BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 15/11/2011

Date of Order : 30/01/2013

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 639/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainants is as follows :-

In May 2011, the 1^st complainant got an employment in Rajasthan. In connection with his stay, the 2^nd complainant father of the 1^st complainant sent household articles worth Rs. 2 lakhs through the 2^nd opposite party. The complainant paid a sum of Rs. 30,884/- to the 2^nd opposite party and Rs. 6,000/- to the 3^rd opposite party towards transporting charges and packing charges respectively. On 12-07-2011, the 1^st complainant was informed by the office of the 1^st opposite party at Jodpur in Rajasthan that the consignment arrived and it is being sent through another agency. When the packing was removed the complainant noticed as follows :-

1. The Panasonic TV 32 inch LCD is damaged completely as its screen and the left bottom corner of the outer boundary is broken.

2. The computer is fully damaged, monitor left side bottom broken CPU front part and casing broken.

3. The lower door of the refrigerator has been damaged,extending towards the sides with noticeable scratches.

4. The right side of the microwave oven is damaged badly so as to allow leakage of hazardous micro waves.

5. The washing machine damaged on the front part with a bulging just below the side door and bottom of exit door. The right side of the washing machine was damaged with bulging.

6. A full length glass mirror on one door of the almirah is completely broken and the wooden plywood on the back piece damaged.

7. Few crockery utensils sent in the consignment were also damaged.

Immediately, the 1^st complainant informed the office of the 1^st opposite party at Jodpur regarding the extensive damages caused to the goods. Simultaneously, the 1^st complainant issued a registered notice to the 1^st opposite party's office at Jodpur, but there was no response. On 12-10-2011, the complainant received a letter from the 2^nd opposite party stating untenable contentions. The opposite parties were duty bound to transfer the articles safely to the destination taking proper care and caution. Thus, the complainant is before us seeking direction against the opposite parties to pay Rs. 2 lakhs towards the price of the goods together with compensation of Rs. 50,000/- and Rs. 15,000/- towards costs of the proceedings along with Rs. 30,884/- the amount received by the 2^nd and 3^rd opposite parties. This complaint hence.

2. The version of the 1^st and 2^nd opposite parties is as follows :-

As per the way bill the terms and conditions, this Forum has no jurisdiction to entertain this complaint. The way bill clearly limited the liability of the 1^st and 2^nd opposite parties to Rs. 5,000/- and recommended insurance for high value goods. If the consignment contents anything of value by the 1^st and 2^nd opposite parties recommend insurance of the same. On 04-07-2011, the 1^st complainant had booked consignment for a declared value of Rs. 52,000/-. The goods were packed by the 1^st complainant himself, the opposite parties 1 and 2 had no occasion to ascertain the contents of the package. The goods were delivered to the 1^st complainant in Jodpur on 12-07-2011. The 1^st complainant himself took delivery of the consignment and endorsed receipt of the goods in good condition. On receipt of the complaint from the 1^st complainant, the 1^st and 2^nd opposite parties conducted an enquiry and found that there was no mention of any damage of the consignment at the time of delivery. The 1^st and 2^nd opposite parties delivered, the consignment in the same condition as it was entrusted with them. The complainant is not entitled to get any of the reliefs as claimed for.

3. In spite of receipt of notice from this Forum, the 3^rd opposite party opted to remain absent during the proceedings for reasons not stated. The complainants were examined as PWs 1 and 2 respectively. Exts. A1 to A8 were marked on their side. The witness for the 1^st and 2^nd opposite parties was examined as DW1 and Ext. B1 was marked. Heard the learned counsel for the complainants and the 1^st and 2^nd opposite parties.

4. The points that came up for consideration are as follows :-

1. Whether the complainants are entitled to get Rs. 2 lakhs being the price of the goods?

2. Whether the opposite parties are liable for Rs. 36,884/- the amount received by them from the complainants?

3. Whether the opposite parties are liable to pay a compensation of Rs. 50,000/- and Rs. 15,000/- towards costs of the proceedings?

5. Point No. i. :- Admittedly on 04-07-2011, the 1^st complainant entrusted the household articles with the 2^nd opposite party to transport it from Kochi to Jodpur. It is not in dispute that an amount of Rs. 30,884/- was paid by the complainants to the 1^st and 2^nd opposite parties towards service charge. Apart from that, the complainant had to pay Rs. 6,000/- to the 3^rd opposite party towards packing charges evidenced by Ext. A2. According to the complainants, on 12-07-2011 the 1^st complainant received the household articles in a totally damaged condition. The complainants maintain that in spite of service of Ext. A4 notice, the 1^st and 2^nd opposite parties failed to indemnify the loss sustained by the complainants. Per contra, the 1^st and 2^nd opposite parties vehemently contented that their liability is limited to the terms and conditions in Ext. A8 way bill. According to the 1^st and 2^nd opposite parties the price of the goods at the time of entrustment was only Rs. 52,000/-. However, they are only liable to pay Rs. 5,000/- as per the terms and conditions in Ext. A8.

6. We have carefully gone through the terms and conditions in the reverse side of Ext. A8 way bill. It is to be noted that one cannot read the terms and conditions in Ext. A8 with naked eyes, since the terms and conditions are in fine a print. According to the Hon'ble Supreme Court if the terms and conditions are in fine prints the terms and conditions are not binding on the parties (Modern Industries Ltd. Vs. Oriental Insurance Co. Ltd. 2000 CTJ 169 (SC) (CP) ). So, in the instant case, the terms and conditions in Ext. A8 are not binding on the complainants legally.

7. The 1^st complainant produced Ext. A3 photographs 12 in numbers to prove the damages sustained to his household articles. But this Forum is at a loss to ascertain the value of the goods from Ext. A3. However, Ext. A3 photographs go to show that the delivered goods were in a damaged condition. In short, nothing is on record to substantiate the contention of the complainants that the value of the goods amounts to Rs. 2 lakhs. In the absence of any evidence to the contrary, we are only to rely on Ext. A8 in which the value of the goods was declared at the time of entrustment of the same with the 2^nd opposite party ie., Rs. 52,000/-. The 1^st complainant is entitled to get Rs. 52,000/- from the 1^st and 2^nd opposite parties towards the price of the goods if at all admitted to be damaged in transit.

8. Point No. ii. :- Admittedly, the complainants paid a sum of Rs. 30,884/- to the 1^st and 2^nd opposite parties towards transporting charges and Rs. 6,000/- to the 3^rd opposite party towards packing charges. There is negligence and laches on the part of the 1^st and 2^nd opposite parties in transporting the articles and negligence on the part of the 3^rd opposite party in packing the goods. The opposite parties are liable to refund the respective amounts to the 1^st complainant with interest.

9. Point No. iii. :- Since the primary grievance of the complainants has been met adequately, compensation and costs of the proceedings cannot be called for.

10. In the result, we partly allow the complaint and direct as follows :-

1. The 1^st and 2^nd opposite parties shall pay Rs. 52,000/- (Rupees Fifty two thousand only) to the 1^st complainant towards the price of the damaged articles as delivered by the complainant.

2. The 1^st and 2^nd opposite parties shall refund Rs. 30,884/- (Rupees Six thousand eight hundred and eighty four only) to the 1^st complainant being the amount received by way of carriage and service charges.

3. The 3^rd opposite party shall refund Rs. 6,000/- (Rupees Three thousand only) to the 1^st complainant being the amount received for packing of the goods, which is claimed to be the primary cause of damage to the goods delivered.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order, failing which the above amounts shall carry interest at the rate of 12% p.a. till payment.

Pronounced in the open Forum on this the 30^th day of January 2013.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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