated request made by the complainant, asking them to settle the claim, wherein, it is said The party has been sending reminder asking us to settle the claim of Rs.31,398/-. This does not mean, the first opposite party had admitted the goods damaged or in the repacking, the consignment available with them. As seen from the way bill also, it is seen, the weight is one and the same when sent, when rebooked, thereby showing, there was no loss of weight also. If the complainant had felt, only because of the repacking, if it true, he ought to have sought for open delivery that would have disclosed and cleared the suspicion entertained by the complainant, which he failed and in this view, on the basis of suspicion alone as well as surmise and conjecture, that too, when the opposite parties had not committed any deficiency, in transporting the goods, we cannot compel them to pay the value of the goods, or any compensation, which was rightly appreciated by the District Forum, concluding the complaint is liable to be dismissed, which findings we endorse.
17. Appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Chennai [North], in CC.108/2005, dated 23.09.2008. No order as to cost in this appeal.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT