PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of November 2011
Filed on :16/10/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.562/2009
Between
M/s. Linknet Solutions P. Ltd., : Complainant
H. No. 39/522, HIG-38, (By Adv. R. Padmaraj
Panampilly Nagar, M/s. KNB Nair Associates,
Ernakulam-682 036. 2nd Floor, Morning Star building
rep. by its Director. Kachearipady, Ernakulam,
Cochin-682 018)
And
1. M/s.Trackon Couriers Pvt. Ltd. : Opposite parties
II Floor, North Plaza Building, (O.P. 1. by Adv. K.
North Railway Station Road, Thyagarajeswaran
Kochi-682 018 rep. 3rd floor, North Plaza,
by its Managing Director. North Railway Station Road,
Ernakulam-682 018)
2. M/s. Emgee Associates,
Thoundayil Lane, Panampilly Nagar, (2nd O.P.Absent)
Ernakulam-682 036,
rep. by its Proprietor Mahesh.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant company is doing business in sales services and distribution of computer hard wares and its accessories. The 1st opposite party is doing business in courier services and the 2nd opposite party is the franchisee of the 1st opposite party. On 17-11-2008 the complainant had booked a consignment with the 1st opposite party through the 2nd opposite party by paying a sum of Rs. 150/-. The consignment contained computer peripherals worth Rs. 15,185/- to M/s. Max Newyork Life Insurance Co. Ltd, Perunnthalmanna. The opposite parties did not deliver the consignment to the consignee. Thus the complainant is before us seeking direction against the opposite parties to pay Rs. 15,185/- being the cost of the consignment together with compensation of Rs. 50,000/-.
2. The version of the 1st opposite party.
The complainant entrusted a document and not anything else as claimed by them. No declaration was made by the complainant at the time of booking as per the provisions of Carriers Act. No complaint was received from the complainant regarding the non delivery of the consignment till 14-05-2009. The consignment was duly delivered to the consignee on 29-11-2008. There is no deficiency in service on the part of the 1st opposite party.
3. The notice of the 2nd opposite party was effected through publication in Mangalam daily dated 17-07-2010. However they have not appeared in this Forum for their own reasons. The witness for the complainant was examined as PW1. Exts. A1 to A9 were marked on their side. The witness for the 1st opposite party was examined as DW1. The complainant and the 1st opposite party filed argument notes. Heard the counsel for the contesting parties.
4. The points that came up for consideration are
i. Whether the complainant is entitled to get the cost of the consignment from the opposite parties?
ii. Whether the opposite parties are liable to pay a compensation of Rs. 50,000/- to the complainant.
5. Point No. i. As per the complaint the complainant has availed the services of the opposite parties for commercial purpose, however since the opposite parties have not raised such a contention we are not to adjudicate the issue. To call upon what is not called upon is veritably something uncalled for. A lullaby after the child has slept is uncalled for.
6. According to the 1st opposite party they have delivered the consignment to the consignee on 29-11-2008 and Ext. A6 delivery run sheet is the proof of the same. The consignee caused Ext. A3 letter to the complainant stating that they have not received the consignment. The complainant maintains that the 1st opposite party has forged Ext. A6 and included the number of the disputed consignment in it. We are not to agree with the above contention of the 1st opposite party because DW1 the witness for the opposite party deposed that Ext. A6 is the delivery run sheet dated 24-11-2008 that is the date prior to the booking of the consignment in question. So everything is on record to substantiate the averment that the 1st opposite party had not delivered the consignment to the consignee.
7. Ext. A1 delivery challan goes to show the contents of the consignment. Ext. A1 is a photo copy, the 1st opposite party vehemently disputed the genuineness of the same. In fact the 2nd opposite party is the right person who is to say the genuineness or authority of Ext. A1, nothing is forthcoming on their part to doubt the veracity of the document. Ext. A8 series would show the proportionate price of the goods sent through the consignment and the same tallies with the cost of the consignment as per Ext. A4 letter caused by the complainant to the opposite parties.
8. The Hon’ble Supreme Court in Patel Roadways Ltd. V. Birla Yamaha Ltd. (2000) 4 SCC 91 held that
“ From the conspectus of views taken in the decisions of different High Courts noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision of Section 9, in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties.”
In the above circumstances we are of the view that the 1st opposite party is contractually and legally liable to pay the cost of the consignment to the complainant with interest.
9. Point No. ii. Since the primary grievance of the complainant has been met squarely no further compensation is called for.
10. In the result, we partly allow the complaint and direct that the 1st opposite party shall pay Rs. 15,185/- to the complainant being the cost of the consignment together with interest @12 p.a. from the date of complaint till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day of November 2011
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of delivery challan dt.
27-11-2006
A2 : Copy of Consignor note
A3 : Copy of letter from Life
Insurance
A4 : Copy of letter dt. 14-05-2009
A5 : Copy of letter dt. 15-05-2009
A6 : Copy of letter dt. 24-11-2008
A7 : Copy of letter
dt. 11/06/20089
A8series : Tax Invoices
A9 : Copy of Resolution adopted
by the Board of Directors
Opposite party’s Exhibits : : Nil
Depositions:
PW1 : S. Sunil Dutt
DW1 : P.V. Bipin
