FA  1065/2008  in   C C 1142/2006  on the file of the

District Forum, Guntur

Between :

1.                  ANL Parcel Service,

C/o A.P. S. R. T. C. Service,

Mangalagiri ,

Guntur District.

2.                  The Claims,

ANL Parcel Service

Rep. by its Manager,

Sri G. Radhakrishna,

S/o Late G. Shankar Sastry

C/o Mahatma Gandhi Bus Station,

D. No.3-5-874-6/5, Hyderabad  … Appellants/Opp. Parties.

And

Vudata Hand Looms

Rep. by its Prop. Vudata Srinivasa Rao

S/o  Venkateswara Rao,

Aged 32 years,

R/o D. No. 5-165, Indira Nagar,

Mangalagiri, Guntur District                    .. Respondent/complainant

Counsel for the Appellants          :           M/s. P. Raja Sripathi Rao

Counsel for the Respondent      :           M/s. R. Ravi.

Coram           ;           Sri Syed Abdullah              …        Hon’ble Member

And

Sri R. Lakshminarasimha Rao…      Hon’ble Member

Friday, the Sixteenth  Day of July, Two Thousand Ten

Oral Order     :           ( As per Sri Syed Abdullah,  Hon’ble Member )

*******

The appellants are  the unsuccessful opposite parties  in CC 1142/2006 before the District Forum, Guntur,  where under, an order was passed directing  to pay a sum of Rs.1,25,749/.77 ps to the complainant with interest at 9% pa. from the date of complaint  till the date of realization for non-delivery of the consignment entrusted for transporting  to the  destination  covered by Lorry receipt bearing No. 10802647x 2 dated 23.03.2006. The impugned order is assailed as erroneous both on question of fact and law.

The facts of the case disclose that the complainant is a manufacturer of Handloom clothes running in the name of  Vudata Hand looms, Mangalagiri and  he regularly used to book parcels through the first opposite party to various purchasers for the last ten years.  In connection of his business two bundles of dress materials were booked through the first opposite party  to the consignee “ Rex Exporters” , Hyderabad,  covered by invoice  no. 40, worth Rs. 1,25,749.75 ps and another invoice no.41 worth Rs.52,766.75 ps  were issued.   The said invoices were kept  along with the bundles.  A sum of Rs.156/- was paid towards parcel booking charges for which  L.R.. No. 10802647x 2 dated 23.03.2006 was issued. But only one bundle covered by invoice no. 41 having dress material worth  Rs.52,766.75ps  was delivered to the consignee , i.e., Rex Exporters at Hyderabad. The other bundle worth Rs.1,25,749.75ps  was undelivered till date. The complainant demanded the opposite party  for delivery of the missing bundle but no efforts were taken.   So a legal notice was issued to the second opposite party. though, it was received, the second opposite party  kept quite.  The opposite parties have committed negligence and also deficiency in service and as such, the complainant is  entitled  for recovery of Rs.1,25,749.75 ps with interest there on.

The first opposite  party filed its version stating that the complainant had entrusted two bundles through the opposite party ANL parcel service, Mangalagiri for delivery of it to Rex Exporters, Hyderabad.  It is denied  that the value of two bundles consists of sarees ad dress materials worth about Rs.1,78,516.50 Ps.  L. R. No 10802647 was issued on payment  of Rs.156/- basing o the weight of the goods but  not on the value of the goods. Bu the complainant is put to strict proof of its contents.  Further the complainant had not declared the value of  the goods nor given the details of it, so also, description of the goods as Handloom cloth  by supplying a invoice of it. The opposite party collects 2% of the value of the goods if the value of the goods is declared.  Had the value been declared freight charges of Rs.4000/- would have been collected. When the goods are on higher value, the goods should have been insured which the complainant  failed to take any steps.   The complainant has suppressed the value of the goods in order to avoid  payment of freight charges @ 2%. Open delivery  was given in respect of the other bundle but its value is denied. On the respective contentions, the points that arose for consideration before the District Forum are

(1)                 whether there was deficiency in service on the part of the opposite parties  and

(2)                 to what relief.

The complainant along with evidence affidavit  filed Ex. A-1 to A-20 in support of his claim.  On consideration of the documentary evidence, the District Forum held that on principles of equity, the complainant  is entitled for the value of the cost of the missing bundle worth Rs.1,25,749.77ps.

Point for consideration is, whether the impugned order suffers from any factual and legal infirmity for its interference ?

The complainant had lodged a complaint with the opposite parties ANL parcel service for non-delivery of the consignment  consisting of clothes which were sent to its destination covered by Ex. A-8 L. R. No.10802647x2,  while so, the appellants/opposite parties admitting that two bundles  were handed over for transporting but only one bundle was delivered and  the other bundle had  missed  so could not be delivered at the destination.  It is also its defence that the value of the consignment was not declared except paying freight charges of Rs.156/-  and in the absence of any declaration of its value by paying the freight charges at Rs.4000/- or getting the consignment insured OPs  cannot be mulcted  with the value as estimated or claimed by the consignor.  It is also the contention that  in the absence of knowledge of contents or its value, OPs cannot be saddled with the actual loss as estimated on the basis of the receipts or invoices filed subsequently as evidence in support of its claim.

 We have perused the documents in detail. It may be that Ex. A-1 and A-2 are the invoices said to have been prepared by the complainant but   while transporting the consignment those invoices were neither shown or handed over.  It is a  general practice that whenever any consignment is booked with the carrier, the copies of  invoices are invariably to be  handed over to the carrier or transporter to know the value of its goods, so also, its contents. It is not known why it was not given or demanded.  May be that as a regular customer, the complainant  has been sending consignment or parcels through the first opposite party  from Mangalagiri to Hyderabad or other places  and even subsequent to missing of the parcel,  the complainant had sent the consignment  of cloth through the same transporter but  it has no nexus with the missing consignment. In the absence of specific declaration it cannot be inferred that the consignment consists of all types of garments or the  value as stated. It may be true that there is a running khata account between the complainant and the consignee, Rex Exporters of Hyderabad and in that connection they have maintained regular Khata account covered by Ex. A-16 but from this Khata account or from other invoices covered by Ex. A-18, A-19 and A-20 no inference  can be drawn that the opposite parties 1 and 2  have knowledge of the contents and so also value of the undelivered consignment.  The account is an  internal arrangements between them. The account  is relevant in connection of  dispute  between the two parties but not in respect of  dispute  with the third party. Since the opposite parties  failed to carry and deliver the consignment safely to the consignee they can be held responsible only to the extent of their lapses or negligence  but the liability cannot be  to the extent of the value of the material that was kept in the closed consignment.  No police report was given either by the complainant  or by the opposite party and they are silent about it.  In the absence of any evidence that the opposite parties have knowledge  of the contents or its value they cannot be saddled with the actual loss as estimated by the complainant.  However,  on the principles of equity and justice they should be made liable by awarding compensation.  Fixing compensation at Rs.50,000/-  with interest @ 9% from the date of complaint till the date of realization and with costs of Rs.1000/-  would be proper and reasonable.

In the result,  the appeal is allowed in part  modifying the order of the District Forum directing the opposite parties 1 and 2 with joint and several liability  to pay a sum of Rs.50,000/-  with interest at 9% pa from the date of complaint  till the date of  realization and also costs of Rs.1000/-.  There is no order as to costs in the appeal.

Sd/-MEMBER

                                                                                                                                                                        Sd/- MEMBER

                                                                                                                                                                                DATED : 16.07.2010