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The Managing Director, K P N Travels India Ltd., Bengaluru & Others v/s C. Kumar,(physically Challenged) & Another

    F.A.Nos.76, 333 of 2014

    Decided On, 03 March 2020

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, THE HONOURABLE DR. JUSTICE S. TAMILVANAN
    By, PRESIDENT
    By, THE HONOURABLE MR. K. BASKARAN
    By, JUDICIAL MEMBER & THE HONOURABLE DR.(MRS.) S.M. LATHA MAHESWARI
    By, MEMBER

    For the Appearing Parties: D. Kumaralingam, R. Dhanalakshmi, Advocates.



Judgment Text

(These appeals coming before us for final hearing on 21.02.2020 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:-)

K. Baskaran, Judicial Member

1. Having suffered an order directing payment of certain amount to the complainant due to deficiency in service the opposite parties have filed the appeal in FA.No.76/2014 and feeling aggrieved over the inadequacy of the reliefs granted the complainant has filed the appeal in FA.No.333/2014 and both these appeals are directed against the order dated 27.06.2013 made in CC.No.4/20111 on the file of the Learned District Consumer Disputes Redressal Forum, Villupuram (in short the District Forum).

2. The parties are referred to here as they stood arrayed before the Learned District Forum for the sake of convenience and brevity.

3. The Factual matrix culminating in this appeal

That the complainant had filed the complaint claiming Rs.60,550/- being the value of consignment together with compensation of Rs.1,50,000/- and other compensation totaling Rs.3,65,993/- from the opposite parties alleging, inter alia, that the complainant had entrusted 7 sewing machines with the 1st opposite party common carrier to be transported from Bangalore to Villupuram to be delivered to the complainant in Villupuram by paying Rs.1723/- as freight charges but when the consignment was delivered to the complainant at Villupuram he found the sewing machines damaged and hence he refused to take delivery of the same and in spite of repeated requests to the opposite party, instead of carrying out the repairs and compensating the complainant, they had abused the complainant in filthy language and assaulted him and hence the complainant could not start the sewing unit proposed by him resulting in heavy monetary loss to him;

4. That the complaint was resisted by the opposite parties contending that the complainant had not declared at the time of booking the consignment that it contained easily damageable goods; had it been declared by the complainant the opposite parties might have refused to transport the same; that as per the terms and conditions of transport the opposite parties common carrier are not responsible for the damage if any caused to the consignment; the complainant might have entrusted the damaged sewing machine with the opposite parties and filed a false complaint against the opposite parties; the truck which carried the goods went to various destinations up to Chennai and delivered various goods to various consignees but there was no complaint from any such consignee. Hence there was no deficiency in service on the part of the opposite parties.

5. That on the pleadings of the parties the Learned District Forum had framed two points for consideration and finally allowed the complaint in part directing the opposite parties to pay Rs.62,273/- as compensation together with interest at 15% per annum besides Rs.2000/- as cost of litigation; that the opposite parties have preferred FA.No.76/2014 seeking to set aside the order and the complaint has filed the appeal in FA.No.333/2014 seeking enhanced compensation.

6. Points for Consideration in these appeal

FA.No. 76/2014

1. Was not there any deficiency in service on the part of the opposite parties?

2. Is not the complainant entitled to the reliefs granted by the Learned District Forum?

FA.No.333/2014

1. Whether the complainant is entitled to enhanced relief?

7. Point No.1 in FA.No.76/2014

Shorn of necessary details the case of the complainant is that he had booked a consignment of 7 power sewing machines with the 1st opposite party common carrier in Bangalore to be transported to Villupuram on 18.11.2009 paying a freight charge of Rs.1723/- but when the consignment was delivered to the complainant at Villupuram on 19.11.2009 all the 7 sewing machines were found in a highly damaged condition and hence he refused to take delivery of the same and those damaged sewing machines have been lying in the 2nd opposite party office and hence the opposite parties should be directed to pay the amounts as they were guilty of deficiency in service. Per contra the simple defence of the opposite parties is that the complainant did not declare the nature of the consignment like brittle, perishable goods etc so that they could have been handled with care or the 1st opposite party might not have not accepted the consignment and that the complainant had taken delivery of the consignment on 19.11.2009 from the 2nd opposite party after signing the delivery slip and that as per the terms and conditions of the contract of transport the carrier is not liable for any damage caused to the consignment.

8. A perusal of the Written Version filed by the 2nd opposite party would show that they had not specifically denied that the consignment suffered damage as alleged by the complainant; what they would plead is had the complainant declared at the time of booking the consignment with the 1st opposite party in Bangalore that the consignment consisted of 7 power sewing machines which were brittle and easily damageable then the 1st opposite party would not have accepted the consignment. A careful reading of the Written Version and Additional Written Version filed by the 2nd opposite party would show that the opposite parties had not specifically pleaded that the consignment was taken delivery by the complainant on 19.11.2009 from the office of the 2nd opposite party without any protest. But in the reply letter under Ex.A13 written by the Head Office of the opposite party it is stated that the complainant had taken delivery of the consignment on 19.11.2009 and signed the delivery note and hence there was no negligence on the part of the opposite parties in handling the parcel. Hence we have to hold that the defence of the opposite parties is that the complainant had, without any protest, taken delivery of the consignment on 19.11.2009 itself.

9. Per contra the definite case of the complainant as per the complaint pleadings and as per his evidence through Proof affidavit is that on 19.11.2009 when he went to the 2nd opposite party to take delivery of the consignment before he could take delivery his signature was obtained in the delivery note and thereafter only the consignment was handed over to him and then only he noticed that all the 7 sewing machines were badly damaged and hence he refused to take delivery of the same and left the consignment in the 2nd opposite party office itself and thereafter the consignment was sent back to the 1st opposite party office in Bangalore. But the opposite parties in the Written Version and in the Proof Affidavit have not dealt with these allegations either by denying or by spelling out as to what happened to the consignment. As already noticed there is no specific pleading in the Written Version as to whether the complainant had taken delivery of the consignment and taken the consignment to his place. Hence in the absence of specific denial we have to hold that the complainant had, on coming to know that the consignment was badly damaged, refused to take delivery of the same and left them in the 2nd opposite party office itself who had retransported the same to the 1st opposite party office in Bangalore. Equally it would falsify the defence of the opposite parties that on 19.11.2009 itself the complainant came to the 2nd opposite party office and took delivery of the consignment. Because if so happened there would not have been any necessity for Re transporting the consignment by the 2nd opposite party to the office of the 1st opposite party office in Bangalore as per Ex.A4 delivery slip. This circumstance not only strengthens the case of the complainant but also would falsify the defence of the opposite parties. Hence we have no hesitation to hold that the opposite parties have set up a false defence in this case and as such that has to be thrown out lock , stock and barrel.

10. The contention of the opposite parties is that as per the terms and conditions of agreement of transport between the parties the opposite parties / carriers are not liable for any damage caused to the consignment and in support of this contention they would refer to Ex.A3 delivery slip. On the reverse of it some terms and conditions are printed in a small font, it contained 20 clauses. Hence in consignor would not have sufficient time to go through all these 20 clauses to understand the rights and liabilities of the contracting parties. Further there is no reference whatsoever in this document to show that the complainant / consignor was appraised of these terms and conditions and thereafter only he signed. Further the complainant had signed on the first page of this document under Ex.A3 whereas all these terms and conditions in the smallest font possible printed on the reverse of the document and parties have not signed below these terms and conditions. Hence it cannot be said that the complainant had accepted the terms and conditions printed on the reverse of Ex.A3 and signed the document. Even assuming that the complainant had signed Ex.A3 knowing fully well that the opposite parties were not at all liable for any damage likely to be caused to the consignment, still such a condition cannot be said to be binding on the complainant in as much such a clause is not a just and fair one and there cannot be blanket immunity for the opposite parties / Common Carrier from any liability arising out of any damage to the consignment. The common carrier like the opposite parties cannot be permitted to declare that they were not liable to any kind of damage to the consignment for any reason whatsoever including the willful negligence on the part of the employees, workmen involved in the assignment of transporting the consignment. Hence we hold that the opposite parties cannot take shelter under the said clause which purports to absolve them from any liability arising out of the damage to the consignment.

11. From the above discussions we have to hold that the consignment of the 7 sewing machines entrusted by the complainant to the 1st opposite party common carrier in Bangalore on 18.11.2009 got damaged whilst in the custody of the opposite parties and when the complainant had gone to the 2nd opposite party office on 19.11.2009 to take delivery of the consignment he noticed the sewing machines were badly damaged and hence he did not take delivery of the same and left the consignment at the office of the 2nd opposite party and in spite of repeated requests made by the complainant the opposite parties did not remove the defects and deliver the consignment nor paid the compensation as sought for by the complainant. These acts of commission and omission on the part of the opposite parties would clearly amount to deficiency in service as has been rightly held by the Learned District Forum and we answer this point accordingly.

12. Point No.2 in FA.No.76/2014 and Point in FA.No.333/2014

The complainant had prayed for direction to the opposite parties to pay a sum of Rs.3,65,993/- which included value of the damaged sewing machines and compensation for monetary loss and other expenses besides compensation for mental agony , whereas the Learned District Forum had directed the opposite parties to pay the value of the sewing machines and freight charges in a sum of Rs.62,273/- together with interest and cost of Rs.2000/-. Feeling aggrieved over the quantum of relief the complainant has preferred the FA.No.333/2014.

13. The complainant had refused to take delivery of the sewing machines from the 2nd opposite party on 19.11.2009 for the reason that all the sewing machines were badly damaged and from then onwards the said sewing machines remained in the custody of the opposite parties and that the complainant was made to run from pillar to post to get the sewing machines serviced and delivered to him or to get the adequate compensation for the damage caused to the sewing machines. Further the complainant was made to visit Salem where the Head Office of the opposite parties is situated and to Bangalore where the 1st opposite party is located but only to be abused and threatened by the personnel in those offices and that the complainant had to petition before the District Collector and the Superintendent of Police and had to lodge a complaint with the concerned Police Station. In spite of all these efforts the opposite parties did not lend their ears to the screams of the complainant and as a result the c

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omplainant could not launch the Tailoring Project as planned by the complainant. Because of the above the complainant was put to mental agony, physical hardships and monetary loss. Hence we are of the considered view that the complainant is entitled to get reasonable compensation towards mental agony and monetary loss. We are of the view that quantifying the compensation at Rs.50,000/- towards mental agony, monetary loss and other hardships suffered by the complainant would be just, fair and reasonable and would meet the ends of justice. 14. Hence we hold that the complainant is entitled to get the compensation of Rs.50,000/- in addition to the other reliefs granted by the Learned District Forum and we answer the point in FA.NO.333/2014 accordingly. Consequently point no.2 in FA.76/2014 is answered in the negative. FA.NO.76/2014 In the result the appeal is dismissed. No order as to cost. FA.No.333/2014 In the result the appeal is allowed and the order of the Learned District Forum dated 27.06.2013 in CC.No.04/2011 is modified by Directing the opposite parties to pay a sum of Rs.50000/-(Rupees fifty thousand only) as compensation for the mental agony and monetary loss and other hardships suffered by the complainant in addition to the reliefs granted by the Learned District Forum. The parties shall bear their own cost in this appeal.
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