D.o.F:8/1/09D.o.O:15/3/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.NO. 2/09 Dated this, the 15th day of March 2010 PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER P.Satheeshan, Chithralayam, Koyangara, : Complainant Po.Trikarpur,Kasaragod. 1.VRL Logistics.Ltd, Corporate Office, Giriraj Annexe, Circute House Road, Hubli 580029. :Opposite parties 2. Branch Manager, VRL Logistics.Ltd. Payyanur,Kannur.Dt. ORDER SRI.K.T.SIDHIQ: PRESIDENT Bereft of unnecessaries, the case of the complainant is that on 14/8/08 he booked a consignment containing household items in 14 wooden boxes from Godavarigani in A.P state to Payyanur in Kerala for transit. Later when he approached 2nd opposite party for lifting the consignment he could see that the household items were damaged and some of the items were missing. Though at first he refused to receive the articles the branch manager contacted and told him that he will issue a Damage Certificate relating to the articles destroyed. On that day he did not lift the consignment. Two days after, the 2nd opposite party requested over phone to receive the consignment and told that he will issue a damage certificate. But after loading the destructed consignments in the carriage he asked to come on the next day to receive the damage certificate. On the next day though he approached 2nd opposite party he refused to issue damage certificate. On protesting in the change in attitude of 2nd opposite party, OP.2 contacted their General Manager at Ernakulam and the said G.M asked over phone to forward a written complaint through 2nd OP. The same was done by the complainant. Later opposite parties did not pay any compensation for the damaged articles as against their assurance. The complainant then filed a complaint before the C.I of Police Payyanur. Though OP.2 was ready to pay Rs.5000/- as damages,. complainant did not accept since the damages caused were much more than that. Due to the negligent act of opposite parties a new Samsung 27” colour T.V was completely destroyed. Two stands of the steel Almirah were damaged and another one was partially destroyed. One big traditional lamp and several books were lost. The gas pipe of the refrigerator was also damaged. The complainant had spent Rs.11300/- towards transportation of the consignment. The damaged articles were worth Rs.42,000/- . Hence the complaint for compensation. 2. Opposite parties defended the claim on multifarious grounds. According to them, Forum has no territorial jurisdiction to try the matter. Secondly, the consignment were not properly packed and a seal to that effect were fixed on the delivery note. As per the terms and conditions agreed by the parties the Hubli Courts alone have jurisdiction to settle the dispute. As per the terms and conditions no complaints were entertainable after 3 days from the date of delivery. The complainant has not made any complaints about the alleged damages at the time of delivery. The consignments were always booked on ‘said to contain” basis and the transporter will not be knowing the condition and contents of the consignment. Hence, the transporter cannot be held responsible for the alleged damages to the consignment. The damaged house hold articles were used and hence were not having any commercial value. The police complaint lodged by the complainant was redundant as there was no criminal act on the part of 2nd opposite party. OP.2 agreed to issue a certificate of damage to enable the complainant to claim loss from the insurance company if the consignment had transit insurance. The consignments are always booked under certain terms and conditions that is printed on the way bill . the parties are bound by the terms and conditions. Hence there is no deficiency in service on the part of opposite parties. 3. Complainant as PW1 filed affidavit in support of his claim and Exts.A1 to A5 were marked . Complainant cross examined by the counsel for complainant. On the side of opposite parties , Rama, the Manager of OP.1 and A Madhusoodana Rao were examined as DWs.1&2 and Exts.B1 to B3 marked. Both sides heard and the documents perused. 4. Now the points arise for consideration are 1. Whether the Forum has got territorial jurisdiction to try the complaint?. 2. Whether the terms and conditions printed on the way bill are binding on the complainant? 3. whether there is any deficiency in service on the part of opposite parties? 4. What are the reliefs to be awarded?. 5. Points Nos 1&2 : The complainant is residing in Kasaragod District. The opposite parties have got a branch office at Kasaragod. Opposite parties are carry on their business of transporting goods and consignments through out the country including in Kasaragod. The businesses of the opposite parties are not static in nature. A carrier cannot carries on his business sitting in a place like a shopkeeper. They have to carry on their business ie the transportation of consignment from place to place. So wherever they are carrying the consignments they are liable to acquiesce to the jurisdiction of the Courts situated within the territorial limits of the courts of that area. As per Sec.11 (2)(b) of the Consumer Protection Act the complaint can be instituted in a district Forum within the local limits of whose jurisdiction the opposite party carry on their business. Therefore, we hold that this Forum has got territorial jurisdiction to deal with the matter. The learned counsel for the opposite parties Sri.U.S.Balan in his notes of argument has submitted that the complainant by accepting the terms and conditions printed on the consignment is liable to acquiesce to the jurisdiction of Hubli Courts. But on a close scrutiny of ExtsA2& Ext.B1, the consignors copy and consignee’s copy of the waybill/ consignment note, it is seen that the complainant has not accepted the terms and conditions printed in the overleaf of Ext.A2 & Ext.B1 by putting his signature. Hence none of the terms and conditions printed on the way bill/consignment note is applicable to the complainant. Hence we hold that the Forum has got jurisdiction to entertain the case. The decision cited by the learned counsel for the opposite parties reported in AIR 1989 page 1239(SC) in the case of ABC Laminart Pvt Ltd. Vs. AP Agencies Salem and the decision reported in (2009) 9 SCC 403 in the case of Balaji Coke Industry (P) Ltd vs. Maa Bhagavati coke (Gug) Pvt. Ltd has no relevancy in this case. Therefore , the contention of the opposite parties are that the complainant is bound by the terms and conditions printed on the way bill/ consignment note and hence he is not entitled for any damages is not legally maintainable. The Hon’ble Supreme Court in the case of Bharti Knitting Co. Ltd Vs DHL Worldwide Express Courier reported in (1996) 4SCC 704, AIR 1996 SC 2508 also has held that a person who signs a document containing contractual terms is necessarily bound by them even though he has not read them and even though he is ignorant of their precise legal effect. But here the question arises is if the document is not signed but being merely delivered to a person then whether the terms of the contract is binding on him. The Hon’ble High court of Kerala in Indian Road Ways vs. Unneerikutty reported in 1990(1) KLT 292 a similar case before the Hon’ble High Court where on the reverse side of the consignment note there was a condition that “the company shall not be liable for any loss or damage due to pilferage or theft, weather conditions, strikes, riot, disturbances, explosion or accident. The Honble High court did not permit the carrier to escape liability under this clause since there was no signature showing an agreement to that effect. The Hon’ble Court has held that the statement in the consignment note that the goods are being carried at owners’ risk does not constitute a special contract. 6. Point No.3; The opposite parties are carries on business of transportation of consignments from place to place So they are carriers governed by the Carriers Act 1865. Ext.A3 is a certificate issued by 2nd opposite party. It certifies that at the time of delivery, material booked under GC No.93206042 X14 dtd 14/8/08. Ex GVRK – PYR. Two wooden boxes delivered in outwardly damaged and open condition. In one wooden case old and used TV pack was damaged. It is further stated in the certificate that the company is not responsible for leakage damage, and loose goods in transit. So it is clear that some of the articles delivered to the complainant were damaged. Ext.A4 is a copy of the petition submitted by the complainant before OP.2 to be forwarded to their G.M at Ernakulam on the date of taking the delivery of the consignment. The receipt of Ext.A4 is acknowledged on the overleaf of Ext.A4. It explicitly gives the details of the lost and damaged articles. We don’t find any reason to disbelieve the said document. The said notice is a sufficient notice U/s 10 of the Carrier Act. Hence the decision cited by the learned counsel for opposite parties reported in the case of Aravind Mills Ltd. Vs. M/s Associated Road Ways ( 2004 NCJ 839) is not applicable to this case. Further Ext.A3 is a certificate dtd. Nil issued by 2nd opposite party certifying the damages caused to the consignments sent by the complainant. Hence the argument of the learned counsel for opposite parties that the articles were received by the opposite parties is said to certain basis and the carrier will not be knowing the contents and conditions of the articles booked has no substance. Had the articles entrusted were on damaged condition, then it should have find a place in the way bill especially when the opposite parties are keen enough to endorse the mode of packing on the way bill that it is not properly packed. The next contention of opposite parties that the items were domestic appliances and therefore, it has no commercial value is also not hold any water. An article, which has no commercial value, does not mean that it has no VALUE AT ALL. True it may not be marketable by keeping in a showroom intended for the sale of such items. But every item has got its own value and price irrespective of its commercial importance. 7. The further contention of opposite parties is that the consignment was not properly packed. But the complainant during evidence has deposed that he was well packed all the items in 14 wooden boxes and the seal was fixed after entrusting all the consignment with opposite parties for transit. It is a common fact that under normal circumstances nobody will try to entrust the valuable household goods with a carrier for transportation is an unsafely packed manner, that may cause damage to the consignment. Hence this contention is also not acceptable. Further nobody has given the opposite party the authority and freedom to handle the consignment in a haphazard, reckless, negligent manner to cause damage to the items 8. Now the question remains is whether the opposite parties are liable to pay compensation to the complainant or not? The Hon’ble Supreme Court in the case of M/s Economic Transport Organization Etc vs. Dharwad Dist. Khadi Gramodya Sangh Etc reported in I (2000) CPJ 41(SC) and Patel Road Ways Ltd Vs. Birla Yamaha Ltd reported in I (2000) CPJ 42(SC) and Nath Bros. Exim International Ltd. Vs. Best Roadways Ltd I (2000) CPJ 25(SC) relying on Sec.9 of Carrier Act has held that the liability of the common carriers is that of the insurer Sec.9 of the Carriers Act says” Plaintiffs in suit for loss damage non-delivery not required to prove negligence or criminal act. “ In any suit brought against a common carrier for the loss, damage, non delivery of goods including container pallets or similar articles of transport used to consolidate goods entrusted) to him for carriage, it shall not be necessary for the plaintiff to prove that such loss damage or non delivery was owing to the negligence or criminal act of the carrier his servants or agents.” The issue before the Hon’ble Apex Court in the case of Patel Road Ways vs. Birla Yamaha Ltd was that whether the proceedings before the National Commission will come within the purview of ‘suit’ mentioned in the above sections. The Hon’ble Supreme Court held that the proceeding before the National Commission would come within the term’ suit’. Hence Sec.9 of Carriers Act is applicable to the proceedings before the Commission also. 9. The contention of opposite party is that the consignment was not properly packed has no relevance since the damages caused to the consignment and the loss of some articles are proved and their liability is that of an insurer. Hence the said act amounting to deficiency in service and opposite parties are liable to compensate the complainant. 10.Reliefs & costs: The complainant has produced Ext.A5, the purchase bill dtd.17/9/07 of a Samsung colour T.V. The price shown in the above is Rs.16000/-. According to the complainant the purchase bill of the T.V that he sent through opposite parties. Though learned counsel objected the marking of document we do not find any reason to sustain his objection. Had he got a case that a Samsung 29” Colour T.V will not fetch Rs.16000/- and that was not the model of TV consigned and damaged then they could have adduced rebuttal evidence to substantiate their contentions by appointing expert commissioner etc. However, the complainant during cross-examination has admitted that he repaired 2 Almirah, subsequently, that was damaged during transit. The claim of the complainant towards the loss and damage of articles is Rs.42, 000/- in addition to the transportation charges Rs.11300/-. However considering the fact that the complainant had repaired the shelves, we fix the liability of the opposite parties at Rs.40,000/- in total including the transportation charges they received from the complainant and the loss hardships and mental agony he suffered. In the result, complaint is allowed and the opposite parties are directed to pay Rs.40,000/- to the complainant with interest @9% from the date of complaint till payment along with a cost of Rs.3000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which the opposite parties shall pay interest @12% for the said amount of Rs.40,000/-. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT Exts: A1-27/8/08- Delivery cash receipt A2-14/8/08- Consignor’s copy A3-letter by OP A4- letter to OP A5- Purchase bill of M/s Leo Electronics B1-14/8/08- consignee’s copy B2-Delivery cash receipt B3-14/8/08 Declaration issued by PW1 to OP PW1-P.Satheeshan- complainant DW1-Rama- Manager of OP.1 DW2-A.Madhusoodana Rao- witness of OP Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT eva/ /Forwarded by Order/ SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
