(Delivered on 15/12/2017)
Per Mr. S.B. Sawarkar, Hon’ble Member
1. The present appeal is filed against the order of the District Forum, Akola passed in complaint No.114/2013 dated 20/09/2013 granting partly the complaint and directing as follows:
- The opposite party (in short O.P) Nos.1&2 to provide Rs. 30,000/- to the complainant with interest at the rate of 6% p.a. from the complaint filed date of 16/07/2013 till final payment as compensation of deficiency in service.
- Further to provide Rs. 3,000/- for physical and mental harassment and cost of Rs.1,500/- to the complainant by O.P. Nos. 1&2.
- The O.Ps. to comply the order in the span of 45 days from the date of the receipt of the order and then to file compliance report in the span of 15 days.
2. The complainant herein filed a complaint as Managing Director of Sangliwala Fashion Pvt.Ltd. that the complainant sent a pack of sarees to their customer S.R. Saree Emporium Pvt. Ltd.,Kolkatta valued at Rs. 30,345/- through the transporter O.P.Nos. 1&2 through bill No.210172187, dated 20/03/2012. It was expected to reach in 15 days.
3. It is also alleged by complainant that when the complainant repeatedly verified he found the package to have not reached. He therefore, sent e-mail on 06/03/2013 to O.P. No. 1 to which the O.P.No.1 informed on 08/03/2013 that the package is lost. When he enquired with the office of the O.P. No.1 on 16/03/2013 he was asked to send the papers to settle the claim which he sent.
4. As the complainant did not receive any response he sent a notice on 28/05/2013 to the O.P. Nos. 1&2 with a request to provide Rs. 30,000/-. The O.Ps. accepted to have lost the package. The complainant therefore filed a complaint alleging deficiency with a prayer to provide him Rs.1,00,000/- as compensation for the loss and the cost of the package of Rs.30,345/- with booking charges of Rs. 370/- with interest at the rate of 18% and further Rs. 50,000/- for physical and mental harassment and a cost of Rs. 5,000/- from the O.P.Nos. 1&2.
5. On notice the O.P.Nos. 1&2 remained absent in spite of notice, hence, the complaint was proceeded declaring the O.P. to be exparte.
6. The learned Forum considered the booking of the package and its cost and also its loss in the transit as was accepted by the O.P. Nos. 1&2 who also called the papers of the claim. The O.Ps. had also offered to settle the claim under Carriage By Road Act Rules, 2011 under “missing during transit” and had offered to pay the ten times booking cost which was Rs.2,700/-. However, the learned Forum held that when the package was lost in the transit, the O.P.Nos. 1&2 are responsible for the deficiency in service and hence, are liable to provide Rs. 30,000/- as compensation. Hence, the learned Forum passed the order supra.
7. Aggrieved against it the O.Ps. filed an appeal & hence, is referred as appellants. Advocate Shri Solat appeared on behalf of the appellants. .The original complainant is referred as respondent who remained present through Advocate Shri Warulkar on 07/04/2016. However, did not file written notes of arguments nor remained present for final hearing.
8. The advocate for the appellant submitted that the respondent after booking had never enquired the package but only made enquires after receiving query from the consignee and sent a letter after one year on 16/03/2013 enquiring about the consignment. The advocate for the appellant called the booking of package for commercial purpose and hence, beyond the jurisdiction of the learned Forum. He also pointed that the complaint was fit to be dismissed for non impleading of the consignee which was the necessary party.
The advocate for the appellant relied on the judgment passed by the Tamil Nadu Commission in Bannari Amman Transport Vs. Mrinal Spinning Mills, published at III (2014) CPJ 8B (CN)(TN). Wherein the Hon’ble Commission held that the transportation of goods by two parties effected is of commercial nature. Hence, the complaint is not maintainable.
The advocate for the appellant also submitted an extract from the Carriage By Road Act, 2007 where under section 10 about liability of common carrier inter-alia provides that liability of common carrier for loss of or damage to any consignment shall be limited to such amount as may be prescribed having regard to the value, fright, and nature of goods.
Under this as per “the notes on clauses of the bill” it is provided that the section limits the liability of the common carrier for loss or damage to consignment up to Rs. 10,000/- or value of consignment declared which ever is less unless consigner had undertaken to pay higher risk rate fixed by the common carrier under the proposed section 11.
9. The advocate for the appellant therefore, submitted that the learned Forum did not consider the requirement of law and passed an arbitrary order which deserves to be set aside.
10. We considered the contentions of the appellant and perused the evidence on record. We find that the appellant had booked the package and had also accepted to have lost it in the transport. The appellant also accepted to settle the claim by offering 50% of the declared value which came to Rs. 15,000/-
11. It shows that the appellant himself was prepared to pay more amount than the stipulated compensation under the Carriage by Road Rules, 2011. Hence the appellant now cannot rely on the condition of paying 10 times the booking charges as is submitted by it under section 10 of the Carriage by Road Act, 2007. We further find that there is no evidence to show as to for what purpose the package was sent by the respondent. It was only the transport of the package and hence, cannot be construed to be for the purpose of business.
12. We therefore, find that the learned Forum properly decided to pay the reasonable cost of the lost package which we find to be in proper justifiable bracket. Hence, the order deserves to be maintained. Thus the order below.
ORDER
i. The appeal stands dismissed.
ii. The order of the learned Forum is confirmed.
iii. Parties to bear their own cost.
iv. Copy of order be provided to both the parties, free of cost.
