State Consumer Disputes Redressal Commission
Bearing International ... vs M/S. Anl Parcel Service, Hyderabad-63, ... on 20 September, 2012
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. FA.No.572/2011 against C.C.No.968/2010 District Forum-III, Hyderabad. Between Bearing International G-2, Varalakshmi complex, 61, M.G.Road, Secunderabad. Represented by its Proprietor Sri Man Mohan Konodia S/o.K.L.Kanodia, aged 58 years. ..Appellant/ Complainant And M/s. ANL Parcel Service, Head office at 5-9-30/1/5/B, Road No.4, Basheerbagh, Palace Colony, Hyderabad-63, Represented by its Manager. Respondent/ Opp.party Counsel for the Appellant : Mr.V.L.V.Kesava Rao. Counsel for the Respondent : M/s P.Rajasripathi Rao. QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER.
AND SRI T.ASHOK KUMAR, HONBLE MEMBER.
THURSDAY, THE TWENTIETH DAY OF SEPTEMBER, TWO THOUSAND TWELVE Order (Per SRI T.ASHOK KUMAR, Honble Member) *** Aggrieved by the order in C.C.No.968/2010 on the file of District Forum-III, Hyderabad, the unsucessful complainant preferred this appeal.
The brief facts of the complaint are that the complainant is doing business of dealing with Bearings and its accessories used for industrial purpose and got order for Bearings worth Rs.62,036/- from Sri Bhawani Stone Crushers at Jaggayyapeta in Krishna District and sent the material under invoice dated 9-3-2009 through parcel service of opposite party vide Goods consignment Note No.48032925 dated 9-3-2009 containing two packages weighing 70Kg and the opposite party charged Rs.173/-.
The above material was not delivered even after 10 days to the consignee and therefore, he gave a written complaint dt. 20-3-2009 and also legal notice dt. 16-7-2009 and opposite party gave reply vide letter dated 11-8-2009 asking for xerox copy of consignment stating that action will be taken in due course. The complainant again sent a letter on 14-11-2009 to the opposite party to pay Rs.62,036/- worth of lost material and informed that legal action will be initiated for which, opposite party gave reply stating that the material was lost in transit and that they are not aware of the contents of the consignment or they were are not disclosed and that bill/invoice produced at the time of booking disclosing the value, failed to insure and declined to settle the claim of the complainant. Hence the complaint for a direction to the opposite party to pay Rs.60,036/- towards cost of the mateiral and pay Rs.16,029/- towards interest @ 18% p.a. from 11-3-2009 to 12-9-2010 on cost of the material and further interest @ 18% p.a. from the date of filing of complaint till payment and Rs.5,000/- towards the costs of the complaint.
Opposite party filed counter resisting the complaint and the gist of the said counter is as under:
The complaint is liable to be disissed as the complainant is not a consumer. It is true that the complainant has booked a consignment with the opposite party bearing No.48032925 dated 09-3-2009 containing of two packing weighing about 70 kgs but denied that the complainant delcared the value of the consginment and so also the contents of the consignment at the time of booking. Opposite party has charged its freight charges based on the weight of the packages as the complainant has not declared the value of the consignment in the value column of the goods consignment note. It is bounden duty of anybody to declare the contents of the consignment so also the value of the consignment and that the complainant has not filed any order placed by M/s Bhavani Stone Crushers and as such it is false to allege that they have placed an order with the complainant. Opposite party collects 2% as service charges if the value of the consignment is declared by producing any invoice and as the complainant has not mentioed the value of the consignment nor produced any invoice to show that the value of the consignment is Rs.62,036/-, they have collected Rs.173/- only i.e. @ Rs.2/- per kg against the total weight of 70 Kg. as freight charges on the weight of the goods and not on the value of the consignment. The complainant ought to have taken steps to insure the consignment if the value was on the higher side. The complainant has issued a letter dated 20-3-2009 to the opposite party asking whether the consignment was delivered but has not mentioned the value of the consignment nor the contents of the consignment and denied that the value of the goods was Rs.62,036/-. Opposite party came to know that the value was Rs.62,036/- only when the legal notice was issued. It is true that the said consignment was misplaced in transmit and that opposite party tried its level best to trace the same but could not trace the same and that the complainant is not a consumer as the transaction between the complainant and the opposite party is a commerical transaction. As per clause 6 of the terms and conditions of the consignment note, the complainant is barred from raising a claim and denied the other allegations as false and untrue and also pleaded that the complaint is barred by limitation and thus prayed for dismissal of the complaint with costs.
Both sides filed evidence affidavit reiterating their respective stands aforesaid.
Exs.A1 to A7 were marked by the complainant and no documents were marked on behalf of the opposite parties.
Having heard both sides considering the arguments of the complainant and opposite party and material on record, the District Forum vide impugned orders allowed the complaint in part directing opposite party to pay Rs.15,000/- towards compensation for mental agony together with costs of Rs.2,000/-
Feeling aggrieved by the said order, the unsuccessful complainant preferred this appeal contending that the opposite party is not liable if the contents and value of the consignment as per schedule to Section 3 of The Carriers Act are not delcared whereas the present claim of the complainant is govered under Sec.8 of the same Act which does not require declaration in case of loss or damage due to negligence of the carrier or his agents or servants. It further submitted that it is the opposite party that has to fill up the columns in consignment note as to the contents of consignment and value thereof and that it is duty bound to give delivery challan with consignment note to be delivered to the ultimate consignee to avoid any hurdles in confiscating consignment material by statutory authorities while in transit and that the District Forum ought to have awarded the relief sought by the appellant against the respondent and thus prayed to allow the appeal.
Heard both sides with reference to their respective contentions and counsel for appellant/complainant submitted written arguments.
Now the point for consideration is whether the order of the District Forum is sustainable or it requires any modification?
There is no dispute that vide Ex.A2 receipt for Rs.173 the complainant booked a consignment with opposite party on 09-3-2009 containing two packages weighing about 70 Kgs. to be delivered at Jaggaiahpet. There is no dependable evidence from the side of the complainant that he has declared the value of the consignment so also the contents of the consignment at the time of booking the same nor it was insured. Ofcourse, the opposite party has collected freight charges basing on the weight of the packages as the complainant did not declare the value of the consignment in the value column of the goods, consignment note. The complainant did not file and prove any documents to the effect that M/s.Bhavani Stone Crushers placed such an order with the complainant.
Had the value of the consignment was Rs.62,036/- at the time of the complainant booking the same certainly he would have declared the same and mentioned in the relevant column of consignment note but he did not do so and hence adverse inference is drawn against the complainant in the said context. He did not file any third party affidavits from the said M/s.Bhavani Stone Crushers in the said context and hence self serving evidence of the complainant is not sufficient to decide the issue in the said context in his favour. Hence Ex.A1, Tax invoice dated 09-3-2009 is not helpful for him to say that the value of the consignment was Rs.62,036/-. Possibility of bringing the said document into existence to suit the case of the complainant cannot be over ruled. If really the value of the consignment was Rs.62,036/- the opposite party would have certainly charged more than Rs.173/-. In such circumstances none of the documents in Ex.A3 to A7 are helpful for him and on the other hand it is understood that vide Ex.A4 dated 16-7-2009, the opposite party came to know the value of consignment was Rs.62,036/- because even in Ex.A3 letter dated 20-3-2009, the complainant did not mention the value of the consignment and hence any amount of doubt can be entertained on Ex.A1 invoice. Opposite party admits that the consignment booked with it at Hyderabad for delivery at Jaggaiahpet was not delivered and that it was lost during the transit and according to the opposite party they searched for the said consignment but in vain and thus we can come to a conclusion that it was so lost and could not be traced and it certainly amounts to deficiency in service on the part of the opposite party as they were negligent in transporting the consignment for which it is liable to pay some compensation to the complainant for the loss of consignment and mental agony etc. Assigning reasons, the District Forum held that clause 6 of the consignment note is not applicable in the present case. When Ex.A1 is disbelieved, the argument of the complainant that U/s. 8 of the Carriers Act, he is not found to declare value is of no consequence in his favour.
In the circumstances of the case, the decision reported in 2000 (2) CPR 35 between Patel Roadways Ltd., v. Birla Yamaha Ltd., wherein it was held that plaintiff need not establish negligence on the part of carrier is not helpful for the complainant as it is held that opposite party was negligent in this case. Here limited liability aspect is not involved and for not delivering the consignment to given address, deficiency in service is found on the part of the opposite party and thus the decision reported in II (2012) CPJ 167 (NC) between AIR STAR EXPRESS COURIER v. INDER MEDICAL STORE & ANOTHER is not helpful to the complainant. So also the decision reported in 2010 (4) CPR 37 between SAFARI SALES PVT. LTD., V. SURJIT GOODS CARRIER.
In a decision of this Commission in F.A.No.1659/2006 dated 20-4-2009, it was held that the service as to transportation also falls within the meaning of Consumer Protection Act, 1986 and thus satisfied to hold that consumer forum has jurisdiction to entertain the complaint. There are no reasons to enhance the compensation as prayed for by the complainant. For the reasons given by the District Forum and some of the reasons given by this Commission, this appeal is devoid of merits and liable to be dismissed confirming the orders of the District Forum.
In the result this appeal is dismissed confirming the order of the District Forum. Parties shall bear their own costs of the appeal. (4) weeks time for compliance from the date of receipt of copy of this order.
Sd/-MEMBER.
Sd/-MEMBER JM Dt.20-9-2012