JUDGEMENT

          Complainant by filing this complaint has submitted that she being a poor lady used to sell different type of mud made Teracota articles at different fare for the purpose of earning her livelihood and to maintain her family and for which on 23.03.2014 after attending a fare at Siliguri and selling some articles, balance articles were booked at Gati Kintetsu Express Pvt. Ltd. office at Siliguri.  Balance articles had to send at Chhatrishgarh, Raipur for its arrival at Chhatrishgarh on 28.03.2014 and 11 cartoons were booked on payment of Rs. 1,602/-.

          But on 28.03.2014 at Chhatrishgarh Padribazar said articles were not delivered for which she failed to attend that fare.  On 28.04.2014 she sent a letter to Gati Kintetsu Express Pvt. Ltd. office at Kolkata asking them to deliver those articles at her address 111 & 112 B.T. Road, Dunlop, Kolkata – 700108 and on the basis of the said letter they delivered those articles at that address on 22.05.2014 and at the time of taking delivery the cartoons were opened and found all materials in the cartoons are damaged and broken and the delivery staff of the Gati Kintetsu Express Pvt. Ltd. noted the same in the said receipt. 

In the above circumstances complainant has prayed for paying the total value of the said articles to the extent of Rs. 1,20,000/- and also for loss of her business for two months and another Rs. 2,00,000/- etc as compensation.

On the other hand op Gati Kintetsu Express Pvt. Ltd. by filing written statement submitted that the present claim is not maintainable and fact remains that complainant ought to have filed a Money Suit in Civil Court under the Carriers Act 1865 for redressal and when Carriers Act is specific provision for damages etc. and further submitted that at the time of booking at Siliguri vide Consignment Docket No. 405446767 from Siliguri tp Raipur through op no doubt she paid service charge for delivery without any objection.  But according to the law of the land op transports of their goods on the basis of transit Risk Coverage Insurance Policy, which are either shipper’s Risk/Owner Risk or Carrier’s Risk. But at the time of booking, complainant agreed to pay consignment on the Shipper’s Risk or Owner Risk basis and the docket was duly signed by the complainant. 

          So, complainant took the transit risk i.e. the Shipper or Owner had taken risk on transit.  So, op is not liable to pay any compensation.  But fact remains that complainant ought to have opted for carrier’s Risk and in such a situation op would have taken the transit Insurance of the goods and for that requisite charges or premium also would have been charged from the complaint but complainant did not opt or did not pay.

          On receipt of the claim of the complainant, op wanted to appoint an independent Surveyor for assessment of loss or damage but complainant did not accept it.  Moreover the damage of the consignment is not on transit but op delivered the consignment at the address given by the complainant and whatever damage occurred were occurred after delivery and for which complainant is liable for loss or damages of her goods.  So, complainant is not entitled to get any relief from this Forum.  It is further submitted that the entire complaint is filed for some malafide intention and for some financial benefit and as per contract that is the acknowledgement receipt and consignment note parties are guided by the said conditions.  So, complainant is not entitled to get any benefit and prayed for dismissal of this case.

                                                Decision with reasons

          On proper scrutiny of the document as filed by the complainant that is acknowledgement receipt in support of booking of the said articles dated 23.03.2014 and time and considering the complaint and written version, it is found that op has admitted that the said 11 cartoons were booked from Siliguri for onward transmission for delivery at Chhatrishgarh and weight of the said articles was 70 Kgs and fact remains in the said receipt docket it is specifically mentioned that it was most urgent matter for delivery and no doubt complainant paid a sum of Rs. 1,602/- and at that time complainant declared the valuation of the said articles of Rs. 20,000/- and it is admitted fact that the articles were not delivered at Chhatrishgarh by the op on 28.03.2014.  Reasons for non delivery are not explained by the op in their written statement.  Truth is that complainant attended Kanchanjhanga Trade Fare and thereafter selling some articles the balance was booked for attending a fare at Chhatrishgarh.

          Subsequently complainant wrote a letter to the op stating the entire fact and asked the op to deliver the same at Kolkata and also prayed for compensation for her loss for not able to sell those articles in the Raipur Mela and that letter was received by the op and subsequently op delivered the said articles to the complainant and in that receipt at the time of receiving the same, it was noted that articles were broken.  So the allegation as made in the complaint by the complainant against the entire fact regarding booking of the articles regarding non-delivery of the same at Raipur Handicraft Mela and subsequent delivery of the same by the op after repeated reminders by the complainant on 22.05.2014 at Kolkata and receipt of the same at Kolkata are admitted by the op and it is not denied.  It is also not proved by the op that articles were damaged during transit.  But op has tried to convince that same was damaged after delivery but that is not the fact which is also proved from the fact that op had admitted that complainant did not book the consignment at Carrier’s Risk or insuring the same.

          But in this regard it is to be mentioned that it is the duty of the carrier to insure the same for the proper protection of the articles which has been booked by the consignor.  But in the present case op did not opt that procedure.  Then as per provision of law when the carrier has accepted the articles after receiving proper fees for delivery in that case it is the liability of the carrier to handover the consignment goods intact position without any damage to the consignor or consignee.  But in this case it is proved that op failed to hand over first at the address at Raipur to the consignee on a particular date on 28.03.2014.  So, invariably complainant suffered a loss for not attending the said fare because she is a poor lady who runs the business for selling mud made articles for earning her livelihood and in fact the said articles or consignment was delivered to the complainant by the op after repeated reminders and ultimately on 22.05.2014 i.e. long after 2 months from the actual date of delivery of the same.

          So, invariably within that two months complainant failed to attend any fare and sell those articles for which no doubt the deficiency on the part of the carrier is well proved.

          In this case Ld. Lawyer for the op submitted that under Carrier Act 1970 this complaint is not maintainable.  But in this regard we have gone through the provision of 2(1)(o) of C.P. Act 1986 and after comparative study of the said provision of Carrier’s Act 1970 it is found that the C.P. Act is not in operational of the Carrier’s Act 1970 and Forum has full authority and jurisdiction u/s 3 of the C.P. Act 1986 when transport service is included u/s 2 (1)(o) of C.P. Act 1986 and in view of the above findings and also relying upon the ruling reported in 1994 (I) CPR 48 Page 57-58 (WB SCDRC) we are convinced to hold that this Forum has legal jurisdiction and full authority to award relief under C.P. Act.

Now on proper consideration of the entire materials, it is found that practically at the time of booking the consignment that is 11 cartoons of mud made Teracota articles by the complainant to op, complainant declared the value of the articles of Rs. 20,000/-.  So, invariably complainant cannot claim more than Rs. 20,000/- for damage of the said articles and no doubt complainant is also entitled to compensation in view of the fact that said articles were accepted by the op in cartoons for most urgent delivery knowing fully well that the date of fare at Raipur Handicraft Fare would be started on 28.03.2014.  But op did not deliver the articles to the right place but substantially delivered to complainant’s address at Kolkata on 22.05.2014 that is long after two months.  So considering that delay of two months no doubt the poor lady failed to sell those articles and for which no doubt she suffered financial loss and at the same time op very callously carried the consignment taking no such step to save the articles on transit.

In fact for that reason the negligence and deficiency on the part of the op is well proved.  Regarding non insuring the articles by the complainant we have minutely considered the principle of law wherefrom we have found that if any consignor did not insure any article and carrier accepts the same for delivery then it is the liability of the carrier to deliver the same safely and in fact in all cases it is the duty of carrier to insure the articles when his vehicle is also insured.  But op did not adopt that policy and now trying to discharge his liabilities by shifting it upon the complainant that complainant did not insure it.  Such a plea is not tenable in the eye of law as per Carrier Act 1970 and at the same time as per Carrier’s Act it is the duty of the carrier at the time of receiving the articles to insure the articles if it is not insured by the consignor but carrier accepts the same for delivery then it is the carrier’s liability not the consignors liability and the very plea as taken by the op as defence is illegal in the eye of law and in view of the present perspective and fact.

In the light of above observation and also considering the entire materials on record we are convinced to hold that complainant has able to prove the entire allegation against the op and invariably op is bound to compensate for the loss of the complainant and for the harassment by the op and also for agony from mental pain and sufferings and also for losing her income for two months only for the negligent and deficient manner of service on the part of the op.

In the result, the complaint succeeds.

Hence, it is

                                                       ORDERED

That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against the ops.

Ops jointly and severally are hereby directed to refund a sum of Rs. 20,000/- including Rs. 1,602/- which was received as consignment fees that is total Rs. 21,602/- to the complainant for non delivery of the articles at Raipur on 28.03.2014 and also for delivery the same at the complainant’s address at Kolkata on 22.05.2014 in a damaged and broken condition and further for harassing the complainant and also for depriving the complainant to sell those articles at Raipur Handicraft Mela on 28.03.2014 and also for losing her business of mud made Teracota for two months till 23.05.2014 and also for financial loss of the complainant, ops jointly and severally shall have to pay further compensation of Rs. 20,000/- to the complainant and accordingly in total Rs. 41,602/- shall be paid by the op to the complainant within 15 days from the date of this order failing which for non compliance of the Forum’s order and for disobeyance of the Forum’s order, ops jointly and severally shall have to pay a sum of Rs. 200/- per day as penal interest over the same till full satisfaction of the decree and if it is collected it shall be deposited to the Forum’s account.

Ops are directed to comply the order very strictly within the stipulated period failing which for disobeyance and non compliance of the Forum’s order penal proceedings u/s 27 of C.P. Act 1986 shall be started against them for that they may be imposed further penalty and fine for which they shall be liable.