Parveen Travels (P) Ltd., Rep. by General Manager Vs. Mohamed Meeran, Rep. by His Power of Attorney, S.S. Dawood Sha - Court Judgment

SooperKanoon Citationsooperkanoon.com/1109708
CourtTamil Nadu State Consumer Disputes Redressal Commission SCDRC Chennai
Decided OnMar-21-2011
Case NumberF.A.103 of 2009 [Against order in C.C.67 of 2006 on the file of the DCDRF, Chennai (North)]
JudgeHONOURABLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT, THIRU J. JAYARAM, M.A., M.L., JUDICIAL MEMBER & THIRU S. SAMBANDAM, B.SC., MEMBER II
AppellantParveen Travels (P) Ltd., Rep. by General Manager
RespondentMohamed Meeran, Rep. by His Power of Attorney, S.S. Dawood Sha
Excerpt:
(prayer: the respondent as complainant filed a complaint before the district forum against the appellant/opposite party praying for the direction to the opposite party to a sum of rs.1,30,000/- being the value of the jewels, to pay rs.13,000/- being the cash, and to pay a sum of rs.5 lakhs. the district forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the district forum dt.16.04.2008 in c.c.67/2006. this appeal coming before us for hearing finally on 21.02.2011, upon hearing the arguments of the appellant counsel and perused the documents, written submission of the appellant as well as the order of the district forum, this commission made the following order:) m. thanikachalam j, president 1. the opposite party is the appellant. 2. the complainant, along with his family members traveled from devipattinam to chennai on 13.04.2005 in the bus operated by the opposite party, bearing registration no.py-01-x-5656, which started its journey at 8 p.m. at that time, the complainant had handed over two suitcases, one small and one big, to the cleaner of the bus, who kept them in the dickey of the bus. on arrival at chennai on 14.04.2005, when the complainant requested the driver to hand over the luggage namely two suitcases, they have handed over only small suitcase, failed to hand over another suitcase, in which, the complainant had cloths, jewels and cash, thereby the opposite party had committed negligence act, for which, police complaint was also given, with great difficulties. by non-delivery of one suitcase entrusted to the opposite party, they have committed deficiency in service, causing mental agony and monetary loss, therefore, the complainant is entitled to a sum of rs.1,30,000/- being the value of the jewels, another sum of rs.13,000/- being the cash, in addition to, compensation of rs.5 lakhs for mental agony. 3. the opposite party opposed the case, contending that it is the responsibility of the passenger carrying suitcase while journey, even as indicated in the conditions printed in the tickets, that with the influence of the police, the complainant was able to prefer complaint at karaikudi police station, as if, one suitcase containing jewels missed from the dickey, that the averments in the complaint that there were cloths, jewels are all false and that the complainant is not entitled to any compensation, since the opposite party has not committed any deficiency in service. 4. the district forum accepting the case of the complainant, as gospel truth, rejecting the defence in toto, not only ordered to pay a sum of rs.1,30,000/- towards the value of the jewel, but also a sum of rs.13,000/- being the cash, in addition to, a sum of rs.50,000/- as compensation, as per the order dated 16.07.2008, which is under challenge. 5. the learned counsel for the appellant/opposite party urged before us that since there was no material to prove, either the jewels or the cash, the district forum has committed an error in ordering to pay those two amounts, in addition to compensation, not properly appreciating the facts, then coming to an erroneous conclusion, which should be erased. further an attempt was made, as if, for this transport, carrier act is applicable and in the absence of notice, case itself is not maintainable. it is the further submission of the learned counsel of the appellant, that the district forum has wrongly applied the principle, laid down by this commission to the case on hand, though the decision is not applicable on facts. thus, elaborating the points, taking us to the various documents, an appeal was made for allowing the appeal, which is opposed. 6. the complainant and his family members traveled in the bus of the opposite party from devipattinam to chennai on 13.04.2005 and reached, chennai on 14.04.2005 at 6 a.m., not very much disputed before us. it is the specific case of the complainant, that while getting into bus at devipattinam, he had handed over two suitcases, to the cleaner of the bus, who kept them in dickey, and at chennai, only one suitcase was handed over and another suitcase, which contained valuables was not handed over. therefore, first we have to see, whether the alleged missing of suitcase was entrusted or not, in order to attract the consumer forums jurisdiction since in this case, admittedly, for these two suitcases, no luggage charge had been collected by the opposite party. 7. in the written version, it is said that it is the duty of the passenger to take care of their luggage while traveling, cannot be disputed. it is the further case of the opposite party, conditions are printed in the ticket, which is not produced and therefore, we cannot say, what is the liabilities of the parties, as the case may be. but the fact remains, a passenger is entitled to carry minimum luggage, even without charge while journey, cannot be disputed. for journey, the passenger pays the amount and for the permissible luggage, that should be taken as consideration or payment of service, as the case may be. therefore, in this case, on the ground that the opposite party has not collected any extra luggage charge, they cannot escape from the liability, ousting, as if, he is not the consumer, or he has not availed the service of the opposite party on payment of consideration. thus concluding, even a passenger, who traveled in a bus, paying fare with permissible luggage, then in respect of that luggage also, he should be construed as a consumer and the carrier namely the bus should be construed as service provider in this case, the opposite party. admittedly, the suitcases were accompanied with the passenger, though it was in the dickey, not in goods carrier, attracting the provisions of carrier act, warranting notice etc., therefore, if the complainant has proved, that he had entrusted two suitcases at devipattinam and the opposite party having custody, failed to hand over one suitcase, whatever may be the conditions, then it should be construed as deficiency in service. 8. in the written version as well as in the affidavit of the opposite party, we find no specific denial, regarding the entrustment of two suitcases to the opposite party employees, at devipattinam. it is also not the case of the opposite party, that they have handed over two suitcases, at chennai on arrival on 14.4.2005, at about 6 a.m. therefore, we would say, that the averments in para 2 regarding the entrustment of two suitcases, is not specifically denied, thereby compelling us to draw a conclusion, that the complainant should have entrusted two suitcases. if the suitcases were carried inside the bus, along with passenger namely the complainant, then we can say, definitely the bus operator namely the opposite party is not responsible for the missing suitcases since it is the duty of the passenger to safeguard the unbooked luggage, which he carried, not entrusted to the bus operator, namely the opposite party. in this case, as proved, we would say, two suitcases were entrusted to the employee of the opposite party, who kept them in the dickey, that was under the control of the opposite party or their employee. therefore, they should be held responsible for two suitcases. 9. after reaching chennai, the complainant attempted to give a complaint to the police, it was not accepted and therefore, it seems, he sent the same by registered post, wherein, we find more or less the same averments as available in the complaint. assuming that it is the self-serving document, we are unable to ignore ex.a3, a letter written by the opposite party to the complainant, wherein, it is said, that one suitcase of the complainant kept in the dickey, from devipattinam to chennai, fallen within the limit of karikudi police station, requesting them to take appropriate action and the fir copy was marked to egmore police station as well as inspector of karaikudi police station. this letter is sufficient for us, in a case like this nature, to conclude that one of the suitcase belongs to the complainant, which was in the custody of the opposite party, missed and therefore, this should be treated as negligent act, followed by deficiency in service. when the opposite party had taken possession of two suitcases, one alone was handed over, one not handed over, then applying the dictum of res ipsa loquitor, it should be construed, opposite party had committed negligent act, by allowing the suitcase to fall down or allowing the suitcase to be taken by somebody, thereby in both way, causing damage to the complainant. thus, concluding, one of the suitcase of the complainant lost, which was in the custody of the opposite party, further construing it is the deficiency in service. now, we have to see, whether the complainant is entitled to the claim as prayed for. 10. the complainant is one mohamed meeran and the case was filed by his power of attorney s.s. dawood sha. it is not the case of the complainant that the power of attorney also traveled along with the complainant or he had personnel knowledge, about the entrustment of the suitcase to the opposite party or its contents including jewels, its value, cash etc., therefore, in order to prove the averments in the complaint regarding jewels, cash, jewels value, the complainant alone should file an affidavit, and that alone can be taken as evidence, even as contemplated under consumer protection act, which is the principle available under cpc also, unless the power agent had personnel knowledge. in this case, as seen from the records, power of attorney alone has filed a proof affidavit, wherein also, it is not the case of the power of attorney that he knew personally the averment in the complaint. thus, it is seen, the proof affidavit filed by the power of attorney will not come to the aid of the complainant, to prove the actual availability of the jewels in the suitcases or its value or cash as the case may be. unfortunately, the district forum accepting the affidavits, as if, the missing suitcase does contained jewels, cash, passed an order, without any materials to establish the same, which is incorrect, in our view. as seen from the complaint, even without description regarding the jewels, it is simply stated gold chain, necklace, bangles etc., which are all common names, not with reference to the particular jewel and for keeping the cash also, it is highly unbelievable. for the above said reasons, in the absence of proof, though a suitcase was missed, by the opposite party, which does contained the jewels and cash, ordering to pay the value or the amount, is not proper and correct and if at all, the opposite party should be directed to go to civil court to workout his remedy, since the consumer forum can award compensation only for deficiency in service of service provider and for the recovery any other loss, such as jewel, cash and it is open to the consumer to file a civil suit, which was not properly taken into account, by the district forum, resulting erroneous direction, as far as direction to pay jewels value and cash. 11. as far as the compensation is concerned, since it is the consequence of deficiency in service, we cannot find fault in awarding compensation, though the amount may be on the higher side, without proof the loss of suitcase how caused mental agony, damage etc., considering the missing of suitcase and the absence of proof, regarding its contents, for the deficiency in service committed by the opposite party alone, we feel, ends of justice would be meet, by ordering a compensation of rs.35,000/-, instead of rs.50,000/- as ordered by the district forum, with direction to the complainant, if he wishes, to work out his remedy for the loss of jewels and cash, before the civil forum. to the above said extent, the appeal deserves to be allowed in part and the order of the district forum is to be modified. 12. in the result, the appeal is allowed in part and the order of the district forum is modified, allowing the complaint in part, directing the opposite party to pay a sum of rs.35,000/- with cost of rs.2,000/- as compensation for deficiency in service and the amount shall be paid within two months from the date of receipt of this order, failing which, it shall carry interest at 12% per annum from the date of default, dismissing the rest of the claim. no order as to costs in this appeal.
Judgment:

(Prayer: The respondent as complainant filed a complaint before the District Forum against the appellant/opposite party praying for the direction to the opposite party to a sum of Rs.1,30,000/- being the value of the jewels, to pay Rs.13,000/- being the cash, and to pay a sum of Rs.5 lakhs. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.16.04.2008 in C.C.67/2006.

This appeal coming before us for hearing finally on 21.02.2011, upon hearing the arguments of the appellant counsel and perused the documents, Written Submission of the appellant as well as the order of the District Forum, this Commission made the following order:)

M. THANIKACHALAM J, PRESIDENT

1. The opposite party is the appellant.

2. The complainant, along with his family members traveled from Devipattinam to Chennai on 13.04.2005 in the bus operated by the opposite party, bearing Registration No.PY-01-X-5656, which started its journey at 8 p.m. At that time, the complainant had handed over two suitcases, one small and one big, to the Cleaner of the bus, who kept them in the dickey of the bus. On arrival at Chennai on 14.04.2005, when the complainant requested the driver to hand over the luggage namely two suitcases, they have handed over only small suitcase, failed to hand over another suitcase, in which, the complainant had cloths, jewels and cash, thereby the opposite party had committed negligence act, for which, police complaint was also given, with great difficulties. By non-delivery of one suitcase entrusted to the opposite party, they have committed deficiency in service, causing mental agony and monetary loss, therefore, the complainant is entitled to a sum of Rs.1,30,000/- being the value of the jewels, another sum of Rs.13,000/- being the cash, in addition to, compensation of Rs.5 lakhs for mental agony.

3. The opposite party opposed the case, contending that it is the responsibility of the passenger carrying suitcase while journey, even as indicated in the conditions printed in the tickets, that with the influence of the police, the complainant was able to prefer complaint at Karaikudi Police Station, as if, one suitcase containing jewels missed from the dickey, that the averments in the complaint that there were cloths, jewels are all false and that the complainant is not entitled to any compensation, since the opposite party has not committed any deficiency in service.

4. The District Forum accepting the case of the complainant, as gospel truth, rejecting the defence in toto, not only ordered to pay a sum of Rs.1,30,000/- towards the value of the jewel, but also a sum of Rs.13,000/- being the cash, in addition to, a sum of Rs.50,000/- as compensation, as per the order dated 16.07.2008, which is under challenge.

5. The learned counsel for the appellant/opposite party urged before us that since there was no material to prove, either the jewels or the cash, the District Forum has committed an error in ordering to pay those two amounts, in addition to compensation, not properly appreciating the facts, then coming to an erroneous conclusion, which should be erased. Further an attempt was made, as if, for this transport, Carrier Act is applicable and in the absence of notice, case itself is not maintainable. It is the further submission of the learned counsel of the appellant, that the District Forum has wrongly applied the principle, laid down by this Commission to the case on hand, though the decision is not applicable on facts. Thus, elaborating the points, taking us to the various documents, an appeal was made for allowing the appeal, which is opposed.

6. The complainant and his family members traveled in the bus of the opposite party from Devipattinam to Chennai on 13.04.2005 and reached, Chennai on 14.04.2005 at 6 a.m., not very much disputed before us. It is the specific case of the complainant, that while getting into bus at Devipattinam, he had handed over two suitcases, to the cleaner of the bus, who kept them in dickey, and at Chennai, only one suitcase was handed over and another suitcase, which contained valuables was not handed over. Therefore, first we have to see, whether the alleged missing of suitcase was entrusted or not, in order to attract the Consumer Forums jurisdiction since in this case, admittedly, for these two suitcases, no luggage charge had been collected by the opposite party.

7. In the Written Version, it is said that it is the duty of the passenger to take care of their luggage while traveling, cannot be disputed. It is the further case of the opposite party, conditions are printed in the ticket, which is not produced and therefore, we cannot say, what is the liabilities of the parties, as the case may be. But the fact remains, a passenger is entitled to carry minimum luggage, even without charge while journey, cannot be disputed. For journey, the passenger pays the amount and for the permissible luggage, that should be taken as consideration or payment of service, as the case may be. Therefore, in this case, on the ground that the opposite party has not collected any extra luggage charge, they cannot escape from the liability, ousting, as if, he is not the consumer, or he has not availed the service of the opposite party on payment of consideration. Thus concluding, even a passenger, who traveled in a bus, paying fare with permissible luggage, then in respect of that luggage also, he should be construed as a consumer and the carrier namely the Bus should be construed as service provider in this case, the opposite party. Admittedly, the suitcases were accompanied with the passenger, though it was in the dickey, not in goods carrier, attracting the provisions of Carrier Act, warranting notice etc., Therefore, if the complainant has proved, that he had entrusted two suitcases at Devipattinam and the opposite party having custody, failed to hand over one suitcase, whatever may be the conditions, then it should be construed as deficiency in service.

8. In the Written Version as well as in the affidavit of the opposite party, we find no specific denial, regarding the entrustment of two suitcases to the opposite party employees, at Devipattinam. It is also not the case of the opposite party, that they have handed over two suitcases, at Chennai on arrival on 14.4.2005, at about 6 a.m. Therefore, we would say, that the averments in Para 2 regarding the entrustment of two suitcases, is not specifically denied, thereby compelling us to draw a conclusion, that the complainant should have entrusted two suitcases. If the suitcases were carried inside the bus, along with passenger namely the complainant, then we can say, definitely the bus operator namely the opposite party is not responsible for the missing suitcases since it is the duty of the passenger to safeguard the unbooked luggage, which he carried, not entrusted to the bus operator, namely the opposite party. In this case, as proved, we would say, two suitcases were entrusted to the employee of the opposite party, who kept them in the dickey, that was under the control of the opposite party or their employee. Therefore, they should be held responsible for two suitcases.

9. After reaching Chennai, the complainant attempted to give a complaint to the police, it was not accepted and therefore, it seems, he sent the same by registered post, wherein, we find more or less the same averments as available in the complaint. Assuming that it is the self-serving document, we are unable to ignore Ex.A3, a letter written by the opposite party to the complainant, wherein, it is said, that one suitcase of the complainant kept in the dickey, from Devipattinam to Chennai, fallen within the limit of Karikudi Police Station, requesting them to take appropriate action and the FIR copy was marked to Egmore Police Station as well as Inspector of Karaikudi Police Station. This letter is sufficient for us, in a case like this nature, to conclude that one of the suitcase belongs to the complainant, which was in the custody of the opposite party, missed and therefore, this should be treated as negligent act, followed by deficiency in service. When the opposite party had taken possession of two suitcases, one alone was handed over, one not handed over, then applying the dictum of Res Ipsa Loquitor, it should be construed, opposite party had committed negligent act, by allowing the suitcase to fall down or allowing the suitcase to be taken by somebody, thereby in both way, causing damage to the complainant. Thus, concluding, one of the suitcase of the complainant lost, which was in the custody of the opposite party, further construing it is the deficiency in service. Now, we have to see, whether the complainant is entitled to the claim as prayed for.

10. The complainant is one Mohamed Meeran and the case was filed by his Power of Attorney S.S. Dawood Sha. It is not the case of the complainant that the Power of Attorney also traveled along with the complainant or he had personnel knowledge, about the entrustment of the suitcase to the opposite party or its contents including jewels, its value, cash etc., Therefore, in order to prove the averments in the complaint regarding jewels, cash, jewels value, the complainant alone should file an affidavit, and that alone can be taken as evidence, even as contemplated under Consumer Protection Act, which is the principle available under CPC also, unless the Power Agent had personnel knowledge. In this case, as seen from the records, Power of Attorney alone has filed a Proof Affidavit, wherein also, it is not the case of the Power of Attorney that he knew personally the averment in the complaint. Thus, it is seen, the Proof Affidavit filed by the Power of Attorney will not come to the aid of the complainant, to prove the actual availability of the jewels in the suitcases or its value or cash as the case may be. Unfortunately, the District Forum accepting the affidavits, as if, the missing suitcase does contained jewels, cash, passed an order, without any materials to establish the same, which is incorrect, in our view. As seen from the complaint, even without description regarding the jewels, it is simply stated Gold Chain, Necklace, Bangles etc., which are all common names, not with reference to the particular jewel and for keeping the cash also, it is highly unbelievable. For the above said reasons, in the absence of proof, though a suitcase was missed, by the opposite party, which does contained the jewels and cash, ordering to pay the value or the amount, is not proper and correct and if at all, the opposite party should be directed to go to Civil Court to workout his remedy, since the Consumer Forum can award compensation only for deficiency in service of service provider and for the recovery any other loss, such as jewel, cash and it is open to the consumer to file a civil suit, which was not properly taken into account, by the District Forum, resulting erroneous direction, as far as direction to pay jewels value and cash.

11. As far as the compensation is concerned, since it is the consequence of deficiency in service, we cannot find fault in awarding compensation, though the amount may be on the higher side, without proof the loss of suitcase how caused mental agony, damage etc., Considering the missing of suitcase and the absence of proof, regarding its contents, for the deficiency in service committed by the opposite party alone, we feel, ends of justice would be meet, by ordering a compensation of Rs.35,000/-, instead of Rs.50,000/- as ordered by the District Forum, with direction to the complainant, if he wishes, to work out his remedy for the loss of jewels and cash, before the Civil Forum. To the above said extent, the appeal deserves to be allowed in part and the order of the District Forum is to be modified.

12. In the result, the appeal is allowed in part and the order of the District Forum is modified, allowing the complaint in part, directing the opposite party to pay a sum of Rs.35,000/- with cost of Rs.2,000/- as compensation for deficiency in service and the amount shall be paid within two months from the date of receipt of this order, failing which, it shall carry interest at 12% per annum from the date of default, dismissing the rest of the claim. No order as to costs in this appeal.