BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD
F.A.No.1423/2005 against C.D.No.179/2002 , DISTRICT CONSUMER FORUM, Cuddapah.
Between:
1.M/s.Gati Limited,
Regd. & Head Office at 1-7-293
M.G.Road,
Secunderabad,
Rep. by its Asst. Manager (Legal),
Mrs. B.Jayalakshmi . ....Appellant/
Opp.party no.2
And
1.K.C.Sivanna,
D.No.1/187-1 Ramnagar,
Chinnachowk, Cuddapah District. ... Respondent/
Complainant
2. M/s.Capital Express Services,
D.No.2/11`, Veeraswamy, 11 street
Avanavaram,
Chennai-23. .... Respondent/
Opp.party no.1
Counsel for the appellant : M/s A.Venkatesh
Counsel for the respondents : R1- sent a reply
R2- served
CORAM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER
AND
SRI G.BHOOPATHI REDDY, HON’BLE MEMBER.
TUESDAY, THE FIFTEENTH DAY OF APRIL,
TWO THOUSAND EIGHT.
Oral Order:(Per Sri G.Bhoopathi Reddy, Hon’ble Member)
*****
This is an appeal filed by the appellant/opp.party no.2 under Section 15 of the Consumer Protection Act ,1986 to set aside the order passed by the District Forum, Cuddapah in C.D.No.179 /2002 dt.10.9.2003 .
The respondent no.1 herein is the complainant before the District Forum . He filed a complaint under Section 12 of the Consumer Protection Act,1986 to direct the opp.parties to pay a sum of Rs.13,000/- towards the cost of the colour television with 24% interest p.a. from 13.5.2002 till the date of realisation, Rs.10,000/- towards compensation and Rs.2000/- towards the cost of the complaint.
The brief facts of the case are as follows:
The complainant is the resident of Cuddapah town and he was working in A.P.S.R.T.C. workshop . The complainants ‘s daughter who is working in Kuwait booked a consignment of two cartoons consisting of colour television of 21” worth Rs.13,000/-, Cloths , food items worth Rs.2000/- to her father i.e. complainant through the opp.parties on her cousin brother’s name Mr.M.Ravi Kumar because she is an illiterate woman. At the time of booking of television all safety measures have been taken by the consigner and on top of the packing clearly it is mentioned that “TELEVISION GLASS WITH CARE”. On 13.5.2002 when the complainant’s son received the consignment at Cuddapah he noticed that the television was in totally damaged condition. Immediately he informed the same to both opp.parties over phone and requested to replace the television or refund the cost of the television . Both the opp.parties promised to do so but they failed to do the same. On 27.5.2002 the complainant issued a legal notice requesting to refund the cost of the television with interest and costs for which the opp.parties issued a reply notice with false allegations Hence the complainant approached the District Forum to direct the opp.parties to pay a sum of Rs.13,000/- toward the cost of the colour television with 24% interest p.a. from 13.5.2002 till the date of realisation, Rs.10,000/- towards compensation and Rs.2000/- towards the cost of the complaint.
The opp.parties were called absent and they were set exparte.
The District Forum allowed the complaint partly directing the opp.parties to pay an amount of Rs.13,000/- towards cost of the colour T.V. with interest @ 9% p.a. from the date of consignment till the date realisation with compensation of Rs.2,000/- and costs of Rs.500/- within one month from the date of receipt of the order.
Aggrieved by the said order the appellant /opp.party no.2 preferred this appeal contending that there was no proper service of notice on the appellant and the notice was taken on franchisee of the appellant who had closed his business due to fire accident and the complainant ought to have served the notice on registered & head office of M/s.Gati Ltd. at Secunderabad The District Forum ought to have seen that there was no privity of contract between complainant and appellant .The complainant is not a consignor of either the appellant or respondent no.2 as such he cannot maintain a complaint and if at all any complaint has to be filed it is only the consignor i.e. Kum.Malleshwari against respondent no.2 only. The complainant did not file any document like surveyor report or any other report evidencing the damage caused to the television set and in the absence of either documentary or oral evidence the Dist. Forum ought not to have concluded that the television set is damaged. The complainant has not filed the invoice to substantiate that the cost of the television is Rs.13,000/- and the District Forum ought not to have granted the cost of T.V. at Rs.13,000/- as the complainant failed to produce alleged damaged television set. She prayed to set aside the order of the District Forum and allow the appeal.
The points that arise for determination are
- Whether there was any privity of contract between the appellant/opp.party no.2 and respondent no.1/complainant ?
2. Whether order passed by the District Forum is an exparte order?
3. Whether the order passed by the District Forum is sustainable?
Point no.1: The appellant contended that there is no privity of contract between them and complainant , the complaint itself is not maintainable against them. The respondent no.1 resisted the plea alleging that the goods were entrusted to the opp.party no.1 who is the franchisee of the appellant and who is working under the appellant and as such there is privity of contract between them. The entrustment of goods to the carrier is proved. There is privity of contract between the appellant and respondent no.1 . There is no dispute with regard to the goods entrusted to the opp.party no.1 to be delivered to the complainant for which charges were also collected . When the goods were delivered to the complainant it was noticed there was damage to the T.V. and thereafter legal notice was issued to both the opp.parties for which only the opp.party no.2 has given reply . In the said reply notice no plea was taken that there was no privity of contract . Infact the appellant did not contest the matter before the District Forum even though notice was received . The goods were entrusted for the purpose of transporting to Cuddapa by opp.party no.1 . The claim was made against both the opp.parties . They did not choose to contest . Even in this appeal also, respondent no.2/opp.party no.1 refused to take notice. There after notice was issued through paper publication. Even then the respondent no.2 has not contested the matter. From the uncontroverted evidence we found that there is privity of contract between the appellant and respondent no.1/complainant. This point is proved in favour of the respondent no.1/complainant and against the appellant.
Point no.2 : The appellant contended that there was no proper service of notice ,no opportunity to contest was given that the order passed by the District Forum is an exparte order . The respondent no.1 resisted the plea. The appellant failed to file counter though ample opportunity was given. The District Forum elaborately discussed and given finding. We have gone through the docket sheet of the District Forum. Notice was served properly. Even after service of notice several times, the matter was adjourned . The District Forum has elaborately discussed all the documentary evidence and given finding .
Point no.3 The appellant contended that there was no surveyor report evidencing damage caused to the television and that the complainant has not filed invoice to substantiate the cost of the television at Rs.13,000/- and that the District Forum ought not to have granted cost of the television at Rs.13,000/- . The respondent no.1 proved the cost of the television is Rs.13,000/- evidenced by the certificate issued by the opp.party no.1 . A legal notice was also issued prior to filing of the complaint. In the said legal notice it is mentioned that the price of the television is Rs.13,000/- . We have gone through the certificate issued by the opp.party no.1. It is stated that household articles along with T.V. were transported and approximate value of the consignment is Rs.15,000/- and weight is mentioned as 115 kgs. As the said certificate is filed stating that the value of the television along with other articles is Rs.15,000/- we do not feel there is any necessity to file invoice with regard to the cost of the television is concerned The District Forum has properly discussed all the documentary evidence and given finding that the cost of the T.V. is Rs.13,000/-.
The appellant further submits that if there is any claim the complainant can as well claim against respondent no.2 /opp.party no.1 only, and not against the appellant and the complaint filed by the complainant is not maintainable against them as the consignment was entrusted by Kum Malleshwari i.e. daughter of complainant to the opp.party no.1.. The complainant’s daughter working in Kuwait booked consignment with the opp.party no.1 in the name of complainant being her father which is consisting of colour T.V. of worth Rs.13,000/- clothes and food items The opp.party no.1 in turn sent the consignment to the opp.party no.2 who delivered the consignment to the complainant. After delivering the consignment the complainant noticed there was damage caused to the colour T.V. and then he complained to the opp.parties 1 and 2 and issued legal notices to them requesting to replace the T.V. or refund the cost of the colour T.V. and as there was no reply from them complaint was filed. The appellant has not contested the matter before District Forum. The goods were entrusted with a direction to deliver to the complainant and the delivery effected but the T.V. was damaged for which the appellant is also responsible . . The submission made by the appellant is not sustainable as it is not in dispute that complainant is the owner. There was deficiency in service on the part of the appellant for the damage caused to the T.V. The appellant further contended that order of the District Forum in awarding interest , compensation and costs is not sustainable. Since interest was already awarded by the District Forum we see no reason to award compensation. The interest component can as well compensate the amount awarded towards compensation. Order of the District Forum with regard to awarding compensation of Rs.2000/- is set aside.
In the result appeal is partly allowed Order of the District Forum with regard to awarding Rs.2000/- towards compensation is set aside. In all other aspects order of the District Forum is confirmed . Six weeks time is granted for compliance of the order.
PRESIDENT LADY MEMBER MALE MEMBER
Dt. 15.4.2008
pm*
