West Bengal

Siliguri

CC/2013/32

M/S KHUSHI COLLECTION - Complainant(s)

Versus

THE MANAGER, Nicto Roadways - Opp.Party(s)

25 Mar 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 32/S/2013.                  DATED : 25.03.2015.                 

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBER                : SRI PABITRA MAJUMDAR.

 

COMPLAINANT                      : M/S KHUSHI COLLECTION,  

                                                              A proprietorship firm under the           

                                                              proprietorship of Sri Jai Kumar Agarwal,

                                                              S/O Sri Kishore Kumar Agarwal,

                                                              Having its registered office at Narendra 

                                                              Complex, 2^nd Floor, Hill Cart Road,

                                                              P.O. & P.S.- Siliguri, Dist.- Darjeeling.  

                                                              

 

O.Ps.           1.                : THE MANAGER, 

                                                              Nicto Roadways,

                                                              A unit of Nicto Logistic (P) Ltd.,  

                                                              Near Lions Eye Hospital, Sevoke Road,  

                                                              P.O. & P.S.- Siliguri, Dist.- Darjeeling.

 

                                    2.                     : THE MANAGING DIRECTOR 

                                                              Nicto Logistic (P) Ltd.,  

                                                              Nicto House, Talab Tillo Road, 

                                                              P.O. + P.S.- Jammu, District- Jammu, 

                                                              Jammu & Kashmir. 

                                                                                

                                                                                                                                                                                                

FOR THE COMPLAINANT         : Sri Arun Mishra, Advocate.

 

FOR THE OPs                                  : Sri Vikash Lhoani, Advocate.

 

J U D G E M E N T

The whole matrix of complainant case germane in the petition is depicted in sequence basis as follows :-

The petitioner booked one bundle of cloths through OP No.1 having office at 1^st Floor, Radha Krishna Tex Market, Surat, Gujrat, and paid a sum of Rs.570/- as freight Charge, labour charge, door delivery charge and Surcharge.  The price of the said bundle was Rs.47,200/-.  The OP did not deliver the said bundle to the consignee reason best known to

Contd.....P/2

-:2:-

 

him.  The complainant made enquiry but did not get any satisfactory answer, on repeated times.  In the month of August, 2012, the complainant met with OP No.1, and came to know that very soon bundle would be traced.  In the month of September, 2012, raised the matter before OP No.1 and 2 but did not get pleasant reply.  On 15.12.2012, the complainant got information from OP No.2 to negotiate the matter as per notification of Ministry of Road Transport & Highways.  The complainant expressed his willingness but OP No.1 did not act properly.  The said bundle contained the garments despatched through OP No.1 to deliver the same to the consignee.  On 31.01.2013, the complainant issued lawyer’s notice to the OP No.1 & 2 which was received by the OP No.1 on 02.02.13 and 05.02.2013 respectively.  After that the complainant visited the office of the OP, but was not satisfied.  The complainant suffered a huge loss and injury due to deprivation loss of money.  Hence, the complainant filed the case claiming value of booked good of Rs.47,200/-.

The OP filed a written statement denying inter-alia all the material allegations and stated that the Company being a “common carrier”, all disputes regarding liability for loss of consigned goods shall come under the purview of The Carriage by Road Act, 2007.  The OP did not get any notice under section 16 of Carriage by Road Act, 2007, within 180 days.  The OP also quoted Section 10 & Section 12 of the Carriage by Road Act & Rules.  The further case of the OP is that OP Company proposed compromise in accordance with the prevailing law governing the same.  It is submitted by the Nitco Logistic Pvt. Ltd. that the said company is a reputed and ISO 9001-2008 Certified Company dealing goods all over the country.  So, there exists a possibility of a few consignments getting lost.  However, the same cannot be construed as malafide.  Under the fact and circumstances, the complainant’s case is liable to be dismissed.

The complainant has filed cash memo and letter dated 15.12.2012 No.C/445/223 addressing the complainant regarding intimation of loss.

 

Contd.....P/3

-:3:-

 

The complainant has also filed lawyer’s notice dated 31.01.2013 and acknowledgement of letter and A.D. card.

 

Point for decision

 

1.       Whether the complainant sent the goods as per petition to the OPs. 

2.       If so, what the amount of compensation. 

 

Decision with reason

 

Perused the complaint. 

Perused the written version. 

We have gone through the documents filed by the complainant.

It is admitted position that the complainant sent the consignment to the OPs.  OPs admitted that the said goods have been lost.

OPs’ explanation is that they are doing huge business.  So, there is possibility of such loss.  In their language in written version “there exists a possibility of a few consignments getting lost”.

On the premise above, in presence of above material and documents, it is settled that complainant’s complaint is true.  The price of the booked consignment of Rs.47,200/- has not been paid by the OPs. 

It is case of the OPs is that as per Section 10 of Carriage by Road Act, 2007, and Rule 12 (1) and Rule 12 (9) of the Carriage by Road Rules, 2011, shows that in absence of any cogent reason, the common carrier shall pay total loss. 

So, after considering the both sides, and documents therein, it appears that complainant has succeeded to prove his case i.e., the consignment did not reach to the complainant.  As the carriers failed to establish their defence that loss was not occurred due to default on behalf of the OPs. 

The case succeeds. 

Now it is necessary to fix quantum of compensation or more correctly quantum of award.

Contd.....P/4

-:4:-

 

The price of the consignment is Rs.47,200/-.  The complainant is entitled to get it.  With this amount, some amount of compensation and litigation cost would be awarded to the complainant. 

This Forum allows Rs.5,000/- towards mental pain, agony and harassment suffered by the complainant.  Towards litigation cost and professional fees and cost of lawyers notice Rs.5000/- will be sufficient.

Hence, it is 

                   O R D E R E D

that the Consumer Case No.32/S/2013 be, and the same is hereby, allowed on contest, with cost.

The complainant is entitled to get Rs.47,200/- towards the value of the booked consignment.

The complainant is further entitled to get Rs.5,000/- towards mental pain, agony and harassment and for litigation cost, professional fees and cost of lawyer’s notice. 

The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay Rs.47,200/- by issuing an account payee cheque in the name of the complainant for the value of booked consignment within 45 days of this order. 

The OP Nos.1 & 2 also directed to pay Rs.5,000/- by issuing an account payee cheque in the name of the complainant for his mental pain, agony and harassment and for litigation cost, professional fees and cost of lawyers notice within 45 days of this order.

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

                            -Member-                           -President-