KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL NO.39/2009 JUDGMENT DATED. 19.7.2010 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER 1. The General Manager,(Transporting), : APPELLANTS Kerala Transporting Company, YMCA Road, Calicut. 2. The Branch Manager, KTC Karunagapally Branch, Karunagapally, Kollam. (By Advs.Borispaul and Dinesh Sajan.K.) Vs. K.Sreenivasan, : RESPONDENT Achuthundil Thekkathil, Kidengayam North, Patharam.P.O., Soorandu South, Kollam. (By Adv.S.Latha) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is directed against the order dated 15th July 2008 of the CDRF, Kollam in CC No.477/05. The complaint therein was filed by the respondent/complainant alleging deficiency in service on the part of the appellants/opposite parties in delivering the consignment which was entrusted with the opposite parties for transport from Surat to Karunagapally, Kollam district. The complainant claimed value of the consignment amounting to Rs.26,000/- with compensation of Rs.50,000/- and also cost. 2. The opposite parties entered appearance and filed joint written version denying the alleged deficiency in service. They contended that the consignment which was entrusted by one M/s Rahul Trading Co. Surat was damaged due to flood and the said damage to the consignment was caused by Act of God and so, the opposite parties are not liable to pay value of the damaged consignment or compensation to the complainant. The opposite party had also taken the contention that the complainant is not a consumer and the Forum below has no territorial jurisdiction to entertain the complaint, that the parties had agreed that only courts in Calicut city alone shall have jurisdiction to entertain and adjudicate upon all claims relating to the consignments or goods entrusted for transport. Thus, the opposite parties prayed for dismissal of the complaint. 3. Before the Forum below the complainant was examined as PW1 and Exts.P1 to P6 documents were marked on his side. A witness was examined on the side of the opposite parties and Exts. D1 to D5 documents were also marked on their side. On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite party Carrier of the consignment to pay the complainant a sum of Rs.26000/- being the value of the consignment and also to pay Rs.10,000/- by way of compensation and cost. Hence the present appeal by the opposite parties in CC.477/05. 4. We heard both sides. The learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the Forum below (CDRF, Kollam) had no territorial jurisdiction to entertain the complaint in CC.477/05, as the parties had agreed to the jurisdiction of courts in Calicut city. He relied on condition No.19 printed on the back side of D1 lorry receipt and submitted that the courts in Calicut city alone were having jurisdiction to entertain the dispute involved in OP.477/05. He also relied on the condition No.4 of D1 lorry receipt and submitted that the opposite party/Carrier is not liable for the damage caused to the consignment and that the complainant is not a consumer coming within the purview of the Consumer Protection Act, 1986. He vehemently argued for the position that the consignment was taken to the transshipment point of the carrier at Thane in Mumbai on 25.7.05 and it was kept in their godown at Thane for onward shipment to Karunagapally; but unfortunately there occurred heavy rain and flood at Thane and the nearby places causing damage to goods kept in the godown including the consignment covered by D1 lorry receipt. The appellants argued for the position that the damage to the consignment was caused on account of Act of God and that the appellants cannot be made liable for the damage caused to the consignment. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondent/ complainant supported the impugned order passed by the Forum below and argued for the position that damage to the consignment occurred due to negligence of the appellants/opposite parties and they are liable to compensate the complainant. Thus, the respondent prayed for dismissal of the present appeal. 5. There is no dispute that the consignment covered by P1 lorry receipt was entrusted with the appellants/opposite parties at their branch in surat and the said entrustment was made on 23.7.05 for its transportation and delivery at Karunagapally. It is admitted by both parties that in P1 lorry receipt (booking receipt) the date was mistakenly shown as 23.5.05 instead of 23.7.05. Admittedly D1 is photocopy of P1 lorry receipt. It is also to be noted that P1 is the consignee copy and P6 is the consigner copy. Ext.P1 consignee copy and P6 consigner copy of the lorry receipt were produced by the complainant. It is also to be noted that complainant Sreenivasan is shown as the consignee and M/s Rahul Trading Co., Surat is shown as the consigner. There is no dispute that on 18.8.05 the said consignment reached Karunagapally and the complainant/consignee approached the 2nd opposite party for taking delivery of the consignment and it was found that the consignment was damaged. The fact that the said consignment was saris, pants in two polythene bags is not disputed . It is also admitted that the said consignment (saris) were found damaged. Those items were in wet condition. It is also admitted by the appellants/opposite parties in their written version that the respondent/complainant(consignee) refused to take delivery of the consignment because of the fact that the consignment was damaged. It is categorically stated in para 6 of the written version that the “consignment mentioned was received at Karunagapally office of the opposite party on 18.8.05 in a wet condition; that the same was duly intimated to the complainant. Inspite of apprising the complainant of the true and correct facts, he refused to take delivery of the same and demanded huge amount as alleged compensation. 6. The appellants/opposite parties have got a case that Forum below had no territorial jurisdiction to entertain the complaint in CC.477/05, as the parties had agreed for the territorial jurisdiction of courts in Calicut city. The appellants/opposite parties relied on the terms and conditions printed on the back side of P1 consignee copy and D1 photocopy. The relevant condition No.19 is as follows : “The court in Calicut city alone shall have jurisdiction in respect of all claims relating to the consignments entrusted to the Carrier. There is nothing on record to show that the consigner or consignee agreed for the aforesaid conditions incorporated in P1(D1) lorry receipt. It is to be noted that as per the lorry receipt M/s Rahul Trading Co. is the consigner. Ext.P6 is the consigner copy of the lorry receipt. It is pertinent to note that no such terms or condition are incorporated in P6 consigner copy of the lorry receipt. The back side of Ext.P6 consigner copy is blank. No terms and conditions are incorporated in P6 consigner copy of the lorry receipt. Moreover, there is no endorsement by the consigner or the consignee regarding the aforesaid terms and conditions. It is hard to believe the case of the appellants/opposite parties that the parties agreed for the territorial jurisdiction of courts in Calicut city. In other words, there is nothing on record to show that the parties to P1 or P6 lorry receipt submitted to the jurisdiction of courts in Calicut city. Admittedly the consignment was entrusted with the opposite party by Rahul Trading Co. at Surat and that the same was entrusted for its transport and delivery to the consignee at Karunagapally. Thus, no part of the cause of action has arisen within the territorial jurisdiction of courts in Calicut city. It is true that the 1st opposite party is at Calicut. The case of the appellants/opposite parties that the courts in Calicut city alone are having territorial jurisdiction to entertain the complaint in CC.477/05 cannot be upheld. The admitted fact would show that the Forum below which was having territorial jurisdiction over Karunagapally was competent to entertain the complaint in CC.477/05. 7. The P1 consignee copy contains the terms and conditions printed on its reverse side. A perusal of P1 consignee copy of the lorry receipt would make it clear that the terms and conditions printed on the reverse side of that lorry receipt are not legible and the terms and conditions printed can not be read. The manner in which the terms and conditions are printed on P1 lorry receipt would make it abundantly clear that the parties to the contract of transport never intended to act upon those terms and conditions. There is also nothing on record to show that the aforesaid terms and conditions were agreed upon by the consigner or the consignee. It is true that the terms and conditions are legible and readable on D1 photocopy which was in the custody of the appellants/opposite parties. There is also no endorsement by the consigner or the consignee agreeing to the terms and conditions printed on reverse side of the lorry receipt. It can very safely be concluded that the parties to P1 and P6 lorry receipts had never agreed to the terms and conditions printed on the reverse side of the lorry receipt. 8. The appellants/opposite parties have also relied on the terms and conditions shown as condition No.4 in D1 photocopy of the lorry receipt. It is as follows:- “The carrier shall not be liable for any loss or damages due to pilferage, theft, weather conditions, rats, disturbances, fire, explosion or accidents provided however all reasonable precautions usually taken are taken by carrier protect against such contingencies”. 9. But no such conditions can be seen in P6 consigner copy of the lorry receipt. In fact no such terms and conditions are printed on P6 consigner copy of lorry receipt. The terms and conditions printed on the reverse side of P1 consignee copy of the lorry receipt are not readable. We have already taken into consideration the manner in which the terms and conditions are printed on reverse side of P1 lorry receipt. Thus, it can very safely be concluded that the consigner or consignee were not aware of any such terms and conditions. There is also nothing on record to show that the consigner or consignee agreed for the above said terms and conditions printed on the reverse side of P1 lorry receipt. So, it can very safely be concluded that the parties to the P1 and P6 lorry receipts were governed by the provisions of the carriers Act, 1865. 10. There is no case for the appellants/opposite parties that the consignment covered by P1 lorry receipt was a scheduled item as mentioned in Section 3 of the Carriers Act, 1865. There is nothing on record to show that the consignment covered by Ext.P1 lorry receipt was a scheduled item. So, Section 3 of the Carriers Act, 1865 can not be made applicable in the case of the consignment covered by P1 lorry receipt. 11. A perusal of P1 consignee copy and P6 consignor copy of the lorry receipt would make it clear that the value of the consignment was declared as Rs.26,600 and the carrier had also received the freight charge of Rs.380/- from the consignor. The details of the goods entrusted for transport are also mentioned in the lorry receipt. The opposite parties (carrier) in their written version has also admitted the fact that the consignment was entrusted at their office at Surat disclosing its value and content. It is admitted in Ext.P5 and also in the written version that one M/s Rahul Trading Co. at Surat had entrusted a consignment of 2 polythene gunny bundles stating it to be textile goods having a declared value of Rs.26,600/- weighing 79 Kgm on 23.7.05 to be delivered to the complainant at Karunagapally. The aforesaid admission would make it clear that the consignor had declared the value and the content of the consignment at the time of entrusting the same with the carrier. 12. Section 9 of the carriers Act, 1865 would make it clear that the burden is upon carrier to establish that the loss, damage or non delivery of goods occurred not due to the negligence or criminal act of the carrier its servants or agents. In other words, the consigner or consignee need not establish the negligence on the part of the carrier or his servants or agents. It is a well settled position that the carriers are answerable or responsible for any injury caused to the goods delivered to the carrier except the loss or damage happened by Act of God or action of ailing enemies. 13. The appellants/opposite parties have got a case that there was natural calamity of flood at Thane and due to the said flood the goods kept in their godown at Thane were damaged in flood. Thus, the appellants relied on exception clause of Act of God. No doubt that the burden is upon the appellants/opposite parties(carrier) to establish the case of Act of God. 14. Admittedly the consignment covered by P1/P6 lorry receipt was entrusted at Surat in Gujarat. In fact there was no necessity to take the consignment to Mumbai for transporting the same to Karunagappally in Kerala. It is the case of the appellants/opposite parties that they took consignment from Surat to Mumbai for its shipment from Mumbai to Kerala. But there is nothing on record to show that the aforesaid consignment was taken to Mumbai. There is also nothing on record to show that the appellants/opposite parties had taken all the necessary steps to avoid causing damage to the consignment due to flood. It is admitted by DW1 that he had no knowledge about the transport of the consignment covered by P1 lorry receipt to Mumbai or the flood in Thane where the godown of the opposite party carrier is situated. Ext.D5 series of photographs or D2 to D4 Times of India newspapers would not establish that the consignment of the complainant was taken to Mumbai or that the goods or consignments kept in the godown of the appellants were damaged in flood. There is also nothing on record to show that the appellants/ opposite parties(carrier) had taken necessary precautionary steps to averred damage to the goods. Admittedly the consignment covered by P1 lorry receipt was entrusted with the opposite party carrier at Surat on 23.7.05. No reason is given for the delay in transporting the goods on the same day or on the next day. There is also no acceptable evidence to support the case of the appellants/opposite parties that the consignment covered by P1 lorry receipt was taken from Surat to Mumbai. It is admitted that the consignment covered by P1 lorry receipt was damaged and the consignment was in a wet condition. The respondent/ complainant (consignee) is perfectly justified in refusing to take delivery of the consignment as the same was damaged. Thus, there was deficiency in service on the part of the opposite parties in delivering the consignment in good condition. So, the complainant is entitled to get compensation for the deficiency in service on the part of the opposite parties and also for the financial loss suffered by the complainant. 15. The complainant was the consignee and so the claim preferred by the complainant is legally sustainable. The complainant claimed 26,000/- representing the value of the consignment P1 and P6 lorry receipts would also establish the fact that value of the consignment would come to Rs.26,600/- . The Forum below is perfectly justified in directing the carrier to pay value of the consignment amounting to Rs.26,000/- 16. The complainant had also claimed Rs.50,000/- by way of compensation for the deficiency of service on the part of the carrier. The Forum below limited the compensation and cost at Rs.10,000/-. It is to be noted that the total value of the consignment would come to Rs.26,600/- only. The compensation of Rs.10,000/- ordered by the Forum below can be treated as bit high. We are of the view that a compensation of Rs.5000/- will be sufficient to meet the ends of justice. So, the impugned order passed by the Forum below awarding further compensation of Rs.10000/- is modified and the compensation is reduced to Rs.5000/-. It is also to be noted that the Forum below has not awarded any interest on the value of the consignment. Hence the appellants/opposite parties are liable to pay the aforesaid amounts without delay. The impugned order passed by the Forum below is modified as indicated above. In the result the appeal is disposed of confirming the impugned order passed by the Forum below directing the opposite parties (appellants/carrier) to pay Rs.26,000/- being the value of the consignment. The impugned order passed by the Forum below directing the appellants to pay compensation and cost of Rs.10,000/- is modified and thereby the compensation is reduced to Rs.5000/-. The appellants/ opposite parties are directed to pay the aforesaid amounts within one month from the date of receipt of copy of this judgment failing which the aforesaid amounts will carry interest at the rate of 9% per annum from the date (15.7.08) of the impugned order passed by the Forum below. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SMT.VALSALA SARANGADHARAN : MEMBER ps | 
