Andhra Pradesh

Chittoor-II at triputi

CC/51/2016

M/S Sri Mahalakshmi Pharma, Tirupati,rep. by its Prop. Rahul Jandhyala - Complainant(s)

Versus

The Manager, Professional Couriers, - Opp.Party(s)

P.Balaram, M.Vasudevarao

04 Nov 2016

ORDER

Filing Date: 31.05.2016

Order Date:04.11.2016

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

FRIDAY THE FOURTH DAY OF NOVEMBER, TWO THOUSAND AND SIXTEEN

 

 

 

C.C.No.51/2016

 

 

Between

 

 

M/s. Sri Mahalakshmi Pharma, Tirupati

Rep. by its proprietor Rahul Jandhyala,

D.No.6-186, Dhanalakshmi Nagar,

R.C.Road,

Tirupati.                                                                                             … Complainant

 

 

 

And

 

 

The Manager,

Professional Couriers,

14-2-158, A&B, T.P.Area,

(Near T.P.P.M.High School),

Tirupati.                                                                                             …  Opposite party.

 

 

 

 

            This complaint coming on before us for final hearing on 21.10.16 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.P.Balaram, counsel for complainant, and Sri.G.Ramaiah Pillai, counsel for the opposite party, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Sections – 12 & 14 of C.P.Act 1986, by the complainant for the following reliefs against the opposite party 1) to direct the opposite party to pay a sum of Rs.2,31,245/- with interest at 24% p.a. to the complainant towards deficiency in service, negligence and unfair trade practice on the part of the opposite party, 2) to direct the opposite party to pay Rs.5,000/- towards costs of the litigation.      

            2.  The averments of the complaint in brief are:-  that the complainant handed-over a consignment to the opposite party consisting of medicines for transport and delivery of the same to SSBS Medical Agencies, Nellore, by booking the same in the office of the opposite party at Tirupati on 20.11.2015, vide their Docket No.TPT 149629 and submitted way bill bearing No.371511206243824 to the opposite party. The value of the consignment is clearly mentioned in the way bill, but the said consignment was not delivered so far to the consignee. The goods are worth of Rs.1,30,649/- including tax, as per the invoice raised. The complainant reported to the opposite party several times about non-delivery of the consignment by way of letters dt:30.11.2015, 14.12.2015 and also by e-mails dt:07,01.2016, 09.01.2016, 12.01.2016, 22.01.2016, 11.02.2016, 09.03.2016, 10.03.2016, 11.03.2016, 12.03.2016 and 22.03.2016, but in vain. Due to the negligence, unfair trade practice and deficiency in service on the part of the opposite party, the complainant suffered loss as detailed below:

1.	Cost of the lost consignment containing medicines	1,30,649
2.	Loss of business (Worth)	3,245
3.	Expenditure towards trace out of consignment	10,000
4.	Mental agony suffered by the complainant	1,00,000

     

            The complainant got issued legal notice to the opposite party on 31.03.2016, calling upon the opposite party to compensate the loss. Opposite party received the notice and gave reply with false allegations. Hence the complaint.

            3.  The opposite party filed its written version admitting that the complainant – company, booked drugs and medicines on 20.11.2015 through our courier service, for being delivered to SSBS Medical Agency, Nellore, under consignment No.TPT149629, in a closed parcel without mentioning the value of the goods or any declaration made. The weight of the parcel is 5.6 kgs. That it is mentioned in the consignment note that the booking is non-negotiable consignment subject to standard conditions of carriage and carries liability limited to Rs.100/- per consignment. According to the terms 1) the consignors are to insure parcels containing valuable things, 2) the liability in case of any loss or damage shall not exceed to Rs.100/-,        3) the courier company shall be liable for any loss incurred due to causes beyond its control such as floods, fire, theft, war etc., 4) the professional courier is also not liable for any loss, mis-delivery or damage, to any article sent through them, except to the extent of Rs.100/- and 5) the consequential damages are excluded.

            4.  As per the consignment copy booked by the complainant on 20.11.2015, the declared value of the goods are not furnished, but claimed the value of the medicines as Rs.1,30,649/-. Had the opposite party known the value of the goods at the time of booking by the complainant, the opposite party would have insisted the complainant to insure the consignment, to cover damages if any. That the complainant – company, earlier on 17.11.2015 booked a consignment containing drugs to be delivered to M/s. Sridhar Medicals, Nellore, duly covered by insurance, which were lost during the transit. Therefore, shortage certificate was issued by the opposite party and claimed damages for Rs.41,384/-, which was covered under insurance. In the present case, consignment was booked and its value is claimed to be Rs.1,30,649/- without securing insurance coverage. Opposite party further contended that during the relevant period i.e. November 2015, there were heavy rains, roads were devastated paralyzing the traffic. The fact was intimated by the opposite party by its letter dt:09.12.2015 stating that due to heavy rains, some parcels were mis-routed to some other places. They have deputed their men to trace-out the missed parcel, and if they were traced-out the missed parcels, it will be informed. The opposite party also informed the same again by another letter dt:29.12.2015 and 09.01.2016. Despite their best efforts, they could not trace-out the missed parcels and they were beyond their control. That the liability of the opposite party in respect of loss of consignment, which is beyond their control is only limited upto Rs.100/-, as no value of the consignment is declared at the time of booking the parcel and prays the Forum to dismiss the complaint with costs.

            5.  Complainant filed chief affidavit as P.W.1 and got marked Exs.A1 to A9. For the opposite party chief affidavit of R.W.1 is filed and got marked Exs.B1 to B4. Both the parties have filed their respective written arguments. Heard the counsel for both parties.

           

 

6.  Now the points for consideration are:-

            (i).  Whether there is deficiency in service on the part of the opposite party?

            (ii).  Whether the liability of the opposite party in case of loss of any

                    consignment is fixed up to Rs.100/- ?     

            (iii)  Whether the complainant is entitled to the total value of the consignment

                   and costs of the litigation as prayed for?           

            (iv)  To what relief?

            7.  Point No.(i):-  to answer this point it is pertinent to note the admitted facts, that the complainant has booked the consignment with the opposite party on 20.11.2015 under consignment No.TPT 149629 at Tirupati, to be delivered to SSBS Medical Agencies, Nellore, but the consignment was not delivered so far. It is also admitted that the complainant – company, used to send the drugs and medicines for sale to its customers. In that regard, complainant – company, transported the drugs and medicines so consigned, but contended that the value of the goods was not mentioned in the consignment and also no declaration was made by the complainant regarding the value of the goods. The opposite party admitted that the weight of the goods consigned is 5.6 kgs. In para.6 of the written version filed by the opposite party, it is contended that during the relevant period in November 2015, there were heavy rains and the roads were devastated paralyzing the traffic, due to such rains, some parcels were misrouted to some other places, despite their best efforts at Nellore, Guntur, Vijayawada and Chennai, they could not trace-out the parcels that were misplaced and communicated the same to the complainant on 09.12.2015, the fact of misplacing the consignment and also further stating that it would be informed to the complainant as and when the parcel will trace-out. Thus the parcel consigned by the complainant was misplaced and misrouted to some other places due to heavy rains in the month of November 2015, however, contended that the value of the consignment was not mentioned, as such the liability of the opposite party is only up to Rs.100/- and there is no other liability to the reliefs sought for by the complainant. In this regard, Ex.A2 dt:30.11.2015 letter addressed by the complainant to opposite party disclosing the details of consignment as Docket No.TPT 149629 and the value of goods consigned was shown as Rs.1,30,649/-. Under Ex.A9 dt:20.11.2015 the way bill No.371511206243824 in FORM X or FORM 600 issued by the Government of Andhra Pradesh, C.T.Department, in which value of the goods is shown as Rs.1,30,649/-, Commodity is shown as Drugs and Medicines, Invoice No. and Date is shown as C1338102797, 2752 / 20.11.2015. So, the contention of the opposite party that the value of the goods was not shown cannot be accepted as Ex.A9 dt:20.11.2015 the Way Bill and also Ex.A2 dt:30.11.2015 letter addressed by the complainant to opposite party specifically disclose the value of the goods consigned as Rs.1,30,649/-. The goods so consigned are expected to be delivered by the opposite party to the consignee, though it was consigned on 20.11.2015, so far (approximately one year) the goods are not delivered to the consignee. Therefore, it prima facie there is negligence and deficiency in service on the part of the opposite party, that apart Ex.B1 letter addressed by the opposite party dt:29.12.2015 regarding non-delivery of consignment No.149629, in which it was mentioned that “subject will be amicably settled by the first week of January 2015”. Similarly in Ex.B2 dt:09.01.2016 also the same was communicated to the complainant to the effect that “subject will be amicably settled by the 19^th of January 2015”. When the consignment was made on 20.11.2015, how the matter will be settled in the month of January 2015. So, by giving this date for settlement as January 2015 under Exs.B1 and B2 itself shows that opposite party is so careless, not bothered to the facts, and they were giving dates as per their wimps and fancies. Under Ex.B4 dt:05.02.2016, it was mentioned that Damaged / Shortage Certificate (without prejudice) regarding previous consignment No.TPT148688 dt:17.11.2015, consigned by the complainant was also misplaced and it was compensated. By virtue of their own documents, it is established that the opposite party is not taking care about the consignments booked by the complainant and others. This is the second occasion in which consignment booked by the complainant was misplaced.

            8.  When the goods consigned with the opposite party, expecting that it will properly deliver the goods to the consignee within the time stipulated, was not delivered but misplaced, and the opposite party failed to trace-out for the last one year, which is nothing but deficiency in service on the part of the opposite party. Instead of tracing the consignment and delivering the same to the consignee, contending that their liability is only restricted for Rs.100/-, and they are not liable for any further reliefs, which is another illegitimate response on the part of the opposite party. In view of the above said facts and circumstances, we are of the opinion that the complainant has established by virtue of Exs.A1, A2, A9, that the value of the consigned goods is Rs.1,30,649/- and by virtue of Exs.A5, A3 and A4 and other         e-mail correspondence, 12 in number, and letters to the opposite party to trace-out its consignment or to pay the cost of the consignment, as well as the expenses incurred by the complainant, and by virtue of the pleadings coupled with the documents Exs.A1, A9 and B1, B2, B3 and B4, complainant has established that there is deficiency in service on the part of the opposite party, for which the opposite party is liable. Accordingly this point is answered.

            9.  Point No.(ii):-  to answer this point, we have to state that when there is deficiency in service on the part of the opposite party, which is apparent on record and the cost of the goods so consigned is worth of Rs.1,30,649/-, the complainant is entitled to recover the said cost of the goods and the liability of the opposite party cannot be restricted to Rs.100/-. The opposite party’s contention that as per the consignment receipt and terms and conditions of the contract, it is only liable for Rs.100/-, is totally unsustainable. If this version is true, how the opposite party has paid the damages under shortage certificate, so far as the other consignment booked by the complainant with the opposite party to be delivered to M/s.Sreedhar Medicals, Nellore, under consignment No.TPT148688 dt:17.11.2015, a sum of Rs.41,384/-. Therefore, their own statement and their document under Ex.B4 reveals that there is no limit to fix the liability of the opposite party, in case of loss or damage or misplacing or mis-delivery of any consignment. In this regard, the learned counsel for complainant relied on a decision reported in 3(2006) CPJ 125 NC – First Flight Couriers Ltd. Vs. Kerala State Electronics – in this case, the brief facts are that the respondent is the complainant before the State Commission. The complainant usually engaged the First Flight Couriers Private Ltd., for dispatch and delivery of their urgent documents and parcels. The complainant engaged the services of the opposite party to deliver Mother Cards bearing serial numbers 36.01.01-35.01.02 at Bangalore on 29.09.1993. The complainant had issued a letter along with the cards declaring the value and requesting the opposite party to cover the transit under insurance and ensure delivery without delay. This letter was acknowledged in token of acceptance of the parcel and the conditions by one Anil Kumar on behalf of the opposite party. As the parcel did not reach the consignee, the matter was brought to the notice of the opposite party immediately. On 05.10.1995 the opposite party gave a letter to the effect that the consignment was misplaced during transit and they are trying to locate the same. The complainant lodged an official complaint with the Courier Company to take immediate action to locate the parcel and deliver it to the consignee and demanded refund of Rs.4.7 lakhs if the consignment was not delivered to the addressee before 09.10.1993. The Regional Manager of First Flight Couriers Mr.A.J.George, came to the office of the complainant, with their officers for a detailed discussion. He admitted the default and agreed to compensate the loss after contacting their Director and sought time upto 25.10.1993. The complainant was shocked to receive a letter on 26.10.1993 from Shri A.J.George, denying liability to compensate the loss stating that the maximum limit of the liability was fixed under the printed condition of the consignment note. Therefore, the complainant was forced to file the complaint before the State Commission of Kerala, praying for issue directions to the opposite party to pay Rs.4.4 lakhs for loss of the mother cards and also Rs.60,000/- per day for loss of production. Later amended complaint is filed on 27.12.1993 limiting their claim to Rs.15 lakhs towards the loss of production in addition to the value of mother cards to the tune of Rs.4.4 lakhs and making it a total of Rs.19.4 lakhs. The State Commission allowed the complaint and awarded Rs.1,47,000/- for the mother board and granted Rs.1,000/- towards costs. Aggrieved by the said orders, the opposite party preferred appeal before the National Commission. The Hon’ble National Commission upheld the orders of the State Commission stating that the opposite party is liable to pay the cost of the consignment. The learned counsel for the complainant also relied on a decision of the Hon’ble Supreme Court in Appeal (civil) 3096 of 2005 – M/s. Transport Corporation of …. Vs. M/s. Veljan Hydrair Ltd – the facts of the case in brief are that the complainant entrusted a consignment measuring 2700 kg. covered by sale invoice dated 30.04.1996 to the Appellant for transportation from Patancheru to Bharuch, the consignee being “self”. The appellant / opposite party issued consignment note / lorry receipt dt:10.05.1996 to the respondent / complainant in that behalf, wherein the declared value of the consignment was shown as Rs.5,83,440/-. The consignment was not delivered to the customer M/s. Prakash Industries Ltd., Bharuch. The respondent / complainant by letter dt:08.11.1996 instructed appellant’s Patancheru branch to re-book the consignment from Bharuch to Patancheru and close the original of the lorry receipt as also its invoice dt:30.04.1996 with the letter dt:08.11.1996. The consignment was not delivered either at Bharuch or at Patancheru. The respondent / complainant sent letters calling upon the opposite party to locate the consignment. If the consignment is not delivered, it will claim Rs.5,83,440/- being the cost of the consignment. The respondent also stated that it will not pay any charges for the consignment. The appellant sent a reply dt:15.12.1998 stating that the matter is under process to locate the goods and requested to bear with them for some more time. Since the matter did not settled, the complainant filed complaint before the State Commission, Hyderabad, which allowed the complaint and awarded the cost of the consignment in a sum of Rs.5,83,440/- less the freight charges with interest at 9% p.a. from the date of booking and also awarded costs of Rs.2,000/-. Against the said orders, the appellant / opposite party preferred appeal before the Hon’ble National Commission and the Hon’ble National Commission also confirmed the orders of the State Commission, then opposite party went to the Hon’ble Supreme Court. Their Lordships Supreme Court pleased to dismiss the appeal confirming the orders of the National Commission and State Commission and also awarded costs of Rs.5,000/-. The facts of the above decisions squarely applicable to the facts of the case on hand and as such the liability of the opposite party shall not be restricted to only Rs.100/- and they are liable to pay the cost of the consignment.

            10.  The learned counsel for the opposite party relied on a decision reported in IV(2015) CPJ 649 (NC) – Kishore Kumar Kochhar Vs. State Bank of Bikaner & Jaipur – this decision relating to grant of credit in the form of letter of credit discounting limit to the tune of about 75% of the value of the irrevocable letter of credit. The order was received for USD 2.6 million (approx. Rs.15.00 crores). The facts of the above decision are totally different from that of the facts of the case on hand, as such they are not applicable to the case on hand. In view of the above observations, we have to state that the opposite party is liable to pay the cost of the consignment / goods i.e. Rs.1,30,649/- with interest. Accordingly, this point is answered.

            11.  Point No.(iii):- in view of our discussion on points 1 and 2, and also in view of the judgment of Hon’ble National Commission and Hon’ble Supreme Court referred to above, the complainant is entitled to the total cost of the consignment with interest and costs of the litigation, and he is not entitled to loss of business, as it was not established and expenses to trace-out. The complainant has established that there is deficiency in service on the part of the opposite party in non-delivery of consignment, consigned with the opposite party on 20.11.2015 to the consignee at Nellore, till today and also established that the opposite party is liable to pay the cost of the consignment. Therefore, in our view the complainant is entitled to the cost of the consignment in a sum of Rs.1,30,649/- and also entitled to a sum of Rs.10,000/- towards mental agony suffered by the complainant due to the negligent acts of the opposite party. Accordingly this point is answered.

            12.  Point No.(iv):-  in view of our discussion on points 1 to 3, we are of the opinion that the complainant has established that there is negligence and deficiency in service on the part of the opposite party, and in the earlier occasion also the opposite party has misplaced the consignment booked by the complainant and Damage / Shortage Certificate was issued for Rs.41,384/- in respect of another consignment No.TPT 148688 dt:17.11.2015, booked by the complainant. Therefore, the complainant is entitled for the relief of cost of the consignment and compensation, and complaint is to be allowed accordingly.

            In the result, complaint is allowed in part directing the opposite party to pay a sum of Rs.1,30,649/- (Rupees one lakh thirty thousand six hundred and forty nine only) with interest at 9% p.a. from the date of consignment i.e. 20.11.2015, till the date of realization, and also opposite party is directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony caused to the complainant and Rs.2,000/- (Rupees two thousand only) towards costs of the complaint. The opposite party is further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the compensation amount of Rs.10,000/- shall also carry interest at 9% p.a. from the date of order, till realization.                              

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 4^th day of November, 2016.

 

       Sd/-                                                                                                                      Sd/-                          

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Rahul Jandhyala (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Cimbili Hemadri Naidu (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Receipt issued by the Opposite Party for consignment in Docket No. *TPT 149629*. Dt: 20.11.2015.
	Letter addressed by the Complainant to the Opposite Party.  Dt: 30.11.2015.
	Letter addressed by the Complainant to the Opposite Party.  Dt: 09.12.2015.
	Letter addressed by the Complainant to the Opposite Party.  Dt: 14.12.2015.
	Emails addressed by the Complainant to the Opposite Party from Dt: 07.01.2016 to Dt: 22.03.2016.
	Profile of Professional Courier. Dt: 09.09.2014.
	Office copy of Legal Notice issued by the Complainant to Opposite Party. Dt: 31.03.2016.
	Postal Acknowledgement.
	Way Bill No.371511206243824. Dt: 20.11.2015.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Letter to the Complainant by Opposite Party regarding Non Delivery of Consignment. Dt: 29.12.2015.
	Copy of letter addressed to the Complainant about Non Delivery of Consignment by the Opposite Party. Dt: 09.01.2016.
	Copy of letter to the Complainant sent by Opposite Party about Not Treacable of the missing consignment. Dt: 30.01.2016.
	Damaged/Shortage Certificate- Without Prejudice issued by the Opposite Party.  Dt: 05.02.2016.

 

 

                                                                                                                                     Sd/-    

                                                                                                                      President

             // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

 

            

Copies to:-     1.  The complainant.

                        2.  The opposite party.