This complaint coming up before us for final hearing on                      15-06-11 in the presence of Sri P.Ramanjaneyulu, advocate for complainant and of Sri J.Narasimha Rao, advocate for opposite parties, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay an amount of Rs.1,00,000/- to loss of film box and for loss of income, to pay Rs.55,000/- towards the value of film box, Rs.35,000/- towards compensation for mental agony and to pay Rs.5000/- towards expenses and costs.

The averments of complaint in brief are as follows:

                The complainant is a film distributor and he is doing distribution of pictures (cinemas) under the name and style of Govardan Enterprises, Guntur.  The ANL Parcel Service (a joint venture with APSRTC) had carrier service by road for reward.  The opposite parties 1 and 2 are the agents of ANL Parcel Service and 3^rd opposite party is the Managing Director of the said parcel service.

                The complainant approached the 1^st opposite party on        07-04-09 to deliver “Mahayagnam” film box for carriage by their bus from Guntur to Secunderabad. Consignee being Ravindra Gupta, Producer, Tirumala Movies Creations, RP Road, Secunderabad.  The 1^st opposite party had realized charge of carriage Rs.63/- from the complainant on 07-04-09 and issued a consignment note to the complainant.  The 2^nd opposite party failed to deliver the consignment to the consignee at Secunderabad within the stipulated period i.e.,     09-04-09 and the same was not delivered so far.  The opposite parties and their employees are negligent and are guilty of breach of service, did not take proper care of the consignment to avoid loss to the complainant.

                The consignment i.e., film box was valued at Rs.55,000/-  Due to loss of film box, the complainant lost his earning capacity (income).  Due to non delivery of film box before 09-04-09 to the consignee, the complainant returned the advance amount of Rs.20,000/- to the said consignee namely Ranga Ravindra Gupta.  The complainant got issued legal notice dt.30-07-09 to the opposite party but in vain.  Hence, the complaint.

The 1^st opposite party filed its version and the same was adopted by opposite parties 2 and 3, which is in brief as follows:

                Most of the averments in the complaint are all false, incorrect and they are invented for the purpose of complaint.  It is true that the complainant booked a parcel saying that it is a film box at 1^st opposite party’s office at Guntur for transporting the same to Ranga Ravindra Gupta, RP Road, Secunderabad on 07-04-09.  It is utterly false to state that the opposite parties failed to deliver the consignment to the consignee at Secunderabad within the stipulated period i.e., 09-04-09.  The complainant has not disclosed the contents of the box as well the value of the same at the time of booking.  The complainant has not mentioned the name of the film either at the time of booking the parcel or in the notice issued to opposite parties               dt.30-07-09.  The said parcel was safely reached by the office of opposite parties at MG Bus Stand, Hyderabad and when the authorities of opposite parties tried to deliver the above mentioned box to the consignee at Secunderabad, they could not deliver the parcel due non availability of the address of the consignee at RP Road, Secunderabad and it was still lying with opposite parties office at MG Bus Stand, Hyderabad.  The opposite parties were served with legal notice of the complainant dt.30-07-09 and on receipt of the same, the opposite parties addressed a letter dt.11-08-09 requesting the complainant to arrange the copy of consignment note for locating the correct address of the consignee at Secunderabad.  But the complainant failed to comply the request made by opposite party.  The complainant has not furnished the correct address of the consignee and due to that the opposite party suspects that there is no such addressee in RP Road, Secunderabad and he might be a fictitious person created by complainant to file the complaint against opposite parties for getting illegal benefit.   On enquiry this opposite party came to know that there is no such film like “Mahayagnam” was produced as claimed by the complainant.  The value of film box claimed in the complaint at Rs.55,000/- is not correct and the value was mentioned basing upon illusions and surmises without any basis.  Similarly the loss of income of Rs.1,00,000/- and also Rs.35,000/- towards compensation and mental agony besides Rs.5000/- towards expenses and costs of complaint are all mentioned without any documentary proof.  There is no deficiency of service on the part of opposite parties.  As per the terms and conditions of PR, the claim in respect of non delivery and shortage of goods should be informed within 7 days from the date of incident and also all the claims should be preferred to Head Office in writing within 60 days of booking date or 30 days from the date of delivery, which is earlier.  In the present case, the complainant first informed the opposite parties in respect of non delivery of film box on 11-08-09 i.e., after lapse of more than 4 months.  As per the terms and conditions of PR, on no account the value of consignment booked under the PR should exceed 50 kgs. weight and as per that condition, the opposite party cannot be made liable not exceeding Rs.5000/- and therefore, the claim of complainant is not sustainable as per law.  Hence, the complaint may be dismissed with costs.

                Complainant and 1^st opposite party filed affidavits in support of their contentions reiterating the same.

                On behalf of complainant Ex.A1 to A6 are marked.  On behalf of opposite parties Ex.B1 to B4 are marked.

Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite parties?
2. To what relief the complainant is entitled to?

POINT No.1

                The case of the complainant is that he booked a film box parcel at 1^st opposite party office to deliver the same at RP Road, Secunderabad on 07-04-09 by paying an amount of Rs.63/- under Ex.A1 receipt and the same was not delivered to the consignee till now and that due to non-delivery of said film box he returned Rs.20,000/- to the consignee and he sustained loss of income due to deficiency of opposite parties in non delivering the consignment.

                The case of opposite party is that the parcel booked by the complainant reached opposite parties office at MG Bus Stand, Hyderabad and that they could not deliver the said consignment to the consignee at RP Road, Secunderabad as they could not trace the address of consignee and that after issuing notice by the complainant they addressed complaint requesting him to send copy of consignment note for locating correct address of consignee but as complainant failed to furnish correct address of consignee and that they suspect the bonafides of consignee and that they came to know that there is no such film like “Mahayagnam” was produced as claimed by the complainant and that the value of film box claimed by complainant is without any basis and that the loss of income claimed by the complainant, compensation and expenses have no basis at all and that there is no deficiency of service on their part and that as per the conditions of PR the non delivery of goods should be informed within 7 days and claim shall be preferred to their Head Office within 60 days of booking and 30 days from delivery and that the complainant informed the non delivery of consignment after a lapse of 4 months and that as per the conditions of PR on no account the value of consignment booked under one PR should exceed 50 kgs weight and that as per that condition, the opposite party cannot made liable not exceeding Rs.5000/- and that therefore, the claim of complainant is not sustainable.

                It is not in dispute that the complainant has booked a parcel under Ex.A1 and the same was not delivered to the consignee so far.  As seen from Ex.A1, the complainant booked a consignment of film box by paying Rs.63/-. But the value of consignment is not noted on Ex.A1.  The complainant issued a legal notice dt.30-07-09 under Ex.A2 to opposite parties for non delivery of said consignment to the consignee, wherein he has mentioned that the consignee of the goods i.e., Ranga Ravindra Gupta informed to the complainant that the receipt issued by 1^st opposite party was presented at its office at Secunderabad i.e., 2^nd opposite party on 8^th, 9^th and 10^th April, 2009 and demanded for delivery of goods and that 2^nd opposite party searched for the same and stated that the consignment was missing and that they were not in a position to deliver the same.  The said contention made in Ex.A2 by the complainant shows that the consignee approached 2^nd opposite party to take delivery of consignment by presenting the consignment receipt on 8^th, 9^th and 10^th April, 2009.  But the opposite party could not deliver the consignment as the same was not traced and it was missing.  Subsequently on receipt of said notice, opposite parties have issued a reply dt.11-08-09 vide Ex.A6.  In the reply Ex.A6 letter, the opposite parties have informed the complainant that the alleged non delivery of film box in question was examined and the action taken in that regard will be informed in due course.  This Ex.A6 reply does not disclose that the address of consignee was not traced as alleged by the opposite party in their version.  Further opposite party did not ask the complainant in Ex.A6 to send copy of consignment note for locating the correct address of consignee as alleged in their version. Therefore, it can be concluded that the consignment in question was not delivered by the opposite parties to the consignee as the consignment was missing but not due to non availability or non tracing of the address of consignee as alleged by the opposite parties in their version.  The said consignment was not delivered to the complainant so far even after filing complaint before this Forum.  Therefore, a perusal of Ex.A2 and A6 clearly shows that the opposite parties failed to deliver the consignment booked by the complainant to the consignee as the consignment was not traced. Further the opposite parties have not informed the action taken in this regard subsequent to Ex.A6 as mentioned in it and alleges that the complainant failed to furnish the correct address of consignee. Further opposite parties made counter allegation against the complainant that there is no film by name “Mahayagnam”. Whether the said film was there or not, the duty of opposite parties is only to deliver the consignment that was booked by the complainant but they failed to do so.  Further the opposite parties in their version mentioned that as per terms and conditions of PR the claim in respect of non delivery should be informed within seven days. But as seen from Ex.A2 even though the consignee approached 2^nd opposite party for delivery of consignment on 8^th, 9^th and 10^th April, 2009 2^nd opposite party failed to deliver consignment as it was missing.  Further the complainant has not acknowledged the conditions of PR.  Therefore the said contention of opposite parties is not tenable.

                During the course of arguments, the counsel for complainant relied on the following decisions in support of his case:

1. II (2011) CPJ 8 between Nazimuddin Vs. Rupak Kumar Agrawal, wherein it was observed by Chatisgarh State Commission, Raipur that the goods delivered for being transported, had not been delivered at the destination and such non-delivery obviously amounts to deficiency of service.
2. III (2010) CPJ 456 (NC) between DHTC (India) Ltd. and another Vs. Jayanthilal and Company, in the said case the Tea stocks were not taken delivery by the consignee and admittedly retained with the transporter and were not returned to the consigner.  Therefore, the District Forum decided that the transporter (preset revision petitioner) should pay to the complainant the value of the consignment with interest at 18% and also damages and costs.  The said order of the District Forum was confirmed by the State Commission and as well as by the National Commission in the relevant petition. 
3. I (2011) CPJ 530 between Speed & Safe Courier Services Vs. Satheesh Kumar N.Karmath House, Kerala State Commission, Thiruvananthapuram.  In this case the complainant sent a parcel containing blood pressure monitor and a GS mobile phone to his friend through opposite party by paying Rs.112/- towards courier charges and when the parcel reached consignee, the packet was not intact and the mobile phone was found missing. Therefore, the District Forum found deficiency of service on the part of opposite party and also observed that the petitioner is entitled to get Rs.10,000/- towards the value of mobile phone and Rs.3000/- towards compensation and Rs.600/- towards costs.  On appeal, it was allowed in part and set aside the direction of the District Forum to pay Rs.3000/- as compensation and costs of Rs.600/- confirming the direction to pay Rs.10,000/- towards value of mobile phone to complainant. 
4. 2010 (4) ALD 53 (SC) between Contship Container Lines Ltd. Vs. D.K.Lall and others, wherein the Supreme Court of India observed

                    Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d) and 21 – Mis-delivery of goods – Compensation, determination of, by National Commission on basis of number of packages mentioned in packing list instead of number of packages entered in Bill of Lading, impropriety – Held, Bill of Lading was the only document on basis of which compensation could have been determined against carrier in terms of provisions of The Carriage of Goods by Sea Act.           

                 Therefore, in view of the facts and circumstances of case, it can be safely concluded that there is deficiency of service on the part of opposite parties since they failed to deliver the consignment in question to the consignee or returned the same to the consignor.

POINT No.2

                Coming to the claim of complainant, the complainant has mentioned the value of film box as Rs.55,000/- in his complaint but whereas in Ex.A2 legal notice the complainant has mentioned the value of film box as Rs.75,000/-.  No evidence is placed by the complainant showing the actual value of film box i.e., the consignment booked by him.  Further the value of consignment is not noted on Ex.A1 receipt.  The opposite party in its version stated that as per the terms and conditions of PR, on no account the value of consignment booked under PR should exceed 50 kgs. weight and as per that condition the opposite party cannot made liable not exceeding Rs.5000/-.  The courier services are now governed by the provisions of Carriage by Road Act, 2007.  In view of section 2(1) of the said Act, when the cover note was not signed, the receipt did not constitute a special contract and that therefore, the liability need not be limited to the sum specified therein.  There is no evidence to show that the terms printed on Ex.A1 PR were shown to the consignor or the same were agreed upon by the consignor. Therefore, the terms and conditions printed on Ex.A1 PR are not applicable in the absence of any evidence that the said terms were shown to the consignor or the same were agreed upon and singed by the consignor. The amount claimed by the complainant towards the value of film box i.e., the consignment was not proved by the complainant as alleged by him.  Further the complainant has not placed any evidence in order to show that he suffered a loss of income of Rs.1,00,000/-.  The amount claimed by the complainant towards compensation and expenses are too high and imaginary.  Therefore, in view of the facts and circumstances of case, we are of the opinion that awarding an amount of Rs.10,000/- towards the value of consignment with interest at 9% p.a. from the date of notice Ex.A2 i.e., 30-07-09 till the date of realization,  Rs.2000/- towards the compensation for the mental agony and Rs.1000/- towards the costs of complaint would meet the ends of justice.   Accordingly this issue is answered in favour of the complainant.

                In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite parties 1 to 3 are hereby directed to pay Rs.10,000/- towards the value of consignment to the complainant with interest at 9% p.a. from 30-07-09 till the date of realization.
2. The opposite parties 1 to 3 are further directed to pay an amount of Rs.2000/- to the complainant towards compensation for the mental agony suffered by him and Rs.1000/- towards the costs of complaint.
3. The above orders shall be complied within a period of six weeks from the date of receipt of copy of this order, failing which the amounts ordered in item No.2 shall also carry interest at 9% p.a. till the date of realization. 

Typed to my dictation by the Junior Steno, corrected by us and pronounced in the open Forum, this the 17^th day of June, 2011.

            Sd/- x x x                      Sd/- x x x                             Sd/- x x x     

          MEMBER                               MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:

For Opposite Parties:                                                              

                                                                                        Sd/- x x x

                                                                               PRESIDENT