SARAVANA ENGINEERING TRADERS vs PATEL ROADWAYS LTD.

THE complaint was dismissed. THErefore, aggrieved by the order of the lower Forum, the complainant has come forward with this appeal. THE complainant case, shortly, is that he entrusted to the 1st opposite party a common carrier of whom the 2nd opposite party is the registered office, 28 Nos. of wet grinders of different sizes for transportation to Bombay. THE lorry in which the goods were transported met with an accident as a result of which the grinders fell into a river resulting in damage to the grinders. THE consignee who made an inspection expressed that they cannot take delivery of the grinders because they were damaged considerably. THErefore, at the request of the complainant, the grinders were re-transported to the complainant. THE complainant found them, on arrival, in a very damaged condition. THE grinders have been loaded in the lorry one above the other indiscriminately and in a disorderly manner. THE grinders have to be transported, packed and loaded in different tiers side by side to avoid damage. But the servants of the opposite party have not taken proper care in loading the grinders. Thus, the loss was caused due to the mishandling of the goods. THEre was negligence and misconduct and total deficiency. THE value of the consignment was Rs. 1,29,838/-. THE complainant has suffered mental agony and shock. THE complainant, therefore, submits that there is deficiency in service and, therefore, the opposite parties are liable to reimburse to the complainant the value of the consignment along with a sum of Rs. 50,000/- as damages, with interest and costs.

THE opposite parties contended that the Consumer Court had no jurisdiction. It is true that the grinders were transported in the lorry belonging to the opposite parties and the lorry met with an accident at a place about 70 kms. from Bombay. THE averment that the consignee inspected and expressed inability to take delivery is not true. It is not also the case of the complainant that the goods were completely damaged. THE grinders were transported back to the complainant''s place as per his letter dated 4.1.1995. THE allegation that the goods were very much damaged and they were not properly handled and loaded and they were loaded in an indiscriminately and disorderly manner, is absolutely false. THEre is no deficiency in service. THE opposite parties are not liable to pay any amount, much less the compensation in a sum of Rs. 50,000/- or reimburse the value of the consignment. THE consignment was carried with utmost caution and care. It is on account of the act of God the accident had occurred. THE consignment was carried at "owner''s risk". THE Consumer Court has no jurisdiction and hence the opposite parties prayed that the complaint be dismissed with costs. The fact that certain consignment of wet grinders were entrusted to the opposite parties by the complainant for transportation and delivery at Bombay is not disputed. The complainant has produced materials in the form of consignment note and stock transfer advice to show the value of the goods as on the date when the transportation was made. It is also the common case that at a place about 70 kms. away from Bombay an accident took place involving the vehicle and on account of the accident the wet grinders fell into a river. It is also the admitted case that the wet grinders were transported back to the complainant at his request.

According to the complainant, the goods were loaded in a careless manner by stacking them one on the top of the other whereas it should have been kept in different tiers side by side. Therefore, the complainant would allege that on account of the indifferent and careless handling and loading of the grinders, the damage had occurred. That the goods were damaged is not seriously disputed. In fact it can also be taken note of that the wet grinders, as a result of the accident, fell into a river and they got damaged. But according to the complainant, the grinders were totally damaged, whereas according to the opposite parties, there was no total damage to the goods. It is the case of the opposite party that there was no negligence and the goods were carried with care and caution. How the accident took place, the opposite parties alone know about it, but they have not chosen to give the details. It is not necessary for the consignor to prove negligence, especially in this case, when the manner of the accident speaks for itself. Therefore, the burden is upon the carrier to show that there was no negligence on its part. Therefore, proof of absence of negligence definitely rests upon the opposite parties. But in this case, excepting to deny the allegation, they have not placed any material to show how the accident took place, how there was no negligence on their part and, therefore, it can be safely concluded that there has been negligence in the transportation of the goods which has resulted in the non-delivery of the goods and damage to the goods. It is also the case where no surveyor was appointed either at the instance of the complainant or at the instance of the opposite party carrier to assess the damage. Whatever it may be, the fact remains that the damaged goods were sent back by the opposite party to the complainant at his request.

THE issue to be decided is the extent of damage. While the complainant would say that it was total, the other side would dispute the same. It is not known as to whether there was any survey of the damaged goods. THE complainant admittedly brought back the goods to Coimbatore and obviously they have brought it back for the purpose of repairing them and selling them in the market. THErefore, the complainant would have sufficient records available with him to show the nature of damage and the cost of repairs incurred by him to set them in order. Though the complainant is admittedly in possession of such material, they have not chosen to produce those materials to show the exact cost incurred by them for repairing the damaged grinders. THErefore, when they have the best evidence, they have not chosen to produce that evidence before the Forum to establish the nature of damage and the extent of damage and the cost incurred for repairing the damaged grinders. THErefore, the lower Forum, in the circumstances, held that on the aspect of quantification, since the parties have not furnished sufficient materials, it is not possible for the Consumer Forum to decide on the question of quantification and has, therefore, directed the complainant to approach the Civil Court of competent jurisdiction for redressal of grievance if they so desired. In the circumstances, we feel that the order passed by the lower Forum cannot be held to be unjustified. THErefore, we do not find any reason to take a different view. The learned Counsel for the appellant would rely upon the decision reported in III (2002) CPJ 264 (NC) for contending that when no evidence is led by the petitioner as to the market value of the car, as the Insurance Company itself has insured the car for Rs. 1,17,500/-, it should be taken note of to fix the value of the car. But the said decision cannot be made applicable to the facts of this case. If really the grinders were so badly damaged, definitely the complainant would not have asked for the grinders to be transported back to him. Therefore, his request to the opposite parties to transport back the grinders to him would show only that it was not a case of total damage and that there was some damage which the complainant thought that could be rectified in his factory and, therefore, had requested for the goods being transported to him. Therefore, in such circumstances, we are of the view that the conclusion reached by the lower Forum in the circumstances cannot be faulted with and merely the value stated in the consignor note cannot be, in the circumstances, taken as the basis to conclude the extent of damage. Therefore, in such circumstances, we deem it a case where there are no merits in the appeal.

CONSEQUENTLY, this appeal is dismissed, but in the circumstances, without costs, confirming the order of the lower Forum. Appeal dismissed.