State Consumer Disputes Redressal Commission
1. Anl Parcel Service And Another vs D.Manga Rao S/O Madhava Rao on 22 May, 2013
BEFORE A.P STATE CONSUMER DISPUTES
REDRESSAL COMMISSION AT HYDERABAD
F.A.No.18 OF 2012 AGAINST C.C.NO.23 OF 2011 DISTRICT
FORUM KARIMNAGAR
Between:
1.
ANL
Parcel Service,
rep. by its Vice President/Managing Director
D.No.5-9-30/1/5-B, Road No.4,
Basheerbagh
Palace Colony, Hyderabad-063
2.
ANL
Parcel Service
rep. by its Agent, Bust Stand Branch
Bus Stand Premises, Peddapalli Appellants/opposite parties
A N D
D.Manga
Rao S/o Madhava Rao
Managing Partner, Sri Rama Pesticides
Seeds & Company, Shankar Gunj, Peddapalli Town
And Mandal of Karimnagar District
Respondent/complainant
Counsel for the Appellant M/s P.Raja Sripathi Rao
Counsel for the Respondent M/s
B.Papi Reddy
QUORUM:
SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER WEDNESDAY THE TWENTY SECOND DAY OF MAY TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The opposite party is the appellant.
The appeal is challenge to the order of the District Forum which awarded an amount of `50,000/-towards compensation with interest @ 9% p.a. and costs.
2. The respondent had sent 32 bags of cotton seeds worth of `72,000/-
through the appellant to deliver to M/s Varalaxmi Seeds, Huzurabad. The appellant collected an amount of Rs.112/- towards charges on 23.06.2010. The respondent submitted representation dated 8.09.2010 informing the appellant that the consignment was lost and demanded the appellant to pay an amount of `72,000/-
towards value of cotton seeds and notice dated 18.11.2010 for which the appellant issued reply stating that they are making enquiry into the matter. The respondent claimed a sum of `1,94,000/- towards cost of the seeds and compensation and costs.
3. The appellant resisted the claim on the premise that the respondent is not a consumer and the complaint is not maintainable. It is contended that the cotton bags were not worth of `72,000/-
and the respondent had not declared the value of goods on the consignment note. As per the terms of the consignment note, in case of loss of consignment, the appellant is liable to pay a sum of `5/-
per kg and the appellant is ready to pay the amount @`5/- per kg.
4. The respondent filed his affidavit and the documents Exs.A1 to A11. On behalf of the appellants, its agent filed his affidavit and no documents have been marked.
5. The District Forum allowed the complaint on the premise that the appellant admitted that three carton of seeds were handed over to it and the seed was misplaced and it is the duty of the appellant to compensate the respondent of the loss caused to it. The District Forum awarded an amount of `50,000/- towards value of goods and interest thereon.
6. The opposite party has filed appeal contending that the District Forum has not appreciated the contention of the appellant and evidence placed on record by the appellant. It is contended that the District Forum passed the order against the terms of the consignment note and that the respondent had not insured the consignment. It is contended that the District Forum has not considered the law relating to compensation and interest. It is contended that the District Forum has not considered the decisions relied upon by the appellant.
7. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
8. There is no dispute between the parties about the fact of the respondent sending cotton seed through the appellant to M/s Varalxmi Seeds, Huzurabad. The respondent had sent on 23.06.2010 96 bags of cotton seed of in three cartons to M/s Varalaxmi Seeds, Huzurabad. The learned counsel for the appellant has contended that the District Forum has no jurisdiction in view of clause in consignment note restricting jurisdiction to courts in Hyderabad of any dispute arising thereunder. The learned counsel for the respondent has submitted that clause restricting jurisdiction of a particular court is of no significance in view of the decision of the Honble Supreme Court in Ethiopian Airlines vs Ganesh Narain Saboo IV (2011) CPJ 43 which was relied upon by the National Commission in Radiant Infosystem Pvt Ltd vs D.Adilakshmi and others I (2013) CPJ 169.
9. The National Commission held that the District Forum within whose local jurisdiction, the opposite party or any of the opposite parties carry on their business will have jurisdiction to entertain the complaint. In paragraphs 8 and 9 of its order, the National Commission referred to the cause of action and the principle laid in Ethiopian Airlines decision which read as under:
8. A bare reading of the above provisions of law make it abundantly clear that the complaints got filed before a District Forum within the local jurisdiction in which the opposite party or each of the opposite parties voluntarily resided or worked for gain or any of the opposite parties resides or works or where the cause of action wholly or in part. In the case in hand going by the terms and conditions of the agreement and that the franchisee were to run the centers at their respective villages/places and that the 64 services talked in the agreement were to be provided at the said centers and that the complainants had suffered loss and injury due to the deficiency in service committed by the opposite party at the said centers, there is no escape from the conclusion that the cause of action in these cases had arisen at the places which fell within the local limits of the concerned District Forums. If the complainants were to be called upon to approach the State headquarters the very purposes of establishing the District Consumer Forums at the district level, would be lost. The very objecton of establishing the District Forum in each District of the State/Country was to take justice to the doorsteps of the consumer.
9. In this view, we are fortified with the Honble Supreme Court decision dated 9.8.2011 passed in the Civil Appeal No.7037 of 2004 in the case of Ethiopian Airlines v. Ganesh Narain Saboo, IV (2011) CPJ 43 (SC) = VII (2011) SLT 371, where it has been held that the restriction of jurisdiction to a particular Court need not be given any importance in the circumstances of the cases.
Thus looked the matter from any angle we are of the view that both the For a below have taken just view of the matter and the impugned orders do not suffer from any illegality, material irregularity or any jurisdictional error. The objection in regard to the territorial jurisdiction has been correctly decided by the For a below.
10. Admittedly, the appellant has been carrying on its business at Peddapalli in Karimnagar district and the branch office through which transaction took place is made as the opposite party no.2 to the complaint. The consignment was sent to Huzurabad in Karimnagar district. In view of the aforementioned decisions, clause restricting jurisdiction to courts in Hyderabad cannot be given effect. The point is answered against the appellant.
11. The respondent had stated that cotton seeds worth of `72,000/-
was sent to Varalaxmi Seeds & Company, Huzurabad and the proprietor of Varalaxmi Seeds demanded him to send the seeds or return the amount paid to the respondent and the respondent returned the amount paid by proprietor of Varalaxmi Seeds and thereby the respondent sustained huge loss in its business and suffered spoilage of business relations with Varalaxmi Seeds. The learned counsel for the appellant has submitted that the respondent has not produced original invoice at the time of booking the consignment and the copy of invoice was produced at the time of filing complaint. He has submitted that the respondent or the District Forum cannot go behind the terms of contract and create a new contract.
12. The consignment note contains clause restricting liability of the appellant to `5/- per kg in case of loss or damage to the parcel. Clause reads as under:
I/we agree to all the conditions mentioned overleaf of Forwarding Note and of this consignment Note copy and in the event of loss of/damage to the parcel, our claim shall be limited to Rs.5/- per Kg. of Actual Weight.
13. The District Forum in paragraph 10 of its order observed that the column regarding value of consignment in consignment note is kept blank and as per the terms and conditions of parcel service the appellant agreed to pay `5/-
per kg in case of loss of goods in transit. The paragraph reads as follows:
10. The complainant claimed that the costs of the Cotton seeds is Rs.72,000/- and in support of it he filed invoice under Ex.A8. A perusal of receipt issued by the opposite party no.2 under Ex.A7 there is a column regarding value of the consignment which has to be declared by the complainant. In Ex.A7 it is kept blank as the complainant did not declare the value of the goods. On the other hand it is contended by the opposite parties that as per the terms and conditions of parcel service they have agreed to pay Rs.5/- per kg in case of loss of goods in transit and therefore in the counter it is stated that they are ready to pay the same to the complainant. When the opposite parties admitted that three Cartoon of Seeds are handed over to them which are misplaced, it is the duty of the opposite parties to compensate the complainant for the loss sustained by him. Considering the said circumstances it would be just and reasonable to direct the opposite parties to pay an amount of Rs.50,000/- to the complainant towards value of the goods with interest @ 9% P.A. and Rs.1,000/- towards costs of the proceedings.
14. The learned counsel for the appellant has submitted that the District Forum passed a perverse order which is against the terms and conditions of the parcel service. He has submitted that the consignment is a special contract and the terms and conditions of the consignment are binding on the appellant and the respondent. He has submitted that the District Forum revised the terms and conditions of the consignment to award a sum of `50,000/- towards the value of the seeds which were lost in the transit which arbitrary and against the settled law. We find acceptable force in the contention of the learned counsel.
15. In Vikram Greentech India Ltd and another vs New India Assurance Company Ltd 2009(5) SCC 599 it was held that Consumer Forum is concerned with a question as to whether there is deficiency in service on the Insurance Company and extent of liability of insurance company can be determined on strict construing of terms of the insurance policy without there being any attempt to rewrite the contract or substituting the terms of the contract which were not intended by the parties.
16. The District Forum awarded an amount of Rs.50,000/- against the terms of consignment note which limit the amount liable to be paid by the appellant to `5/-
per kg. The order of the District Forum granting the amount of `50,000/- by rewriting the terms of contract is arbitrary and against the principle laid in the aforementioned decision. As such the amount awarded by the District Forum is liable to be modified to `5/-
per kg.
17. In the result, appeal is allowed. The order of the District Forum is modified. The appellant/opposite party is directed to pay an amount of Rs.5/- per kg of the weight of cotton seed sent on 23.06.2010. There shall be no order as to costs. Time for compliance four weeks.
Sd/-
MEMBER Sd/-
MEMBER DT.22.05.2013 కె.ఎం.కె.*