Tamil Nadu

StateCommission

A/284/2019

1.M/s.Kerala Roadways Pvt Ltd, Rep by its General Manager Mr.Sajee, Corporate Office, KRS Plaza, Indira Gandhi Road, Calicut, Kerala 673 001.And 5 Others - Complainant(s)

Versus

Anil Babu, S/o. B.Venkatrao, Chief Manager, Central Bank of India, 2nd floor, Sarada Complex, Mullac - Opp.Party(s)

M/s.T.N.Sugesh

10 Mar 2023

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble THIRU  JUSTICE R. SUBBIAH  :     PRESIDENT

                 THIRU R   VENKATESAPERUMAL         :      MEMBER

 

F.A. No. 284 of 2019

(Against the order passed in C.C. No.24 of 2016 dated 01.06.2019 on the file of the D.C.D.R.F., Nilgiris District at Udhagamandalam.

 

Friday, 10th day of March 2023

 

1.  M/s.Kerala Roadways Pvt. Ltd.,

     rep. by its General Manager Mr.Sajee

     Corporate Office, KRS Plaza

     Indira Gandhi Road

     Calicut, Kerala-673 001.

 

2.  Mr. Sajee, General Manager

     M/s.Kerala Roadways Pvt. Ltd.,

     Corporate Office, KRS Plaza

     Indira Gandhi Road

     Calicut, Kerala-673 001.

 

3.  M/s.Kerala Roadways Pvt Ltd.,

     rep. by its Manager Mr. Vrindhakar

     Mettupalayam Road

     Coonoor-2,  The Nilgiris.

 

4.  Mr. Vrindhakar

     S/o. Rajagopal

     The Manager

     M/s.Kerala Roadways Pvt Ltd.,

     Mettupalayam Road

     Coonoor-2, The Nilgiris.

5.  M/s.Kerala Roadways Pvt Ltd.,

     rep. by its Assistant Manager Mrs.Reena

     Mettupalayam Road

     Coonoor-2,  The Nilgiris.

 

6.  Mrs. Reena

     W/o. Vrindhakar

     Assistant Manager

     M/s.Kerala Roadways Pvt Ltd.,

     Mettupalayam Road

     Coonoor-2, The Nilgiris.                                .. Appellants/    Opposite parties

 

 

- Vs –

 

Anil Babu

S/o. B. Venkatrao

Chief Manager

Central Bank of India

2nd Floor, Sarada Complex

Mullackal Junction

Alapuzha Town, Kerala-688 011.                         .. Respondent/        Complainant

 

 Counsel for the Appellants/Opposite Parties : M/s.T.N.Sugesh

 Counsel for the Respondent/Complainant    : M/s.V. Balaji

                                                

This appeal is has come before us for final hearing today, i.e. on 10.03.2023, and on hearing the arguments of the counsel for both parties and on perusing the material records, this Commission made the following :-

 

O R D E R

R.SUBBIAH J., PRESIDENT (Open Court)

                This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 as against the order dated 01.06.2019 passed by the District Consumer Disputes Redressal Forum, Nilgiris District at Udhagamandalam in C.C. No.24 of 2016, allowing the complaint filed by the respondent herein. 

 

        2.  The Appellants are the opposite parties and the respondent is the complainant.  For the sake of convenience, the parties will be referred as per their ranking before the District Forum. 

 

        3.  The case of the complainant before the District Forum is that he was serving as a Branch Manager in Central Bank of India, Coonoor Branch till 26.04.2016 and on promotion he was placed in Alleppy Branch, Cochin.  On 07.05.2016, his staff booked HONDA Shine Bike belonging to the complainant bearing Registration No. AP 07 BE 3371, Black Colour, 2011 Model, Chasis No.ME4JC369HB8040355, Engine No.JC36E1040296 through the opposite parties 3 to 6 namely, Kerala Roadways Pvt. Ltd., Coonoor vide Goods consignment No.1766960, G/C No.67049146, to be delivered to the complainant at Alleppy.  The 1st opposite party is the head office of opposite parties 3 to 6 and the 2nd opposite party is the General Manager of the 1st opposite party's firm.   The opposite parties 3 to 6 negligently kept the vehicle outside the godown, without locking.  Whileso, 2 thieves, namely Ramesh and Mohanraj had stolen the bike of the complainant along with another bike.  The Coonoor Town Police caught those thieves, seized the vehicles and produced it before the Judicial Magistrate Court, Coonoor and a case was registered under FIR No.197/2016.  Thereafter the complainant made several visits to Coonoor and took the bike from the Court under interim custody, for no fault of him.  The opposite parties neither bothered nor cooperated with the complainant, while it is the duty of them to keep the vehicles safe in their custody, by parking the vehicle inside their godown with proper locking arrangements.  Instead, the opposite parties have kept the  vehicle outside the godown without locking the vehicle, during night hours.  Only due to the negligent act of the opposite parties, the thieves have stolen the vehicle easily, without break opening the godown.   When the complainant questioned the same, the opposite parties have conveniently evaded and not responded for their negligent act.  The opposite parties have been grossly negligent, coupled with dereliction of duty and deficiency in their services, thereby caused mental agony and stress to the complainant.  Further, the police officials also harassed the complainant and hence he could neither concentrate on his duty nor take care of his family.  The Judicial Magistrate Court, Coonoor permitted interim custody of the bike only after the complainant declared to surrender his bike to court whenever called for it by the court, during the course of trial.  Due to transferable nature of his job, it is very inconvenient, costly and painful to comply with the said condition of the court.  Hence, alleging deficiency of service, the complainant issued legal notice dated 13.06.2016 to the opposite parties by registered post.  Though the opposite parties received the said notice on 14.06.2016 & 18.06.2016, they failed to give any reply nor settle the matter till date.  Hence, the present complaint has been filed seeking to direct the opposite parties :-

1. to pay a sum of Rs.4,00,000/- as compensation;
2. to pay a sum of Rs.88,000/- as compensation for mental agony, inconvenience and frustration suffered by the complainant; and
3. to pay a sum of Rs.2000/- towards cost of legal notices sent by the complainant.

       

        4.  The said complaint was resisted by the opposite parties by filing a version denying all the allegations made in the complaint.  It is a specific defence of the opposite parties that the complainant had booked his Honda Shine bike bearing Regn. No. AP 07 BE 3371 through the opposite parties/transport company for delivering the same at Allepey.  The opposite parties received the same and issued Goods consignment note to the complainant.  The opposite parties possessed the bike and with appropriate care parked in the front portion of their company premises, with proper locking.  As the two wheelers usually contain petroleum inside the fuel tank and engine oil, which are combustible, in order to avoid fire accident, the opposite parties parked the bike in the front portion of the company premises.  The consignments are booked solely at the bailor's risk.  If the bailee fails to redeliver the goods to the bailor and a presumption of negligence arises, the bailee can rebut the presumption by showing that they exercised appropriate care.  In the present case, the bailee/opposite parties possessed the vehicle in question with due care but the same was stolen by the thieves on 08.05.2016 late night.  Immediately, on 09.05.2016, the 4th opposite party lodged a complaint at the Coonoor Police station and within 8 hours the police caught the thieves, seized the vehicle and produced the same before the Court of Law.  In a bailment case, the complainant/bailor has the burden of proving that a loss was caused by the opposite parties/ bailee's failure to exercise due care.  However, the bailor had failed to establish a prima facie case by showing that they delivered the goods into the bailee's hands and that the bailee did not return them or returned them damaged.  No special contract was executed between the complainant and the opposite parties with respect to the theft of the bailment product.  In the present case, the vehicle that was booked on 07.05.2016 was stolen by the thieves, however, it was immediately found by the bailee within 48 hours of the booking time.  Therefore, there is no negligence on the part of the opposite parties and hence sought for dismissal of the complaint. 

 

        5.  In order to prove the case, on the side of the complainant, along with proof affidavit 13 documents were filed and the same were marked as Ex.A1 to A13.  On the side of the opposite parties, proof affidavits were filed but no documents were marked.

 

        6.  The District Forum, on analyzing the entire evidence and records, had observed that till the vehicle is loaded for being carried, it is the responsibility of the opposite parties to ensure its safe custody.  But, in the instant case, the opposite parties merely on apprehension that the vehicle had fuel in its petrol tank have parked the vehicle outside the office to avoid any accident.  Therefore, there is a clear negligence on the part of the opposite parties.  Hence, awarded a sum of Rs.1,00,000/- as compensation towards mental agony and sufferings with an interest @ 9% p.a. and to pay a sum of Rs.3000/- as cost.  Aggrieved over the same, the present appeal has been filed by the opposite parties.

 

        7.  When the matter was taken up for consideration, the counsel for the opposite parties made a detailed submission that the District Forum had failed to consider that the respondent/complainant is a bailor, who entrusted his motor bike, namely, Honda Shine to the 3rd Appellant/opposite party on 07.05.2016 for transportation from Coonoor in Tamilnadu to Alapuzha in Kerala.  The appellants/ opposite parties as Bailee had taken as much care of the goods bailed to them as a man of ordinary prudence would do under similar circumstances.  Therefore, the appellants/opposite parties ought not to have been held liable, who had taken due care.  Despite due care and diligence in respect of the vehicle entrusted to them, theft of the two wheeler had occurred.  Immediately, the 1st opposite party had lodged a complaint and the vehicle has also been seized by the police.  The respondent/ complainant have not suffered any loss.  Further, the award of compensation is higher than the cost of the vehicle.  Therefore, the appellants/ opposite parties sought to set aside the order of the District Forum.

 

        8.  Per contra, learned counsel for the respondent/ complainant submitted that since the vehicle was parked outside the godown theft had taken place.  Though the vehicle was seized, the respondent/ complainant is made to run pillar to post to take back the custody of his two wheeler.  This had caused severe mental agony and stress to the complainant.  All these had happened only due to the negligent act of the appellants/opposite parties.  Therefore, there is negligence on the part of the appellants/ opposite parties. 

 

        9.  Keeping in mind the submissions made by the counsel for both the parties, we have carefully gone through the entire material available on record. 

 

               10.  Though it is submitted by the appellants/ opposite parties that they had taken as much care of the vehicle bailed to them as a man of ordinary prudence would do under similar circumstances, we are of the opinion that had the vehicle been kept inside the godown, they would have averted the theft.  Only because of the negligence of the appellants/ opposite parties, the complainant was made to suffer to take back the custody of the vehicle.  Therefore, we do not find any infirmity in the order passed by the District Forum.  However, considering the facts and circumstances of the case, we feel that sum of Rs.1,00,000/- awarded towards compensation by the District Forum is on the higher side and hence the same is reduced to Rs.50,000/-.  The sum of Rs.3000/- awarded towards litigation cost is confirmed.

           11.  In the result, the Appeal is allowed in part.  The sum of Rs.1,00,000/-  awarded towards compensation for mental agony and hardship is reduced to Rs.50,000/-.  Except the above modification, the order dated 01.06.2019 passed by the District Consumer Disputes Redressal Forum, Nilgiris District at Udhagamandalam in C.C. No.24 of 2016, remains unaltered.   Consequently, the appeal is partly allowed.

 

 

R   VENKATESAPERUMAL                                                                                                              R.SUBBIAH

         MEMBER                                                                                                                                     PRESIDENT

 

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/March/2023