BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 198 of 2015
Date of Institution: 31.3.2015
Date of Decision: 25.02.2016
Sh. Vijay Mehra Partner M/s. Ess Vee Textiles, 7, Shastri Market, Amritsar
Complainant
Versus
Kashmir Cargo Carriers through its Prop./Partner/Principal Officer having its branch office at 61, Baba Phoola Singh Market, Opp. Sheranwala Gate, Amritsar through its Branch Manager
Opposite Party
Complaint under section 11 and 12 of the Consumer Protection Act, 1986
Present: For the Complainant : Sh. Deepinder Singh,Advocate
For the Opposite Party : Sh.A.K.Popal,Advocate
Quorum:
Sh.Bhupinder Singh, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma, Member
Order dictated by:
Sh.Bhupinder Singh, President.
1. Present complaint has been filed by Vijay Mehra under the provisions of the Consumer Protection Act alleging therein that complainant is a consignee of goods sent by O.T.C.Exclusive , Srinagar having declared value of Rs. 1,94,673/- sent vide goods receipt/GR No. 52285 dated 22.8.2014 and the freight is to be paid to the tune of Rs. 2900/-. According to the complainant the said freight includes Rs. 2000/- for the transport risk coverage which in common parlance is the insurance for the safe transit of the goods covered under the said GR. Complainant has alleged that opposite party has not delivered the goods to the complainant. The complainant made several visits to the opposite party but the opposite party put of the matter under one pretext or the other Alleging the same to be deficiency in service complaint was filed seeking directions to the opposite party to pay the amount of Rs. 1,94,673/- alongwith interest @ 12% p.a from 22.8.2014 till realization. Compensation of Rs. 1 lac alongwith litigation expenses were also demanded.
2 On notice, opposite party appeared and filed written version in which it was submitted that after booking of consignment at Srinagar office of the opposite party, natural disaster of flood due to excessive long rains happened throughout valley. It destroyed and damaged, goods, commodities, traders and business at large . Flood water spread over through out the valley upto 10 to 15 ft level. Houses, roads & building damaged, collapsed & fallen. Human being & animals died in this flood. Total transport area including premises of the opposite party remained under flood since September 2014 for 2/3 months. It damaged/destroyed the goods including the goods of the complainant booked with the opposite party for transportation. Jammu & Kashmir Goods Transport companies Association Srinagar office displayed public notice as the consigned goods in the entire transports have been damaged/destroyed/rotten due to flood and made a request to take back them accordingly. In this regard the transport companies at Srinagar namely Kashmir Cargo Carrier lodged complaint to the police vide FIR No. 19 dated 1.10.2014 was registered as entire record at Srinagar office was damaged under the flood & written notice and intimation was also given by the concerned branch of opposite party to Addl.Commissioner, Commercial Tax (Admn) Srinagar (Kashmir) Division . It was submitted that the consignee goods have been damaged due to said natural act of God. The complainant has not removed his goods inspite of personal request by the Sri Nagar Office, public notice dated 29.9.2014 of the J & K Goods Transport Companies Association to the public at large for taking back their booked consignment of goods from their concerned transports respectively. It was submitted that the transport operation shall not responsible for any damage of the loss to the goods arising out of war/riots/strike or an act of God. As such the present complaint is not maintainable and the same is liable to be dismissed. While denying and controverting other allegations, dismissal of complaint was prayed.
3 Complainant tendered into evidence his affidavit Ex.C-1 , copy of GR Ex.C-2, copy of bill Ex.C-3.
4 Opposite party tendered affidavit of sh.Gulzar Ahmed Ex.OP1 alongwith documents Ex.OP2 to Ex.OP5.
5. We have carefully gone through the pleadings of the parties, arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for the parties.
6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that OTC Exclusive , Srinagar consignor booked consignment with declared value Rs. 1,94,673/- as per bill Ex.C-3 with the opposite party carrier for transportation and delivery to complainant consignee,Amritsar vide GR No. 52285 dated 22.8.2014 Ex.C-2 and the freight is to be paid to the tune of Rs. 2900/-. The complainant further submitted that the freight includes Rs. 2000/- for the transport risk coverage which in common parlance is the insurance for the safe transit of the goods covered under the aforesaid GR. The complainant submitted that the opposite party failed to deliver the goods to the complainant consignee at Amritsar. The complainant approached the opposite party so many times, but the opposite party has been dilly dallying the matter on one pretext or the other. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite party qua the complainant.
7 Whereas the case of the opposite party is that after booking of consignment at Srinagar office of the opposite party, natural disaster of flood due to excessive long rains happened throughout valley. It destroyed and damaged, goods, commodities, traders and business at large . Floor water spread over through out the valley upto 10 to 15 ft level. Houses, roads & building damaged, collapsed & fallen. Human being & animals died in this flood. Total transport area including premises of the opposite party remained under flood since September 2014 for 2/3 months. It damaged/destroyed the goods including the goods of the complainant booked with the opposite party for transportation vide GR Ex.C-2 alongwith other goods lying inside their transport premises. Consequently Jammu & Kashmir Goods Transport companies Association Srinagar office displayed public notice Ex.OP3 which was also published in newspaper Kashmir Uzama dated 29.4.2015 copy of which is Ex.OP4. Opposite party has also written letter to the Addl.Commissioner , Commercial Taxes , Kashmir Division Ex.OP6 in this regard that even all the relevant records of the agency i.e. opposite party including seizure goods with records have been fully damaged/destroyed due to current flood. Not only this the opposite party also lodged complaint to the police. Accordingly, FIR No. 19 dated 1.10.2014 Ex.OP5 was registered at Srinagar fully proving that the entire record at Srinagar office of the opposite party was damaged under the flood. Therefore the goods of the consignor vide GR Ex.C-2 were destroyed, as a result of act of God and the complainant was requested to take back the damaged goods through public notice Ex.OP3 as well as through newspaper Kashmir Ujama Ex.OP4 to avoid further damage of goods in their godown. But the complainant did not get the damaged goods booked with the opposite party for the transportation from Srinagar to Amritsar vide GR Ex.C-2. So the opposite party is not liable to pay the amount of the goods to the consignee i.e. complainant as per provisions of section 17 of The Carriage by Road Act, 2007. Ld.counsel for the opposite party submitted that there is no deficiency of service on the part of the opposite party qua the complainant.
8 From the entire above discussion, we have come to the conclusion that consignor O.T.C. Exclusive, Srinagar booked the goods having declared value Rs. 1,94,678/- weighting 120 kg, with the opposite party for transportation and delivery of the consignment to the consignee i.e. complainant at Amritsar vide GR dated 22.8.2014 Ex.C-2. As the weight of the consignment was only 120 kg and was not full of truck load, so opposite party had to wait for other goods that a truck load could be sent from Srinagar to Amritsar. However, during this period i.e. in the first week of September 2014 the rain started throughout the valley continuously for 2-3 months as a result of which natural disaster of flood happened due to continuous excessive rains. The flood water spread over throughout the valley upto 10-15 ft level. Houses, roads and buildings were damaged , collapsed/fallen. Human beings and animals died in this flood. The entire transport area including the premises of the opposite party, remained under flood continuously for months together and the goods including the goods of the complainant, lying in the premises of the opposite party transport company remained under flood and were badly damaged. The opposite party lodged report with the police. Resultantly FIR No. 19 dated 1.10.2014 was registered at police station Parimpora Srinagar, copy of which is Ex.OP5. Jammu & Kashmir goods Transport Companies Association , Parimpora, Srinagar vide public notice dated 2.6.2015 Ex.OP3 notified to all concerned that the consigned goods in the entire transport area have been damaged/destroyed/rotten due to floods and made requests to all concerned to take back goods to avoid further damage of goods in their godown. This notice was also published in the newspaper Kashmir Ujama dated 29.4.2015 copy of which is Ex.OP4. Not only this the opposite party has also informed Addl.Commissioner, Commercial Taxes (Admn), Kashmir Division, Srinagar vide letter Ex.OP6 dated 20.11.2014 that all the relevant records of the agency i.e. opposite party including the goods and records have been fully damaged/destroyed due to current flood. But neither the complainant i.e. consignee nor consignor took back their goods which were destroyed due to floods, as a result of act of God . As per section 17 of the Carriage by Road Act, 2007 a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non delivery of any consignment entrusted to him for carriage, arising from any cause except the following :
- act of God ;
- act of war or public enemy ;
- riots and civil commotion ;
- xxxx
- xxxx
Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non delivery of the consignment if the common carrier could have avoided such loss, destruction, damage or deterioration or non delivery had the common carrier exercised due diligence and care in the carriage of the consignment.
9 Opposite party was totally helpless to save the goods lying in their godown/premises as the flood water raised in the valley upto 10-15 ft level and it continued for months together. So the opposite party could not be held liable for the loss occurred to the consignment in question booked with the opposite party vide GR Ex.C-2 as it was beyond the control of the opposite party and the goods in question have been damaged as a result of act of God . So the opposite party is not liable to pay any amount to the complainant/consignee or to the consignor under this transaction.
10. Consequently we hold that complaint is without merit and the same is hereby dismissed with no order as to costs. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
25.02.2016 ( Bhupinder Singh )
President
/R/ (Anoop Sharma) ( Kulwant Kaur Bajwa)
Member Member
