IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA 

Thursday the 31st  day of August, 2017

Filed on 09.08.2016 

Present

1. Smt. Elizabeth George (President)

2. Sri. Antony Xavier (Member)

3. Smt. Jasmine D (Member) 

in

CC/No.256/2016

  Between

.

       Complainant:-       Opposite parties:-

 

Sri.  Adrash. G. 1. The Safe Express Pvt.Ltd

S/o Gopinathan Corporate Office

Ramanchirayil Padeettatil NH-8, Mahipalpur Extn. 

Kandallor North New Delhi-110 037

Pattoli Market P.O., Alappuzha                                                                                  

(Adv. Kala Dhanush) 2. The Manager

Safe Express 

Near Kali Mata Mandir

Rajagarh Road

Santi, Salon (Dist) Himachal Pradesh

 

3. The Manager, Safe Express

Opp. KMC Mill

Pathirapally, Alappuzha

(By Adv. Rakesh. R.K. -  for opposite parties 1 to 3)

O R D E R

SMT. JASMINE D. (MEMBER)

 

The case of the complainant is that the complainant approached the 2nd opposite party to deliver the consignments of the complainant from Shimla(Himachal Pradesh) to Alappuzha(Kerala).  The complainant entrusted two cartons covered with  gunny bag, 2 trunk and 2 Motor cycle to the 2nd opposite party.  The cartons covered with gunny bags contained LED TV, Prestige Induction Cooker, a Mixer grinder and House hold utensils and the opposite party issued the way bill to the complainant.  The 2nd opposite party assured to deliver the articles at 3rd opposite party office within 10 days.  On 15/10/2015 the complainant approached the 3rd opposite party to take the delivery of goods the 3rd opposite party informed the complainant that one motorcycle and one carton were lost  and the complainant received other four items.  The lost items are one Royal Enfield motor bike and one carton covered with gunny bag contained  LED TV, Mixer Grinder, and Induction cooker.  The complainant calculated an amount of Rs. 1,99,000/- towards the lost items. The complainant has sent a legal notice to the opposite parties on 13/11/15.  Notice against opposite party 1 and 2 were served. Notice to 3rd opposite party returned as refused even though lawyers notice was served to the 1 and 2nd opposite party they  have not given any reply to the said notice. Since the complainant’s valuable articles were lost the complainant sustained much mental agony an inconvenience and hence filed the complaint.

2. Notice were served to the opposite parties.  They appeared before the Forum and filed version.

3. Version of the opposite parties is as follows:-

The complaint is not maintainable. It is true that the complainant approached the opposite party at Shimla(Himachal Pradesh) and had requested the opposite party to send consignments and the  company agreed to the same and had sent the consignments.  The 2nd opposite party was entrusted with two cartons covered with gunny bags, two trunks and two motorcycles (total 6 items) contained an LED TV (sony), Prestige Induction cooker, Mixer grinder and the household utensils.  The contents of the cartons covered with gunny bags are not declared by the complainant in the way bill.  The opposite party had sent consignments,  wide way bill No.43983501 dated 26/09/2015.   The averments In Para-IV, the remaining materials were delivered  to the petitioner on 15/10/2015 to the consignor where in the petitioner on receipt of materials had put his remarks “two pieces short” along with his signature affixed by no stretch of imagination, a Motorcycle. LED TV, utensils, Induction cooker and mixy can be said to be “a piece”.  The averments in para-vi is denied to the extent that while booking  the goods in the opposite party company the said value of the goods has to be entered in the column allotted for entering the value of goods. But while booking the said goods the petitioner had not disclosed the value of the goods and also the same was scrolled of by the complainant and further the value of the goods/ consignment in question can only be determined at Rs.10,000/-(Ten thousand Rupees only)  and upon the  said value, a value surcharge of Rs.100/- (Hundred Rupees only) was charged upon the petitioner in terms of the retail rate card for carrier risk and this opposite party company had also sent a reply to the notice of the complainant on 22/12/2016.  As such , the averments made by the petitioner are ill-intended and without any substantive material.  The complainant demanded for an amount of Rs. 1,99,000/- absolutely baseless and the opposite party liability if any is only to the extent of Rs.10,000/-. In case the goods were damage as stolen only out of negligence to opposite party company.   However in the present case, on account of the circumstances and reasons beyond control and reach of the opposite party the clause/ condition of “force majure” shall apply as mentioned behind the way bill in question.  Thus, as per the terms and conditions of the way bill in question, the opposite party is under the obligation to adhere and obey to the “force majure’ condition/ clause.  It is further submitted that as per the way bill it contained 6 packages, out of which one was the motorcycle which was duly handed over and duly accepted by the petitioner.  The respondent takes the good for delivery as per the value of goods and materials declared by its customers and accordingly the freight amount is charged by the opposite party company.  However in the above case, no bill/ invoice/ supporting document were shown to the actual value of consignment or the contents of the same by the complainant at time of booking the goods in question and accordingly the opposite party company had charged the freight.  And hence the complaint may be dismissed.

4. Complainant filed proof affidavit and Exts.A1 to A9 were marked. One witness was examined as PW1.  Thereafter the evidence was reopened by the opposite parties and the Power of Attorney Holder of the complainant was examined as PW2.   

5.Considering the allegations of the complainant and contentions of the opposite parties,  the Forum has raised the following issues:-  

1)  Whether there is any deficiency in service on the part of the opposite parties?

2)  Whether the complainant is entitled to get any reliefs?

 

6. Issues:-  The cases of the complainant is that the complainant had entrusted certain goods to the 2nd opposite party to transport from Shimla to Alappuzha on 26/9/2015.  The consignment consists of two Motocycle, 2 carton covered with gunny bags and 2 Trunks.  But the opposite party delivered only 4 itmes  and 2 items were not delivered to the complainant.  The lost items includes one Royal Enfield motor bike and one carton covered with gunny bag which contains LED TV mixer grinder and induction cooker and other utensils.  The complainant calculated an amount  of Rs. 1,99,000/- towards the value of  lost items .  Since the opposite parties failed  to deliver the consignment the complainant he had sent  a lawyers notice to the opposite parties requesting to pay the value of lost items but the opposite party failed to do so.  The act of the opposite parties caused much mental agony and hence filed this complaint.

7. The complainant filed proof affidavit and produced 9 documents to substantiate his allegations.  Which were marked as Ex A1 to Ext.A9.  Ext.A1 is the power of attorney executed by the complainant infavour  of his mother subashini. Ext.A2 is the copy of legal notice dated 12/11/15.  Ext.A3 are the postal receipts.  Ext.A4 is the way bill dated 26/9/2015.  Ext.A5 is the copy of letter issued by the complainant to the 3rd opposite party on dated 17/10/15.  Ext.A6 is the copy of delivery bill.  Ext.A7 is the returned legal notice.  Ext.A8 are the AD cards.  Ext.A9 is the copy of RC.  Ext.A4 clearly shows that the complainant had entrusted  6 items to the 2nd opposite party to transport from shimla to Kerala(Alappuzha) including 2 motorcycle, 2 trunk and 2 carton.  Ext.A6 shows that only 4 items was received by the complainant.  Ext.A5 is a letter issued to the 3rd opposite party shows that the lost items are Royal enfield motor bike and one carton containing LED TV and mixer grinder and induction cooker. It is pertinent to note that Ext.A5 was duly received by the 3rd opposite party. So froms these documents it is clear that one Royal enfield motor bike and one carton were not delivered to the complainant .  Ext.A2, A3 and Ext.A8 would shows that notice of loss was given to the opposite parties. Ext.A9 shows that the complainant is the owner of the Royal enfield motorbike bearing No. HP 03 D 2679.  One witness was examined from the part of the complainant inorder to prove the market value of lost motor cycle and as per the version of PW1 the market value of 96 model Royal enfield  motor bike worth Rs.1,30,000/-.  From the documents it is clear that 2 items  were not delivered to the complainant.  The loss of goods is an evidence of negligence on the part of the opposite parties.  The service provider is duty bound to ensure safe delivery of parcel.  Since the opposite parties failed to deliver the consignment as assured they have committed  deficiency in service and the complainant is entitled to get the value of the property lost.  As per the deposition of PW1 the value of motorbike amounts to Rs.1,30,000/-. In Ext.A4 it is specifically stated that 2 motorcycle but the contents of the cartons were not specified.  In Ext.A4 it can also be seen that the said articles was transported at carriers risk.  On the foregoing discussion we are of the view that the opposite parties are liable to pay the value of goods.  Since the contents of the cartons covered with gunny bags we not specified in Ext.A4 we can’t direct the opposite parties to pay the amount as claimed by the complainant. But  at the same time it is true that  on of the carton was lost and therefore the opposite parties are liable to compensate the complainant for the loss sustained.  The opposite parties are jointly and severally liable for the same.  

In the result the complaint is allowed.  The opposite parties are directed to pay an amount of Rs. 1,30,000/- (Rupees One lakh thirty thousand only) to the complainant as the value of consignment lost and Rs.10,000/- (Rupees Ten thousand only) towards compensation and Rs.2000 (Rupees Two thousand only) cost of the proceedings.  The order shall be complied within one month from the date of the receipt of this order 

       Pronounced  in open Forum on this the 28th  day of September, 2017.

Sd/- Smt. Jasmine.D.  (Member) : .                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

  Sd/- Smt. Elizabeth George (President):

Sd/- Sri. Antony Xavier (Member) :

Appendix:-

Evidence of the complainant:-

 

PW1 - George (witness)

PW2 - Subhashini (Witness)

 

Ext.A1 - Power of Attorney

Ext.A2 - Legal Notice dtd.12/11/15

Ext.A3 - Postal receipts

Ext.A4 - Way bill dtd 26/9/15

Ext.A5 - Copy of a letter dtd. 17/10/15

Ext.A6 - Copy of delivery bill

Ext.A7 - Returned legal notice

Ext.A8 - Acknowlegment cards

Ext.A9 - RC book

Evidence of the opposite parties:-  Nil

      

// True Copy //                                

 

By Order                                                                                                   

 

Senior Superintendent

To

         Complainant/Opposite parties/S.F.

 

Typed by:- br/-  

Compared by:-