AGENT, S.R.M.T. LTD. vs M.P. MALLIKARJUNA GOUD

THIS is an appeal preferred by the opposite parties in O.P. No. 270/1994 questioning the order of the Anantapur District Forum dated 7.4.1998. The complainant before the District Forum is the respondent before us. The respondent was served with notice on 3.8.1998. He is not present and there is no appearance on his behalf. He is called absent. The record of the District Forum is before us and we have perused the same.

WE find that the District Forum, without discussion and without any consideration of the material on record, accepted whatever the complainant stated in an abrupt manner as follows: "WE are agreeing with the contention of the petitioner, that the petitioner shall be entitled for compensation as damage caused to Almirah and damage caused to the Fridge and to the compressor the same was opened and noticed athome. Therefore, we can''t appreciate the contention of the respondent that the damage which is not noted at the time of the delivery of the Fridge, and the petitioner is not entitled for compensation. In this view of the matter, there is deficiency in service by the respondents that the goods consigned by the petitioner to be transported to the destination were subjected to damage and therefore, the respondents are liable to make good-loss. Hence, the petitioner shall be entitled to a sum of Rs. 2,775/- being the damage caused to the Fridge as well as Rs. 575/- being the damage caused to the Almirah, and Rs. 100/- towards costs of this petition. Accordingly the petition is allowed."

We will first notice what the complainant stated in his complaint. According to him he got his Iron Almirah and Alwyn Fridge transported from Alur to Anantapur by the appellants'' parcel service on 2.5.1994 and both the items "were delivered to him in damaged condition". He expressly stated in his complaint that "the fact as to the damaged condition of the articles is also certified by R-l (copy enclosed)". He also stated in his complaint that though both the items were packed neatly at the time of booking they were delivered in damaged condition mainly due to negligence of the appellants and that the repair for the Almirah cost him Rs. 575/- and he spent Rs. 2,775/- for repair of the Alwyn Fridge. As the appellants did not respond by compensating him for the cost of repairs he approached the Anantapur District Forum on 6.12.1994 claiming the amounts spent by him for repairs and also a further sum of Rs. 10,000/- for causing him mental agony and Rs. 100/- towards costs. In the counter filed before the District Forum on behalf of the appellants it was stated that as per their records the articles were booked on 21.5.1994 and not on 2.5.1994 and that they were delivered to the complainant on 23.5.1994. It was also stated that at the time of the delivery of the articles it was found "that there were some scratches on the body of the Almirah and the stand leg was little damaged" and that "no other damage was found or pointed out at the time of delivery" and that "the complainant took a damage witness certificate" from them "on 23.5.1994, in which (it was) clearly mentioned that only one article was little bit damaged" and that no mention was made of any damage to the Fridge. It was further contended in the counter that the claim for the Fridge was an after-thought. The expenses incurred by the complainant for the repairs were also disputed and it was contended that the claim was excessive.

We find that alongwith the complaint itself the complainant filed a xerox copy of ''To Pay'' Way Bill bearing No. 1510540 of Sri Ramdas Motor Transport Limited (''SRMT'' for short). The date on that is 21.5.1994. The amount to be paid was shown as Rs. 159.25 Ps. The complainant also filed alongwith his complaint Cash Receipt No. 0979291 dated 23.5.1994 issued by SRMT at Anantapur. That also shows that it was in respect of Way-Bill No. 1510540 dated 21.5.1994. It shows that in all a sum of Rs. 159.25 Ps. was paid. These two clinchingly establish that the complainant booked two articles i.e. Iron Almirah and Alwyn Fridge on 21.5.1994 and that the same were delivered to him on 23.5.1994 after carriage from Alur to Anantapur. Thus the statement of the complainant that he booked the articles on 2.5.1994 is obviously not correct. These are also further supported by the damage witness letter issued by the first appellant. That letter was marked as Ex. A1 by the District Forum and it was dated 23.5.1994. The subject of that letter was shown as : "1510540-3 dated 22.5.1994.....". It was stated as follows in Ex. A1: "The above Way-Bill coment was one Almar Damage condition delivered." Ex. A1 establishes that the Way-Bill was dated 21.5.1994 and that the delivery of the Almirah was effected on 23.5.1994. No mention whatsoever was made about any damage to the Alwyn Fridge in Ex. A1. It is obvious that the complainant did not demand open delivery of the Fridge even though he found that the Almirah was damaged. It is significant that the complaint did not state when the complainant informed the appellants about the alleged damage to his Alwyn Fridge on his noticing the same. The complainant deposed as PW 1. In his incomplete examination- in-chief he stated that on 2.5.1994 he booked an Iron Almirah and one Alwyn Fridge from Alur to Anantapur in SRMT lorry service and that he received the same on the next day at SRMT office in Anantapur in a damaged condition. He further stated as follows: "Since the Fridge was fully packed its damage could not be noticed at the time of delivery. But the damaged condition of the almirah was visible. The Agent S.R.M.T., Anantapur delivered the same to me and gave a letter that the almirah was in a damaged condition. Exhibit A1 is the letter. After going home and after unpacking the fridge, I found that it was also damaged. I got the almirah repaired in a workshop near Srikantam Theatre. He repaired it and charged Rs. 575/-. I got the Fridge repaired in another shop. It is also near Sreekantam Theatre. He charged Rs. 2,775/- for repairing the Fridge. Then I informed the Head Office, Kakinada. Exhibits A2 and A3 are the letters received from the Head Office. Some person on behalf of the Agent requested me to receive Rs. 300/- towards the cost of the damages and I did not agree. When I demanded them to pay the entire amount they refused to pay."

THE deposition of the complainant was incomplete because it was specifically noted at the end of the recorded chief-examination that it was to be continued. Thus his examination-in- chief itself does not appear to be complete and his deposition was not tested by cross- examination. On the docket also it was noted by the District Forum that on 21.2.1995 PW 1 was examined in part and the matter was posted to 28.2.1995 for continuation of chief-examination. THEreafter it was adjourned to several dates between 28.2.1995 and 7.4.1998 ''for continuation of PW 1 chief. On 7.4.1998 both sides were heard and order was pronounced. In the circumstances the incomplete and untested evidence of PW 1 cannot be reliable. It is obvious that he was not right in stating that he booked the two articles on 2.5.1994 the because Way-Bill itself, as already pointed out, was dated 21.5.1994. However in his examination-in-chief he had not stated that he informed the appellants about the damage to the Alwyn Fridge immediately on his noticing the same. On the other hand, he stated that after he got it repaired, then he informed the Head Office, Kakinada. He had addressed a letter (which is un-dated and filed alongwith the complaint on 6.12.1994) to the second appellant stating, inter alia, as follows : "But while delivery both were received in damaged condition (your Agent''s letter enclosed). THE Almirah repair cost me Rs. 575/- and the Alwyn Fridge repairs Rs. 2,775/- (Fridge compressor has gone and the front door was pressed). Though they were packed neatly received them in very had condition. When I complained here in your office they told me to report to you. As I know you are very reputed Company, I request you to kindly remburse my repair charges of total Rs. 3,350/- immediately. Though they were repaired both have lost their originality."

As mention was made in this letter about the expenditure incurred for repairs, it follows that this letter was addressed to the second appellant after the repairs were effected i.e., after 2.6.1994. The complainant filed the receipts said to have been given by Vijay Safe Co., dated 2.6.1994 for Rs. 575/- for the repair of the Almirah, and of Nawaz Refrigeration dated 2.6.1994 said to be for the repair of the Fridge. In the receipt for the repair of the Fridge the details were given as follows: Compressor reconditioning lining = 2,000=00 Door tinkering painting = 775=00 2,775=00 The complainant ought to have informed the appellants about the damage caused to the Fridge immediately on his discovering the same after taking it to his home and not after the repairs were effected by him. There is nothing to establish that the complainant had placed any material before the District Forum that before 2.6.1994 itself he informed the appellants about the damage to the Fridge. As already pointed out by us earlier, when he noticed that the Almirah was damaged he ought to have asked for and taken open delivery of the Fridge. In view of the fact that he did not do so and in view of the fact that he did not bother to inform the appellants about the alleged damage to the Fridge immediately after he discovered the same on 23.5.1994, it is difficult to believe that any damage was caused to the Fridge while it was being transported by or when it was in the custody of SRMT. For all we know it might have been damaged after it was taken delivery by the complainant and while it was being transported to his house or in his house. Even assuming that the Fridge door was damaged when it was in the custody of SRMT, it is difficult for us to believe that the compressor was also damaged then. We find that the conduct of the complainant in not informing the appellants about the alleged damage to the Fridge immediately, does not inspire confidence. Under the peculiar facts of the present case and considering that repairs were effected without any reference to the appellants, and in the absence of any convincing evidence to establish the extent of damage, we arc of the view that the complainant cannot get any compensation for the alleged damage to his Fridge and also the full amount claimed by him for repair of the Almirah.

IN the result we find that the District Forum erred in awarding the entire amount of Rs. 3,350/-claimed for repairs by the complainant. IN view of the admission by the appellants in their counter filed before the District Forum that some damage was caused to the Almirah and the stand leg was also damaged, they ought to have straight away offered some amount to the complainant at the time of filing their counter by depositing the same before the District Forum. The matter would have been settled straight away in 1994 itself instead of being dragged on till 1998. The receipt dated 2.6.1994 of Vijay Safe Co., shows that repainting and touching was also done apart from welding and providing new legs. It is not explained why repainting had to be done in addition to touching. The complainant has also not stated anywhere about the extent of repainting. IN the circumstances we reduce the amount claimed for repairing of the Almirah to Rs. 500/-. The appeal is accordingly partly allowed modifying the order of the Anantapur District Forum in O.P. No. 270/1994 dated 7.4.1998 by reducing die amount to be paid by the appellants/ opposite parties from Rs. 3,350/- to Rs. 500/- and costs of Rs. 100/-. The appellants are, therefore, to pay the said sum of Rs. 600/- to the respondent/complainant. By order dated 17.7.1998 in F.A. I.A. No. 721/1998 this Commission directed interim suspension of the order of the District Forum (which is the subject matter of the present appeal) subject to the condition of the petitioners/ appellants depositing a sum of Rs. 3,450/- before this Commission. Counsel for the appellants filed memo dated 30.7.1998 stating that a sum of Rs. 3,450/- was deposited in this Commission by way of a banker''s cheque dated 27.7.1998. The said amount is lying in the account of the Registrar of this Commission. A sum of Rs. 600/- shall be sent by the Registrar to the Anantapur District Forum to the credit of O.P. No. 270/1994 and the complainant i.e., respondent before us, shall be permitted to withdraw the same. The balance sum of Rs. 2,850/-, after deducting expenses incurred towards postal registration charges, shall be permitted to be withdrawn by the appellants. Appeal partly allowed.