State Consumer Disputes Redressal Commission
Bharat Automobiles, Rep. By Its ... vs Chitradevi Transports, Rep. By The ... on 5 May, 2011
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
THE TAMILNADU STATE
CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
(BENCH
II)
Present: Thiru.A.K.Annamalai, M.A.,
M.L., M.Phil., Presiding Member
Judicial
Thiru.S.Sambandam, B.Sc., Member
F.A.No.704/2008
[Against order in O.P.No.226/2007
on the file of the DCDRF, Chennai(North)]
THURSDAY, THE 5th DAY OF MAY 2011.
Bharat
Automobiles,
Rep. by
its Manager,
202, Lloyds Road,
Royapettah,
Chennai
600 014. ..
Appellant/Complainant.
Vs.
1.
Chitradevi Transports,
Rep. by the Proprietor/
Authorized Person/Manager,
176/1, Wall Tax Road,
Chennai 600 003.
2.
Chitradevi Transport, Head Office,
70, YMCA, Building,
Head
Post Office Road,
Coimbatore
641 001. .. Respondents/Opposite parties
The Appellant as complainant filed
a complaint before the District Forum, Chennai(North) alleging deficiency
against the opposite parties to pay Rs.10,42,981/- with 24% interest from the
date of entrustment of the goods on 30.11.06, to pay Rs.1,00,000/- as
compensation for mental agony, to pay Rs.382/- towards transportation and costs. The District Forum, dismissed the complaint
against the opposite parties. Against the said order, this appeal is preferred by
the complainant, praying to set aside the order of the District Forum, Chennai
(North), dated 24.06.08 in C.C.No.226/2007.
This appeal coming before us for
hearing finally on 28.04.2011, upon hearing the arguments of the counsel on
complainant side, and perused the documents, written submissions as well as the
order of the District Forum, this Commission made the following order :-
Counsel
for the Appellant/complainant : M/s.S.Aravamuthan
& A.Umashankar, Advocates.
Counsel
for the Respondents/ opposite parties : M/S.R.Dhanalakshmi, Advocate (Absent)
ORDER
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL
1. The unsuccessful complainant is the appellant.
2. The complainant filed a complaint against the opposite parties before the District Forum claiming for a sum of Rs.1,42,981/- for the loss of goods transported through the opposite parties which were not received by the other end and for Rs.1,00,000/- towards compensation for mental agony and Rs.382/-
towards transportation charges.
3. The details of the complaint in brief are as follows :- The complainant carrying business of selling automobile spare parts for the vehicles and he has sent the goods for the value of Rs.1,04,298/- from Chennai to Salem in 12 numbers of packing cases as a regular customer of the opposite party by paying freight charges of Rs.382/- on 30.11.2006. But the said goods so transported through opposite party had not been delivered in time to Salem branch and on letter sent on 14.12.06 no reply was given by the opposite parties and till date the goods were not reached the destination and the complainant came to know that the lorry in which the goods were sent met with an accident on 11.12.06 and the goods so sent would not be delivered and they did not deliver the goods as agreed and hence a legal notice was sent and in the reply it is stated due to unforeseen accident the goods in the lorry were damaged. Hence the complainant has filed this complaint.
4. The opposite parties filed version denying the allegations of the complainant stated that there is no consumer dispute and the complainant is not a consumer and no deficiency of service. The complainant given different values for the same goods and not sure of the value in their claim and the goods ought to have been insured that the lorry met with an accident on 11.12.06 plunged in to Pumbai River in Villupuram and due to unforeseen accident the goods with the lorry were damaged. Hence it is an absolutely act of god. Hence the complainant have to approached the Civil Court for relief.
5. The District Forum after considering both sides materials and after an enquiry dismissed the complaint by holding that the transaction was for commercial purpose and here the complainant is not a consumer.
6. When the appeal is taken before this Commission for final hearing on 28.4.2011 and even prior to that date for more than two hearings the respondents 1 and 2 have not entered in appearance and remained absence and thereby this Commission is forced to pass orders on merits after hearing the appellant side arguments and on the basis of the materials placed before this Commission.
7. While considering appellant side arguments, averments and upon perusal of the District Forums order it is not in dispute that the complainant had sent his automobile spare parts as consignment from Chennai to Salem as per Exhibit A1 freight charges bill and the goods were not delivered to the complainant at the Salem point. It is also not in dispute that the opposite parties have stated that the lorry in which goods were sent met with an accident and that the lorry by plunging in to the river and goods were not retrieved. In those circumstances it is evident that the opposite parties were not in a position to deliver the goods to the complainant. The District Forum held that the complainant activities by sending the goods are for commercial purpose and thereby invoking provisions of Consumer Protection Act for relief may not be sustainable one and thereby the complainant failed to establish that there was deficiency of service and the pleading of the complainant has not sufficient to hold that there is deficiency of service and on that basis the complaint was dismissed.
8. Whether this finding of the District Forum could be an acceptable and sustainable one is the point to be considered.
9. The learned counsel for appellant in this regard argued that the District Forum without understanding difference for service for contract and service in contract wrongly construed that the consignment of goods by the complainant was for the purpose of commercial activity and held that the complainant is not a consumer as per the provision under Sec.2(d)(ii). While considering the contention of the appellant counsel on the basis of the facts and circumstances of the case is concerned that the complainant being the dealer in automobile spare parts by sending the spare parts from his Chennai base to Salem branch through the opposite parties lorry service by paying charges for the service rendered by the opposite party as freight charges he has availed the service as contract for service and he has not sold the things or spare parts to the opposite parties for the purpose of commercial business and sending of goods through the carrier agency by paying necessary charges for the service rendered by the carrier agency is only a contract for service and not for his commercial purpose with the opposite party even though those goods are intended for commercial nature. The learned counsel for the appellant relied the ruling in the written arguments reported in, 2007 III MLJ page 762 (SC), in which it is stated as follows :-
II. Complaint filed under the provisions of the Consumer Protection Act, 1986, when two years from the date of receipt of letter intimating consignor that it was trying to locate consignment, is not barred by Section 24-A of the Consumer Protection Act, 1986.
III. When a person entrusts goods to a common carrier and the carrier accepts the same, there is a contract for service. When the goods are not delivered as per the contract, there is a deficiency in service.
In the said ruling the earlier ruling in Patel Roadways Limited Vs. Birla Water Limited AIR 2000 Supreme Court 1461 (2000) 4 SCC 91, was relied upon in which Supreme Court held that loss of goods or injury to goods or non delivery of goods entrusted to a common carrier for carriage would amount to a deficiency of service and therefore a complaint under the Consumer Protection Act 1986 would be maintainable. As per the above rulings and on the facts and circumstances of the case in our hand the complainant entrusted the automobile spare parts goods in 14 packages to be delivered at Salem from Chennai through the opposite party carrier by paying necessary freight charges as per Exhibit A1 by availing services of opposite parties 1 and 2 and the goods were not delivered to the complainant and even though it was stated that those goods were lost due to the accident to the lorry which plunged in to the river and the goods were not retrievable. Hence the opposite parties are liable to be answerable for the goods consigned by the complainant and the opposite parties contended that the goods were not insured and the value was not intimated and there are discrepancies in claiming the value as Rs.1,04,298/- or Rs.01,04,29,725/- at page two of the complaint and thereby stating the complaint is not sure of the value in the claim. While considering this point that may be a mistake in incorporating the figures in the complaint due to typographical error. But on perusal of the legal notice Exhibit A5 which was replied by Exhibit A6, the value of goods were mentioned as Rs.94,298/- and same with interest at 24% along with the freight charge of Rs.382/- as per Exhibit A5 were demanded and even though the opposite parties denied the value. In view of the nature of goods sent in 12 packages as automobile spare parts and for which necessary invoice were produced as Exhibit A2 and A3 the contention of the opposite parties cannot be acceptable.
In those circumstances when the opposite parties would claim damages and losses from the insurance company for the loss of their vehicle and the goods carried in it they are bound to compensate the complainant for the goods lost sent by the complainant and they cannot evade from liability by simply sending a reply stating that the loss of goods were due to unforeseen accident. Hence in view of the facts and circumstances of the case, we consider that the appeal to be allowed.
10. In the result, the appeal is allowed with the following directions :-
a) The order of the District Forum, Chennai (North) in C.C.No.226/2007 dated 24.06.08 is hereby set aside. Complaint is allowed.
b) The opposite parties are jointly and severally directed to pay a sum of Rs.94,298/- as cost of the lost goods not delivered to the complainant by the opposite parties.
c) The opposite parties are directed to pay a sum of Rs.10,000/- as compensation for the loss and mental agony suffered by the complainant
d) To pay a sum of Rs.2,000/- as costs to the complainant
e) Opposite parties are directed to comply the order within two months from the date of this order failing which the complainant is entitled to claim the amount awarded with 9% interest.
e) No order as to cost in this appeal.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka//Transport