L. Manoharan, President:
1. Opposite parties in O.P. No. 777/1998 on the file of the Consumer Disputes Redressal Forum, Thiruvananthapuram are the appellants. Complainant alleged before the District Forum that on 15.5.1998 M/s. Research Drugs and Pharmaceuticals (Guj.) Pvt. Ltd., Ahmedabad entrusted a consignment with the 2nd opposite party transporting the goods to Thiruvananthapuram from Ahmedabad and had to be delivered to the complainant the proprietrix of the concern, Research Drugs and Pharmaceuticals. The value of the goods was Rs. 62,270/-, the consignment was not delivered to the complainant. When she made inquiries with the carrier opposite party it was informed by the third opposite party, the consignment was lost in an accident on the way to Thiruvananthapuram, the consignment got damaged by fire. Complainant a
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leged, the said occurrence was due to the negligence on the part of the opposite parties. Therefore, the complainant wanted direction to pay Rs. 62,270/- with 18% interest and also compensation Rs. 25,000/- and costs. The contention raised on behalf of the opposite parties was that the complaint is not maintainable, the complainant is not a consumer, though they admitted that the consignment of the goods for transport to the complainants concern at Thiruvananthapuram, they maintained that the goods were lost due to causes beyond their control, they are liable for negligence, and the claim is exaggerated. Therefore, they wanted dismissal of the complaint. Before the District Forum on behalf of the complainant she gave evidence. On the side of the opposite parties D.W. 1 was examined. Complainant produced Exts. P1 to P10 on a consideration of the said material District Forum made the impugned direction to the opposite parties to pay Rs. 62,270/- with interest at 12% from 15.5.1998 till the date of realisation and also to pay compensation of Rs. 10,000/-, costs was also allowed.2. Learned Counsel for the appellant urged, the finding of the District Forum that there was negligence on the part of the opposite party is not correct, complainant herself was not a consumer and the complaint itself was not maintainable; alternatively, it was submitted by the learned Counsel that with due regard to what is stated in Ext. P2 consignment note the District Forum could not have awarded Rs. 62,270/- for the value of the consignment is mentioned in Ext. P2 is Rs. 42,332/-. It is also urged that when the value of the goods itself is directed to be paid there was no reason for awarding compensation of Rs. 10,000/-. On the other hand learned Counsel of the respondent sought to support the direction maintaining that the complaint is maintainable and the complainant is a consumer. It is urged by the learned Counsel that the discount deducted from the value of the goods by the consignor cannot be relied on by the carrier and the carrier cannot insist he is liable only for the amount after deducting the discount, complainant suffered loss due to the negligence of the opposite parties. He is entitled to the award of compensation for the loss as well as the inconvenience he suffered. When the aforesaid aspects are taken into account the award, according to the learned Counsel for the respondent, cannot be said to be on the higher side.3. Having regard to the rival arguments the first question that could fall for consideration is, whether the complainant is a consumer. It is true, the goods were consigned by the Research and Pharmaceuticals (Guj.) Pvt. Ltd., it was for the benefit of the complainant and the complainant being a beneficiary and she had to pay hire charges at delivery, herself is a consumer under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Therefore, the complaint is maintainable.4. The fact that the goods consigned to the opposite party carrier was not delivered is not in dispute. The case of the opposite party is that the goods were lost on the way to Thiruvananthapuram due to accident where the goods got fire and were destroyed. Opposite party being a carrier, the burden is on the carrier to establish that inspite of taking required care the goods were lost. The defence is that the lorry in which the goods were transported met with an accident and the fire ensued in the accident consumed the whole goods. Learned Counsel for the appellant wanted to rely on the evidence of D.W. 1 in support of the case. Himself is the representative of the office of the opposite party at Thiruvananthapuram whereas the fire took place at Sholapur. Accordingly he admits that he has no direct knowledge as to the occurrence. There was better evidence, and if such accident took place which caused destruction to goods that could have been the scene mehazar prepared by the investigating agency. The production of copy of the FIR, the site mehazar etc. could have shown like as to how the accident took place and the magnitude of the accident. None of the records were produced by the opposite party. So long as it is the burden of the opposite party to establish that it had taken the required care and inspite of that the accident took place, the failure to establish it by production of such records would show that the opposite party is not successful in proving that they had the required care. Once that is the position they are liable to be proceeded against for negligence. Since the complainant lost the goods the complainant suffered injury as per Section 14(1)(d) of the Consumer Protection Act, the consumer is entitled to compensation for the injury suffered by him due to the negligence of the other party. Thus from the aforesaid discussion it could be seen that the complainant is entitled to a direction for payment of compensation.5. The question now remains for consideration is as to the quantum of compensation. As has noted whereas the learned Counsel for the appellant urged on the basis of Ext. P2 that the complainant is eligible for only Rs. 42,332/-, learned Counsel for the respondent would maintain that the complainant is entitled to Rs. 62,270/-. As has noted the appellant has a case that the award of another amount of Rs. 10,000/- as compensation along with the price of the goods which is lost would be fixing the compensation on the higher side for according to the learned Counsel there could not even be a direction to pay Rs. 10,000/- in addition to the value of the goods claimed by the complainant. He challenged the award of interest over and above the award of the said compensation. Ext. P3 is the bill issued by the consignee to the opposite party. The same states the total price discount and the balance amount. The value of the goods is stated to be Rs. 62,270/- the discount is mentioned as 30%, and after deducting the discount it is stated the balance amount is Rs. 43,589/-. Discount is given to the customer and in considering the quantum of loss suffered by the consumer the profit that he could have earned by marketing the same also should be taken into account. The market value of the goods fixed is Rs. 62,270/-. Therefore in computing the compensation fixing the amount less the discount cannot be possible. The complainant could have made a profit by selling the goods in the market. Having regard to the aforesaid aspect whereas the fixing of compensation taking into account the value of the goods cannot be said to be on the higher side. The District Forum has awarded interest at 12% over and above Rs. 10,000/- compensation from 15.5.1998 the date of consignment of the goods to the carrier, and directed to pay the amount within two months of the order. The interest would accrue in a case where compensation is awarded only after the expiry of the date fixed for payment of the said amount. Here the period for payment is two months. That is from 21.2.2000, the date of the order. Since during the pendency of the appeal itself the date has expired modification to that part where the direction becomes necessary. Consequently the aforesaid amount will be paid to the complainant within two months of the date of receipt of the copy of this order. The aforesaid amount directed to be paid by the District Forum will carry interest at 12% from the date of expiry of the said two months fixed by this order. No other modification is called for in the order of the District Forum. In this appeal there will be no order as to costs. Subject to the said modification the appeal is dismissed.
"2004 (1) CPC 128" == "2003 (2) CPJ 646,"