Per Shri P.B. Joshi, Hon’ble Presiding Judicial Member

          Being aggrieved by the order in consumer complaint No.105/2010 passed by Addl. District Forum, Pune, partly allowing the complaint, present appeal has been preferred by the original complainant.

2.       The facts necessary for deciding this appeal can be stated as under :-

          Prakash Agro Exports-complainant and present appellant has sent some grapes to U.K. and relevant documents were given to the opponents.  There was mistake on the part of the courier, the agent of opponents while sending those papers and ultimately, there was delay in reaching the necessary documents to Port and because of that the complainant suffered loss because of demurrage and complainant also suffered loss as the quality of the goods was so reduced that the complainant could not get proper rate of the goods.  Hence, complainant filed consumer complaint against the opponents for deficiency in service and claimed compensation of Rs.13,32,000/- and interest thereon and also claimed Rs.5 Lakhs on account of mental pain and agony and Rs.50,000/- for cost of litigation.

3.       Opponents resisted the complaint by filing written version and raised different objections, however, have not disputed about mistake on the part of the courier, agent of the opponents. However, opponents contended that the amount claimed by the complainant is exorbitant and prayed for dismissal of the complaint.

4.       Considering the rival contentions of the parties and evidence led by the parties, Learned District Forum partly allowed the complaint and granted damages of Rs.2,46,000/- and interest thereon @ 12% p.a. and Rs.15,000/- on account of mental agony and Rs.5,000/- towards cost of complaint.  It is against this order the complainant came in appeal.

5.       It was contended by Advocate for the appellant/complainant that Learned District Forum has not considered the evidence led by the complainant about loss suffered by the complainant and prayed that appeal be allowed and compensation as claimed Rs.13,32,000/- is to be granted to the appellant.  Advocate for the respondent supported the order in appeal and prayed for dismissal of the appeal.

6.       Considering the rival contentions of the parties, record and scope of the appeal, following points arise for our consideration and our findings thereon are noted as against them for the reasons herein below:-

REASONS

7.       Point No.1:- From the record and from the submissions made before us, it is very clear that the District Forum has concluded that there was deficiency in service on the part of the opponent.  It is germane to note that the opponents have not challenged the even said finding of Learned District Forum.  Thus, point of deficiency of service has become final.  Now, question remains about quantum of loss suffered by the complainant because of said deficiency.  Learned Advocate for the appellant has submitted that respondents have filed a suit against the courier and claimed the amount more than what is claimed by the complainant from the opponents.  We find that that aspect is irrelevant for deciding this appeal.  The reasons is that claim of the complainant is to be decided on the basis of evidence led by the complainant and not on the basis of what the opponents had claimed from the courier.

8.       The complainant has claimed Rs.3,54,375/- on account of demurrage.  It was submitted that because of deficiency in service on the part of opponents, necessary documents did not reach the destination within the time expected and because of that goods were retained at the Port and therefore, complainant was required to pay demurrage of Rs.3,54,375/-.  The complainant is claiming that amount from the opponents.  Advocate for the respondents has submitted that no receipt of demurrage is filed on record to support that the complainant was required to pay that amount. Advocate for the complainant has drawn our attention to the letter issued by buyer of the grapes.  Copy of said letter has been filed at page-83 which shows that Containers were left on the Port for more than 21 days due to delay in getting original documents.  This has resulted in a demurrage charges of GBP 1575/- per container, the total GBP 4275/- as per complainant and it is equivalent to Rs.3,54,375/-.  That is mentioned in a letter addressed by the complainant to opponents and which is at page-97 of the appeal compilation.  The complainant is entitled for said amount as the said amount was required to be paid by the complainant as demurrage because of deficiency in service on the part of the opponents. 

9.       Advocate for the appellant has submitted that because of delay of 21 days in reaching original documents, purchaser could get the goods late by 21 days and because of that quality of the grapes was deteriorated resulting into reducing the price from GBP 13.50 to GBP 4.25 per carton.  Learned Advocate for the appellant submitted that the appellant/complainant suffered loss at the rate of GBP 9.25 per carton.  There were 1600 cartons.  Bill of Lading is at page-46 which shows that there were 1600 cartons and that is not disputed part.  Advocate for the appellant claimed that the appellant/complainant is entitled for 1600 × GBP 9.25 which comes to GBP 14,800/- amounting to Rs.11,10,000/-.  Learned Advocate for the respondents has submitted that there is no document on record to show that rate of the goods at the relevant time was GBP 13.50 per carton.  Learned Advocate for the respondents has drawn our attention to Invoice which is at page-68 which shows that rate FOB STG was GBP 6.30/-.  Learned Advocate for the appellant submitted that rate shown in the said Invoice is not the rate at which the goods will be sold.  Rate of selling goods will depend upon the day on which the goods will be sold.  Learned Advocate for the appellant has drawn our attention to the letter of buyer of grapes addressed to appellant/complainant which is at page-83 which we have already referred to.  It is mentioned in the said letter that delay also caused deterioration of quality and had resulted in selling 1600 cartons in wholesale market at GBP 4.25 instead of GBP 13.50 which was prevailing rate at that time.  We find that said letter of the buyer of the grapes addressed to the complainant is sufficient material on the point of prevailing rate of the grapes at the relevant time and the fact at which rate the grapes were sold because of deterioration of the quality.  Thus, it is clear that the appellant/complainant suffered loss at the rate of GBP 9.25 per carton.  Admittedly, 1600 cartons were sent and total loss comes to 1600 × GBP 9.25 which comes to GBP 14,800/- amounting to Rs.11,10,000/-.  Thus, we find that complainant/appellant is entitled for the said amount because of deterioration of the grapes due to delay in reaching the original documents; price of the goods was reduced as discussed above.

10.     The complainant/appellant claimed Rs.1,33,200/- on account of commission deducted by the concerned party.  We find that the complainant/appellant is not entitled for the said amount as because of deficiency in service on the part of opponents, said deduction was not done, but it was a commission of the concerned party.  In any case, appellant/complainant has to pay the said commission and complainant cannot claim that amount from the opponents.  Thus, appellant/complainant is not entitled for the said amount which is claimed as deducted by the respondents as commission.  In view of the discussions above, appellant/complainant is entitled for Rs.3,54,375/- on account of demurrage required to be paid by the complainant and Rs.11,10,000/- the loss sustained by the complainant because of reduction of the rate of grapes due to deterioration of the quality of the grapes.  Thus, the complainant/appellant is entitled for total amount of Rs.14,64,375/-.  We find that the District Forum has rightly granted Rs.15,000/- on account of mental agony and Rs.5,000/- on account of cost of litigation.  There is no reason to interfere that part of the order.  Thus, appellant/complainant is entitled for Rs.14,64,375/- in place of Rs.2,46,000/- as granted by the District Forum on account of loss suffered by the complainant in addition to what is granted by the Learned District Forum on account of mental agony and cost of litigation.  Hence, we answer point No.1 accordingly.

11.     Point No.2:-  In view of answer of Point No.1, appeal deserves to be partly allowed.  Hence, we pass the following order :-

                             -: ORDER :-

1.Appeal is partly allowed.

2.Appellant/complainant is entitled for Rs.14,64,375/-[Rs.11,10,000/- on account of loss suffered by the appellant/complainant + Rs.3,54,375/- on account of demurrage] and interest thereon @ 12% p.a. from the date of complaint i.e. 12/08/2010 till realization.

3.Appellant/complainant is entitled for Rs.15,000/- on account of mental agony and Rs.5,000/- on account of cost of litigation as granted by District Forum.

4.Appellant/complainant is also entitled for Rs.10,000/- as cost of this appeal.

5.Copies of the order be furnished to the parties.

Pronounced

Dated 5^th November 2014.