FRANCH EXPRESS & ANR Vs. K K THOMAS

JUDGEMENT

(1.) - After having heard the Counsel for the appellants elaborately and after meticulous consideration of the pleadings and evidence led in support of the case by the complainant who claimed compensation under various heads for non -delivery of the consignment booked by him through the 2nd appellant on 15.3.1999 we are satisfied that a fit case is made out to interfere with the order passed by the Consumer Disputes Redressal Forum, Kasaragod in O.P. No. 93/1999. Dissatisfied with the order passed by the Forum below directing the appellants/opposite parties to pay a sum of Rs. 2,500 to the complainant along with another sum of Rs. 500 towards costs of the proceedings this appeal has been preferred assailing that order. Forum below further ordered that in case of failure of the appellants to pay the compensation and costs ordered within two months from the date of receipt of the copy of the order complainant would be entitled to 15% interest on the total amount from that date.

(2.) BACKGROUND facts in a nutshell are that the complainant booked a consignment (according to the allegations made in the complaint the consignment contained two keys of the motor -cycle booked by him through the railway to be delivered at Kozhikode and also the railway receipt evidencing the fact of booking the motor -cycle) on 15.3.1999 and the consignment was not delivered to the addressee. We need not state here the other allegations made by the complainant for claiming compensation under various heads and all the allegations made in the complaint were refuted by the appellants in the version filed by them. Appellants contended by way of defence that they were not aware of the contents of the consignment i.e., it contained two keys of the motor -cycle and railway receipt and they were not informed by the complainant about the contents of the consignment. Appellants set up a case that the complainant had entrusted the consignment to the 2nd appellant/1st opposite party after agreeing to the condition regarding liability of the opposite parties in case of failure to deliver the consignment. As per the contract the liability of the appellants is limited to a maximum of Rs. 100 for failure to deliver the consignment or for any loss of consignment. Consignment slip containing that condition was signed by the complainant and relying on that condition the appellants contended that appellants are not liable for the amount claimed under various heads except the liability to pay an amount of Rs. 100.

(3.) WE have already stated that on a consideration of the materials on record we are satisfied that a fit case is made out to interfere with the impugned order and we are inclined to upturn that order for the reasons to be stated below. In the complaint or in the affidavit filed by the complainant/respondent in support of his case no specific allegation or assertion has been made that 2nd appellant was told or informed by him about the contents of the consignment that is two keys and one railway receipt. It is also to be pointed out here that though it is contended specifically in the written version that the appellants were not aware of the contents of the consignment that fact was not specifically denied or disputed by the respondent in his affidavit asserting that he informed or told the 2nd appellant that it contained two keys and one railway receipt. Though in the written version it is asserted that the consignment was delivered to the addressee on the basis of the affidavit sworn to by the complainant we are prepared to accept the case of the complainant on that aspect. Further we have to point out that no affidavit has been filed in support of the case of the appellants regarding the delivery of the consignment to the addressee.