JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by the complainant Balaji Malkari against the Opposite Nos. 1 to 3 U/sec. 12 of Consumer Protection Act for to direct them to deliver the consignment booked by him or in alternative direct them to pay compensation amount of Rs. 2,00,000/- with interest. 2. The brief facts of the complainants case are that, he booked one cover vide Receipt No. 403511383 dt. 03-02-09 in opposite No.1s office for to deliver it to his relative Mohankumar at Hyderabad. The said cover was containing negative photograph of his deceased mother with invitation cards of 10th day ceremony of his mother fixed on 07-02-09. Thereafter the said cover was not delivered to addressee at Hyderabad. He made enquiry with Opposite No.1 and requested opposite No. 2 & 3 to trace out his parcel, but all of them have failed either to return the said parcel to him or to deliver it to the addressee at Hyderabad and thereby all the Respondents found guilty under deficiency in their services, as such he filed this complaint for the reliefs as prayed in it. 3. The Opposite Parties 1 to 3 appeared in this case through their Advocate and opposite No.3 filed written version, opposite No. 1 & 2 have adopted the said written version of opposite No.3. The brief facts of the written version of them are that, the consignment booked by this complainant through opposite No. 1 on 03-02-09 vide Receipt No. 403511383 was not delivered to addressee at Hyderabad, for the reasons that the said parcel lost in the transit and it was not trace out, in spite of sincere efforts made by them. The complainant not declared the importance of the articles in the parcel, the value and contents of the consignment was not declared by him either on the consignment note or in separate proforma invoice. As per the terms and conditions of the consignment note the opposites are liable to pay Rs. 100/- only due to missing of parcel in the transit they are not liable to pay compensation as prayed by the complainant. All other allegations are denied and prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that Opposite Nos- 1 to 3 have found guilty under deficiency in their services for non delivery of the consignment to the addressee at Hyderabad or non returning of it to him.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgement. (3) In-view of the findings on Point Nos- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-8, Ex.P-7(a) and Ex.P-7(b) are marked. On the other hand affidavit-evidence of General Manager (Finance & Administration) of opposite No.3 was filed he was noted as RW-1. No documents filed and marked. 7. On perusal of the pleadings of the parties, and their respective affidavit-evidences, we have noticed the some of the following facts are undisputed facts between the parties namely: It is undisputed fact that on 03-02-09 the complainant booked one parcel through opposite No.1 for to deliver it to the addressee at Hyderabad vide consignment Note No. 403511383. It is further undisputed fact that, Respondents have neither delivered the said consignment to the addressee at Hyderabad nor returned it to the consignment till today as admitted by the opposites, the said consignment lost in the transit and it I not traceable. 8. In view of these undisputed facts. Now we have to decide the two facts which are in dispute in between the parties: (1) Whether the opposites are not entitled to pay any compensation amount for missing of consignment in the transit as complainant not disclosed the importance, value and contents of the consignment at the time of entrustment either in the consignment note or in a separate proforma invoice. (2) What is the liability of the opposites, in the instant case as it lost the consignment of the complainant in transit. 9. As regards to the consideration of the first point, we are not in a position to accept the submissions made by the learned advocate for opposites as it is the duty of the complainant to disclose the value of the contents and importance of the articles packed in the consignment for the reasons that, it is not the duty of the complainant to declare the value of the articles of the complainant, it is the duty of the opposites to get declaration of the value of articles of the consignment or to take a separate proforma invoice regarding the same it is not done, as such we have rejected the contention of the opposites that it is not responsible for the missing of consignment booked by the complainant on that day. 10. The opposite Nos. 1 to 3 have admitted all most all the case of complainant accept the liability of it. Now we have to see as to whether the liability of the opposites is only to the extent of Rs. 100/- as noted in the consignment note or as to whether it has to compensate the actual loss sustained by the complainant for missing of consignment. 11. The learned advocate for complainant relied on ruling reported in (1) 2005 (2) CPR 155 Branch Manager, DTDC Ltd., & Others V/s. Krish Electronic Ltd., (2) 2000 SCC-4-553 Nath Brothers Exim V/s. International Limited, on the other hand the learned advocate for opposites relied on ruling reported in 2004 CTJ 442 (CP) (NCDRC) Desk to Desk Courier and Cargo V/s. Kerala State Electronics Development Corporation Ltd., On perusal of the principles of the said rulings one thing is certain that the duty of carrier to whom goods are entrusted for carriage is that of a insurer and is absolute in terms ( in sense) that, the carriage has to deliver the goods safely, undamaged and without loss at the destination, as indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage caused to the goods on account of his own negligence or criminal act or that of his agent and servant. 12. In the instant case, it is undisputed fact that the consignment booked by the complainant lost in transit and it cannot be traceable. In the said circumstances, we are of the view that the opposite No.1 or other opposites have not taken sufficient care in delivering the consignment to the addressee at Hyderabad. Now as regards to the liability of the opposite is concerned, the principles of the ruling referred by the learned advocate for opposite cannot be made applicable to the facts of the present case on hand. In the said ruling i.e, Desk to Desk Courrier and Cargo V/s. Kerala State Electronics Development Corporation Ltd., the observations of the Honble Supreme Court in Bharathi Knitting Company V/s. DHL World Wide Express Courier reported in 1996 CTJ 557 (SC) (CP) as contractual terms normally bound who signed to it. In the said two cases parties have signed on consignment note in which terms and conditions are printed on the back of it. In the instant case, Ex.P-1 is the consignment note issued by the opposite No.1, at the time of booking the consignment. This consignment note has not signed by either complainant or by the opposite No.1, as such we are of the view that there was no contract between the parties to accept the submissions made by the learned advocate for opposite to fix the liability of opposites to the extent of Rs. 100/- only. In such circumstances the facts of this case are quite different to the facts of the Desk to Desk Courier & Cargo Ltd., and Bharathi Knitting Companys Case, accordingly with great respect to their lordships, we have not accepted the submissions made by the learned advocate for opposites. Hence the liability of the opposites in the instant case is to pay the actual value of the articles of the consignment as a damage due to missing of articles in the transit. 13. As pleaded and evidenced by the complainant PW-1, he sent the only negative photograph of his mother with invitation card of 10th day ceremony fixed on 07-02-09 of his mother. 14. In view of the nature of the contents of the consignment, we cannot access the actual loss sustained by the complainant as there are emotional feeling attached to it. Hence we cannot opposite to deliver that parties to complainant, as such we have taken note of the entire facts and circumstances of this case and we came to conclusion that granting a lumpsum amount of Rs. 15,000/- to the complainant by these opposites is a proper and reasonable order towards alternative prayer, accordingly we have directed the opposite Nos. 1 to 3 jointly and severally to pay an amount of Rs. 15,000/- to the complainant. 15. We have noticed the deficiency in service on the part of these opposites, as such a lumpsum amount of Rs. 3,000/- is granted to the complainant payable by these opposites jointly and severally under the head of deficiency in service. 16. The complainant is entitled to recover future interest at the rate of 9% p.a. on the total sum of Rs. 18,000/- from the date of this complaint till realization of the full amount, accordingly we answered Point Nos. 1 & 2. POINT NO.3:- 17. In view of our finding on Point Nos.1 & 2 we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed. The complainant is entitled to recover a total sum of Rs. 18,000/- from the opposites 1 to 3 jointly and severally with interest at the rate of 9% p.a. on the said amount from the date of the complaint till realization of the full amount. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 23-09-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.
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