Date of Filing      : 07.10.2021

                                                                                                                 Date of Disposal: 05.09.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                  .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                            ..… MEMBER-I

                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)B.L.,                                                     ....MEMBER-II

CC. No.49/2021

THIS MONDAY, THE 05th DAY OF SEPTEMBER 2022

 

Mr.Prakash, S/o.Ramalingam, 

residing at Sri Lakshmi Venkateshwara PG,

7th Cross, Tirumennahalli,

Bangalore, Karnataka- 560064.

 

Represented by Special Power Agent Mrs.Meenakshi,

D/o.B.Manohar, 

residing at No.38/39, F3 Block,

Classic Enclave, Hanuman Colony,

Injambakkam, Chennai -600 115.                                                     ……Complainant.

                                                                            //Vs//

1.M.S.S.Transport,

    Bangalore (Whilefield) Branch,

    Represented by its Manager,

    Having Office at C-10, 1st Cross, KSSIDC Ind. Area,

    Bommasandra, Bengalure -560 099.

 

2.M.S.S.Transport,

    Chennai (Koyambedu) Branch,

    Represented by its General Manager,

    Having Main Office at No.1169, 

    P.H.Road, Nead Rohini Theatre Signal,

    Chennai -600 107.

 

3.M.S.S.Transport (Head Office),

    Represented by its proprietor,

    Having Head Office at No.9/29,

    Square Market, Mettur Dam -636 401.                                …..opposite parties. 

 

Counsel for the complainant                                                  :   Mr.M.Sanathkumar, Advocate.

Counsel for the opposite parties.                                          :   Mr.A.R.Poovannan, Advocate. 

                         

This complaint is coming before us on various dates and finally on 25.08.2022 in the presence of  Mr.M.Sanathkumar Advocate counsel for the complainant and Mr.A.R.Poovannan Advocate counsel for the opposite parties  and upon perusing the documents and evidences produced by both parties this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in delivering the vehicle against the opposite parties along with a prayer to reinstate the loss of Rs25,000/- sustained by the complainant and to pay a sum of Rs.50,000/- towards compensation for physical and mental agony and to pay a sum of Rs.10,000/- towards cost of the proceedings.

Sum and substance of the complaint:-

 

Alleging deficiency in service in delivering the vehicle by the opposite party the present complaint was filed by the complainant contending inter alia that the complainant approached the 1st opposite party on 08.09.2020 to pack and deliver the vehicle –Duke Bike, bearing No.TN.22 DH 1124 from Bangalore to Chennai, Koyambedu Branch, at its destination.  The 1st opposite party assured safe packing of the vehicle, promising to provide due care and diligence on delivery of the vehicle at Chennai destination.  The complainant paid Rs.2,201/- as consideration to the 1st opposite party and handed over the vehicle at the branch of the 1st opposite party.  But the 1st opposite party did not provide any receipt immediately on the same day but made the complainant to wait and come on some other day to collect the consignment receipt.  On 14.09.2020 the vehicle was delivered at Koyambedu Branch at Chennai but in a damaged state.  The complainant’s Power of Attorney agent Mrs.Meenakshi on noticing the damages on the vehicle had taken pictures of the damaged vehicle and had enquired with the 2nd opposite party about the same.  However, the 2nd opposite party neglected to respond to her.  The act of the opposite parties 1 & 2 had caused physical and mental agony to the complainant and the complainant was made to pay Rs.25,000/- as repair charges for the damaged vehicle.  Thus aggrieved by the act of the opposite parties 1 & 2 the present complaint was filed for the reliefs as mentioned below;

Directing the 1st & 2nd opposite parties operating under the 3rd opposite party to reinstate the loss of Rs.25,000/- sustained by the complainant due to the deficient service rendered on improper transit of Vehicle-Duke Bike bearing No.TN.22.DH 1124, by them;

Directing the opposite parties 1 & 2 operating under the 3rd opposite party to prove Rs.50,000/- towards physical and mental agony sustained due to the deficient service rendered by them;

Directing the opposite parties 1 & 2 operating under the 3rd opposite party to prove Rs.10,000/-cost of the complaint.

 Defence of the opposite parties:

The 2nd opposite party filed written version adopted by the 1st and 3rd opposite parties.  The opposite parties stated that it is a registered company having 430 branches all over Karnataka, Andhra Pradesh, Telungana and Tamil Nadu and were in logistics for more than 30 years. It was admitted that on 08.09.2020 the Bike bearing Registration No.TN.22 DH 1134 was booked by the complainant for transportation and to be delivered on 14.09.2020.  However it was denied that the vehicle delivered was in a damaged state.  Further the allegation that special Power of Attorney of the complainant enquired with the 2nd opposite party and facing much humiliation at the office of the opposite party and all the allegations by the complainant was denied.  Further it was submitted that it was clearly mentioned in the Luggage Register that “Parcels should be insured and taken at consignors risk only”.  Thus submitted that there was no deficiency in service on their part, the opposite parties denied the quotation given by the concern Auto Works for repairing the vehicle and sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A7 were marked.  On the side of opposite parties proof affidavit was filed but no document was marked

Point for consideration:

Whether the alleged deficiency in service on the part of the opposite parties has been proved successfully by the complainant?

If so to what reliefs the complainant is entitled?

 Point No.1

On the side of the complainant following documents were filed in support of his allegations; 

Invoice Bill G.C.No.4729371 dated 08.09.2020 was marked as Ex.A1;

Photo of the vehicle (Prior Transit) was marked as Ex.A2;

Series of photos of the vehicle after transit on the date of deliver dated 14.09.2020 was marked as Ex.A3;

Legal notice issued by the complainant to the opposite parties dated 01.10.2020 was marked as Ex.A4;

Acknowledgement cards for proof of notice were marked as Ex.A5; 

Bill No.616; Cash bill from Friends Auto Works was marked as Ex.A6;

Special Power of Attorney Deed was marked as Ex.A7; 

We perused the written arguments and pleadings submitted by both parties.  It is represented by both parties that their written arguments may be treated as oral arguments.

  It is the case of the complainant that the vehicle was booked for transportation from Bangalore to Chennai and was delivered in a damaged state at Chennai for which he was made to pay Rs.25,000/- to his Power of Attorney towards repairs of the vehicle.   It was submitted by the complainant that the opposite party failed to file any materials evidence but had only made general denials and had questioned the relevancy of Ex.A2 i.e. photos taken with regard to the damaged vehicle.  It was submitted by him that as per Section 12(2) of the Carriage by Road Act, 2007 in any suit brought against the common carrier for the loss, damage or non-delivery of consignment, it shall not be necessary for the plaintiff to prove that such loss, damage and thus the burden of proof lies with the carrier to prove that they exercised due care and diligence.  Further it is argued that the invoice submitted vide document No.A6 could not be disputed by the opposite parties.  Thus he sought for the complaint to be allowed as prayed for. 

On the side of opposite parties the main contention was that when it is clearly mentioned in the Luggage Register that “Parcels should be insured and taken at consignors risk only” there is no deficiency in service on their part.  Further it was submitted that the complaint will not come under the definition of Consumer and that the complaint is not maintainable.

On appreciation of pleadings and evidences this commission is of the view that the complainant is a ‘Consumer’ for the reason that he had paid Rs.2201 towards the transport of the Duke Bike, bearing No.TN.22 DH 1124 from Bangalore the 1st opposite party place to Chennai the destination place.  Thus we could safely conclude that the amount had been paid towards the availing of service from the 1st opposite party.  Thus the complainant is a consumer within the definition provided under Consumer Protection Act’1986. 

 The complainant has produced photos of the bike and also Ex.A6 which was the invoice issued towards repairing the vehicle.  It is seen that in Ex.A1 the registration of the vehicle was mentioned as TN.22 DH 1124 (1).  The opposite party denied that they have not damaged the vehicle but failed to provide any acceptable evidence that the vehicle was delivered in a safe manner.  Merely stating that they are not responsible for any breakable items and that the consignor should insure the consignments before transport could not be accepted by this commission for the reason the opposite party being the carrier should have informed the complainant at the time of booking of consignments that they should insure the consignment before booking. In the absence of any pleadings with respect of the same we could conclude that no proper information was given to the complainant with regard to the same.  Also it is the case of the complainant that the receipt itself was issued at a later dated which was not disputed by the opposite party and hence there is no chance for the complainant to know about the terms and conditions printed in the pack. Further as a carrier undertaking transport of consignments they cannot simply wash out their responsibility by stating that they are not responsible for breakable items, also bike is not a breakable item. Thus relying upon the submission made by the complainant and also as per section 12(2) of the Carriage by Road Act’2007 we could safely conclude that the opposite party failed to prove due care and diligence in transporting the vehicle from Bangalore to Chennai.  Thus we answer the point accordingly holding that opposite parties had committed deficiency in service in not delivering the vehicle in a safe manner.

Point No.2:

With regard to reliefs to be granted though it is submitted that the complainant has to pay Rs.25,000/- due to the deficient service rendered by the opposite parties no proof was filed by the complainant and Ex.A6 shows that an amount of Rs.16,310/- was spent towards the repair of the vehicle due to the deficiency of service on the part of the opposite party and hence we award Rs.16,310/- towards repair charges.  Further for the mental agony and hardship we award Rs.10,000/- which we feels would be appropriate in the facts and circumstances and we also award Rs.5,000/- cost of the proceedings to the complainant.

In the result, the complaint is partly allowed. The Opposite Parties 1to 3 are jointly and severally liable

a)to pay a sum of Rs.16,310/- (Rupees sixteen thousand three hundred and ten  only) within six weeks from the date of receipt of copy of this order; 

b) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony caused to the complainant;

c) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.

d) Amount in clause (a) to be paid within six weeks from the date of receipt of copy of this order failing which an interest of 6% will be levied on the said amount from the date of complaint till realization. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 05th day of September 2022.

 

Sd/-                                                      Sd/-                                                 Sd/-

MEMBER-II                                     MEMBER-I                                  PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 08.09.2020 G.C.No.4729371, Invoice Bill. Xerox

Ex.A2 ............. Photo of the vehicle (Prior transit). Xerox

Ex.A3 ............... Series of photos of the vehicle after transit on the date of delivery. Xerox

Ex.A4 01.10.2020 Legal notice issued by the complainant. Xerox

Ex.A5 ........... Acknowledgement card. Xerox

Ex.A6 .......... Bill No.616; Cash bill Friends Auto Works. Xerox

Ex.A7 ............ Special Power of Attorney Deed. Xerox

 

 

List of documents filed by the opposite parties:- 

 

Nil

 

 

Sd/-                                                              Sd/-                                                  Sd/-

MEMBER-II                                             MEMBER-I                                    PRESIDENT