By Smt. C.S. Sulekha Beevi, President,

1. Complainant is conducting pharmaceutical distribution business for his livelihood. On 02-7-2003 he send 15 boxes of medicines to M/s Pannikulam Pharma, Thrissur through first opposite party and paid Rs.280/- towards charges. The boxes were packed in tact and handed to first opposite party for being send to the consignee. That M/s Pannikulam pharma (consignee) refused to take delivery stating that the boxes were damaged. On receiving information the fact was intimated to first and second opposite parties who directed complainant to be present in person and arranged for open delivery of the medicines in the box. Complainant agreed for the same and took open delivery of the medicines. The invoices and medicines were compared in presence of office staff of opposite party. It was found that a number of costly medicines were lost, damaged and not in saleable condition. The loss and damage to articles occurred during transit. Complainant assessed the actual damages suffered and submitted to opposite parties, who informed the complainant that their risk is insured with third opposite party. The details of the loss incurred are stated in the complaint and is assessed as Rs.27,968.12. That opposite parties committed deficiency in service and is bound to compensate the complainant. Hence this complaint claiming Rs.27,968.12 with interest @ 18% and compensation of Rs.10,000/- together with costs.

2. First opposite party has filed version denying that he is the Proprietor of Alleppy Parcel Service. It is submitted that the concern at Tirur is only an agency of Alleppy Parcel Service. It is admitted that medicines were booked by complainant with opposite party to be carried to Thrissur. That the articles were brought in a packed condition and opposite party had no occasion to verify them as per the invoice. The articles brought by the complainant were send on 03-6-2003 and 02-7-2003 in the parcel vehicle of 2^nd opposite party. That opposite party is not aware of any loss or damage to the articles send. The consignment was send back to the agency of first opposite party after six months in the parcel vehicle of second opposite party. That first opposite party being an agent is an unnecessary party tot he proceedings. That complainant is not entitled to any relief from first opposite party.

3. Second opposite party has filed version admitting that complainant had send 15 boxes of medicines through first opposite party. That complainant had send through first opposite party on 03-6-2003 seven boxes as per way bill No.344281 and on 02-7-2003 eight boxes as per way bill No.344191. That the parcel service of opposite party is a Daily Regular Parcel Service. That the consignee has to take delivery from the parcel office and there is no provision for door delivery. Though the consignment send by complainant reached the parcel office at Thrissur, even after 200 days consignee did not come to take delivery of the consignment. This may be due to lack of communication tot he consignee by consignor. This was not due to any fault on the part of carrier/opposite party. Since the consignee failed to take delivery of the consignment the articles were rebooked as per way bill No.151882 on 23-12-2003 back to Tirur. The articles thus returned to consignor as per rebooking was taken delivery by consignor. Only at that time theloss and damages were reported by complainant. The damage may be because the articles were not taken delivery by consignee for 200 days; and were left unattended. The damages may have happened due to the delay in taking delivery and defect in packing. That there is no deficiency on the part of opposite parties. That complainant is not entitled to any reliefs from opposite parties. If in any case second opposite party is found liable, then third opposite party being the insurer may be ordered to compensate the complainant.

4. Third opposite party who is the insurer has filed version admitting the insurance coverage of second opposite party under Carriers Liability Insurance Policy for the period 27-6-2003 to 26-6-2004. That the liability is subject to terms conditions and exclusion of the policy. Opposite party denies the alleged loss and damages caused to complainant and contends that third opposite party has not received any intimation or claim regarding the same. Only on the receipt of copy of this complaint did third opposite party come to know of the alleged incident. Since complainant did not prefer any claim in time with the insured, third opposite party was not able to conduct investigation, evaluate the genuineness of the claim. Due to lack of notice of incident opposite party was not able to appoint a Surveyor to assess the loss and damages. Neither did the insured or the complainant prefer any claim before third opposite party and therefore third opposite party is not to liable to indemnify. That complainant has not approached with clean hands and is willfully suppressing vital information. That there is no deficiency in service on the part of third opposite party.

5. In support of respective pleadings affidavits by way of evidence were filed by complainant, first opposite party, second opposite party and third opposite party. Exts.A1 to A7 marked for complainant. Exts.B1 to B6 marked for opposite parties.

6. The complainant is aggrieved that the consignment reached destination in a damaged condition and therefore the consignee, M/s Pannikulam Pharma refused to take delivery of the same. That on taking open delivery it was found that many medicines were lost and sustained damage and was not in saleable condition for which complainant claims loss of Rs.27,968.12.

7. Denying the allegation of deficiency in service the specific defense put forward by second opposite party who is the carrier is that though the consignment reached destination (Thrissur) within time the consignee did not turn up to take delivery of the same. The consignment was kept in the warehouse for almost 200 days. Thereafter these articles were rebooked to the complaint. The damage if any may have caused due to the articles not being taken delivery within time.

8. Thus the specific question that poses for consideration is whether the goods/consignment reached destination safely and what was the reason for failure of consignee to take delivery of the same. Apart from the vague affirmation by the complainant that the consignee refused to take delivery of the consignment due to damage to the boxes there is no evidence to support this. Neither has the complainant examined the consignee to prove this nor his affidavit filed. Interestingly complainant has not candidly stated that he took open delivery of the consignment after it was rebooked to him after a period of six months. Ext.A7 is a letter send by complainant to the consignee. As per this letter it is seen that it is because consignee did not clear the bills due to complainant the necessary consignment copy was not given to consignee to permit the consignee to take delivery of the consignment. The relevant portion of Ext.A7 is as under:

“As per your telephonic request regarding the clearance of the above mentioned consignment of which documents were sent to your bank, the company has sanctioned 30 days concession time to clear all the bills. If you are not doing so we are forced to recall the same without further notice.”

Ext.A7 is dated, 15-8-2003 which is almost one month after sending the consignment. Ext.A7 sufficiently proves that the failure on the part of consignee to take delivery of the consignment was not due to the damage of consignment but because consignee had not cleared the dues to the complainant/consignor. There is absolutely no reliable evidence to prove that the goods were damaged in transit and that the consignment reached it's destination in a damaged condition. The liability of the carrier is discharged when the goods reach it's destination. The carrier in no case can be burdened with responsibility for the failure on the part of consignee to take delivery of the consignment as a result of disputes between consignor and consignee. The position is well settled in 2005 II CPJ 83 (NC) Navata Road Transport Regular Service Vs. Tirumala Fertilizers where it is held as under:

“Consignment transported on 04-4-1993; for months together neither consignee took delivery nor consignor took steps for getting it back. Carriers godown cannot be used for storing goods in case dispute between consignor and consignee. It was for the consignor to take reasonable and appropriate steps within reasonable time for seeing that the consignee takes delivery of the goods, or for return of the said gods. The distance between the two places is only 35kms and any representative of the consignor could have visited the place within one hour. It was not necessary for the consignor to wait for 5 months. Complainant from the very beginning knew about the condition and nature of goods, particularly having expiry date. It cannot be held that carrier is required to pursue consignor and/or consignee.”

9. The principles laid in the above decision are squarely applicable to the facts of this case. From the above discussions we hold that there is no deficiency in service on the part of first and second opposite party. Third opposite party being insurer is not liable to indemnify since there is no liability upon second opposite party to compensate the complainant. Further as per Ext.B4 (b) which is the carriers liability insurance policy it is stated that the cover of insurance commences with the loading of cargo on the vehicle and will be in force until unloading of the cargo at the discharging point or expiry of 7 days after the first arrival of the vehicle at the destination town whichever may first occur. Complainant has failed to establish a case in his favour.

10. In the result, we dismiss the complaint. We refrain from ordering costs.

Dated this 14th day of January, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A7

Ext.A1 : Letter dated, 08-01-2004 by complainant to 2^nd opposite party.

Ext.A2 : Bill No.E.56 dated, 02-6-2003 for Rs.16,186.00

Ext.A3 : Bill No.M.48 dated, 02-6-2003 for Rs.7,219.00

Ext.A4 : Bill No.E.109 dated, 02-7-2003 for Rs.16,662.00

Ext.A5 : Bill No.M.85 dated, 02-7-2003 for Rs.12,364.00

Ext.A6 : Bill No.E.110 dated, 02-7-2003 for Rs.6,492.00

Ext.A7 : Photo copy of the letter dated, 15-8-2003 by complainant

to M/s Panikulam Pharma, Pharmaceutical Distributor, Trichur.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B6

Ext.B1 : Carbon copy of the receipt dated, 02-7-2003.

Ext.B2 : Carbon copy of the receipt dated, 03-6-2003.

Ext.B3 : Carbon copy of the receipt dated, 23-12-2003.

Ext.B4 : Terms and conditions of Carriers' Liability Insurance Policy.

Ext.B5 : Carbon copy of the letter dated, 27-4-2004 by Third opposite

party to 2^nd opposite party.

Ext.B6 : Reply letter dated, 03-6-2004 by 2^nd opposite party to 3^rd opposite

party.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER