KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.657/02 JUDGMENT DATED: 13/08/08 PRESENT:- SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER The Assistant Commissioner of Customs, Air Cargo Complex, : APPELLANT Thiruvananthapuram Dist. (By Adv.G.S.Prakash) Vs 1. Belsi, W/o.Chellappan Nadar, residing at parakkenvilai Veedu, Kavuvila, Keezhkulam (PO), Vilavamoode Taluk, Kanyakumari Dist. 2. Selin, D/o.Chellappan, : RESPONDENTS residing at –do-do- 3. Ajin, S/o.Chellappan, residing at –do-do- (By Adv.S.Reghu Kumar & Manacaud A.Ratheesh) JUDGMENT SRI.S.CHANDRA MOHAN NAIR : MEMBER This appeal is preferred against the order dated 4/7/2002 in OP No. 274/98 of CDRF, Thiruvananthapuram whereby the opposite party is under directions to pay to the complainant a sum of Rs.1,00,000/- as compensation with future interest at 14.5% and also to pay Rs.10,000/-as general compensation and Rs.1,000/- as costs. 2. The complainants are the wife and the minor children of one Chellappan who was working in Riyad and who passed away after he came back to his home. It is alleged that before his return from Riyad he had sent some unaccompanied cargo through the airlines which was under the custody of the opposite party. As the deceased Chellappan did not take delivery of the items, the 1st complainant, the wife, made a request for the delivery of the items before the opposite party and it was understood that the opposite party had delivered the goodsillegally by handing over the same to some other person. Alleging deficiency of service the complainant was filed praying for directions to the opposite party to deliver the baggage that was sent by her husband and to pay Rs.25,000/- as compensation. 3. Resisting the complaint, the opposite party filed version contending that the complaint was bad for non-joinder on necessary parties and that the goods sent by the deceased Chellappan had been taken delivery by one Mr.Nazeer on the basis of the authorization given by the said Chellappan. It was also submitted before the Forum that the value of the goods was only Rs.29,000/- as arrived at by the customs officer on going through the documents and it was found that the said Nazeer had paid duty of Rs.7,830/- vide Baggage Receipt No.4352 dated 10/9/96 at S.B.T., Air Cargo Complex, Trivandrum. It was also submitted by them that the opposite party acted only according to the provisions of law and there was no deficiency on their part and they prayed for the dismissal of the complaint with compensatory cost. 4. The evidence consisted of the oral testimony of the 1st complainant as PW1 and Exts.P1 to P6. On the side of the opposite party documents D1 to D6 were marked. 5. We heard the learned counsel for the appellant and the respondents. 6. The learned counsel for the appellant submitted his arguments based on the contentions taken in the version as well as the grounds urged in the memorandum of the present appeal. It is his very case that the opposite party/appellant is not at all a necessary party where as the complainant ought to have impleaded the Gulf Air, the Air India and the Kerala State Industrial Enterprises Ltd as necessary parties. It is also argued by him that the opposite party is not the custodian of the packages weighing to112 Kgs as the were handed over to the Kerala State Industrial Enterprises and in such a situation the Forum ought to have dismissed the complaint. It is also his case that the said packages were taken delivery by one Mr.Nazeer who had proper authorization from the deceased Chellappan. He very much relied on Exts.D2, D5 and D6 where in it is noted that the items consisted of AC, VCR and Sony TV valuing Rs.29,000/-. He has also argued before us that the Forum has awarded the amount of Rs.1,00,000/- without any basis and apart from allowing interest, compensation is also awarded which is against the settled position of law. Based on the above contentions he prayed for the dismissal of the complaint in toto. 7. On the other hand, the learned counsel for the respondents supported the findings and conclusions of the Forum below. He invited our attention to Section 45 and 62 of the Customs Act 1962, and argued that the goods under the custody of the customs department shall not be permitted to be removed without the permission in writing of the proper officer and that no body other than the customs department has the right to the order of removal of the goods from the warehouses. He has also invited or attention to the fact that even if the goods were under the custody of warehousing department the same would have been removed only under the order from the opposite party and in such a circumstances the proper party against whom the complaint ought to have been filed is the appellant himself and the appellant has committed grave deficiency in handing over the goods to a person who was a total stranger. He has also advanced the contention that the opposite party has failed in producing the authorization letter alleged to have been issued by the deceased Chellappan and in the aforesaid circumstances the appeal is liable to be dismissed. 8. On hearing the learned counsel for the appellant and respondents and on perusing the documents, we find that the opposite party has no case that the deceased Chellappan has not sent any cargo and at no point of time they were the custodian of the said items. As per Section 45 (2) (b) of the Customs Act, 1962 the imported goods in a customs area shall not to be permitted to be removed except under and in accordance with the permission in writing of the proper officer and in such a situation the opposite party is the proper party against whom the complaint can be made in a case of transfer of goods from their custody to some other person. It is also admitted by the opposite party that the goods were delivered to one Mr.Nazeer after examining the documents including the original passport of the consignee ie., Mr.Chellappan and identification document of the authorized person. However it is to be noted that the opposite party has failed in producing the authorization before the Forum. If the goods were delivered to Sri.Nazeer the same could have been proved by examining Sri.Nazeer whose is address was also with them as shown in the authorization. The opposite party has neither produced the authorization nor has they examined the said Nazeer which would give an indication that the complainant’s case is more believable that the said Nazeer is a non existent person and that the appellant/opposite party had delivered the items to somebody without proper authentication. 9. The appellant has also disputed the amount awarded by the Forum below. Much reliance is placed on Ext.D2, D5 and D6 for the value of the items delivered which is estimated for the purpose of imposing tax. It is to be noted that the complainants have estimated and claimed Rs.3,00,000/- as compensation in the notice which is not replied by the opposite party. If the documents like Ext.D2, D5 and D6 were there in the custody of the opposite party they could have very well informed the said matter to the complainant as reply to the notice. The suppression of material facts would amount to deficiency in service. In the instant case it is noted that the opposite party has been playing hide and seek from the very receipt of the notice sent by the complainants. However, we note that the amount ordered by the Forum is not based on any material evidence. It is true that in a case where complainants are in darkness as to value of the items sent by the party and the opposite party takes a defiant attitude, the only course available to the Forum is to fix the amount of compensation on certain presumption. But in the instant cases there were records. The Ext D2, D5 & D6 to show that the value of items calculated was Rs.29,000/- and in such a circumstance, the forum below ought to have allowed that amount only to b e paid to the complainants with interest. 10. The appellant’s further case is that an amount of Rs.10,000/- as general compensation has also been awarded over and above the compensation of Rs.1,00,000/- and he argued that the same is not sustainable and that the interest rate is also on the high sides. On an appreciation of the entire circumstance of the case we feel that the general compensation of Rs10,000/- is not necessary as interest is awarded. However as we have reduced the amount of Rs.1,00,000/- (Rupees One lak) and Rs.29,000/- (Rupees Twenty Nine Thousand) . the same is liable to be paid by the appellant/opposite party from the date of complaint till the date of payment. Since the interest awarded is at the rate of 14.5% only we do not find any reason to interfere with the said rate of interest and the cost of Rs.1000/- awarded by the forum below is also upheld by us. In the result the appeal is allowed in part modifying the order as indicated above. There by the opposite party/appellant is directed to pay to the complainants a sum of Rs.29,000/- with interest at 14.5% from date of complaint along with cost of Rs.1,000/-. In the nature and circumstance of the case the parties are directed to suffer their respective costs in the present appeal. S.CHANDRA MOHAN NAIR.: MEMBER M.V.VISWANATHAN :JUDICIAL MEMBER Pk.
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