1. APPELLANT is Original O.P. No. 1 in the Complaint and has challenged the Order dated 15.10.1999, whereby the Forum has ordered to pay a sum of Rs. 1,68,922/- being the loss of cargo entrusted by the complainant/respondent herein for transportation, which O.P. No. 1 did not deliver. (For brevity''s sake appellant herein after are referred to as O.P. No. 1 and respondent No. 1 as ''Complainant''.)
2. IT is noticed that the complainant entrusted consignment of 179 packages containing military goods belonging to Canteen Stores Department, under its goods consignment Note dated 4.8.1998 at Mumbai, destination being Banglore. The Lorry receipt issued was also relied upon.
As there was short delivery, the complainant lodged the claim.
It is noticed that O.Ps. after filing of the complaint, were duly processed and served by the District Forum. However, there was no response either by filing appearance or Written Statement.
3. THE order impugned in this appeal mentions thereafter O.P. No. 1 was reminded on number of occasions.
Eventually, the matter was ordered to proceed ex parte and ex parte decree came to be passed which is impugned in this appeal.
4. RESPONDENT No. 1/Original complainants are present through their Advocate in response to the notice.
We are proceeding to dispose of this appeal at the stage of its admission itself on perusal of the material available in the appeal paper book and on hearing the learned Advocates for both the parties. On behalf of appellant the following points arise :
(i) No notice of the Forum in the complaint was issued and served upon them. (ii) There is no evidence against them to prove the entrustment of the goods.
In view of the stand of O.P. No. 1 above, we summoned the original Record and Proceedings from the District Forum which has been made available.
5. ACROSS, Advocate on behalf of O.P. No. 1 same points were reiterated as mentioned hereinabove.
6. ON behalf of the complainant Advocate Mr. Vinod Sharma pleaded, the appellant was duly noticed, but they did not appear. It is to be stated that on page 39 of the Original Record and Proceedings received from the District Forum, we notice that there is a Postal acknowledgement evidencing the receipt and service of the process of the District Forum upon O.P. which communication goes counter to the stand taken by and on behalf of appellant of non-service.
Across the learned Advocate for appellants submitted that at the relevant time appellants have shifted their address to Chembur. As against this, the Advocate for complainant drew our attention to the communications dated 3rd November, 1998 and on 3rd November, 1998 the complainant in some other matter addressed to the O.P. No. 1 have received the same at their local address.
That being so the issue of non-service does not stand at all.
7. AS far as point No. (ii) is concerned, there is a copy of Bilty, which is annexed to the complaint and name of the appellant very much figures as a Carrier in the said receipts. In nebulous manner attempt is made by the appellant to suggest that they were only an agent.
As noticed appellants were duly served and they were given opportunity as required under the Statute to defend. However, despite service for reasons best known to them have not availed of the same.
8. CONSEQUENTLY, District Forum on being satisfied about the merits of the claim of the complaint have proceeded to make award, as there was no challenge and we do not find any justifiable reason to interfere with the said findings. Another factor militating against maintainability of the appeal as there is gross delay in filing the appeal. Appeal is filed in October, 2002 whereas impugned judgment is in October, 1999.
During the course of argument it was revealed that appeal herein has not been filed by any authorised person of the appellant. We refer to the Memo of Appeal and authorisation in the form of Vakhilpatra purported to be executed by the Advocate for appellants which is in the appeal paper book and it is pertinent to note that some one has only signed the same which we cannot read to the status of the said Signatory. If one reads the description of the appellant/O.P. No. 1 it is a business entity. Yet the authorised person on behalf of the appellants have chosen to file this appeal. For all these reasons, we do not find to interfere in the impugned order.
In view of our findings as above, appeal herein requires to be dismissed.
9. AT this stage the learned Counsel for appellants submitted that interest of 18% p.a. as awarded is exorbitant and he requests the same be reduced to reasonable extent. The learned Advocate for respondent No. 1 leave the matter to the Commission. In our view, interest at the rate of 10% p.a. will be fair and reasonable in the fact situation as obtained in the matter herein. We clarify that this is being extended as a matter of sheer indulgence. ORDER Appeal is partially allowed to the extent as under:
1. Award of refund of Rs. 1,68,922/- as provided under operative Clause No. 1 of the order as also compensation of Rs. 3,000/- stands confirmed. 2. Rate of interest @ 18% p.a. however stands reduced to 10% p.a. 3. Rest remains unchanged. 4. As far as this appeal is concerned, no order as to cost. 5. Original record and proceedings received from the District Forum be returned to it immediately. 6. On request of the Advocate for complainant, we direct the Mumbai Suburban District Forum to release the sum of Rs. 90,000/- deposited by it to the complainant towards part satisfaction of the award of the District Forum as modified by us after a period of appeal is over. 7. Office to furnish copies of the order to the Parties.
Appeal partially allowed.
