KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO.171/12

JUDGMENT DATED 10.10.2012

 PRESENT

SHRI.M.K.ABDULLA SONA                   --   MEMBER  

1.      DTDC Courier and Cargo Ltd

Aluva 683101.

2.      DTDC Courier and Cargo Ltd,

Regd.Office, DTDC House,           --  APPELLANTS

No.3, Victoria Road,

Bangalore-47.

            (By Adv.A.K.Chinnan & Ors.)

                   Vs.

High Tech Services,

Reptd. by Managing Partner,                             --  RESPONDENT

Jimmy Joseph,

Thaikkattukara, Aluva 683106.

JUDGMENT

SHRI.M.K.ABDULLA SONA,MEMBER

          This appeal prefers from the order passed by the CDRF, Ernakulam in CC.No.76/10 dated.30.8.11.  The appellants are  the opposite parties and the respondent is the complainant/company.  The appellant prefers this appeal from the direction of the forum below that  (i) opposite parties shall jointly and severally  pay Rs.40,000/- to the complainant towards cost of the lost goods along with interest at the rate of 6% from the date of the complainant till  realization. (ii) The opposite parties shall jointly  and severally   pay Rs.20,000 to the complainant towards compensation  towards compensation for loss of work and mental agony suffered.  (iii)  Opposite parties shall pay Rs.1000/-  to the complainant towards  cost of  litigation.

          2. In short, the complainant booked 4 cameras of wheel alignment to be delivered to M/s. Precision Testing Machine 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 there was any 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 costs.

3. The 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.

4. The evidence consisted of the oral testimony of the complainant who examined as PW1and marked Exts.A1 to A10. The opposite party filed version.  Argument  notes were filed on both sides.  The learned counsel appearing for parties were heard.  The Forum below passed the impugned order.  This appeal prefers from this above impugned order passed by the Forum below. 

5. On this day, this appeal came before this Commission for final hearing, the counsel for the appellant is present and there is no representation for the respondent/complainant.  The counsel for the appellant argues on the ground of the appeal memorandum that the complainant is not a person but a company.  He argued that the complainant did not declare the goods he sent through the parcel.  It is the mandatory provision that each consignment is necessary to declare the contents of the consignment.      In the absence of the non-declaration, complainants are already entitled to deduct the relief mentioned in Ext.A1 courier consignment note as per the Act.

6. Another argument is that the forum below assessed the value of goods which lost from the custody of the appellant/company in transit   as Rs.40,000/-.  It is an  attitude before proving that whether the goods sent in the parcel is either it is Camera or any other article.  The forum below assessed this amount without any norms and principles and another point he argued that the forum below awarded Rs.20,000/- under the head of mental agony.  The complainant is not a person, they are a company.  Then there is no question and mental agonies to be arised.  In the phase of the legal position the forum below ordered Rs.20,000/- under the head of compensation for mental agony is illegal and irregular.  The learned counsel for the appellant cited a decision of the National Commission  IV (2011) CPJ 215 (NC)  Nagpur Golden Transport Company Vs. Ghanshyam Poddar and Ors.  The National Commission settled this position by this  decision that the statutory notice under Section 10 of Carriers Act within a period of six months is mandatory.   The  counsel for he appellant submitted that the order passed by the forum below is not accordance  with the provisions of law and evidence.   It is nothing but as a result  and there is no  provisions sustainable  in the order   and  set aside  the order passed by the forum below. 

7. This Commission heard in detail by the counsel for the appellant and perused the entire evidence available in the LCR.  It is seeing that there is no evidence given by the complainant in this case.    In Ext.A1 courier consignment note, as per this document he got price of compensation in this matter. But whatever may be it is the duty of the opposite parties in check the details of the items back inside the consignment by any party on the potention of the general company.   Suppose a person who deliver an explosive items in the consignment how the opposite parties are taking very same  legal defense.    This Commission is seeing that the amount assessed in item No.1 of the  forum below is not accordance with any basis.  This amount was assessed on the basis either on assumption and presumption.  It is not possible in accordance with the provisions of the law.  They cannot discard in toto the provisions of the law and evidence.  In the items No.2 of the result portion is not at all applicable in this case.   In the complaint there is no question arising the mental agony.  This Commission is seen an apparent error in the order passed by the forum below.  It is necessary to interfere in the impugned order passed by the Forum below.  This Commission is decided to modify totally the result portion passed by the Forum below.     

          In the result, this appeal is allowed in part and modified Rs.40,000/- as  Rs.25,000/- in the items No.1 of the result portion.  The item No.2 is set aside and it confirmed   the item No.3 of the result portion.   In other words the opposite parties shall pay jointly and severely Rs.25,000/- to the complainant towards cost of the lost of goods along with interest at the rate of 6% from the date of the order passed by the forum below.    The opposite parties shall pay Rs.1000/-  to   the  complainant  towards  cost  of  the   litigation.  The above said order   shall comply within a period of one month from the date of receipt of copy of this judgment.  The points of the appeal discussed one by one and answered accordingly.  Hence I do so.

 M.K.ABDULLA SONA --   MEMBER