AMBAJI PARCEL SERVICES vs AMAR SONS

THIS appeal arises from order dated 8th September, 1997 rendered by the learned Surat District Consumer Disputes Redressal Forum in Consumer Disputes Redressal Petition No. 119/1995 directing the original opponent, appellant herein, to pay to the complainant Rs. 23,210/- with interest @ 15% p.a. from 1.1.1995 till its realization and cost quantified at Rs. 1,000/-.

WE have heard the learned Advocate appearing for the appellant, original opponent. WE have not granted the application for adjournment given by the learned Advocate for the original complainant, respondent herein. WE have gone through the impugned order. WE have gone through the memorandum of appeal. It would appear from the impugned order that the complainant entrusted to the opponent two parcels containing 73 kgs. of dhotis for being consigned to the consignee M/s. National Trades at Bombay. The value of the goods was stated to be Rs. 23,210/-. The opponent failed to deliver the goods to the consignee and, therefore, the complainant had occasion to approach the learned Forum with the grievance of non-delivery of the goods and deficiency in service in that respect.

The opponent resisted the complaint on the ground that it was barred by non-rejoinder of necessary party in the complaint inasmuch as the parcels were sent by railway and, therefore, Railway Administration ought to have been joined as a party to the complaint, that some anti-social elements had put the goods on fire and destroyed the same with the result that the opponent had the occasion to lodge complaint with railway authorities at Bombay and that the complainant would not be entitled to the claim in any event.

AFTER considering the material placed on record learned Forum came to the conclusion that there was deficiency in service on the part of the opponent Ambaji Parcel Services as the complainant did not have any cause of action against the railway authorities and only the opponent would have cause of action against the railway authorities. Learned Forum, therefore, passed the impugned order which has been subjected to challenge in this appeal. It has first been submitted on behalf of the appellant (original opponent) that it was on account of non-performance of rendition of service by railway authorities that the goods were destroyed by fire by anti-social elements. If that is so, it is not the complainant but the opponent parcel services who can take up the matter with the railway administration. The complainant cannot be made to suffer on that ground. Contract of Transportation of goods is between the complainant and the opponent and, therefore, the complainant would be entitled to the loss suffered by the complainant on account of entrustment of goods for transportation and non-delivery thereof by the opponent to the consignee.

IT has then been submitted that the opponent carrier would not be liable to answer the claim as per the conditions overleaf the transport receipt which inter alia say that the opponent would not be responsible for accident, fire, riot, robbery/dacoity or other accidental causes for loss, damage or destruction of the goods. In the first place this defence was not raised before the learned Forum. In the second place there is nothing on the record of the transport receipt which would indicate that the complainant was made award about the aforesaid condition. Even if this condition is taken to have been agreed upon between the parties it would not be legal and valid condition in view of the provisions contained in Sections 6, 8 and 9 of the Carriers Act, 1865 which provide for statutory liability in case of loss of or damage to goods handed over for transportation. IT has been ruled by the Apex Court that carriers'' liability is akin to liability of insurer of goods [See-Nath Brothers Exim International v. Best Roadways, reported in I (2000) CPJ 25 (SC)]. It has finally been submitted on behalf of the opponent that the value of the goods has not been established/proved by the complainant. Even in this respect the quantity, weight and nature of the goods entrusted for transportation have been disclosed to the opponent. Complainant has set out the value of the goods. The opponent has not come out with any evidence to show that the value of the goods given by the complainant was exaggerated. Hence it is not possible to accept this submission. It has also been submitted that award of interest is on the higher side. Bearing in mind the facts and circumstances of the case and also by virtue of the decision of the Apex Court in the case of Kaushnumma Begum v. New India Assurance Co. Ltd., reported in I (2001) SLT 300=I (2001) ACC 150 (SC)=2001 (1) Supreme Today P-5, we propose to reduce rate of interest from 15% to 9%.

WE, therefore, pass following order:

IMPUGNED order dated 8th September, 1997 rendered by the learned Surat District Consumer Disputes Redressal Forum in Consumer Disputes Redressal Petition No. 119/1995 is hereby maintained except with regard to rate of interest which is reduced from 15% to 9%. This appeal is accordingly disposed of with no further order as to cost.

The original opponent, appellant herein, is stated to have deposited Rs. 12,000/- in this Commission. Office is to verify the same and pay it with interest, if any, to the complainant (respondent herein) by A/c payee cheque. Balance amount shall be paid by the appellant (original opponent) to the complainant (respondent) within six weeks from today. Appeal disposed of.