A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1253/2008 against C.D. 292/2006, Dist. Forum-II,Visakapatnam
Between:
Sabella Madhusudhan
S/o. Late Suryanarayana Reddy
Age: 42 years, R/o. Flat No. 403
Hemalatha Towers, Opp. Dist. Court
Visakapatnam. *** Appellant/
Complainant
And
1) LIC Housing Finance Ltd.
Rep. by Area Manager
D1, D2, IInd Floor
Dwaraka Plaza,
Dwarakanagar Main Road
Visakapatnam-530 016.
2) On Dot Courier Service
Rep. by its Branch In-charge
D.No. 47-9-13 (Up stairs)
3rd Lane, Dwarakangar
Visakapatnam-530 016.
3) M/s. Patel On-Board Couriers Ltd.
Rep. by its Area Manager
A-49, Indian Airlines Colony
Opp. Airport, Secunderabad. *** Respondents/ Opposite Parties.
Counsel for the Appellant: M/s. Ravi C.
Counsel for the Respondent: M/s. B. Sai Ram Krishna (R1)
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
TUESDAY, THIS THE FOURTEENTH DAY OF DECEMBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that R1 is doing housing finance business and R2 is the courier of R1. He approached R1 for sanction of housing loan in the month of September, 2005. It agreed to finance an amount of Rs. 7,36,000/- by its offer letter dt. 29.9.2005 and released an amount of Rs. 3,93,476/- in part and directed him to submit registered sale deed dt. 7.12.1998, builder agreement dt, 19.1.1999 and other documents in original for releasing balance amount of Rs. 3,42,524/-. Accordingly he handed over the original documents on 28.10.2005 to R1. He learnt that those documents were never received by its office at Hyderabad confirmed by R1 by its letter dt. 14.11.2005. There upon he obtained certified copies and submitted them as he required the amount urgently and requested it to disburse balance loan amount of Rs. 3,42,524/-. Belatedly it released it in the second week of December, 2005 only after taking his affidavit that he would not make any claim over the documents. It had failed to follow up with R2 to get the original documents. In the process he suffered pecuniary loss. Therefore he got issued a legal notice dt. 22.1.2006 demanding to pay Rs. 1 lakh towards compensation for loss of documents, however to no avail. Therefore he filed the complaint claiming Rs. 1 lakh towards damages for loss of documents, Rs. 1 lakh towards compensation for mental agony and costs.
3) R1 resisted the case. While denying the liability to pay compensation, however admitted that the complainant was sanctioned housing loan of Rs. 7,36,000/- and an amount of Rs. 3,93,476/- was paid towards part payment and requested the complainant to submit the original documents for releasing balance of loan amount of Rs. 3,42,524/-. When original documents were filed it had entrusted it to R2 courier and the packet was misplaced and the same was informed to the complainant. Though it had informed that it would obtain certified copies of the registered documents, however, the complainant himself came forward to obtain certified copies. In fact without any registered document it has released an amount of Rs. 3,93,476/- in order to enable him to clear off his loan with New India Assurance Company. The affidavit was submitted by the complainant at his own free will and consent, and there was no coercion on its part. All necessary precautions were taken to ensure that the documents which were not delivered at the destination to ensure that they are not mis-used by third parties by issuing complaint to the police as well as to the Sub-Registrar and paper notice. No negligence could be attributed against it. In view of the affidavit given no claim could be laid by the complainant. At no time such instances of loss of documents were complained. All through it has been informing the complainant about the status of the disbursement and never made him to go round the office. The registered notice that said to have been issued was never received. Therefore they were not liable to pay any compensation. There was no deficiency in service on its part and therefore prayed for dismissal of the complaint with costs.
4) R2 courier equally resisted the case. While admitting that R1 had booked a consignment on 28.10.2005, however, it was not aware of contents of the consignment. In fact it has entrusted it to R3 courier to ensure speedy and proper delivery on 28.10.2005. The staff has negligently left two parcels belonging to said courier and also M/s. Tac couriers. Immediately the said fact was brought to the notice of police. It has also given an advertisement in ‘Eenadu’ newspaper. Later the Inspector of Police, Begumpet, Hyderabad certified that the articles could not be traced out in spite of best efforts. There was no negligence or deficiency in service on its part. There may be negligence on the part of M/s. Patel On-Board Couriers. Non-impleading of said courier as necessary party is bad and therefore prayed for dismissal of the complaint with costs.
5) R3 was impleaded as a party in the light of counter filed by R2. It denied the allegation that it was a necessary party. The complainant had failed to insure the goods when the value of the goods was more than Rs. 100/-. It had no idea as to the fact that R1 had entrusted the consignment to R2 and the same consignment was re-entrusted to it. The list of articles were not furnished by R2 at the time when the consignment was booked. The said parcel was lost in transit. This fact was informed to the police as well as published in newspaper. Despite their efforts they could not trace it. It was impleaded as a party in order to see that R1 & R2 could escape from their liability. R1 & R2 colluded and got filed this complaint through complainant, and therefore prayed for dismissal of the complaint with costs.
6) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A16 marked while R1 filed the affidavit evidence of its Area Manager, and R2 filed the affidavit evidence of its in-charge and filed Exs. B1 to B5.
7) The Dist. Forum after considering the evidence placed on record opined that R1 could not be held responsible for missing of the consignment and therefore it cannot be said that it was liable. The complainant cannot find fault with R1 for loss of documents in transit. R1 could question R2 for loss of consignment and R2 in turn could question R3 for loss documents in transit. Holding that there was no cause of action to proceed against R2 & R3 the complainant was dismissed.
8) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. When his documents were lost in transit that were booked by R1 by entrusting it to R2 and R2 in turn to R3 they have to necessarily compensate the loss sustained by him. It ought not have denied the claim on specious grounds that he did not book the consignment directly and therefore R2 & R3 cannot be made liable. The affidavit was taken under Ex. A8 taking advantage of the situation that he was in dire need of money at the time when loan was disbursed. Therefore he prayed that the complaint be allowed by awarding compensation against respondents.
9) The points that arise for consideration are :
i. Whether R1 LIC Housing Finance is liable to compensate the loss if any caused to the complainant?
ii. Whether R2 & R3 are liable to pay compensation to the complainant?
iii. To what relief.
10) It is an undisputed fact that the grant of loan was delayed when the sale deeds that were deposited with R1 were lost, when R1 entrusted the documents to R2 courier which in turn sent it through R3. When the complainant questioned the deficiency R1, R2 & R3 each have been throwing the blame against the other party. The fact remains that after obtaining certified copies etc. and on furnishing Ex. A8 undertaking and affidavit the loan was released on 12.12.2005 vide Ex. A9. R3 had admitted that the documents were lost at their end stating that “ This is to inform that on 29th October, 2005 after releasing our Vizag-Hyderabad loads out Mr. Nikhil had brought loads in an auto in our office premises while unloading, our staff by mistake had left two parcels belonging to our esteemed client M/s. On-dot courier, had booked 1 bag 10 Kgs and M/s. Tac Courier 1 bag, 5 Kgs, bags contains very important documents and demand draft.”. It has given a police report under Ex. B2 and the police in turn by its letter Ex. B4 dt. 24.11.2005 acknowledged the complaint. They stated that “ on receipt of the complaint, we made GD entry in P.S. Begumpet and all possible efforts have been made to trace out the bags but in vain.” R3 gave paper publication also under Ex.B5. R2 to whom R1 entrusted the cover did not mention the value of the documents nor insured with evident from Ex. B1 consignment note. R2 though did not file the terms and conditions it alleged that it was only liable to pay Rs. 100/- under Carriers Act. R2 ought to have mentioned the description of packing or its contents while booking the parcel. R2 did not take precautions while entrusting the parcel to R3 by making description of the package and the value thereof. R1 intends to get over the liability by stating that it has entrusted it to R2 and if there is any loss caused it is R2 that has to compensate. If each of the party transfers its liability on the other, ultimate sufferer, the complainant cannot be made to run around to claim the amount and direct him to prove negligence against each of them. R2 has entrusted the cover without disclosing the description of consignment or value thereof for which it imputes negligence on R3. However, R2 did not file consignment note in order to know whether R1 & R2 had mentioned the value of the parcel and whether any insurance has been taken. Unless R1 proves that it had taken adequate precautions by mentioning the nature of consignment and the value thereof and also covering insurance, for not doing so, R1 had to bear whatever loss that was caused to the complainant. It is for R1 to take up whatever steps it intends to take against R2 & R3. However, the complainant cannot be directed to recover from R2 & R3 on the ground that the entire consignment was lost. Therefore, we are of the opinion that R1 was guilty for not taking precautions, and for not taking steps, for whatever loss caused to the complainant in view of loss of documents.
11) For the loan that was applied by the complainant in September, 2005 the loan was sanctioned in the month of December, 2005 that too only after furnishing the affidavit along with certified copies of documents obtained by him. Naturally the complainant intends to clear the housing loan by furnishing the affidavit as required. The complainant claimed Rs. 1 lakh towards damages for loss of original documents and Rs. 50,000/- towards compensation for mental agony. Naturally the complainant was handicapped. He would not be having the originals. Every time, when he enters into a transaction he has to rely on the certificate issued by R1 and the certified copies of the documents. The Dist. Forum opined that he gave up his claim for his original documents. We do not understand the logic behind it. Up till now, evidently the documents were not traced nor the said fact was informed by R3 to R1. The complainant was undoubtedly entitled to whatever deficiency that was caused by R1 in not taking precautions while sending these documents through courier. May be the complainant may not be able to recover the amounts from R2 & R3 but whatever loss that was occasioned to the complainant, R1 has to indemnify. Non-taking of any steps itself constitutes deficiency in service on the part of R1. In the light of these facts, applying principles of natural justice and equity, we are of the opinion that R1 has to be directed to issue a certificate that the documents were lost at their end besides newspaper notification that if originals are recovered be returned to the bank which in turn return them to the complainant.
The complainant was made to suffer all this due to deficiency on the part of R1. Undoubtedly, there was delay in disbursing the amount. The complainant could not quantify as to the exact loss that was occasioned to him. Considering the circumstances, we are of the opinion that an amount of Rs. 10,000/- could be awarded towards compensation for loss of documents besides mental agony etc.
12) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently, the complaint is allowed in part directing R1 to pay a compensation of Rs. 10,000/- and issue a certificate mentioning in detail the documents that were lost at their end and that he would be indemnified if any loss is occasioned and if any third part mis-uses those documents by creating charge etc. together with costs of Rs. 3,000/-. The case against R2 & R3 is dismissed but without costs. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 14. 12. 2010.
*pnr
UP LOAD – O.K.
