Complainant Amit Kaila through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to pay an amount of Rs.41,040/-as cost of the material purchased by him. He has further claimed Rs.10,000/- for the mental agony, harassment and inconvenience suffered by him and has also claimed Rs.10,000 as litigation expenses including other expenses along with interest @ 18% P.A.
2. The case of the complainant in brief is that he had purchased TC cloth/suit material from Anand Enterprises, 504 Chandra Chowk, MJ Market, Mumbai worth Rs.41040/- vide bill dated 4.7.2014. The said material was booked by the complainant with the opposite party at Mumbai office to be delivered at Pathankot vide Consignment Note bearing No.BOC1D704015 dated 4.7.2014 for a sum of Rs.465/- as transportation charges. It was pleaded that the opposite party no.2 failed to deliver the said material which was booked vide Consignment Note bearing No.BOC1D704015 dated 4.7.2014 on the approximate date of delivery given by the opposite party. It was next pleaded that complainant approached the opposite party no.1 who informed him that the said material along with some other goods totaling 14 packets had been stolen and an FIR was also registered under section 379 IPC on 10.7.2014 as such they shall be unable to deliver the same and further advised him to raise the claim of the bill amount of the material of the complainant. Complainant submitted his written claim to the opposite party no.1 who forwarded the same to opposite party no.2. It was also pleaded that on 4.8.2014 opposite party no.1 issued a letter along with relevant documents of claim to opposite party no.2 and requested them to settle the claim on priority basis. A non delivery certificate has also been issued by opposite party no.1 vide their letter bearing no.PKT/2014 dated 4.8.2014. Opposite parties with malafide intention illegally and unlawfully withheld the claim amount of the complainant which caused wrongful loss to the complainant at their hands. Complainant approached the opposite parties time and again to settle his claim and for the payment of Rs.41,040/- but the opposite parties had linger on the matter with one pretext or the other, hence this complaint.
3. Upon notice, the opposite parties appeared through their counsel and filed the written reply by taking the preliminary objections that complainant never served legal notice which is mandatory under section 16 of the Carriage by Road Act as such the present complaint is liable to be dismissed. Complaint is not maintainable as the consignment of goods were meant for commercial purpose and complainant has filed false and vexatious complaint against the opposite parties and the opposite parties are liable to claim Rs.25,000/- from the complainant as compensatory costs. On merits, it was stated that the goods were stolen near Joshi Road Office as per report no.ALB4D712029 dated 12.7.2014. It was further stated that as per the report the goods had already been stolen and the FIR had been lodged on 10.7.2014 with the concerned police station. It was also stated that as per Section 2(d) of Consumer Protection Act the complaint is not maintainable as the goods were meant for commercial purpose. It was stated that non delivery certificate has been issued by opposite party no.1 and the consignment had been stolen in the way. It was further stated that opposite parties are not liable to pay any claim as in the terms of Section 10 (1) of Carriage by Road Act 2007 and Rule 12 (1) of Carriage by Road Rules 2011 the liability of carries is only up to 10 times the freight paid or payable. In the present complaint the freight to be paid Rs.465/-, so in the event of any compensation cannot be exceeded from Rs.4650/- @ 10 X 465. All other averments made in the complaint have been denied. Lastly, opposite parties have prayed for dismissal of the complaint with special costs.
- Complainant tendered into evidence his own affidavit Ex.C1 along with other documents Ex.C2 to Ex.C5 and closed the evidence.
- Opposite parties tendered into evidence affidavit of Bahadur Singh Ex.OP-1 alongwith other documents Ex.OP-2 and Ex.OP-3 and closed the evidence.
- We have duly considered the pleadings of both the parties; heard the arguments advanced by their counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint.
7. We find from the MTR (Motor Transport Goods Receipt) Ex.C3 that the Stolen ‘Goods’ in question comprised of one Bale of ‘T.C. Cloth’ that was booked without any ‘transit-insurance’ and/ or disclosure of ‘price-details’ etc and that too by the vendor consignor and the consignee has been the present complainant. The Goods Bill Ex.C2 has been an un-attested & unsigned ‘duplicate’ copy and in itself does not serve the requisite purpose. Somehow, the complainant has not been able to prove his eligibility to claim full cost and /or proportional ‘compensation’ to the stolen goods. And, in the absence of any express ‘promise’ and/ or ‘contract’ of ‘delivery’ etc duly produced on records that the booked goods shall be delivered ‘safe & secure’ the general trade ‘customary’ terms only shall apply and the OP transporter has duly produced the applicable terms. As per the clause 12 of the Gazette Notification of 28.02.2011, the Carriers’/ Transporters’ Liability to total loss of or total damage to any consignment under section 10 shall be limited to TEN times the freight paid and /or payable provided that the amount so calculated shall not exceed the value of the goods as declared in the goods forwarding note. Somehow, the OP carrier here has not contested the ‘amount’ of the booked (stolen) goods but rather has agreed to ten times the ‘freight’ received. Hence, we are inclined to dispose of the present complaint, accordingly.
8. In the light of the above, we dispose of the present complaint by directing the OP transport carrier to pay the complainant ten times the freight received from him within 30 working days of the receipt of the copy of these
orders otherwise the award amount shall attract interest @ 9% PA form the date of the orders till actually paid.
9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
MAY 12, 2015 Member.
*YP*
