R. Subbiah, President
1. This appeal has been filed by the appellant/1st opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the Learned District Commission, Chennai (South) made in C.C.No.458/2010, dated 30.09.2013 by allowing the complaint in part directing the opposite parties 1 to 3 to pay a sum of Rs.1,00,000/- towards compensation for mental agony with cost of Rs.5000/- to the complainant with default interest at the rate of 9% per annum till the date of payment.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redressal Commission, Chennai (South). (As per the Consumer Protection Act, 2019 the District Consumer Disputes Redressasl Forum is nomenclatured as District Consumer Disputes Redressal Commission (In short, “District Commission”).
3. The case of the complainant before the District Commission is that on 09.06.2010 at 12.45 a.m. he travelled from Kumbakonam to Chennai in a bus bearing registration No.TN-01—N-6744 belonging to the 1st opposite party’s Transport Corporation. The opposite parties 2 & 3 are the duty driver and conductor of the said bus respectively on the fateful day. The complainant boarded the bus with two bags. At the time of boarding the bus at Kumbakonam, the opposite parties 2 & 3 by raising the doubt that there may be some explosive materials inside the bags asked the complaint to open and reveal the contents and after confirming that there were no explosive materials, the complainant was allowed to travel in the said bus with two bags. The complainant paid Rs.113/- as bus fare for his travel from Kumbakonam to Chennai with the 3rd opposite party for which travelling tickets were issued. While the bus was nearing Vikravandi it was stopped at Sri Saravanabhavan Hotel at Panayapuram to enable the passengers to have a break of journey. The passengers were also informed of that the bus would be at halt only for 20 minutes. The complainant also got down from the bus along with other passengers to attend the nature’s call. Since there was heavy-rush near the rest-room the complainant was waiting for his turn and after few minutes he returned. To his shock and surprise, the bus had already left. However, the complainant managed to reach Chennai Koyambedu Bus-Terminal through another private bus. After reaching Chennai, he contacted the time-keeper at the bus-terminal and informed him what had happened at Vikravandi and on his request the checking inspector took him inside the bus-depot and at his request the bus was checked-up and only one suit case was found in the bus and another bag containing the valuable articles worth Rs.1,50,000/- was missing and hence the complainant preferred a consumer complaint before the District Forum claiming a sum of Rs.1,50,000/- towards missing valuables contained in the bag which has been lost and also for compensation of Rs.4,00,000/- for mental agony undergone by him with cost of the complaint alleging that there is deficiency in service on the part of the opposite parties.
4. The complaint was resisted by the 1st opposite party’s Corporation by filing their written version in which they have totally denied the case of the complainant. The specific case of the opposite parties is that on fateful day when the bus was nearing Vikravandi one lady passenger requested the conductor to stop the bus nearby a hotel to attend the nature’s call and therefore the bus was stopped for 20 minutes near Sri Saravanabavan Hotel at Panayapuram and after the said lady passenger came back and got into the bus and when the driver was about to start the bus he found one of the passengers was missing from the bus and therefore the driver was waiting for return of the said passenger for more than 20 minutes. Since the complainant had not returned for a long time, the driver took the bus and reached Chennai, Koyambedu Bus-Terminal. When they reached Koyambedu Bus-Station, the complainant came there and informed the Checking Inspector who was present in the Depots that he had missed the bus at Vikravandi along with his two bags and asked him to hand over the same and as contended by the complainant since the said two bags were available inside the bus, the same were taken and handed over to the complainant. However, at the time of receiving the said two bags, the complainant claimed another bag containing valuables was missing but except those two bags no other bag was found in the bus. The complainant has to blame himself for missing the bus. Hence, they sought for dismissal of the complaint as there was no deficiency in service on the part of the opposite parties.
5. In his separate written version, the 2nd opposite party has reiterated the defence raised by the 1st opposite party. The 3rd opposite party/the 3rd respondent was set ex-parte before the District Commission.
6. Before the District Commission, on the side of the complainant Exhibits A1 to A6 were marked and on the side of the 1st opposite party Exhibit B1 was marked whereas no document was marked on the side the opposite parties 2 & 3.
7. The District Commission, after analysing the evidences submitted by both sides has come to a decision that there was deficiency in service on the side of the opposite parties and allowed the complaint directing the opposite parties 1 to 3 jointly and severally to pay a sum of Rs.1,00,000/- as compensation for mental agony and Rs.5000/- as costs with default interest at the rate of 9% per annum.
8. Aggrieved over the order of the District Commission, the 1st opposite party has preferred this appeal before this Commission contending that the District Commission has failed to consider the case properly. The complainant has not proved his case that one bag containing the valuable things went missing in the bus and on that ground alone the complaint ought to have been dismissed by the District Commission. Per contra, the District Commission has passed the impugned order by allowing the complaint and hence the same has to be set-aside and the complaint be dismissed by allowing this appeal.
9. In view of the submission made by both sides, the following points are raised for disposal of this appeal?
(1) Whether the complainant has established his case through tangible evidence that he had lost a bag in which contained valuable articles worth about Rs.1,50,000/-?
(2) Whether there is any deficiency in service on the part of the opposite parties?
10. Point No.1:- Heard both sides and perused the materials on record. Keeping in mind the submissions made on either side, we have carefully considered the same. Since we have discussed the facts in detail above, we refrain from reiterating the same any further in this appeal and only the facts which are germane are discussed hereunder.
11. It is the assertive submission of the learned counsel for the appellant that absolutely no proof was produced before the District Commission to show that the complainant was in possession of two bags out of which one contained valuable articles worth about Rs.1,50,000/-. Whereas, according to the complainant/respondent, before boarding, at the request of the conductor and driver of the bus, he opened the two bags and showed them and one among them was containing valuable articles worth about Rs.1,50,000/-. But, we find that if really one bag had been lost with the valuable articles as stated supra, the complainant would have lodged a complaint with the police but he has not chosen to lodge a complaint. But he has filed a complaint after the period of six months from the date of the occurrence. Therefore, the conduct of the complainant would clearly raise a doubt whether really he has lost a bag worth about Rs.1,50,000/-. Moreover, except the self-interested statement of the complainant no other independent evidence was available to support his case. Hence, in the absence of supporting evidence we are of the opinion that the complainant has miserably failed to establish his case that he had lost a bag with valuables and the point is answered accordingly.
12. Point No.2; As for as the point No.2 is concerned, it is the case of the complainant that even before he returned after attending nature’s call, the bus had left. According to the complainant, before taking the bus, the conductor ought to have confirmed whether all the passengers have boarded the bus or not, but without doing so, the driver took the bus and reached Chennai and thus committed deficiency in service. But the reply of the appellant is that the bus was waiting for more than 20 minutes for return of all the passengers who had got down nearby Sri Saravanabavan Hotel at Vikrawandi though all of them had returned to the bus within 20 minutes, the complainant alone had not returned for a long time. Since other passengers were continuously putting pressure to start the bus, he was left with no other option except to start the bus and reach Chennai. Therefore, according to the appellant/opposite party the complainant ought to have been diligent enough to return to the bus within reasonable time and hence the complainant himself is responsible for missing the bus and hence there is no deficiency in service on the part of the opposite parties.
13. But, we are of the opinion th
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at except the submissions made by the opposite parties no other supporting evidence was available to establish whether the driver and conductor of the bus were waiting for a long time for return of the complainant and in such circumstances we have no other option except to accept the case of the complainant. However, considering all the above facts and circumstances of the case, we feel a sum of Rs.1,00,000/- awarded as compensation to the complainant appears to be on the higher side and hence the same is reduced to Rs.10,000/-. In other respects, the order of the District Commission is confirmed. The point is answered accordingly. 14. In the result, the appeal is allowed in part by modifying the order of the District Commission directing the opposite parties 1 to 3 jointly and severally to pay a sum of Rs. 10,000/- as compensation for mental agony instead of Rs.1,00,000/- and confirming the rest of the order. Considering the peculiar circumstances of the case, there shall be no order as to costs in this appeal.