THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.224/2007
Dated this the 12th day of August 2013.
( Present: Sri. G. Yadunadhan, B.A., LLB. : President)
Sri. L. Jyothikumar, B.A., LLB. : Member
ORDER
By G. Yadunadhan, President:
The petition was filed on 03-11-2007. The case of the complainant is that he is a dealer in sales and distribution of various types of timber and that he had consigned 9.3 tones of jungle wood size worth Rs.50,599/- from Calicut to Pune in the Lorry No. M.H. 12/CN 4663 owned by the third opposite party. The consignment was to be delivered at Mahimam Timbers, New Timber Market, Pune. On 4-7-2006 while in transit due to the rash and negligent driving of the lorry driver, it fell in to the Pullar River near Kanhangad and the entire consignment was lost. The complainant had booked the consignment through his commission agent Mr. Hitesh Parekh with the first opposite party. The above act of the opposite parties amounts to deficiency in service. The 1st and 2nd opposite parties are acting in the capacity of common carrier and is responsible, since there is deficiency of service from the all opposite parties. Complainant is seeking relief against the opposite parties directing them to pay the actual value of consignment of Rs.50,599/- along with compensation.
Opposite parties-1 to 4 notice served and appeared. Opposite party-1 and 2 filed version. Opposite party-3 called absent and set exparte. Opposite party-4 also filed version. According to Opposite party-1 and 2 they are the Manager of goods sending consignment to any where in India is not true, but they are arranging the goods carrier service of lorries which returns after unloading goods at Kozhikode. The arrangement is made not for a particular company or for a particular lorry owner. All lorries after unloading report at the offices of 1st and 2nd opposite parties and the lorries are given a turn number. As and when a person approaches the opposite party No.1 and 2 seeking the service of a return lorry the 1st and 2nd opposite party will allot the lorries in accordance to the turn priority. The liability of goods cannot caste upon the opposite party-1 and 2 and also the goods are sending in the risks of goods owner and carrier only. Therefore complaint is liable to be dismissed with cost.
Opposite party-3 called absent and set exparte. Opposite party-4 filed version stating that the relationship between the complainant and this opposite party cannot be termed as consumer relation within the purview of Consumer Protection Act. It is denied that the lorry bearing No. MH 12/CH 4663 was insured with this opposite party at the material time of the alleged accident. Since the claim is for the loss of goods during transit and complainant has no allegation that the goods were insured with this opposite party. Therefore complaint is liable to be dismissed.
Points for consideration ( 1 ) Whether any deficiency of service on the part of opposite parties? ( 2 ) Whether complainant is entitled to get any compensation from the opposite parties, if so what is the relief and cost?
Complainant was examined as PW1 and Ext.A1 to A6 were marked. Opposite party examined as RW1 and Ext.B1 was marked on the side of the 4th opposite party. Opposite party-4 not adduced any oral evidence. On perusal of Ext.A1 the certificate issued by the Hosdurg Police, it shows only the accident occurred and no detailed report of the lost jungle wood. Ext.A2 is the application submitted before the Lorry transport agency. Ext.A3 is another request submitted before the Convener for getting the value of the consignment. Ext.A4 is the legal notice issued against all opposite parties. On perusal of all documents produced by the complainant speaks the accident occurred not for the interference of all the opposite parties, but due to the accident the consignments were lost. The accident occurred due to the negligent driving of the Lorry driver who drove the vehicle, he is not a party in this proceedings. Next question has to be considered whether any insurance coverage of the goods contend in the said vehicle. As per records produced by the opposite parties no separate insurance coverage for the goods in own damage. It is the settled position the goods cannot be treated as third party. The owner of the lorry has to pay separate premium for that. That was not done in this case. Insurance in Ext.B2 Section-II Sub Clause (d) clearly stated “the company shall not be liable in respect of damage to property conveyed by the insured vehicle. This is purely out of contractual liability. The responsibility of opposite party-1 and 2 is limited to making arrangements for the public to utilize the service of lorries which returns after loading goods at Kozhikode. They are not entering in to contract with complainant that the consignment shall be reached safely to the destination for which complainant has to take more care and caution, that was not taken in this case. So no merit in this complaint. Complaint is liable to be dismissed.
Pronounced in the open court this the 12th day of August 2013.
Date of filing:03.11.2007.
SD/-PRESIDEN T SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1.Certificate issued by Sub Inspector of Police, Hosdurg Police station dtd.05.07.06.
A2. Photocopy of letter issued by the complainant to the first opposite party dtd.13.07.06.
A3. Registered letter issued by the complainant to the second opposite party dtd.13.07.06.
A4. Lawyer notice issued to the opposite parties with postal receipt dtd.28.12.06.
A5. Photos 9 in Nos.
A6. Invoice No.112 issued by the complainant firm to M/s.Mahima Timber Traders
consigning the goods dtd.03.07.06.
Documents exhibited for the opposite party:
B1.Certificate of Insurance of Goods carrying issued by the New India Assurance Co.
Witness examined for the complainant:
PW1. E.V.Sulfikkar (Complainant)
Witness examined for the opposite party:
RW1. Venugopalan, Pradeeksh, PO.Kizhakkum muri, Kakkodi, Kozhikode.
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
