BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Sri R.Ramachandra Reddy B.Com., LL.B., Member
Wednesday the 31st day of May, 2006
CC No.19/2006
B.Srinivasa Upadhyaya, S/o Late B.L. Upadhyaya, Aged about 41 years,
R/o H.No.51-1005, U/S, SBI Colony, Near Seetharamanagar Colony, Kurnool.
. . . Complainant
-Vs-
1. The Branch Manager,
Vijayanand Road Lines Ltd., PORUR.
2. The Branch Manager,Vijayanand Road Lines Ltd.,
Near Bellary Chowrastha, N.H.7,Kurnool.
3. Chayamadam, Customer Care Varur,
Hubli, Karnataka.
4. D.C. Tiwari Circuit House Road,
Hubli, Karnataka. . . . Opposite parties
This complaint coming on this day for Orders in the presence of complainant represented by in person and Sri. G.Naga Ramesh, Advocate, Kurnool for opposite parties No.1 to 4, and stood over for consideration, till this day, the Forum made the following.
O R D E R
(As per Sri.K.V.H.Prasad, Hon’ble President)
1. This case of the complainant is filed seeking direction on the opposite party for return of the cotton box with the articles mentioned there in or otherwise the cost of the articles with 24% interest from the date of booking the articles and compensation for mental agony and costs of this case. The complaint alleges that he has booked his house hold articles i.e. 16 cotton boxes, 5 gunny bundles, 1 berva (almarah), 1 table and 1 brief case in V.R.L. Transport from Chennai to Kurnool on 26-10-2005 vide Lr.No.69118217 X24 paying Rs.1,857/- as fright charges and when he went to take delivery of said consignment in Kurnool branch he came to know the missing of one cotton box which was containing micro woven, water heater, pingani dinner set and steel vessels set and some cloth and bed sheets all worth Rs.11,000/-. He also found the booked brief case was opened and some cloths were missing and his berva was also damaged. Inspite of his persuasive approaches the opposite parties has not responded properly with their reckless and negative conduct and responded only to his letter dated 5-1-2006 by the replied dated 11-1-2006 that the efforts are being in continuance for tracing the missed articles and it will be sent shortly to Kurnool. There after there was no response from the opposite parties and he has incurred about Rs.500/- in making enquiries with opposite parties by phone. On account of the missing articles he was constrained to be a paying guest with his relative paying Rs.4,000/- per month from last October.
2. In pursuance of the receipt of the notice of this Forum as to this case of the complainant the opposite parties 1 to 4 caused their appearance through their counsel and while the opposite party No.2 filed its written version the other parties adopted it.
3. The written version of the opposite party No.2 even though admit the booking of articles by complainant as alleged in the complaint denies of the value of the missed article as Rs.11,000/-. As the complainant has not declared its value while booking the consignment and not furnished any bills as to their value and the said consignment was booked at Chennai under the owners risk. It questions the locus standie of the complainant to file the case at Kurnool as the complainant has booked his articles at Chennai and representations were also made to Chennai. It alleges that the complainant has not taken delivery of consigned articles and the consignment sent by Chennai office consequent to its letter dated 11-1-2006 with malafide intention. As the complainant has not declared the detail particulars of the items in booked consignment and there value and not placed any material proving its value the complaint is not maintainable and so seeks the dismissal of the case with costs.
4. In substantiation of the above contentions while complainant side has relied upon the documentary record in Ex.A1 to A4 and his sworn affidavit and replies to the interrogatories exchanged, the opposite party side except filing its sworn affidavit in reiteration of its contentions did not even actively participate in contesting the case.
5. Hence the point for consideration is whether the deficiency of service of the opposite parties is made out by the complainant as to assess the liability of the opposite parties for the complainant’s claim.
6. The Ex.A1 is the consignee’s copy it dates to 26-10-2005 showing the complainant as consigner at Chennai and himself only as consignee at Kurnool to receive the articles booked there in. It envisages the booking of 16 cotton boxes, 5 gunny bundles, 1 berva, 1 table and 1 brief case containing house hold articles in all totaling 24 items. It also envisages collection of Rs.1,857/- as fright charges for booking said consignment at Chennai for its transport to Kurnool by the opposite party. As the booking of the said consignment being not denied by the opposite parties the said consignment in Ex.A1 remains proved.
7. The Ex.A2 is the letter addressed to the opposite parties by the complainant on 5-1-2006 as to the said missing of the article of the consignment and its value and on account of said missing article his paying Rs.4,000/- per month as paying guest and requesting the settlement of the problem within 10 days or otherwise his constraincy to proceed legally at the cost of the opposite party. The Ex.A3 is bunch of 4 acknowledgements under which the opposite parties received the notices in Ex.A2. The Ex.A4 is the reply dated 11-1-2006 of the opposite party to the Ex.A2 of the complainant reducing there under to trace out the said missing consignment and sending it shortly to Kurnool branch to take delivery and regretting for the inconvenience caused at the short delivery of said consignment. The opposite party except reiterating its written version in sworn affidavit has not placed any such cogent material by which it can justify the non-delivery. The terms and conditions printed on the reverse of the Ex.A1 is uni lateral and arbitrary to the advantage of the said carrier and it doesn’t bind the complainant as the said carrier has not taken any acknowledgment of the same by the complainant said to bind him. The terms and conditions are arbitrary because it is the carrier who has to take care of the consignment till its safe delivery to the consignee being in custody of the consigned articles from the time of booking till its delivery and there by there booking at owners risk especially when the owner is not participating in said transit remains without any force.
8. In para No.4 of the written version it is mentioned that the complainant has not taken delivery of the consignment articles mentioned in the consignment and they are still lying undelivered at Kurnool branch. If the consignment articles are tact and no damage to any of its articles is there and the complainant is a default in taking delivery of this consignment articles including the missed traced out and sent to Kurnool nothing would have prevented the opposite parties in placing before the Forum for appreciation of its stand and the deficient conduct of the complainant.
9. The perusal of the Ex.A1 indicates any column for mentioning the value of the consignment articles. Nor any terms and conditions printed on reverse of the Ex.A1 contemplates the declaration of the value of consignment by the consigner at the time of its booking and in otherwise the contingency of the non liability of the said carrier. Further as the Ex.A1 says the nature of articles booked as house hold articles it will be difficult to have any documentary proof of the value of said articles. Hence there appears no merit and force in the said contentions of the opposite party as to the declaration of the value of the articles and its liability only when its value is proved. Therefore there appears liability of the opposite parties to make good of the value of the articles in missed cotton bundle in case of their failure to hand over the missed cotton bundle which was containing the items stated by the complainant.
10. Even though the clause no.13 of the terms and conditions in Ex.A1 says the Court in Hubli City alone shall have the jurisdiction in respect of all claims and matter arising under the consignment are of the goods entitled for transport the said clause doesn’t limit the jurisdiction of the Forum as the consumer protection Act provides jurisdiction to the Forum under section 11 (c) where the cause of action wholly or in part arises and in the present case the cause of action to the complainant has arisen in Kurnool when the opposite parties fail to deliver the consignment as booked.
11. The complainant alleges as the delivery of consignment did not took place at Kurnool as expected he himself and his family were constrained to be as paying guest with their relatives at a rate of Rs.4,000/- per month since last 3 months. In support of said contention the complainant files a supporting sworn affidavit of one Geetha W/o Late Gopalakrishna of Kurnool to that effect and the said affidavit was not discredited by the opposite party and hence the said contentions of the complainant is remaining substantiated to the liability of the opposite party to make its good of to the complainant.
12. The opposite parties conduct at the complainant in either not delivering the consignment as expected or in proving their diligent and prudent conduct at the matters and establishing their bonafidies and the fitness of the consignment for being delivered to the complainant and its retention without any justifiable reason as ensues mental agony to the complainant the liability of the opposite parties remains to pay compensation for it. As the opposite parties has driven the complainant to seek his redressal in Forum the liability of the opposite parties lies to make good of the costs of the litigation to the complainant.
13. Consequently, the complaint is allowed directing the opposite parties jointly and severally to deliver the articles of consignment as in the state of its booking immediately along with an amount of Rs.10,000/- as compensation and Rs.4,000/- per month paid by the complainant as paying guest since October 2005, and Rs.1,000/- as costs of this case and in default of delivering the missed cotton bundle with its articles mentioned by the complainant the opposite parties jointly and severally shall pay to the complainant an amount of Rs.11,000/- in addition. Time for compliance of the supra stated award one month from the receipt of this order. In default of compliance as stated above the opposite parties jointly and severally shall be liable to make good of the award with 12% interest per annum from the date of said default till realization.
Dictated to the stenographer, transcribed by him, corrected and pronounced by us in the Open Forum this the 31st day of May, 2006.
PRESIDENT MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: For the opposite parties: Nil
Exhibits Marked for the complainant:
Ex.A1 Consignee’s copy of Vijayanand Road Line Ltd., (VRL) Dt.26-10-2005 for
Rs.1,857/-
Ex.A2 Office copy of notice addressed to opposite parties 1 to 4, Dt.5-1-2006.
Ex.A3 Postal acknowledgements (Number in 4)
Ex.A4 Reply letter, Dt.11-1-2006 of opposite party No.4 to Ex.A2 notice.
Exhibits Marked for the opposite parties: Nil
PRESIDENT MEMBER
Copy to:-
1. B.Srinivasa Upadhyaya, S/o Late B.L. Upadhyaya, Aged about 41 years,
R/o H.No.51-1005, U/S, SBI Colony, Near Seetharamanagar Colony,
Kurnool.
2. Sri. G. Naga Ramesh, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties on:
