K. VARADAPPAN vs Kerala Transport Co.

THE complainant''s case is that the complainant entrusted 180 bags of Rutile Sand at Madurai for transportation and delivery to the consignee at Nagpur. But the goods were delivered in a damaged condition. Further, there was a short delivery by two bags as a result the complainant suffered a loss of Rs. 2,94,840/-. THE loss is due to the negligence on the part of the opposite party and deficiency in service. Hence the complaint.

THE opposite party contended that the complainant has no locus standi to file the complaint. THEre is no cause of action. THEre is no deficiency in service. THE complaint is bad for mis-joinder and non-joinder. THE person who has signed the complaint is not competent to file the complaint on behalf of the company. THE complainant has not entrusted any material to the opposite party for transportation and safe delivery. THE consignment was consigned from Manavalakurichi. On the way, the adversary was contacted at Madurai for transportation of the goods to Nagpur by the broker of Namakkal Lorry Service. THE opposite party agreed for transportation of the goods for a freight charges of Rs. 4,600/- and received only a sum of Rs. 3,000/- as advance. THEre is no privity of contract between the parties. It is not true to say that the loss caused to the goods is due to the negligence of the men employed by the opposite party. THE vehicle was driven carefully. THE front main spring leaf got suddenly cut as a result of which the lorry went out of control and capsized. Thus, it is an act of God for which the opposite parties are not liable. THEre was no loss or damage to the goods. THE opposite party also paid a sum of Rs. 5,400/- towards lorry freight and coolie and other charges. THE goods were sent in another vehicle AP.21.U.5189 through Sri Chittoor Lorry Transport Office. THE opposite party, therefore, prays that the complaint may be dismissed with cost. The lower Forum accepted the complaint and directed the opposite party to pay a sum of Rs. 2,94,840/- with interest. Hence the appeal.

The complaint is not at all maintainable. It is nowhere stated in the complaint that the complainant entrusted 180 bags to the opposite party for transportation and delivery to the consignee at Nagpur. Admittedly, the complainant is a common carrier. The consginee is at Nagpur. The consignor was at Manavalakurichi. Ex. A1 proves the same. It shows that the consignment was booked at Manavalakurichi. The consignor name is not given. Ex. A2 also does not make mention of the name of the opposite party. Ex. A2 is only a Hire Payment Advice. The consignor is not made a party. The consignee is not made a party. It is not known under what provision of law the complainant who is only a carrier to whom the goods were entrusted by the consignor can claim compensation on the ground of loss on short delivery to the goods. The goods were not booked or transported or loaded on the worry of the opposite party at Manavalakurichi either by the consignor or his representative. It appears that there has been a transhipment of goods at Madurai on its way from Manavalakurichi to Nagpur. Therefore, in such circumstances, it is not known how a complaint can be made under the Consumer Protection Act against the opposite party. The opposite party alleges that on the way namely at Madurai, the complainant contacted them and asked them to carry the goods and while carrying the goods, owing to act of God, there is an accident and, therefore, the goods were loaded on to a different lorry and delivered and it is also stated that the goods were accordingly shifted to another lorry for which the freight charges were paid by the opposite party. Therefore, considering the nature of the circumstances of the case, it will be clear that the provisions of the Consumer Protection Act cannot be invoked here. The complainant is not the owner of the goods. There was no hiring of service as between the opposite party and the owner of the goods. There is no privity of contract as between the owner of the goods and the opposite party or as between the complainant and the opposite party or as between the consignee and the opposite party. The question whether the accident took place owing to the negligence of the driver is also a disputed fact. Therefore, considering all these facts and circumstances, we are of the view that this is a matter that would not fall within the jurisdiction of this Consumer Forum. It is also not known whether the complainant had been authorized by the consignor to engage a sub-contractor to transport the goods from mid-point to the destination and whether there is any subrogation at all. He is not the owner of goods. Nor he has paid the freight. Therefore, it is clear that the complainant with a view to avoid going to Civil Forum where alone the complex questions can be decided after bringing all the necessary parties on record, has resorted to a complaint before the Consumer Forum apparently to get over technical difficulties. Therefore, in such circumstances, we are of the veiw that the order passed by the lower Forum is not maintainable.

IN the result, this appeal is allowed with cost of Rs. 250/-. The order passed by the lower Forum is hereby set aside. The complaint will stand dismissed with cost of Rs. 250/-. Appeal allowed.