<br /> By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This is a complaint filed for realization of Rs.26,000/- towards value of goods with compensation and costs.<br /> <br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant was an unemployed person and he started a small venture of selling textile goods to the public on instalment basis as a self employment to earn the livelihood. On 23.7.2005 the complainant booked two bundles of high quality sarees from Surat as per receipt No.40549425 to deliver it at Karunagappally with the Surat branche of the opp.parties and the company assured prompt and safe delivery. The complainant has booked these goods anticipating that it can be promptly sold among the public during Onam festival. On 18.8.2005 the complainant approached the opp.party for taking deliver of the goods. On verification of the parcels in the presence of the 2nd opp.parties, it was found that the parcel were damaged and the bundle was filled with water. The parcel cover and the tightening string were broken. The material contained in the above package became a substandard merchantable quality which cannot be offered for sale. On 20.8.2005 the complainant issued a legal notice to the opp.party for which the first opp.party had send a replay notice admitting the details of the transaction stating that the company is not responsible because the goods were damaged due to the flood at Mumbai. The goods were damaged due to the negligence, irresponsible and indifferent act of the company authorities. The complainant had booked the article from Surat in Gujarat and not from Mumbai. The goods were damaged due to the careless and negligent handling of the parcel bundles and not due to flood in Bombay. There is gross negligence and deficiency in service on the part of the opp.parties. The opp.parties are liable to pay compensation to the complainant. Hence the complaint.<br /> <br /> The opp.parties filed a joint version contending, interala, that the complainan t is not a consumer within the meaning of Consumer Protection Act. There is no negligence or deficiency in service on the part of the opp.parties. There is no consumer dispute warranting the interference of this Forum. The complaint is bad for non jointer of necessary parties. The complainant has not approached the Forum with clean hands, which disentitles him from claiming or getting any reliefs under the Act. This Forum lacks jurisdiction to entertain the complaint. Only the courts in Calicut city alone have jurisdiction to entertain any claim because the parties had agreed for the same. Under clause NO.5 of the agreement the opp.parties will not be liable for any loss or damages due to pilferage, theft, weather conditions, strikes, riots, disturbances, fire, explosion or accident. Therefore, the complaint is not maintainable. The services of the opp.parties were availed by the complainant for commercial purpose. It was M/s. Rahul Trading Company, Surat who had availed the services of the opp.parties after paying the consideration. The complainant has not availed the services of the opp.parties. There is no privity of contract between the complainant and the opp.parties. M/s. Rahul Trading Company, Surat had entrusted a consignment of two poly gunny bundles stating it to be textile goods having a declared value of Rs. 26,600/- weighing 79 kg. on 23.7.2005 to be delivered to the complainant at Karunagappally. M/s. Rahul Trading Co. aforementioned had paid a sum of Rs.380/- as the freight charge . The usual mode and route of transport of consignments from Gujarat to South Indian destinations is through the transshipment point at Thane, Mumbai namely the Bhiwandi Godown, from where it will be further transported to the respective destinations.. But on 26th and 27th July 2005 there was unexpected and unanticipated, unprecedented heavy torrential rains at Mumbai and Thane area was inundated with water. Flood water rose to higher levels and it damaged the entire consignments kept inside the Godown awaiting shipment. The torrential rains and consequent flooding were never contemplated or anticipated by anybody and beyond the control of all. Such flash floods is a natural calamity . The leading new papers had reported the same to be the 8th heaviest 24 hour rainfall. The flood made it impossible for the opp.parties to perform their part of the contract for the said supervening impossibility and any loss or damage caused on account of the reasons beyond the control of the opp.parties they cannot be held liable or responsible. It is the act of God which was beyond the control of anyone, and hence nobody could be found fault with for the same. Once the water receded and flood subsided the goods were further transported to the respective destinations. The consignment aforementioned was received at the Karunagappally office of the opp.party on 18.8.2005 in a wet condition. It was duly intimated to the complainant. The complainant thereupon refused to take delivery of the same and demanded huge amounts as alleged compensation. The opp.parties had expressed their inability to comply with the requirement made by the complainant . Thereafter the complainant had caused a registered lawyer notice setting out untrue, untenable and unsustainable allegations and claims for which the 1stg opp.party issued a reply notice dated 6.9.2005 . The complainant is attempting to make unjust enrichment at the expense of the opp.parties over an unfortunate incident which happened beyond the control of any one. The allegation that the complainant was an unemployed person, that he started the venture of selling textile goods to the public on installment basis as a livelihood is not correct. The allegation that the petitioner on 23.7.2005 booked two bundles of high quality sarees from Surat to be delivered at Karunagappally, that the articles were entrusted with the Surat branch of the company are also not proper correct or sustainable The complainant is known have to be having substantial business and is doing the same engaging many workers. The complainant is not earning his livelihood by means of self employment.. The contents of the consignment were never disclosed. Entrustment was done by M/s. Rahul Trading Co., Surat. The allegations that the goods were damaged due to negligence, irresponsible and indifferent act of the company are false and hence denied. The complainant is not entitled to get any of the reliefs nor the opp.parties are liable for the same. The reliefs claimed are excessive. The total claim made by the complainant in his lawyer notice was only Rs.40,000/- whereas in the complaint he seeks more than Rs.76,000/- which would evidence the falsity and baseless nature of the claim. Hence opp.party prays to dismiss the complaint with cost.<br /> <br /> Points that would arise for consideration are:<br /> <br /> <br /> [1] Whether the complainant is a consumer.<br /> [2] Whether there is any deficiency in service on the part of the opp.parties<br /> [3] Reliefs and costs.<br /> <br /> <br /> For the Complainant PW.1 is examined and Ext.P1 to P6 are marked.<br /> <br /> <br /> For the opp.party DW.1 is examined and Ext.D1 to D5 are marked.<br /> <br /> <br /> Point 1 <br /> <br /> The contention of complainant is that he is a consumer earning his livelihood by way of self employment by door to door delivery on instalments of textile goods . He purchase goods from Surat and as he has no address at Surat he used to send it through Rahul Trading Company and he himself is paying the freight charges. According to the opp.parties the complainant is not the consignor of the goods but Rahul Trading Com. is the consigner and they are not made party who should be the aggrieved. In cross examination a suggestion was made to PW.1 as to whether he can produce the consigner copy of Ext.P1 and the complainant produced the same which is marked as Ext.P6. Had it not been send by PW.1 he would not have been in possession of the same and could not have produced the same. Had Rahul Trading Co. was, infact, the consignor Ext.P6 would have been in their possession and PW.1 would not be in a position to produce the same. So in our view there is nothing to disbelieve the version of PW.1 and we hold that the complainant is a consumer within the meaning of Sec. [1][d] of Consumer Protection Act. Point found accordingly.<br /> <br /> Point 2: There is no dispute that the consignment as per Ext.P1 was booked on 23.7.2005 at Surat and the same was to be delivered at Karunagappally. The evidence produced by the opp.party shows that the same was despatched from Surat only on 25th July to Bhiwandi in Mumbai and not to Karunagappally. No explanation is offered for the delay of 2 days in dispatching the same from Surat. The case of opp.party is that they dispatched the goods on 25.7.07 to Bhiwandi as the usual mode of transport of consignment from Gujarath to South Indian destinations is through the shipment point at Thane, but due to unprecedented heavy torrential rain on 26.7.07 entire Mumbai was flooded and the consignments kept in the go down were damaged. The natural calamity due to act of God was beyond the control of anyone and so the opp.party cannot be held liable. The goods were received by the opp.party on 23.7. 07. The same was dispatched only on 25/7/07. As pointed out earlier there is no satisfactory explanation for the delay. There is also nothing to show that complainant was informed of the fact that the goods would be send through Mumbai. Had the goods been despatched on the same day or on the next day the same would have passed Mumbai prior to 26.7.07 even assuming that Mumbai is their transshipment route. The goods were damaged as they were brought to Mumbai and kept in the go down there for which the opp.party alone is responsible. The delay in despatching the goods, as argued by complainant, is deficiency in service . The learned counsel for the opp.parties would argue that the consignment was accepted at owner risk and as per clause 4 of Ext.P1 the opp.parties are not liable . That argument cannot be accepted. The goods were damaged only because the same were taken to Mumbai. There is absolutely nothing to show that the complainant was informed at the time of booking that the transshipment would be routed through Mumbai. No material worth believable was also produced to establish that the transshipment route from Surat is through Bhiwandi in Mumbai Clause No.4 on the reverse side of Ext.P1 has no application herein as the goods booked to Karunagappally were unnecessarily delayed and also taken to Mumbai. Due to the damage to the goods the complainant sustained loss is obvious.. Therefore, we hold that there is deficiency in service on the part of the opp.parties.<br /> <br /> The complainant submitted that he has booked the goods anticipatory the sale during the Onam season 2005. But due to the delay and the damaged goods delivered spoiled his business, he was anticipating. In these circumstances we are of the view that there is deficiency in service on the part of the opp.party which resulted the damages to complainant.<br /> <br /> <br /> In the result we direct the opp.party to pay the complainant Rs.26,000/- being the value of the consignment and Rs.10,000/- towards compensation and costs. <br /> <br /> Dated this the 19th day of July, 2008.<br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1 –Sreenivasan<br /> <br /> List of documents for the complainant<br /> P1. – Booking receipt<br /> P2. – Advocate notice<br /> P3.[ series] – Postal receipts<br /> P4.[series] – Acknowledgement cards<br /> P5. – Copy of reply notice<br /> P6. – Lorry receipt issued by Kerala Transport Co.[ Regd.]<br /> <br /> List of witnesses for the opp.party<br /> DW.1 - MR Muraleedharan Pillai<br /> <br /> List of documents for the opp.parties<br /> D1.- Receipt dated 23.7.2007<br /> D2. – Times of India dated 28.7.2005<br /> D3. – Times of India dated 29.7.2005<br /> D4. – Times of India dated 2.8.2005<br /> D5. – Photographs<br />