The facts set out in  the complaint in short   are as follows:

          On 17-1-2006 the complainant purchased 25 numbers of plywood  sheets from M/s. LMS enterprises, Kozhikodu and the same was despatched through  the opposite party on the very same day.  The complainant received the goods on 23-1-2006.  At the time of the delivery the complainant noticed the apparent damage caused to 22 numbers of plywood sheets and realized  that those perished goods could not be useful in  any manner to the complainant.  The same day itself  the complainant had given the notice of damage of the delivered goods to the opposite party through  their agent. The complainant paid Rs. 515/- as freight charge.  Due to the negligence and carelessness of the opposite party the complainant  sustained a loss of Rs. 16,399/- as the cost of the perished 22 numbers of  plywood sheets.  The damages caused to said goods during the transit was due to the negligence and deficiency in service rendered by the opposite party.  Thereafter the complainant  demanded  compensation  from the opposite party.  They did not pay any attention for the same.  Subsequently  the complainant caused to issue a  lawyer notice dated 22-3-2006  and the opposite party sent a reply notice stating  faulse and  untenable contentions.  Therefore the complainant filed this complaint seeking the following directions against the opposite parties.

1.    To direct the opposite party to pay Rs. 16,399/-  the exact amount of value for ;the damaged 22 nos. of ply wood sheets.

2.    To direct the opposite party to pay Rs. 515/- as freight charge as per receipt No. 009622 paid by the complainant.

3.    To direct the opposite party to pay interest at the rate of 18% per annum to the amount of Rs. 16,399/- as the value of 22 sheets of plywood to petitioner.

4.    to direct the opposite party to pay compensation of Rs. 5,000/- towards the loss, damages, mental tension and the cost of this proceedings to the petitioner.

2. Version filed by the opposite party is  as follows:

The complainant is not a consumer as defined in the Consumer Protection Act since the complainant is doing business and the service of this opposite party was availed by the complainant for commercial purpose.  On 17-1-2006 M/s. LMS Enterprises, Kozhikode had entrusted a consignment with this opposite party for delivering the same to the complainant.  The above consignment was delivered to the complainant at the destination without any complaint from him. The opposite party denied the allegation that 22 numbers of plywood sheets were delivered in damaged condition.  There was no survey report or open delivery certificate to the effect that this opposite party had delivered the consignment in a damaged condition. Opposite party admitted that the entire consignment was delivered to the complainant without any complaint.  There was no deficiency in service  as alleged by the complainant.  The opposite party further submits that the complaint filed by the complainant is an experimental one and the same deserves to be dismissal with exemplary costs of the opposite party since the consignment was  delivered to the complainant without demur.

3. Both parties appeared through the counsel.  Complainant was examined as PW1 and Exts. A1 to A5   and C1 to C3 were marked on his side.  Opposite party did not adduce oral or documentary evidence.  Heard the respective counsel.

4. The points that arose  for our determination are as follows:-

i.    Whether the complainant is a consumer or not?

ii.   Whether the complainant is  entitled to get the Price of the  goods in question and its  freight charges from the opposite  party?

iii. Compensation and costs if any?

5. Point No. i. Opposite party averred in the version that complainant is not a consumer as defined in the Consumer Protection Act.  This Forum has heard this point as preliminary issue and found that the preliminary objection raised by the opposite party is devoid of any merits vide order dated 11-7-2008.  The said order has not been challenged by the opposite party.  Therefore, further discussion in this  point is unnecessary.

6. Points Nos. ii&iii. The case of the complainant is that on 17-1-2006 M/s. LMS Enterprises, Calicut (as per Ext. A1) dispatched 25 numbers of plywood sheets through the opposite party in the address of the complainant.  When it was received the complainant found that 22 numbers of the consignment were damaged.  According to the opposite party, they entrusted the disputed goods and were duly delivered to the complainant in the same condition as it was entrusted with them.

Ext. A1 bill shows, that the transaction between the parties.  There is no dispute in respect of the transaction.  Ext. A5 credit bill issued by LMS Enterprises goes to show that the price of the  25 sheets is Rs. 18,630/-.  In Ext.  C1 commission report, it is mentioned that 15 numbers of plywood boards are shown to the commissioner and he reported that

“  15 (Fifteen) numbers of plywood boards are shown to the commissioner for inspection. The size of the Boards are 2440mm length x 1220mm width x 8mm thickness.  On the boards, there is a sticker showing the name and other details of the manufacturing company as BHUTAN BOARD, PRELAMINATED, GRADED WOOD PARTICLE BOARD. SHADE SLI- 142, GRADE TYPE PLB22, CO.No. 0512566 Bhutan Board Limited, Post Box No. 91, Bhutan”

 Thereafter commissioner reported that

“I  have inspected 15 numbers of plywoods and same brownish liquid substance is seen spilt over the plywood. In certain plywoods, these substance is seen on both surfaces and in certain plywoods it is seen only on one surface”.

  Ext. C2 series  Photographs of 15 plywoods were attached for showing the exact extent of the damage of both the surfaces of the same.

 More over commissioner reported that :-

“ But from the total appearance of the boards it can be assumed that the damage is having nearly two years of old”

We have perused Ext.  C1 report and the description mentioned in Ext. A5 credit bills.  It  shows that the commodities mentioned in both are  the same.  As per the available evidence before us  we are of the opinion  that opposite party was negligent in handling  the goods in question during  transit.  The said  negligent handling of the disputed plywoods by the opposite party tantamount to  deficiency in service on their part. As per the C1 report and  C2 series   photographs  show the extent of damages of 15 boards only. No evidence is before us to prove the damages sustained to the remaining 7 sheets.  Hence we are of the considered view that complainant is entitled to get Rs. 11178/- being the  price of 15 sheets of the plywood boards in question from the opposite party and are  not ordering refund of the freight charges. Since we have all ready  ordered the entire price of the 15 disputed plywoods. Considering the facts and circumstances of the case we are not ordering any compensation and costs of the proceedings.

7. Therefore we allow the complaint as follows:

The opposite party shall pay an amount of Rs. 11,178 being the price of the 15 plywood boards in question to the complainant. In that event the complainant shall return the said plywoods to the opposite party simultaneously.

The above said amount shall carry 9% interest from the day fixed for compliance of this order till realization.

          The above said order shall be complied with within a period of one month from the date of receipt of copy of the order.

Pronounced in the open Forum on this the 30^th day of June 2010