Sri Shyamal Gupta, Member

Both the Appeal Nos. A/1186/2014 & A/1200/2014 arise out of the Order dated 18-09-2014 passed by the Ld. District Forum, Howrah in CC/03/2014, whereof the complaint has been allowed. Since the facts and circumstances of both these Appeals originate out of the same order, we dispose both the Appeals through this common order.

Briefly narrated, case of the Complainant is that, he sent some household materials from New Delhi to Kolkata through the OP No. 1 on payment of due charges.  When he received the same in damaged condition, necessary complaint in this respect was lodged with both the carrier as well as the Insurer.  However, since both of them refused to own up any responsibility, he filed the complaint.

OP No. 1, by submitting a petition submitted that it does not have any branch office within the jurisdiction of the Ld. District Forum and further that, no cause of action originated overthere. 

OP No. 2, on the other hand, submitted that the nature of alleged peril was outside the purview of the insurance policy.  Therefore, the instant claim was rejected by it.

Decision with reasons

We have heard the Ld. Advocates of the parties and gone through the material on record.

Undisputedly, the materials got damaged in course of transit.  Since such journey terminated at the house of the residence of the Complainant and there is no conclusive evidence as to where exactly such breakage took place, it cannot be stated with certainty that no cause of action occur within the territorial jurisdiction of the Ld. District Forum. Further, the objection that none of the OPs has any branch office in Howrah district is totally misplaced because the OP No. 2 does have footprint in the said district. Thus, the maintainability issue as raised by the OP No. 1 is totally baseless.

The OP No. 1 notwithstanding rued the fact that it did not get due opportunity to submit its WV, no one objected it from filing WV within 30 days of receipt of notice.  Pendency of maintainability petition cannot be a cogent ground to put on hold submission of the WV because under the Consumer Protection Act, it is a statutory requirement to submit WV within 30 days of receipt of notice.  If the OP No. 1 neglected/failed to do so, it must curse itself for such lapses on its part.

Be that as it may, fact remains that the OP No. 1, by issuing a certificate dated 23-09-2013 confirmed that the concerned goods got damaged during transit.  Therefore, it must own up due liability in this regard.  The OP No. 1 although sought to shrug off any responsibility in terms of the carriage contract agreement as it was purportedly mentioned in the contract note that transportation was at owner’s risk, for some obscure reasons, the OP No. 1 has not placed on record any copy of the so called contract note.  On the other hand, the Complainant claimed that he was not apprised of any such clause.  Whatever be the truth, even if the contract note contains any such clause, the same being against public policy, such a draconian clause is not enforceable in law. Therefore, in our considered opinion, the OP No. 1 has to own up due liability.

Simply because the consignment was booked at “owner’s risk”, it cannot be concluded that the courier would be absolved of its liability under any circumstances.  Liability will be governed by the Carriers Act, 1865. [Nath Bros. Exim International Ltd. vs. Best Roadways Ltd., (2004) 4 SCC 553 relied upon]. 

The liability so imposed upon the OP by the Ld. District Forum appears too harsh and therefore, the same is reasonably modified in the interest of natural justice.

The Ld. District Forum though held the OP No. 2 liable to compensate the Complainant, on going through the policy terms and conditions it transpires that the nature of peril was not covered under the insurance policy.  Therefore, there was no reason to hold this OP responsible for the misery of the Complainant.

Hence,

O R D E R E D

That A/1186/2014 and A/1200/2014 be and the same are allowed and allowed in part, respectively, against the Complainant. The impugned order is modified as under.

The OP No. 2 is exonerated of all liabilities.  The OP No. 1 shall pay, within 40 days hence, a sum of Rs. 50,000/- to the Complainant along with simple interest @ 9% p.a. with effect from 07-01-2014 till full and final payment is made.  The OP No. 1 shall, within the aforesaid time frame, pay a further sum of Rs. 25,000/- as the litigation cost to the Complainant.