O R D E R
Paul Gomez, Member.
The complainant was induced by the following facts to lodge this complaint.
The complainant booked 4 cameras of wheel alignment to be delivered to M/s. Precision Testing Machines Pvt. Ltd., New Delhi. Unfortunately it never reached its destination. When the consignee informed the consignor that they had not received the goods, the complainant made contacts with the officers of the opposite party at Aluva and Delhi. Nothing turned out positively except a reply at long last that there was no records regarding the transaction since the matter was of 9 months old. This has indeed animated the complainant to come up with this complaint urging the forum to interfere to ask the opposite party to pay the price, compensation and cost.
2. Opposite party filed version where it has been conceded the fact of consignment. But they contend that the value of goods was not declared. In that event, the complainant is entitled to receive only $100 as per terms and conditions of the transaction. If the goods were costing more than 50,000/-, the opposite party would have levied extra charge towards risk and would have compelled the complainant to insure the goods. Hence, the complainant is entitled for a compensation of Rs. 100 only.
3. Complainant was examined as PW1. Exts. A 1 to A10 marked on his side. Opposite party filed version. Argument notes were filed on both sides. The learned counsel appearing for parties were heard.
4. The short points for determination are:
(i) Whether the goods consigned were delivered to the consignee?
(ii) What are the value of the goods?
(iii) What are the reliefs, if any
5. Points Nos. i,ii and iii. The consignment of goods is admitted by the opposite party. Ext. A1 stand testimony for booking of consignment. Whether the goods have been delivered or not is the most important issue. The opposite party claims that the goods have been delivered as peer their records. They have made this claim in Para 5 and Para 7 of their version. But the complainant disputes this claim. By Ext. A4 and A5 letters complainant has informed the opposite party that the goods have not been delivered. It was in the Ext. A6 E-mail they disclosed that no records were available in their office regarding delivery of the consignment since it was of 9 months old. It is evident from Ext. A2 and A 3 that the complainant had been in contact with the opposite party over the matter, but no reply was forth coming from opposite party’s side. Therefore it is their pigeon to prove before the Forum that the consigned goods have been duly delivered to the consignee at Delhi because they claim in the version that they have delivered the goods. Since this burden has not been discharged by them, the needle of suspicion swings against them to show that they have failed to deliver the goods.
Then they contend that even if the goods have not been delivered, they are liable to pay only Rs. 100/- as per Ext. A1 terms and conditions since the goods have not been declared. One cannot find a clause therein to show that the liability of the goods would depend on the nature and value of goods. Even if the nature and value were disclosed Ext. A1 terms and conditions have fixed the maximum liability to be Rs. 100/-. In that view of the matter there is no much significance for disclosure.
But the amount levied as carriage charge in Ext. A1 receipt being Rs. 1,650 would give some inference that the goods consigned were of some value and weight. It may also be borne in mind that on the same day complainant had forwarded Ext. A2 letter describing the contents of the consignment as four defective cameras. Complainant also contend that Ext. A2 letter was delivered to opposite party for the tax purposes stating that the goods have not commercial value and is not for sale. In this regard opposite parties have cited the ruling by Hon’ble Supreme court in Bharthi Knitting Company V DHL World wide Express Courier (1996) 4 SCC 704 may be to advance their arguments. But in our opinion, the cited case is misplaced in the present context since when the apex court has permitted the courts and tribunals to grant remedy depending on the facts of each case. The Hon’ble court has observed,
“…the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedies”
Moreover in that case the supreme court upheld the proposition that parties are bound by the terms and conditions of the contract only when the document is signed by the parties. The signed document invariably implies existence of consensus- ad-idem between the parties. It is well settled that when the binding nature of a document is under dispute, it is the duty of the party who takes advantage of the document to prove that the document has been duly signed by both the parties. In the instant case this principle has an added significance because the complainant contend that Ext. A1 receipt was issued much later than booking the consignment which was collected from their office. In that view of the matter, the cited case seems not applicable to the facts of this complaint for the reasons stated above.
Similarly M/s. Skypak Courier P Ltd. V. Karur Vysya Bank Ltd. 1994 (1) CPR 85, the Hon’ble National Commission held:
“In the absence of any knowledge about the contents, he cannot be saddled with the liability for loss of its valuable contents.”
The above ratio is inapplicable in the instant case in view of Exts.A2, A3 and A4 letters wherein the nature of the goods consigned and its approximate value is disclosed Of course, this disclosure was not contemporaneous with the contract of consignment. In this background the opposite parties can not say that they had no knowledge regarding the contents of consignment and its value. Hence in our opinion, the afore cited case also has no application in the present context. In the same manner the cited case of Air Pak Couriers (India) Pvt. Ltd. V. Suresh (1993 (1) CPR 718) is not relevant for the reason that according to the fact of that case no disclosure with regard to nature of contents and value were made either in the consignment note or subsequently whereas in the instant case as pointed out earlier, disclosure of nature of contents was made even though separately in Ext. A3 letter.
Even though complainant is silent about the value of goods, they have come up with the claim that the value of the goods under dispute was Rs. 80,000/-. To support the contention regarding their valuation, may be after depreciation they have produced Ext. A10 invoice to show that the wheel alignment machines cost Rs. 4,42,000/- in 2003. Unfortunately, we are afraid how this document would give any support in finding the cost of the impaired cameras that constituted part of the machine. Since the complainant has failed first of all in disclosing the value of the goods at the time of consignment and later in the course of this proceedings to give an exact estimate of the value of the goods, we are only to follow some speculation which may ultimately lead to arbitrary assessment. But we are helpless. The four cameras being the vital parts of the wheel alignment machine, we estimate it as worth Rs. 40,000/-.
The complainant have been communicating with the opposite parties on several occasions, but of no avail. Even the Ext. A7 lawyer notice was not properly considered by the opposite party. Also the work presumably might have suffered much due to the lack of the instrument in time. One cannot exactly calculate the loss in terms of money. The mental suffering undergone by the share holders of the company also cannot be overlooked. It is only just and reasonable that the opposite party should compensate for all those eventualities. Opposite party must pay the cost of the litigation also.
6. In the result, we allow the complaint as follows:
i. Opposite parties shall jointly and severally pay Rs. 40,000/- to the complainant towards cost of the lost goods along with interest @ 6% from the date of complaint till realization.
ii. Opposite parties shall jointly and severally pay Rs. 20,000/- to the complainant towards compensation for loss of work and mental agony suffered.
iii. Opposite parties shall pay Rs. 1,000/- to the complainant towards cost of litigation.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order
Pronounced in the open Forum on this the 30th day of August 2011
