Samskar, Kotaiah Camp, Varni, Post and Mandal Nizamabad District Through Its Project Director Vs. M/S P. Obul Reddy and Sons and Others - Court Judgment

Oral Order ( As per the Smt Merla Shreesha, Member)

Aggrieved by the order in C.D.No.84 of 2005 on the file District Forum Nizamabad the complainant preferred this appeal.

The brief facts as set out in the complaint are that the complainant institution is a voluntary organization placed an order with opposite party no.1 for supply of Godrej Office table worth Rs.17,000/- by paying the entire consideration under receipt NO.53583 dated 5.9.2005 and the opposite party no.1 agreed to deliver the article at Bodhan through opposite parties no.3 and 4. The complainant has booked the consignment on To Pay basis. opposite party no.3 promised to deliver the goods in good condition within 10 days but to the surprise of the complainant, the article found to be damaged and in irreparable condition on the date of delivery. Therefore, the complainant refused to take delivery of the damaged table and also informed the same to opposite parties by way of written representation dated 17.11.2005 but in vain. Hence, the complaint seeking directions to the opposite parties to pay Rs.17,000/- towards cost of the table along with interest, compensation and costs.

Opposite party no.1filed counter admitting that the complainant placed an order for supply of Godrej Office table worth Rs.17,000/- and denied that the opposite parties agreed to deliver the said article to the complainant at its door step through opposite parties no.3 and 4 and stated that they informed the person who approached on behalf of the complainant that the table cannot be dispatched to Bodhan but the said person on his own accord has booked the said table to be delivered at Bodhan through the other opposite parties. Hence there is no negligence or deficiency in service on their and sought for dismissal of the complaint.

Opposite party no.4 filed counter stating that the dispute if any would be subject to Hyderabad jurisdiction only and the forum has no jurisdiction to entertain the complaint. The complainant is not a consumer and has no locus standi to file the complaint. The consignor or the consignee has not insured the packed consignment and that opposite parties are not known and not aware the contents, nature and its value. In the event of damage, delay, non-delivery or loss etc., the limited liability is to Rs.5/- only per kg of actual weight of the consignment. Opposite party further submits that the consignor booked the consignment in a packed condition with opposite party no.3 declaring it as Godrej table without disclosing the position of the consignment and without insurance under To-Pay basis to be delivered to the consignee at Bodhan but not at the doorsteps of the complainant. Opposite party no.3 dispatched the consignment from Vijayawada on 5.9.2005 itself directly to Bodhan through opposite party no.2 and it reached its destination on 6.9.2005 in the same packed condition. Since then the said packed consignment is lying in the office of opposite party no.4 at Bodhan. About after a week, the complainant approached opposite party no.4 and without paying the charges of Rs.402/- demanded to send the consignment to Varni for which opposite party no.4 refused. On receipt of letter dated 13.9.2005 from the complainant, reply dated 15.9.2005 was given stating that they were enquiring into the matter. On enquiry it was found that the packed consignment was intact.

Based on the evidence adduced i.e., Exs.A1 to A8 the District Forum dismissed the complaint.

Aggrieved by the said order the complainant preferred this appeal on the ground that the said table is still in the possession of opposite party no.4 and that opposite party no.4 failed to produce the said table before the District Forum to prove that the table is in good condition.

While the complainant alleged that the article in question was damaged, the opposite parties contended that there was no such damage and inasmuch as the complainant left the article with it without taking delivery, the complainant himself was liable for demurrage charges. The District Forum appears to have caught itself in this dilemma and resolved it in its own by saying that the complainant failed to prove the damage. But in the peculiar circumstances of this case, the only way by which the damage to the property can be estimated is by causing the production of the article before it. Admittedly the said article remained in the possession of opposite party no.4. The complainant ought to have taken steps before the District Forum for such physical production. No doubt the lapse is on the part of the complainant yet the District Forum out to have taken initiative in the interest of justice. Now, on this account the District Forum cannot be faulted, we however feel that the interest of justice would be best served by paving the way by setting aside the order of the District forum and remanding the matter to the District forum for fresh disposal keeping the above observations in view. Accordingly the complaint is allowed setting aside the order of the District Forum.

In the result the appeal is allowed setting aside the order of the District forum. The complaint is remitted to the District Forum to decide the matter keeping in view the observations made within three months from the date of receipt of the order. Both parties are directed to appear before the District Forum on 10.12.2009 without insisting on fresh notice. No costs.