BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 20th December 2016
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.168/2013
(Admitted on 15.06.2013)
Dr. K. Saraswathi,
Aged 62 years,
W/o Late Mr. A B Varkady,
Residing at Shreyas, Marappa Colony,
Opposite Government Junior College,
Bokkapatna, Mangalore 575003
….. COMPLAINANT
(Advocate for the Complainant: Sri. KPAS)
VERSUS
M/s VRL Logistics Ltd,
Represented by its Branch Manager,
TCL Compound,
Bunder, Mangalore 1 &
Also at corporate office,
Giriraj Annexe, Circuit House Road,
Hubli 580 029.
......OPPOSITE PARTY
(Advocate for the Opposite Part: Sri. UVN)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs.
The brief facts of the case are as under:
The complainant contends she took a consignment Videocon Bazooka Television, model No. 5412R with opposite party to be delivered to her son Mr. Rajaneesh, H B R Layout, Bangalore on 4.9.2012 with the specific mention that it contains Videocon Bazooka Television set and thus same has been displayed in the consignment. The complainant paid Rs.800/- which is inclusive of Rs.252/ towards freight charges and Rs.500/ towards door delivery charges. The complainant was surprised to hear from opposite party that the Videocon Bazooka Television has been totally damaged. The damage was caused due to negligent and mishandling by opposite party. The opposite party offered to pay Rs.2,520 to complainant which is 10 times freight amount of Rs.252/ instead of reimbursing the value of the television. Due to the mishandling of the goods the television set the complainant and his son suffered mental agony apart from monetary loss due to failure of complainant to pay compensation and damages as per legal notice, the complaint, seeking direction to opposite party to return the Videocon Bazooka Television in the same working condition after carrying out its repair and also to pay special and general damages on account of the breaking the television, consignment charges, cost and interest in total a sum of Rs.1,25,000/.
II. Opposite party in the written version admits receipt of the consignment the television at Bunder Branch, Mangalore of opposite party found delivery to Mr. Rajaneesh at Bangalore. Opposite party was not knowing the contents and the conditions of the consignment but the declaration was made by the consigner at the time of the booking the consignment. The consignments are booked on said to contain basis which is conspicuously printed on the way bill itself. The complainant gave a declaration at the time of consignment as of used and old goods temporarily packed and will not claim any loss from the transporter in case of damages in transit. To avoid unnecessary litigation and unpleasantness opposite party offered to pay Rs.2,500/ which is ten times the freight paid. The consignee has not taken the delivery of the consignment as even after the Alert Intimation dated 2.11.2012. When no reply was received till 11.12013 with no other alternative the opposite party consignment as unclaimed sent to unclaimed property section of opposite party at Hubli for further disposal. An auction notice dated 28.01.2013 was issued to complainant to pay the complainant Rs.2,984/ and other charges. The negligent mishandling alleged was denied. Legal notice was properly replied. Hence seeks dismissal of the complaint.
2. In support of the above complainant Dr. K Saraswathi filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents marked Ex.C1 to C8 detailed in the annexure. On behalf of the opposite party Mr. Raju H (RW1) Assistant Manager also filed affidavit evidence and answered the interrogatories served on him and produced documents marked Ex.R1 to R5 detailed in the annexure.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the other reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No. (i): Affirmative
Point No. (ii): Affirmative
Point No.(iii): As per the final order.
REASONS
IV. POINTS No. (i): The consignment Videocon Bazooka Television set booked by complainant to deliver to his son Mr. Rajaneesh at Bangalore by paying the consignment charges and delivery charges is admitted even by opposite party and that the consignment was not delivered is also admitted.
Hence there is a dispute between the complainants the consumer and the opposite party the service provider as defined under the provision of the C P Act is established. Hence we answer Point No.1 in the affirmative.
POINTS No.(ii): Ex.C1 is the receipt issued to complainant by opposite party at the time of the booking of the consignment Videocon Bazooka Television with freight charge of Rs.252/ and door delivery charge of Rs.500/ and handling charge of Rs.8/- with service charge forming total Rs.800/. Thus it is clear from Ex.C1 itself door delivery charge was collected by opposite party from complainant. But why the door delivery of consignment was not given is not explained by opposite party when it was the duty of the opposite party to explain this fact. But opposite party has not explained non delivery of the goods at the door steps of the complainant’s son at Bangalore. At Para 6 of the affidavit evidence of Mr. Raju H the Assistant Manager of opposite party at Mangalore mentions that claiming alleged damage of the consignment, the consignee has not taken delivery of the consignment. Even though opposite party mentions that has the despite issuing the Alert Intimation dated 2.11.2012 to the complainant as well as the consignee no reply was received till 11.1.2013 mentions it was sent to unclaimed property section at Hubli for further disposal. Even though in the written version there is mention that taking out of the notice does not mention opposite party what happened to the consignment is not stated. Hence we are of the opinion that we can justifiably came to a conclusion that the consignment Videocon Bazooka colour Television set booked with opposite party by complainant for delivery for her son Rajaneesh at Bangalore was not delivered the consignment. Considering the fact that even opposite party does not mention of auction of the said consignment at their unclaimed property and despite allegation to have made mention of auction notice the only conclusion that has to withdrawn is the television was damaged during transit by opposite party.
2. The complainant as such we are of opinion there is deficiency in service on the part of the opponent of non delivery of the booked television set.
3. The complainant in all claimed a sum of Rs.1,25,000/ as compensation as to causing liability for the non delivery of goods booked. The learned counsel for complainant had drawn our attention to reported judgment of the Supreme Court in (2000) 0 Supreme(SC) 658 in M/s. Economic Transport Organization Etc. Vs Dharwad Distt.Khadi Gramudyog Sangh etc. In this reported judgment it is held the burden of the proof of negligence is not on the part of the complainant in view of section 9 of Carrier Act applicable to the proceeds under C P Act the burden of proof of absence of negligence is the common carrier.
- Consumer Protection Act, 1986 Section 14(1)(d) Carriers Act, 1865 Section 9 Claim petition against common carrier Burden of proof of negligence Is not on part of complainant Section 9 of Carrier Act applicable to proceedings under Consumer Protection Act Burden of proof of absence of negligence is on common carrier. (para 2)
- ii) Carriers Act, 1865 Section 9 Consumer Protection Act, 1986 Section 14(1)(d) Presumption as to negligence of common carrier Section 9 of Carrier Act applicable to proceedings under Consumer Protection Act. (Para 2)
4. Infact in another reported judgment of (2001) 0 AIR (Mad) 212 High Court of Judicature at Madras M/s. Economic Raoadways Corporation vs M/s. Soundararaja Mills Ltd, and another it is held,
Carriers Act, 1865 Transport of insured goods at owners risk Consignment reached in damaged condition Damages suit filed against carrier decreed Appeal filed also dismissed.
5. In view of the reported judgment we are of the view that the opposite party shall be directed to pay compensation Considering the nature of the goods the claim of Rs.1,25,000/ as total compensation including towards mental agony and tension and cost of the litigation is just and proper. Hence we answer point No.2 in the affirmative.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is allowed. Opposite party is directed to pay Rs.1,25,000/ (Rupees One lakh Twenty Five thousand only) to complainant within 30 days from the date of this order with interest at 8% from the date of complaint till the date of payment.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 8 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 20th December 2016.
MEMBER PRESIDENT
(SRI. T.C. RAJASHEKAR) (SRI. VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Dr. K Saraswathi
Documents marked on behalf of the Complainant:
Ex.C1: : Consignment Receipt
Ex.C2: : Alert intimation dated 1.11.2012
Ex.C3: : Auction notice dated 28.1.2013
Ex.C4: : Office copy of the legal notice Dated 15.2.2012
Ex.C5 &
Ex.C6: : Postal Acknowledgements
Ex.C7: : Reply to legal notice
Ex.C8: : Original invoice receipt
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Raju H, Assistant Manager
Documents marked on behalf of the Opposite Parties:
Ex.R1: 23.02.2013 : Reply by the opposite party to legal Notice of Complainant
Ex.R2: : Postal Acknowledgement
Ex.R3: 02.11.2012 : Alert Intimation given by Opposite Party
Ex.R4: : Postal Acknowledgement of complainant
Ex.R5: : Postal Acknowledgement of Consignee
Dated: 20.12.2016 PRESIDENT
