Tamil Nadu

StateCommission

A/156/2018

The Manager, the Professional Courier - Complainant(s)

Versus

A. Sekar, arani, Thiruvannamalai District - Opp.Party(s)

M/s. R. Sathyanarayanan

20 Jan 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                     PRESIDENT

              TMT.Dr. S.M.   LATHA  MAHESWARI,                                              MEMBER  

 

F.A.No.156/2018

(Against the order passed in C.C.No.06/2017, dated 14.06.2018 on the file of the District Commission, Thiruvannamalai.)

 

 THURSDAY, THE 20^th DAY OF JANUARY, 2022.

 

The Manager,

The Professional Couriers,

Arani,

Thiruvannamalai District.                                                                                                                          Appellant/Opposite Party

 

                                                

                    - Vs –

A. Sekar,

S/o. Annamalai,

Sri Lakshmi Silks Owner,

No.182, Sathiyamoorthy Road,

Arani,

Thiruvannamalai District.                                                                                                                           Respondent/Complainant

 

Counsel for the Appellant/Opposite Party             :  M/s. R. Sathyanarayanan Advocate.  

Counsel for the Respondent/Complainant             :  M/s. K. Narayanan, Advocate.   

 

             This appeal is coming before us for final hearing on 28.12.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-

 

                                                                                                ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT.   

1.      This appeal has been filed by the appellant/opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the District Commission, Thiruvannamali made in C.C.No.06/2017, dated 14.06.2018,  allowing the complaint.        

2.      For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes Redressal Commission, Thiruvannamalai.          

3.       The brief facts which are necessary to decide this appeal is as follows;-

          The case of the complainant before the District Commission is that on 15.10.2016, he had sent a parcel containing silk sariees weighing 7.200 Kgs through the opposite party courier service to Sri Lakshmi Silk Shop, No.16, Neelakanth Commercial Complex, N.G. Acharya Marg Chamber (East) Mumbai – 400 071.  The opposite party collected Rs.1080/- as service charge from the complainant and a receipt No.ARR 1615704 was issued by the opposite party towards the said payment on 15.10.2016.  But, the parcel was not delivered to the addressee in Mumbai.  Hence, the complainant sent a letter to the opposite party on 16.11.2016 requesting them to trace out the parcel and inform him. For the said letter, the opposite party sent a reply,  dated 07.12.2016 stating that the parcel has not reached to Mumbai but it was sent to their Madras Office.  However, the opposite party stated that they are enquiring the matter and as soon as they receive any information the same would be informed to the complainant.  Thereafter since there was no response from the opposite party, the complainant sent another letter dated 16.12.2016 calling upon the opposite party to send the parcel to the Mumbai addressee or in alternative to pay the value of the silk sarees sent in the parcel with interest by way of cheque. Even thereafter, no action was initiated on the side of the opposite party.   Hence, the complainant sent a registered letter dated 13.03.2017 enclosing the bill containing the value of the silk sarees for a sum of Rs.84,670/-  and also courier charges claiming a total sum of Rs.85,170/- from the opposite party. Even thereafter, as there was no response from the opposite party, the complainant filed a consumer complaint before the District Consumer Commission for a direction to the opposite party to pay a sum of Rs.85,170/- with interest and another sum of Rs.1,00,000/- as compensation for mental agony and Rs.50,000/- for loss in business and Rs.5000/- towards litigation costs.  

4.         Resisting the complaint, the opposite party filed a written version by contending inter alia that it is true that the complainant booked a consignment under receipt No.ARR 1615704 dated 15.10.2016 and the consignment was handed over for transit.  As per the terms of the courier service, while booking the consignment, first of all, the consignor has to disclose what is contained in the parcel to be couriered. Since the complainant did not disclose that factum of sending alleged costlier dress by courier, the opposite party is in no way responsible for the alleged loss of the consignment.  Since the complainant has not disclosed about the contents of the consignment, the opposite party specifically denied the allegations that the complainant had despatched the dress material in the parcel. However, it has been clearly mentioned in the courier receipt that for loss of consignment, a sum of Rs.100/- will be awarded per consignment by the opposite party.  Since the value of the consignment has not been proved by the complainant, the complaint deserves to be dismissed.          

5.     Before the District Commission, both parties have filed their respective proof affidavit in support of their case. Exhibits A1 to A9 were marked on the side of the complainant and Exhibit B1 was marked on the side of the opposite party.  

6.    Based on the above submissions and analysing the evidences, the District Commission allowed the complaint holding that there is deficiency in service on the side of the opposite party and directed the opposite party to pay the complainant a sum of Rs.84,670/- towards cost of the silk sarees and Rs.1,080/- towards courier charges paid by the complainant, Rs.5000/- as compensation for mental agony and another sum of Rs.5000/- for loss in business besides cost of Rs.5000/- in total a sum of Rs.1,00,750/-. Aggrieved over the above order, the opposite party has preferred this appeal praying for setting aside the same.  

7.      Heard the submissions made by both sides. The counsel for the appellant/ opposite party submitted that the complainant had allegedly sent a parcel containing silk sarees on 15.10.2016 vide opposite party’s receipt No.ARR 1615704 and had paid  service charge of Rs.1,080/- and unfortunately, the parcel was lost in transit. The said parcel was booked in normal circumstances without any instructions to insure. Further,  the complainant has not at all declared the contents of the parcel and its value at the time of booking which would clearly show that there is no contemplation between the complainant and the opposite party with regard to the contents, its value and the consequences of its loss with regard to the business of the complainant and also the intention  of claiming the cost of the goods etc.,. Without considering all these aspects, the District Commission, by accepting the case of the complainant in toto has awarded the amount and therefore the same is liable to be set aside.   

8.     Per contra, the counsel for the respondent/complainant submitted that it is an admitted fact that the complainant had sent a parcel to Mumbai on 15.10.2016 through the opposite party courier service which has not reached the addressee in Mumbai.  Further, it is the contention of the complainant that silk sarees worth about Rs.84,670/- was sent in the said parcel and as it was lost in transit the opposite party is liable to pay the said amount and also a compensation for mental agony suffered by the complainant.  But, it is the contention of the opposite party that the said parcel was booked under normal circumstances without any instruction to insure the same. Moreover, the complainant has not disclosed the contents of the parcel and its value at the time of booking the parcel. Therefore, the complainant is entitled only for Rs.100/- as compensation.  

9.      In this regard, it would be appropriate to see the section 10 (2) of the Carriage by Road Act, 2007 which reads as follows;- “The liability of the common carrier in case of any delay up to such period as may be mutually agreed upon by and between the consignor and the common carrier and specifically provided in the goods forwarding note including the consequential loss or damage to such consignment shall be limited in the amount of freight charges where such loss, damage or delay took place while the consignment was under the charged of such carrier. Section 12 of the above Act reads as follows; - “Liability of the common carrier under section 10 for total loss shall be limited to ten times the freight paid or payable.”  

10.     Therefore, a reading of the above sections would clearly show that in the event of non-declaration of contents of parcel when the parcel was booked under normal circumstances without any instruction to insure the same, the liability of the common carrier under section 10 for total loss shall be limited to ten times the freight paid or payable.  Therefore, in the instant case, freight charges paid is Rs.1080/- and the ten times of the above amount works out to Rs.10,800/- Hence, the complainant is entitled only for a sum of Rs.10,800/-since the complainant has not declared the value of the parcel and not booked under instruction to insure the same. Hence, the order of the District Commission is to be modified accordingly.   

11.         In the result, the appeal is allowed in part by modifying the order of the District Commission directing the opposite party to pay the complainant  a sum of Rs.10,800/- only towards damages for loss of parcel containing sarees sent through the opposite party courier service within one month from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 7% per annum from the date of order till its realisation.   The opposite party is also directed to pay a sum of Rs.5000/- as litigation charges to the complainant.  

           

              The complainant is not entitled to get any other reliefs which are granted by the District Commission.

              There shall be no order as to costs in this appeal.   

 

 

 

S.M. LATHA MAHESWARI,                                                                                                                           R. SUBBIAH,

           MEMBER.                                                                                                                                              PRESIDENT. 

 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Jan/2022