ASHA TRAVELS vs SAIFEE HARDWARE MART

THIS appeal is directed against the order dated 27.3.1998 in O.P. No. 158/1997 on the file of the District Consumer Disputes Redressal Forum, Coimbatore.

THE appellant is the opposite party while the respondent is the complainant. Short facts may be related in order to understand the crux of the issue arising for consideration in this action.

The complainant on 14.2.1996 booked two rolls of wiremesh worth about Rs. 3,650/- as per invoice of the opposite party for transporting the same to Ernakulam and effect delivery thereof. He paid a consideration of Rs. 40/- to the opposite party for the transport of two rolls of wiremesh to Ernakulam. The consignment did not at all reach Ernakulam. Thereafter, the complainant issued a lawyer''s notice to the opposite party. No reply also emanated from the opposite party.

THE complainant would say that such act of the opposite party in not delivering the two rolls of wiremesh worth about Rs. 3,650/- at the destination point namely Ernakulam would tantamount to deficiency in service. In such a backdrop and setting, the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint.

THE opposite party of course would file a version contending in pith and substance that they, Asha Travels, is the agent of one Ashirwad Travels and the non-impleading of Ashirwad Travels as a party is fatal to the complaint. THE being the agent of Ashirwad Travels they cannot at all be mulcted with any liability for deficiency in service. When the matter came up for enquiry before the Forum below, the opposite party remained absent. Ex parte enquiry was held. During the course of ex parte enquiry, the complainant marked Exs. A1 to A4. The Forum below after taking into consideration the materials placed on record recorded a finding that there was deficiency in service on the part of the opposite party. Consequently, the opposite party was directed to pay to the complainant a sum of Rs. 3,650/- with interest thereon @ 15% p.a. on and from 15.2.1996 till date of payment and a sum of Rs. 1,000/- as compensation for mental agony and hardship caused to the complainant and a sum of Rs. 500/- towards costs failing which suitable penal action would be taken against the opposite party as per the provisions of law.

AGGRIEVED by the order as above, the opposite party resorted to the present action by engaging a Counsel of its choice namely learned Counsel Ms. S. Devika. On service of process, the respondent/complainant also entered appearance through a Counsel of their choice namely M/s. J.R. Prabakaran and J. Antony Jesus.

WHEN the matter came up for hearing before us today, learned Counsel appearing for the respondent/complainant were called absent and no representation was made on their behalf. We are however inclined to dispose of the appeal on merits of course after hearing arguments of learned Counsel Ms. S. Devika appearing for the appellant/opposite party and on perusal of the materials placed on record. Learned Counsel Ms. S. Devika appearing for the appellant/opposite party would with all force and vehemence contend that the opposite party M/s. Asha Travels being the agent of Ashirwad Travels cannot at all be mulcted with liability whatever. She would also contend that the non-impleading of Ashirwad Travels as a necessary party to the proceedings is also fatal to the complaint. The eloquent argument so made by the said learned Counsel rather appears to be attractive on the face of it. A little bit of a probe if made into the factual matrix of the case on hand, the utter untenability taking shelter thereunder would get exposed. Though a bold contention had been taken in the version filed that the opposite party Asha Travels is the agent of one Ashirwad Travels, yet, no material worth the name had been placed on record to point out that they, Asha Travels, are the agents of Ashirwad Travels. Therefore, the argument so projected has to fall on the ground with a bid thus with no results. If we look into the receipt issued by the opposite party namely Ex. A1, the same had been signed by Asha Travels, the opposite party. A perusal of the receipt shows that a sum of Rs. 40/- had been paid to the opposite party for transporting the two rolls of wiremesh to Ernakulam. This apart, the complainant also issued a notice to the opposite party M/s. Asha Travels marked as Ex. A2 complaining the non-receipt of the wiremesh at Ernakulam which was entrusted to them for transporting and giving delivery of the same at Ernakulam. To such a notice, the opposite party kept mum without any sort of a response. The non-issuance of reply notice by the opposite party would in the circumstances of the case speak volumes. If really they are the agents of Ashirwad Travels, cocksure it is, they would have issued a reply notice stating such state of affairs. The fact that they kept mum without issuance of reply notice itself is proof positive of the case that they themselves agreed to transport the wiremesh to Ernakulam for consideration of Rs. 40/-. Such being the case, it cannot at all be stated that the services of the opposite party had not been hired or availed of for consideration by the complainant for transporting wiremesh to Ernakulam.

Admittedly, the wiremesh did not at all reach Ernakulam and delivery of the same was effected to the consignee there. The cost of the wiremesh as per the invoice is Rs. 3,650/-. The Forum below after all directed the opposite party to pay a sum of Rs. 3,650/-, the value of the goods entrusted to them for effecting the delivery at the destination point namely Ernakulam. This apart, the Forum below also directed the opposite party to pay to the complainant interest @ 15% p.a. on and from 15.2.1996 till date of payment. This apart, the Forum below also directed the opposite party to pay to the complainant compensation quantified in a sum of Rs. 1,000/- for mental agony and anguish said to have been sustained by the complainant. Grant of interest as well as compensation for mental agony and anguish suffered is not legally permissible. Superior Courts of jurisdiction on more than one occasion said that either one of them alone is grantable. If interest is granted, the question of payment for compensation for mental agony and anguish may not arise for consideration and vice versa. In the case on hand, the Forum below granted both interest as well as compensation as stated above. We, therefore, order deletion of the direction as respects the payment of compensation quantified in a sum of Rs. 1,000/- to the complainant for the mental agony and anguish suffered by him. The Forum below after all awarded costs quantified in a sum of Rs. 500/- which we feel is reasonable not calling for interference.

IN fine, except to the extent of the modification of the award by the Forum below as made by us, the appeal shall stand dismissed in other respects. We make no order as to costs on the facts and in the circumstances of the case. We make it crystal clear that the order of the Forum below as modified by us is required to be complied with by the opposite party within a month from the date of receipt of our order or otherwise the complainant would be perfectly at liberty to invoke the provisions of Section 27 of the Consumer Protection Act, 1986. Appeal partly allowed.