BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
F.A NO. 533 OF 2014 IN CC NO.193 OF 2008
ON THE FILE OF DISTRICT FORUM-III, HYDERABAD
Between :
M/s. Midwest Granite Pvt. Ltd.,
Represented by its Director K.Ramachandra,
6-3-802, Zainab Commercial Complex,
Ameerpet, Hyderabad.
And it’s Present Address at 8-2-684/3/25 & 26,
Road No.12, Banjara Hills, Hyderabad. …Appellant / Complainant
AND :
M/s. Kaveri & Kamakshi Travels,
Rep. by it’s Manager
Railway Station Road,
Nellore Town and District
M/s. Kaveri & Kamakshi Travels,
Rep. by it’s Manager, Head Office,
Opp: Metro Shopping Mail,
Kukatpally, Hyderabad.
M/s. Kaveri & Kamakshi Travels,
Rep. by it’s Manager, Branch Office,
Opp: Hotel Tanusha Ameerpet,
Hyderabad. ..…Respondent s/ Opposite parties
Counsel for the Appellant / Complainant : Sri Manne Hari Babu
Counsel for the Respondents/ Opposite parties : Sri M.R.B.Mani Kandan
F.A NO. 596 OF 2014 IN CC NO.193 OF 2008
ON THE FILE OF DISTRICT FORUM-III, HYDERABAD
Between :
M/s. Kaveri & Kamakshi Travels,
Rep. by it’s Manager
Railway Station Road,
Nellore Town and District
M/s. Kaveri & Kamakshi Travels,
Rep. by it’s Manager, Head Office,
Opp: Metro Shopping Mail,
Kukatpally, Hyderabad.
M/s. Kaveri & Kamakshi Travels,
Rep. by it’s Manager, Branch Office,
Opp: Hotel Tanusha Ameerpet,
Hyderabad. ..… Appellants / Opposite Parties
AND :
M/s. Midwest Granite Pvt. Ltd.,
Represented by its Director K.Ramachandra,
6-3-802, Zainab Commercial Complex,
Ameerpet, Hyderabad.
And it’s Present Address at 8-2-684/3/25 & 26,
Road No.12, Banjara Hills, Hyderabad. …Respondent /Complainant
Counsel for the Appellants / Opposite Parties : Sri M.R.B.Mani Kandan
Counsel for the Respondent /Complainant : Sri Manne Hari Babu
Hon’ble Sri Justice B.N.Rao Nalla … President
&
Sri Patil Vithal Rao … Member
Monday, the Sixteenth day of April
Two thousand Eighteen
C O M M O N O R D E R
Oral Order : (Per Hon’ble Sri. Patil Vithal Rao, Member).
***
These two Appeals arise from the Order dated 01.05.2014 passed by the District Consumer Forum-III, Hyderabad, [for brevity, “the District Forum”] in C.C.no.193/2008 directing the Opposite Parties jointly and severally to pay the Complainant a sum of Rs.11,16,640/- with damages and compensation of Rs.5,00,000/- and costs of Rs.2,000/- within a period of one month. Aggrieved by the said Order the Complainant has preferred the Appeal in F.A.No.533/2014 whereas, the Opposite Parties preferred the Appeal in F.A.No.596/2014. For the sake of convenience, the parties will be referred to hereinafter as arrayed before the District Forum.
2. The material facts necessary for the disposal of the case, in brief, are that the Complainant Company purchased Diamond Wire Ropes from SriLanka through MSA Shipping Pvt., Ltd., Colombo in the month of July, 2007 and took its delivery at Hyderabad, on payment of custom charges. It’s further case is that by virtue of a contract with the Opposite Party No.3 Courier and Cargo Services, of which the opposite Party No.2 is the Head Office and Opposite Party No.1 is the Branch Office, the consignment was to be delivered at the branch office of the Complainant Company at Ongole. The Complainant Company has further contended that though it paid necessary charges of Rs.50/- for it, the consignment never reached the destination resulting in huge loss of Rs.11,28,040/- (value of the consignment + Transport charges) to it, since it could not perform it’s minor operations for 10 days for want of said material. Therefore, by way of the Complaint under Section-12 of the Consumer Protection Act, 1986 (for brevity, the Act) it approached the District Forum seeking the said loss of Rs.11,28,040/- with interest @ 24% p.a., and compensation of Rs.5,00,000/- with costs of Rs.20,000/-.
3. The Opposite Party Transport Company resisted the claim by way of filing Written Version before the District Forum on the grounds, interalia, that the Complainant Company is not a ’consumer’ within the meaning of the Act, 1986 since, it is indulged in commercial activities and that even otherwise the complaint is barred by territorial jurisdiction. Further, as per the Opposite Party Transport Agency, the Complainant did not furnish necessary details, such as description and value of the consignment at the time of placing the transport Order as per terms and conditions of the contract and that as such it cannot claim the alleged loss not more than Rs.1,000/- in view of restricted liability of the Opposite Party Transport Agency. The Opposite Party Transport Agency has also contended that the Complainant Company, taking advantage of loss of consignment, filed the present case by ignoring the efforts taken by the Opposite Party Transport Agency in tracing out it, with an intention to harass and make illegal gain. For these reasons, it sought dismissal of the complaint with costs.
4. After due enquiry into the matter the District Forum has passed the Order as noted in Para No.1 supra which is now the impugned in the present Appeals.
5. The contention of the Complainant in the Appeal, in F.A.No.533/2014, in brief, is that the District Forum did not grant adequate compensation and award interest on the value of the consignment having accepted the deficiency in service on the part of the Opposite Party Transport Agency and that as such the impugned Order is liable to be set aside to the said extent by allowing the Appeal.
6. The Opposite Party Transport Agency has contended in it’s Appeal in F.A.No.596/2014, in brief, that District Forum did not consider the commercial nature of the transaction being undertaken by the Complainant Company and also the aspect of territorial jurisdiction to entertain the complaint. Further, the terms and conditions on the sample L.R. were also ignored in the impugned Order and that as such the same is against the evidence placed on record but based on assumption and presumption and purely one sided and that as such liable to be set aside.
7. Perused the material evidence, impugned Order and written arguments of both the parties. Heard their learned counsel.
8. Now the point for consideration is that:-
Whether the impugned order is erroneous and illegal, both in the eye of law and on facts, and that as such liable to be set aside ?
9. Point:- With regard to the legal aspect about maintainability of the complaint, it is to be seen that undisputedly the Complainant has availed the services of the Opposite Party Courier and Cargo Services Agency for delivery of the consignment to it’s branch office at Ongole from Hyderabad by remitting due charges of Rs.50/- and handed over the consignment. Thus, it is a contract for service for freight charges as consideration and has nothing to do with the purpose for which the said consignment was to be used by the Complainant Company. In other words, the use of the consignment by the Complainant Company in it’s Commercial activities is an align subject and no way related to the transport contract between the parties. Therefore, the Opposite Party Transport Agency cannot brand the contract in issue as a Commercial transaction. It is not the case of the Opposite Party Transport Agency that the Complainant Company did not make payment of the transport charges. Even assuming that the said charges were not paid, the Hon’ble Supreme Court in, Transport Corporation of India Limited Vs. V.Hydrair Limited, II (2007) CPJ-35(SC) ruled that non-payment of freight charges does not exonerate common carrier from liability for loss or non-delivery. By applying the said ratio, in the light of the facts on the hand, we hold that the Complainant Company is a ‘consumer’ and the Opposite Party Transport Agency is a ‘service provider’ within the meaning of Section-2(1)(d)(o) of the Act, 1986.
10. The next aspect is with regard to the territorial jurisdiction. In this regard it is to be seen that admittedly the initial contract was entered into at Hyderabad at the office of the Opposite Party No.3 for delivery of the consignment at the branch office of the Complainant Company at Ongole. Since, part of the contract was entered into at Hyderabad, the District Forum certainly had jurisdiction to entertain the complaint. In this view of the matter, it cannot be said that the claim is barred by territorial jurisdiction.
11. Now coming to the second limb of the issue based on the factual aspect of the matter, it is to be noted that the contract for transportation of the consignment was entered into between the parties for a valid consideration. As per the Opposite Party Transport Agency, the Complainant did not disclose nature of the consignment with it’s material particulars and that it was accepted at the Complainant’s own risk and that value of the consignment was exceeding Rs.1,000/- and that as such the claim is not maintainable under Clauses 1, 4 & 9 of the terms and conditions of the L.R. vide Ex.B1. In this regard it is pertinent to note that the said terms and conditions are printed on the reverse side of the L.R. in a minute font and that there is no evidence to show that the same were read over and explained to the authorized person of the Complainant Company. Infact, the Opposite Party Transport Agency, at the initial stage itself, ought to have enquired about value of the consignment and that on noticing it worth more than Rs.1,000/-, ought to have declined to transport by returning it back to the said person. On the other hand the Opposite Party Transport Agency has accepted the consignment on remittance of necessary charges of Rs.50/- but failed to deliver the same at the destination in terms of the contract. When the Complainant Company had complained of it by addressing a letter dated 23.07.2007 vide Ex.A12, the Opposite Party Agency has set up the above noted defence only after filing of the present case. It is also to be seen that the Opposite Party Transport Agency did not bother even to reply the said letter, having received it as evident from the acknowledgment, Ex.A13.
12. The Hon’ble National Commission in, O.D. Phanikar, Vs. Desk to Desk Couriers and Cargo Ltd., III(2003) CPJ 160 (NC) held that when the terms and conditions on reverse side of the consignment note were of a small print and were not explained to the Complainant, the same were not binding of him. This ratio was followed by the A.P. State Commission in, DTDC Worldwide Express Ltd., Vs. P.Venkateswara Rao (F.A.No.1062/2005) and the Bihar State Commission in, Anilkumar Vs. DTDC Courier, I(2007) CPJ 426. Having regard to the facts and circumstances of the present case, we have no hesitation to hold that the said ratio is certainly applicable to it.
13. It is surprising to note that in Para No.(viii) of the grounds of Appeal in F.A.No.596/2014, the Opposite Party Transport Agency has taken a stand that subsequent to booking of the consignment, an authorized person came and cancelled the transaction by taking back the packet containing the goods without returning the original receipt. But this defence finds no place in the Written Version filed before the District Forum. Even otherwise the Opposite Party Transport Agency did not adduce any evidence to establish this allegation by way of filing any extract of the relevant register etc., containing such an entry with signature of the person who allegedly took back the packet. Therefore, such a baseless defence cannot be countenanced.
14. The Complainant Company has filed necessary documents under Exs.A2 to A11 to establish that the consignment in question, was purchased at SriLanka and transported to Hyderabad, worth Rs.11,16,640/-. It is not in dispute that the said consignment was handed over to the Opposite Party No.3 Agency but it failed to hand over it at the destination amounting to deficiency in service.
15. We have given careful consideration to the Order under challenge. The learned District Forum, in our opinion, has considered all relevant and material aspects of the matter in the light of the evidence placed on record in a right perspective and came to a just conclusion which is above reproach. As the findings are neither perverse nor erroneous, the same need no interference. In this view of the matter, we hold that both the Appeals are devoid of merits and that as such liable to be dismissed.
16. In the result, both the Appeals are dismissed by confirming the impugned Order in toto. In the circumstances, the parties shall bear their own costs.
PRESIDENT MEMBER
Dt.16.04.2018
