DISTRICT FORUM :: KADAPA
PRESENT: SMT. B. DURGA KUMARI, B.A.B.L., PRESIDENT I/C
SRI S. ABDUL KHADER BASHA, B.Sc., MEMBER
Monday, the 3rd day of March 2008.
C.C. No. 108 /2007.
Proddatur Town, Kadapa Dist. ……Complainant.
Vs
Marshal Transport Company,
H.No.3-7, Saroor Nagar, Hyderabad-500 035.
Marshal Transport Company,
Rep. by its agent, 9/659-6, Mydukur Road,
Opp. II town P.S., Proddatur.
Marshal Transport Company,
Rep. by its agent, Vijayawada …… Respondents
This complaint coming on this day for orders in the presence of Sri T. Ramalingeswara Raju, Advocate for the complainant and Sri. S.V. Seshadri for R-2, R-1 and R-3 called absent and set exparte, and upon perusing the material papers on record, the Forum made the following:-
O R D E R
Complaint filed under section 12 of the Consumer Protection Act. 1986.
The brief facts of the complaint are as follows: The complainant purchased a Diwan Cot from Godway furniture, Vijayawada, for Rs.4,480/- and the seller booked the said Diwan Cot with the first Respondent’s transport company at Vijayawada, on 12-5-2007 to be transported from Vijayawada to Proddatur. Second Respondent received and unloaded the Diwan Cot on 16-5-2007 at Proddatur where the complainant found that the said Diwan Cot was totally damaged for which the second Respondent also gave a letter dated 17-6-2007 to that effect to the complainant. It is the bounded duty of the transport company like the 1st Respondent to transport the booked goods with care and caution and without any damage to them, but in the instant case, the Respondents did not take any precautions, which led to damage the consignment completely, which clearly indicates the Respondent’s negligent act in transporting the consignment. Because of the Respondent’s negligent and irresponsible act, the complainant suffered mental agony. There is a clear deficiency of service on the part of the 1st Respondent being head office. Therefore, Respondents are liable to pay the costs of the Diwan Cot with interest @ 18% p.a. apart from Rs.25,000/- towards mental agony. The complainant demanded Respondent No.3 many-a-time to pay the costs of the Diwan Cot with interest and damages towards mental agony, but the Respondents did not comply with his demand and postponing on some pretext or other. The complainant also got issued a legal notice dated 10-8-2007 calling upon the Respondents to pay the costs of the Diwan cot together with interest @ 18% p.a. up-to-date besides Rs.25,000/- towards mental agony caused to my client on account of your deficiency in rendering services, but the same was found futile. Having no other alternative, the complainant is obliged to file this complaint. Cause of action for the complaint arose when the complainant purchased a Diwan cot from Godway furniture, Vijayawada, for Rs.4,480/- and the seller booked the said Diwan cot with the first Respondent’s transport company at Vijayawada, on 12-5-2007 from Vijayawada to Proddatur, when the second Respondent received and unloaded the Diwan cot on 16-5-2007 and found that the said Diwan cot was totally damaged and second Respondent also gave a letter dated 17-6-2007 to that effect to the complainant, when the complainant suffered mental agony besides financial loss and also inconvenience, on 10-8-2007 when the complainant got issued a legal notice, which became futile and in Proddatur where the second Respondent’s branch office is situated and where the subject consignment was delivered to the complainant and where the complainant found the diwan cot being damaged, within the jurisdiction of this Hon’ble Forum and hence this Hon’ble Forum is having jurisdiction to entertain the complaint. Therefore, pray that the Hon’ble Forum may be pleased to (1) Direct the Respondents to pay the costs of the Diwan cot i.e. Rs.4,480/- together with interest @18% p.a. from the date of booking the consignment till the date of actual payment of money (2) Grant compensation of Rs.25,000/- to the complainant towards mental agony suffered by him on account of deficient services rendered by the Respondents (3) Grant costs of the complaint to a tune of Rs.2,000/- including the expenses for sending the legal notice to the Respondents by Registered post (4) Grant such other and further relief as the Hon’ble Forum deems fit and proper under the circumstances of the complaint, in the interest of justice.
R-2 filed a counter stating that, the complaint filed by the complainant is not maintainable either in law or on facts. The complainant is put to strict proof of all the allegations made in the complaint except those, which are specifically admitted herein. The complainant does not come under the definition of consumer. The relationship between the complainant and the Respondent company is that of a bailor and bailee and not as that of consumer and manufacturer. When there is no relationship of consumer and manufacturer the question of deficiency in service does not arise. Hence, the complaint is not maintainable before this Forum. According to the terms and conditions mentioned on the face of the consignment copy and back (condition No.21) of the consignment copy (TO PAY), dt. 12-5-2007 the complainant has to file complaint before the Courts of R.R. District, Hyderabad. The consignment was consigned at Vijayawada and received the same by the complainant at Proddatur. The complainant alleged in his complaint that the Respondent issued a letter with regard to the condition of cot at the time of delivery. Mere issuing a letter with regard to the condition of the cot at the time of delivery does not confer any right on the complainant to claim damages in the absence of any document to show that the complainant paid the amount towards the transport charges, availed the services of Respondent’s company and the consignment was in god condition at Vijayawada. This Forum has no jurisdiction to entertain the complaint since the consignment is not supported by consideration and the complainant is put to strict proof the same. The consigned Diwan Cot was unpacked. The Diwan cot is detachable. If it is damaged, it can be used after attending necessary repairs. Surprisingly the complainant claimed the total value of the cot with interest and compensation to which he is not at all entitled. According to the terms of the Company the Respondent Company is not liable to pay damages alleged to have been caused to the cot. Moreover, there are no instructions with regard to the handling of the Diwan cot at the time of consignment. The Respondent company is a common carrier. The fact is well known to the complainant and seller. In absence of any special contract, the complainant cannot claim damages from the Respondent company. The complainant is put to strict proof that the consigned cot was in good condition at the time of consignment at Vijayawada. If complainant proves any negligence on the part of the Respondent company, which, he alleges, resulted in damage to the cot, he has to file a suit in a Civil Court, but not before the Consumer Forum. Transporting a consignment by bus or lorry includes the risk of jerks and jolts which may result in damage to the unpacked goods. It is for the owner/seller to choose his mode of transport. Since the complainant/seller opted for the road transport there is an implied consent to run the risk of damage that may cause to the goods during the transit due to the jerks and jolts. There is no negligence or deficiency, as alleged by the complainant, on the part of the Respondent company and the complainant is put to strict proof of the same. The Respondent reserves his right to file additional counter if new facts comes to his knowledge. Therefore, prayed that the Hon’ble Forum be pleased to dismiss the complaint with costs in the interest of justice.
R-1 called absent and set exparte on 19-12-2007 similarly R-3 called absent and set exparte on 4-2-2008.
On the basis of above pleadings the following points are settled for determination.
1. Whether the complainant comes under the definition of Consumer within the meaning of section 2 (1) (d) of C.P. Act, 1986
2. Whether the complainant is entitle for the relief as prayed for?
3. To what relief?
On behalf of the complainant Ex.A-1 to A-7 were marked, on behalf of the Respondents no exhibits were marked. No witnesses are examined on behalf of the complainant and Respondents. Written arguments were filed by both sides. Oral arguments were heard from both the sides.
Point No.1: The contentions of the learned counsel for the Respondent No.2 is that the complainant is doing business in furniture and the Diwan cot in question was purchased and booked at Vijayawada for commercial purpose as such he is not a consumer as per the definition of section 2 (1) (d) of C.P. Act. The learned counsel for R-2 fails to prove any proof in support of his contention. Though the complainant is doing business, there is no evidence to show that the Diwan cot in question was purchased for commercial purpose. In the absence of any proof of evidence, it is not safe to consider the contention of the learned counsel for R-2. The learned counsel for R-2 also raised an objection that Diwan cot was booked at Vijayawada and the complainant has not paid the money and the consignment copy dated 12-5-2007 shows “to pay” which means the complainant is bound to pay the charges at Proddatur but he did not pay any charges. So the complainant is not a consumer within the meaning of 2 (1) (d) of C.P. Act as no consideration was paid by the complainant with the Respondent. The consignment copy dated 12-5-2007 (Ex.A-2) shows “to pay” means the complainant shall pay the charges to the Respondent. Unless the charges are paid the Diwan cot would not have delivered to the complainant. The complainant was delivered with the article, so it is presumed that the charges were paid to the Respondent and took delivery of Diwan cot by the complainant. In view of the above circumstances the complainant is safely fitted within the meaning of “Consumer” in terms of section 2 (1) (d) of C.P. Act.
Point No.2: Ex.A-1 is the original pay bill dated 12-5-2007 in which the consignment was booked at Vijayawada and to be delivered to the complainant at Proddatur and the value of the good is mentioned as Rs.4,480/-, Ex.A-2 is the carbon copy of Marshal Transportation Company consignment No.79818 dated 12-5-2007 in the name of the complainant in which it is mentioned that an amount of Rs.328/- as “to pay”, Ex.A-3 is the letter of Marshal Transport Company, Proddatur addressed to the complainant dated 17-6-2007 in which it was mentioned that the Diwan cot is in total damage condition at the time of unloading, Ex.A-4 is the copy of legal notice issued by the counsel of the complainant addressed to the R-1, R-2 and R-3 dated 10-8-2007, Ex.A-5 are three postal receipts bearing Nos. 1787, 1788 and 1789 dated 13-8-2007, Ex.A-6 are served two postal acknowledgement cards in respect of R-1 and R-2 and Ex.A-7 is the postal cover addressed to R-3 by the counsel of the complainant which was returned undelivered.
As could be seen from the documentary evidence coupled with oral and written arguments from both the sides there is not dispute with the Diwan cot worth Rs.4,480/- that was booked on 12-5-2007 at Vijayawada in the name of the complainant for its transportation to Proddatur. Diwan cot was delivered to the complainant and the complainant found the said Diwan cot was totally damaged, R-2 gave his letter Ex.A-3 stating that it was found damaged at the time of delivery. The consigned Diwan cot was unpacked at the time of booking at Vijayawada. Transporting the consignment by bus or lorry includes the risk of jerks and jolts which may result damages to the unpacked goods. It is for the complainant to take care of the package of Diwan cot in the interest of its safety. The complainant opted for the road transport, there is an implied consign to run the risk of damage that may cause to the good during the transit. The complainant has claimed the total value of the cot to the tune of Rs.4,480/- even after taking delivery of Diwan Cot. Even if there are any damages due to the jerks and jolts during the transport the repairs can be under taken by the complainant and the repairing charges can be claimed as compensation. But the complainant has choosen to claim the full cost of the Diwan cot after taking delivery and possession of Diwan Cot which is most unreasonable. The complainant failed to prove his case at any stage.
Point No.3: In the result, the complaint is dismissed without costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, this the 3rd March 2008.
MEMBER PRESIDENT I/c
Nil For Respondents : Nil
Exhibits marked for Complainant:
Vijayawada and to be delivered to the complainant at Proddatur and the
value of the good is mentioned as Rs.4,480/-
No.79818 dated 12-5-2007 in the name of the complainant in which it
is mentioned that an amount of Rs.328/- as “to pay”
complainant dated 17-6-2007
to the R-1, R-2 and R-3 dated 10-8-2007
13-8-2007
returned undelivered
Exhibits marked for Respondents: -NIL-
PRESIDENT I/c
1) Sri. T. Ramalingeswara Raju, Advocate, Kadapa
2) Sri. S.V. Seshadri, Advocate, Kadapa
3) Marshal Transport Company, H.No.3-7, Saroor Nagar,
Hyderabad-500 035.
4) Marshal Transport Company, Rep. by its agent, Vijayawada
1) Copy was made ready on :
2) Copy was dispatched on :
3) Copy was delivered to parties :
V.R.V. - - -
