F.A.No.676/2008 AGAINST C.C.No.9/2008, DISTRICT FORUM, KARIMNAGAR.

Between:

1. The Authorised Person, ARC Ltd.,

    Transport R/by its Neharaji,

    Nadpoor, Sadody complex,

    3^rd floor, 77 Central Avenue Road,

    Citar Oil Square, Nagpoor-400 002.

2. The Branch Manager, ARC Sadody complex,

    Sadoday, 77 Central Avenue Road, Chitar Oil,

    Nagpoor-400 002, Maharastra.

3. The Branch Manager, ARC Ltd., Transport,

    Weckly Market, Karimnagar.     

All the above three represented by Sri L.D.Goyel

Sr.Vice President & G.P.A. holder of M/s. Associated

Road Carriers Ltd., 2^nd floor, Brindavan Commercial

Complex, Chirag Ali Lane, Abids, Hyderabad.                                                                     ..Appellants/

                                                                                                                                                Opp.parties.

                   And

Kalyani Dresses, R/by Nagender, S/o.Lakshmi

Narsaiah, age 53 years, Occ:Proprietor,

M/s.Kalyani Dresses situated at 4-1-336,

Office road, Karimangar.                                                                                                        Respondent/

                                                                                                                                                Complainant.

Counsel for the Appellants: Mr.V.Mohan Srinivas.

Counsel for the Respondent: Mr.Nooka Jagannadham.

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT                                                                     

AND

SMT.M.SHREESHA,  MEMBER

.

TUESDAY, THE THIRTY FIRST DAY OF AUGUST,

TWO THOUSAND TEN

(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***

        Aggrieved by the order in C.C.No.9/2008 on the file of District Forum, Karimnagar, the opposite parties  preferred this appeal.

        The brief facts as set out in the complaint are that the complainant placed an order for supply of garments worth Rs.1,00,000/- with one Amar Garments of Nagpur for festival season and the said dealer sent him  a consignment of 7 packages worth Rs.1,00,000/- through the opposite parties 1 and 2 to opposite party No.3 to be delivered to the complainant at Karimnagar.  On receipt of the consignment, the complainant noticed that most of the packages were wet and smelling of phenyl and became damaged and useless.  The complainant submits that he addressed a letter on 17-11-2006 and also got issued a legal notice on 18-1-2007 to settle the cost of garments worth Rs.50,000/- and opposite party No.1 also addressed a letter on 09-12-2007 requesting the complainant to furnish the required information which was supplied to the opposite parties but thereafter there was no response.  The complainant paid charges of Rs.600/- to opposite party No.3 but the receipt issued by them is misplaced.  Hence the complaint seeking direction to the opposite parties to pay Rs.50,000/- towards damaged goods, compensation of Rs.20,000/- and costs of Rs.5,000/-.

        Opposite party No.3 filed counter on behalf of opposite parties 1 and 2 stating that the complainant is not a consumer and that the consignment note dated 9-5-2005 mentions only 4 bundles whereas the complainant wrongly states that the opposite parties sent 7 bundles.  The complainant declared the value of goods as Rs.28,780/- but in the legal notice stated that the total value is Rs.1,00,000/- and claims damages of Rs.50,000/-.  The complainant received the goods on 12-5-2005 in good condition and thereafter filed this complaint on 22-7-2007, therefore, the complaint is barred by limitation.  The complainant has not shown the damaged goods to the opposite parties at any time or even brought them before this Forum, hence there is no deficiency in service on their behalf.

        The District Forum based on the evidence adduced i.e. Exs.A1 to A5 allowed the complaint in part directing the opposite parties to pay Rs.50,000/- with interest at 9% p.a. from 23-1-2008 together with costs of Rs.500/- and the office was directed to return 83 garments to the opposite parties.

        Aggrieved by the said order, the opposite parties preferred this appeal.

        It is the case of the complainant that his dealer booked a consignment worth Rs.1,00,000/- of garments sent in 7 packages evidenced under Ex.A3 dated 11-5-2005.  It is the complainant’s case that opposite party 3 delivered the consignment to him in a wet condition and some of the packages were smelling of chemical acid i.e. phenyl and therefore he addressed a letter to the opposite parties and also sent a legal notice Ex.A1 and A2, dated 23-1-2007 and 17-11-2006 respectively, calling upon the opposite parties to pay Rs.50,000/- towards damages of loss of stock and other costs.  Ex.A4 is the invoice giving the details of garments and their value.  We observe from the record that Ex.A5 is a letter written by the opposite parties dated 9-12-2006 in which they have stated that the complainant has mentioned TAR No. as H7-551086 which is not their number at all whereas Ex.A3 evidences that TAR No. as H7-557086.  In fact there is an endorsement on Ex.A3 that there was a chemical in an acidic condition.

        The learned counsel for the appellants filed written arguments contending that the complaint is barred by limitation.  We observe from the record that the opposite parties has replied vide Ex.A5 on 9-12-2006 whereas this complaint was filed on 22-10-2007 therefore, it is well within limitation.  He has also contended that the complainant did not come to the Forum with clean hands and that the complainant himself poured the phenyl on the cloth bundles, which contention is not established at all.  

        It is the contention of the appellants/opposite parties that in the consignment note 4 packages were mentioned and that the complainant declared the value of transported goods as Rs.28,780/-.  We observe from the record that this consignment note with this declared value has been filed with the appeals papers. In fact the opposite parties did not file any documents in support of their case before the District Forum.  This note number A140862 dated 9-5-2005 shows that the declared value is Rs.28,780/-.  The complainant submits that he had lost the original receipt and also does not in the complaint or his affidavit state the date on which the consignment was booked.   Taking into consideration this consignment note, we are of the considered view that the declared value is Rs.28,780/-.

        Now we address ourselves to the damage caused to the consignment.  Taking into consideration, Ex.A3, truck Arrival report dated 11-5-2005 and the endorsement that ‘the packs are with chemical and acid condition’, we are of the considered view that there indeed was a damage to the consignment sent to the complainant.  We observe from the record that vide MOs 1 to 4, the damaged garments were deposited before the Forum on 29-4-2008 comprising of 83 pieces and the forum has held that the clothes were drenched with phenyl and there was even smell emanating  from them.  Hence we are of the considered view that the complainant was able to establish his case with respect to the stock being damaged. 

        Keeping in view the declared value, we reduce the damages awarded by the District Forum  from Rs.50,000/- to Rs.28,780/- while confirming the rest of the order of the District Forum.

        In the result, this appeal is allowed in part modifying the order of the District Forum by reducing the amount awarded by the District Forum  from Rs.50,000/- to Rs.28,780/- while confirming the rest of the order of the District Forum.  Time for compliance four weeks.

                                                                                                                        Sd/-PRESIDENT.

                                                                                                                Sd/-MEMBER.

JM                                                                                                                     Dt.31-8-2010