Tripura

StateCommission

F.A 26/2014

Shri Bibhas Ranjan Bhattacharjee - Complainant(s)

Versus

Sri Goutam Debnath - Opp.Party(s)

A.L Saha,J.Paul,A.Saha,B.Debnath

05 Jan 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. Sobhana Datta,

             MEMBER,

               STATE COMMISSION.

               

 

APPEAL CASE No.F.A-26/2014

 

Shri Bibhas Ranjan Bhattacharjee,

Flat No.4C,Block B,

2 C-Bose Pukur Road, Kolkata-42.

                                     ….    ….    ….    ….    Appellant.

Vs

Sri Goutam Debnath,

Proprietor of Home Packers and Moovers,

Shyamali Bazar (Near Sonali Rest House),

Malancha Nagar, Agartala,

West Tripura, Pin-799006.

                                    ….    ….    ….    ….    Respondent.

 

For the Appellant    :      Mr.A.L. Saha,Adv.

                               Mr.J.Paul,Adv.

                                Mr.A.Saha,Adv

       For the respondent   :       Mr.P.Rathor,Adv.

                                                  Mr.T.Debbarma,Adv.

 

2. Appeal case No.F.A-31/2014.

 

Sri Goutam Debnath,

Proprietor of Home Packers and Moovers,

Shyamali Bazar (Near Sonali Rest House),

Malancha Nagar, Agartala,

West Tripura, Pin-799006.

                                          ….     ….    ….    ….    Appellant.

 

Vs.

 

Shri Bibhas Ranjan Bhattacharjee,

Flat No.4C,Block B,

2 C-Bose Pukur Road, Kolkata-42.

                                     ….    ….    ….    ….    Respondent.

 

 

For the Appellant    :      Mr.P.Rathor,Adv.

                                         Mr.T.Debbarma,Adv.

  For the respondent   :           Mr.A.Saha,Adv.

                                           Mr.J.Paul,Adv.

                                             Mr.A.Saha,Adv.

Date of Hearing         :     05.01.2015.

Date of delivery of Judgment  : 16.01.2015.

             

 

J U D G M E N T

 

S.Baidya,J,

            F.A-26/14 and F.A-31/14 have arisen out of the same judgment and order dated 13.08.2014 passed in case No.C.C-01/14 and as such both the appeals have been heard together and are liable to be disposed of by this common judgment.    

2. The case of the appellant-Bibhas Ranjan Bhattacharjee as described in the memo of appeal being No-F.A-26/14, in brief, is that the appellant-complainant was in government service as Associate professor of Iswar Chandra Vidyasagar College, Belonia and after his retirement he decided to leave the state of Tripura and intended to reside at his residence at Flat No-4C, Block No.B – 2C, Bose Pukur Road, Kolkata-42 and as such contacted the O.P. on 06.04.2013 at their H.O. at Shymali Bazar, Agartala for transportation of all his household goods from Belonia to Kolkata and accordingly, the O.P.-respondent prepared a list of all articles to be shifted and agreed to carry the same from Belonia to Kolkata for an amount of Rs.52,576/-. It has also been stated that the packaging party of the O.P. packed all goods in 38 large packets and carried the same in a vehicle to their H.O. and thereafter, the complainant visited the H.O. of the O.P. on 15.05.2013 where the O.P. officially booked 38 packages vide C.N. No. A081X38 and received payment of Rs.52,576/- towards vehicle hire charge, packing charges and service tax etc. and handed over documents to the complainant.                                                     
3. It has also been stated that as per undertaking the goods would reach to Kolkata within 10-12 days and accordingly, the complainant going to his residence at Kolkata was waiting to receive those goods and thereafter, the complainant on 04.06.2013 sent a letter to the O.P.-respondent enquiring about the reason for causing delay in delivering the goods when the O.P. informed by letter dated 01.07.2013 that the truck bearing registration No-HR 55 L 7518 carrying the goods had been hijacked from 9^th Miles, Guwahati, Assam and on this issue a case had already been registered with Baishisthapur P.S. and at the same time the O.P. assured the complainant that the truck along with goods would be recovered very soon. It has also been stated that after waiting for a considerable time the complainant served one advocate notice upon the O.P. to fulfil his promise within 15 days from the date of receipt of the notice and then O.P. replied to the Advocate notice by sending a reply on 04.11.2013 whereby the O.P. tried to avoid his liability and responsibility stating that the complainant did not insure the goods at the time of booking whereas at the time of booking nothing as such was communicated and discussed with the complainant by the O.P.
4. It has also been stated that after hearing the case and considering the pleadings and the evidences, the Ld. Forum allowed the complaint and passed the award by the impugned judgment and granted compensation of Rs.1,69,110/- towards loss of consignment and Rs.52,576/- being the transportation charges and Rs.5000/- for mental agony and harassment and Rs.1000/- as litigation cost.             
5.  That being aggrieved by and dissatisfied with the impugned judgment dated 13.08.2014 the appellant has preferred the instant appeal assailing the said judgment on the grounds that the Ld. Forum failed to consider the loss of the complainant and arbitrarily assessed the loss at Rs.1,69,110/- in lumpsum being 1/3rd of the loss amount claimed by the appellant, that Ld. Forum failed to consider that there were 38 large packets and a mere amount of Rs.1,69,110/- towards the goods contained in 38 large packets is not a justifiable amount, that the Ld. Forum failed to consider and allow interest on the compensation amount from the date of booking and hence, the instant appeal has been filed praying for enhancing the quantum of compensation and also the interest on the compensation amount.
6. The case of the appellant-Goutam Debnath as narrated in the memo of appeal being F.A-31/14, in brief, is that the complainant had booked his household goods with the firm “Home Packers and Moovers” to be carried from Belonia to Kolkata to be delivered at his residence at Kolkata and paid Rs.52,576/- towards the freight to the appellant with an undertaking to deliver the said goods within a stipulated period, but it was never delivered and in response to the various communications by the respondent and his counsel, the appellant informed that although he dispatched the old and used household goods of the respondent in hired truck after proper care and caution, but the same were lost due to hijacking of the truck from 9^th Miles, Guwahati, Assam and then the appellant lodged a written complaint with the concerned P.S. and the matter was under investigation. It has also been stated that the respondent being not satisfied by the reply of the appellant lodged a complaint before the Ld. District Forum which was registered as C.C.-01/2014 and the Ld. District Forum then considering the cases of the parties and the evidences passed the impugned judgment on 13.08.2014.
7. That being aggrieved by and dissatisfied with the impugned judgment the present appellant has preferred the appeal assailing the judgment passed by the Ld. District Forum on the grounds that the Ld. Forum ought to have held that there was no negligence on the part of the appellant which was not within his control, but the Ld. Forum very wrongly and arbitrarily held that the appellant is liable to pay the compensation and as such it is not sustainable in the eye of law and is also liable to be set aside, that Ld. Forum erred in assessing the value of the consigned goods booked by the respondent at Rs.1,69,110/- in lumpsum being 1/3rd of the amount of Rs.5,07,330/- claimed by the respondent which is contrary to the evidence on record as the said sum has been assessed on merely on guess which is nothing, but a speculative one not being supported by any cash memo, voucher etc. and that Ld. Forum erred in law as well as facts and arrived at an erroneous conclusion which is not sustainable in law and as such the impugned judgment based on speculative only is liable to be set aside and hence, the appeal has been filed for setting aside the impugned judgment.             

Points for consideration.

8.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the award by the impugned judgment and (2) whether the judgment impugned should be modified or set aside as prayed for.     

                         Decision with Reasons.

9.  Both the points are taken up together for the sake of convenience and brevity.
10. The learned counsel for the appellant in F.A-26/14 submitted that although a lesser amount has been awarded as the value of the old and used household articles, but the amount of compensation awarded on account of mental agony and harassment is very meagre one. He also submitted that the appellant paid Rs.52,576/- as packing charge, hired vehicle charge, service tax etc. on 15.05.2013, but the Ld. Forum by the impugned judgment allowed interest only after the expiry of one month from the date of judgment in lieu of from the date of booking and making the payment of the charges. The learned counsel for the appellant further submitted that the rate of interest should be from the date of making payment i.e. on and from 15.05.2013 and the quantum of compensation of Rs.5000/- on account of mental agony, harassment etc. should be enhanced by way of modifying the impugned judgment. He also submitted that there was no talk to insure the household goods by the party before making delivery for carrying from Belonia to Kolkata, but long after the packing of the said household goods, when the carrier Goutam Debnath handed over the consignment note and money receipt, all on a sudden the carrier impressed a rubber stamp “Insurance by party” on those papers. He also submitted that when the complainant-appellant raised this point to the O.P.-respondent, he was informed that it was nothing, but a mere formality and the complainant required not to take any step to insure his household articles at all. He then submitted that the O.P.-respondent could not establish before the Ld. District Forum that the O.P. ever carried any old and used household articles under insurance coverage. He also submitted that the Ld. Forum did not believe the plea of the O.P.-respondent to the effect that as the complainant failed to insure his old and used household articles beforehand, the O.P.-respondent is not liable to pay any compensation.  
11. On the other hand, the learned counsel for the appellant in F.A-31/14, the carrier submitted that it is a fact that the household articles of the complainant were not under insurance coverage and the carrier also did not take any premium from the complainant to insure those articles of the complainant. He also submitted that as regards the putting of rubber stamp namely “insurance by party and“ on the consignment note and money receipt are of no importance at this stage of the case. He also submitted that facts of the case are almost admitted, but he vehemently opposed and assailed the impugned judgment stating that no amount can be assessed in respect of old and household articles merely on guess unsupported by any money receipt, voucher etc. He also submitted that the Ld. Forum while assessing the value of the old and used household articles of the complainant erroneously acted on guess which is not sustainable in the eye of law and on that score only the impugned judgment should be set aside. The learned counsel for the appellant Goutam Debnath, Proprietor of Home Packers and Moovers submitted that in the mean time the investigation of the concerned police case has been completed, but no recovery of any consiged article is made by the police. He then submitted that as the impugned judgment has been passed merely on the basis of guess, it is not sustainable in law and should be set aside by allowing this appeal.   
12. We have gone through the pleadings of the parties, evidences both oral and documentary, the impugned judgment and the memo of appeals of both the appeals. We have also considered the submissions made by the learned counsels of both sides. In course of hearing of appeals and also as pointed out in the impugned judgment, it has come to our notice that the driver who was driving the vehicle carrying consignments of 10 consignees including the complainant Bibhas Ranjan Bhattacharjee has not been examined in the District Forum. The Ld. Forum rightly pointed out in the judgment that the driver of that vehicle is a most important witness because he was only the person being an eye-witness who could throw light under what circumstances and how the said truck loaded with the consignments was allegedly hijacked at 9^th Miles, Guwahati, Assam. From the consignment note and money receipt, it transpires that there is a rubber stamp “insurance by party”. It has been argued before us that there is nothing in the consignment note showing that the household articles of the complainant were handed over for carrying at the risk of the owner of the goods. Assuming that since there was no insurance of the goods, the other thing comes that the consignments were handed over for carrying at owner’s risk. In that case also, it has been held by the Hon’ble Supreme Court of India in Civil Appeal No.1/1997 between Nath Bros. EXIM International Ltd. (Petitioner) Vs. Based Roadways Ltd.(Respondent) in the judgment pronounced on 27.03.2000 that the expression “at owner’s risk” does not exempt a Carrier from his own negligence or the negligence of his servants or agent. It has also been held in the said judgment by the Hon’ble Apex Court considering the various provisions of the Carriers Act, 1865 that even if the goods were carried at owner’s risk, the carrier would not be fully absolved of his liability to pay compensation if the loss was occasioned on account of his negligence or his servant or agent. But in the instant case, there is nothing to show that the consignments were handed over for carrying by the carrier at the risk of the consignee i.e. the appellant Bibhas Ranjan Bhattacharjee.
13. The Hon’ble Apex Court in the decision reported in AIR 2000 Supreme Court 1461 between Patel Roadways Ltd. Appellant V. Birla Yahama Ltd., Respondent has been pleased to hold that the liability of a common carrier under the Carriers Act, 1865 is that of an insurer and this position is made further clear by the provision in Section 9 in which it is specifically laid down that in case of claim of damage or loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. It has also been held that even assuming that the general principles 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. It has also been held in that reported case that Section 9 of the Carriers Act is applicable to the proceedings before the Consumer Fora as the term “Suit” provided in Section 9 includes the proceedings pending before the Consumer Fora. Going through the impugned judgment, we are of the view that the Ld. District Forum rightly placed no importance at all on the rubber stamp “insurance by party” impressed upon the consignment note and money receipt. The principle of law enunciated in the above cited case does not absolve the O.P. Carrier from his liability to pay compensation to the consignee, the complainant, rather the principle of law embodied therein has made the O.P. Carrier responsible for not delivering the consigned articles to the complainant as undertaken.       
14. Admittedly, the packing list of goods (Ext.3) does not contain the value of the goods so made for consignment. In this regard, the learned counsel for the consignee, the complainant submitted before us that in fact, in the packing list of goods there is no column for noting down the value of goods handed over for carrying. It is also admitted fact that the goods were old and used household articles. Going through the impugned judgment, we find that the Ld. District Forum assessed the value of the old and used household articles at Rs.1,69,110/- in lumpsum being 1/3rd of the amount of Rs.5,07,330/- as claimed by the complainant. Admittedly, the packing list of goods (Ext. 3) does not disclose the said articles in detail. It is also admitted fact that all the articles consigned were packed in 38 packets. It further appears from the record of the Ld. District Forum that complainant filed a list describing therein the details in respect of articles of the complainant handed over for carrying. In this regard, the learned counsel for the O.P. Goutam Debnath submitted that the complainant has put the value of those articles in the list at his own whim and the value of those old and used household articles should not be Rs.5,07,330/-. He also submitted that the value given in respect of those articles have not been supported by any cash memo, voucher etc. and as such the value of those articles cannot be accepted at Rs.5,07,330/- It was also argued by the learned counsel for the O.P. that in the absence of any cash memo, voucher etc., the Ld. Forum arbitrarily accepted that value and assessed the quantum of compensation at Rs.1,69,110/- in lumpsum being 1/3rd of the said amount of Rs.5,07,330/- merely on guess. It has been argued by him further that guess without any yardstick for assessment cannot be a criteria for assessing the quantum of compensation as the present value of the consigned articles of the complainant and on that score the judgment cannot be sustained in the eye of law.      
15. It is true that the list containing the articles in detail was not handed over to the O.P., Carrier at the time of booking of those articles. That list containing old and used household articles has not been proved in the District Forum as documentary evidence. But the fact remains that even old and used household articles have got resale value. Having no price of those articles mentioned in the packing list of goods and also the total value of those goods in the consignment note, the Ld. Forum finding no alternative has assessed the value of the consigned articles of the complainant on the basis of guess which cannot be treated as unreasonable and unacceptable method. Admittedly, the complainant Bibhas Ranjan Bhattacharjee was residing in the Govt. Quarter of Iswar Chandra Vidyasagar College, Belonia for years together as associate professor and he handed over all his old and household articles for carrying to Kolkata. It is also admitted fact that the complainant paid Rs.52,576/- towards packing charge, carrying charge, service tax etc. It is also admitted fact that all articles were packed in 38 packets. Considering the amount of pay paid by the complainant for carrying 38 packets containing his old and used household articles, we are of the view that the assessing of Rs.1,69,110/- as the present market value of those articles cannot be held to be unreasonable one. We are also of the view that the assessment so made by the Ld. District Forum on guess is found reasonable and acceptable one. That being the position, we are of the view that the Ld. Forum rightly assessed the present value of the consigned goods of the complainant at Rs.1,69,110/-. Going through the judgment, we find that the Ld. Forum accordingly, allowed compensation of Rs.1,69,110/- to the complainant as compensation towards the loss of his consignment with a further direction to the O.P. to refund Rs.52,576/- paid by the complainant to the O.P. as transportation charges and also Rs.5000/- to the complainant for mental agony and harassment with a further direction to pay a sum of Rs.1,000/- as cost of litigation. It further appears that the O.P. was directed to pay the aforesaid amount within a period of one month from the date of judgment, failing which the amount of compensation shall carry interest @ 9% P.A. till the payment is made. Considering the quantum of compensation of Rs.5000/- for mental agony and harassment and the rate of interest p.a. as awarded after the expiry of one month from the date of judgment on failure of the O.P. to pay the entire amount within the said period of one month is not found insufficient and unreasonable and as such we find nothing to enhance the same.  
16. In view of the above, we are of the view that the findings of the Ld. District Forum given in the impugned judgment are acceptable. Accordingly, we are of the opinion that the Ld. Forum considered all aspects of the matters and rightly arrived at the conclusion and passed the impugned judgment which, according to us, calls for no interference by this Commission and as such the impugned judgment should be affirmed. As this Commission finds nothing to interfere for change in the impugned judgment being found proper legal and justifiable, both the appeals are liable to be dismissed.   
17. In the result, the appeal being F.A-26/14 and the counter appeal being No.F.A-31/14 fail. The impugned judgment dated 13.08.14 passed by the Ld. District Forum,West Tripura, Agartala in case No.C.C-01/14 is hereby affirmed.
18. The O.P.-Goutam Debnath is directed to deposit Rs.5,000/-(Rupees five thousand) in the Legal Aid Account of this Commission as cost of appeal within one month from the date of judgment, failing which this amount of Rs.5,000/- shall carry interest @ 9% p.a after the expiry of said one month till the payment is made.

 

      

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura