BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,ADDITIONAL BENCH, MANGALORE
Dated this the 4th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.241/2012
(Admitted on 23.07.2012)
Mr. Dinesh.K,
Prop: Samruddi Constructions,
Civil Engineers & Contractors,
Hosur Bandigadi Post,
Koppa Tq, Chikkamagaloru Dt.
Karnataka 577126.
….. COMPLAINANT
(Advocate for the Complainant: Sri UA)
VERSUS
1. Sri. Shivalingam,
Prop: Panchaiamman Transports,
No:36 (old no.1) Trevelyan Basin St,
Sowcarpet,
Chennai 600079.
2. M.R.P.L,
Kuthethoor,
Mangalore 575 001.
….....OPPOSITE PARTIES
(Advocate for the Opposite parties No.1: Sri MCB)
(Advocate for the Opposite parties No.2: Sri MVSB)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaints filed under Section 12 of the Consumer Protection Act by the same complainant against same opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant contends he purchased 8.985 metric tonnes of Bitumen from opposite party No. 2 by paying Rs. 3,93,465/ and given to the vehicle of opposite party No. 2 for delivery to complainant at Koppa. But the material has not been delivered even as on 1.2.2012. As the material was not deliver the complainant spoke to opposite party over phone, that time he was informed that the tanker transporting the Bitumen met with an accident near Karkalla and the material will be delivered within one week. As materials was not delivered despite registered notice sent, seeks order against opposite party to pay Rs.5,00,000/ with interest and cost of Rs.5,000/ against opposite parties.
II. Opposite party No.1 in the written version admits the purchase of Bitumen with opposite party No.1 and denies not delivering the Bitumen to complainant. The complainant is making sure of fact before the following entrusted to transport of Bitumen to deliver purchased by complainant from opposite party No.2 in the lorry/tanker bearing registration number KA.04 A 3437 of opposite party No.1 is admitted that the lorry on 31.1.2012 met with an accident when his driver Mr. Ramesh and cleaner Mr. B.V. Ravi and complainants employee Mr. Sunil were in the vehicle reached a place called Kadari near Karkala. Owner/driver Ramesh died on the spot the case was registered. Of total quantity of 50.55 barrels of bitumen some small quantity had spilled at the accident spot and that the said vehicle the police seized the vehicle. The delay was beyond the control of opposite party No.1. On 6.2.2012 from the spot the complainant’s men sent by complainant took the delivery of bulk bitumen of 23 barrels and the loading charge and other labour charge were incurred by opposite party No.1. On 3.4.2012 the rest of the quantity of bulk bitumen i.e. 26 barrels were delivered to complainant through his men at the expences of opposite party No.1. Contending that the Forum has not jurisdiction to claim complaint and no cause of complaint and seeks dismissal.
2. Opposite party No.2 in the written version mentions the complainants had purchased the bitumen and even according to complainant the goods was entrusted by complainant to the carrier and the transportation is not the concern of MRPL who is only the seller of bitumen and hence seeks rejection against the complaint to opposite party No.2 .
3. In support of the above complainant Mr. Dinesh K filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents not marked. On behalf of the opposite parties Mr. Shivalingam (RW1) Proprietor, Sri Pachaiamman Transporters also filed affidavit evidence and answered the interrogatories served on him and produced documents marked Ex.R1 to R8 detailed in the annexure. Mr. Ankoor Sarma, (RW2) Deputy Manager, Sales, MRPL also filed affidavit evidence and answered the interrogatories served on him.
In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the other reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No. (i): Affirmative
Point No. (ii): Negative
Point No.(iii): As per the final order.
REASONS
IV. POINTS No. (i): In this case the complainant did purchase the goods namely bitumen from opposite party No.2 and it was entrusted to opposite party No.1 for transport to Koppa through the tanker in question are undisputed. Hence complainant the consumer who entered the goods to opposite party No.1 and that the tanker vehicle while in transport met with an accident and did not reach to Koppa. Being admitted facts by opposite party No.1 that the complainants claim that he never received any goods and that opposite party No.2 claims denial of liability show there is consumer dispute between the parties. Hence point No.1 answered in the affirmative.
POINTS No. (ii): In respect of opposite party No.2 as pointed out from Ex.R8 copy of the product indent shows request made by opposite party No.1 to load the product the bitumen to lorry the tanker Number KA.04 A 3437 with driver Ramesh and Ravi to this dated 31.1.2012. Ex.R7 is the original Transport Authorisation given by complainant in the letterhead of complainants firm M/s Samruddi Constructions and Dinesh Outsourcing Services describes as Civil Engineers and Contractors authority to opposite party No.1 to lift the bitumen on behalf of Samruddi constructions . Thus the product in question is bitumen was entrusted to opposite party No.1 to deliver is established.
2. On behalf of opposite party No.1 two points were raised in the case. One is in respect of jurisdiction i.e. territorial jurisdiction of this Forum to decide and secondly the complainant being a PWD contractor cannot be constituted as a consumer. In fact the documents produced by complainant shows his business M/s Samruddi Constructions and Dinesh Outsourcing Services PWD contractor. The learned counsel for opposite party No.1 referring to a reported judgment case of Maharashtra State Consumer Disputes Redressal Commission, Mumbai has wherein it is stated:
Consumer Protection Act, 1986-Section 2(1)(d)(i)-Goods-Defective-Commercial Purpose-Printing Machine defective Complainant s business running into several lakhs Machinery itself costing around 15.20 lakhs Complainant on panel of Government as contractor Machinery purchased for commercial purpose proved-Complaint not maintainable.
3. It is to be noted that during the course of answering to the interrogatories of opposite party No.1 the complainant had denied even the signatures on many of the documents that is the authorization given to opposite party No.1. As such as rightly pointed out for opposite party No.1 that there are complicated question of fact involved in deciding the case and it cannot be decided by this Forum from it is summary having similar territorial jurisdiction. In fact on this count we are supported by the reported judgment of NC relied upon by the learned counsel for opposite party No.1 in Aryan Agro Spice (P) LTD vs. Saraswat Co-Op, Bank Ltd & Anr. III (2002) CPJ 41 (NC) held:
Consumer Protection Act, 1986 Section 21 Jurisdiction Export proceeds not realized Damages of Rs.80.lakhs claimed complex issues, cannot dealt in summary manner Complaint dismissed.
4. Thus we are of the view that the case cannot be decided by this Forum as complicated question of fact is involved. Hence it is a fit case to dismiss the complaint with observation that complainant can approach Court of competent jurisdiction if so advised. Hence point No.2 in the negative.
POINTS No. (iii): Wherefore the following order
ORDER
The Complaint is rejected.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 4th January 2017)
MEMBER PRESIDENT
(SRI. T.C. RAJASHEKAR) (SRI. VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr.Dinesh K
Documents marked on behalf of the Complainant:
Nil
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Shivalingam, Proprietor, Sri Pachaiamman Transporters
RW2 Mr. Ankoor Sarma, Deputy Manager, Sales, MRPL
Documents marked on behalf of the Opposite Parties:
Ex.R1: 31.01.2012: Certified copy of FIR and complaint
Ex.R2: 08.04.2012: Copy of letter written by complainant to OP
Ex.R3: 28.04.2012: Copy of the court order
Ex.R4:03.05.2012: Original acknowledgment issued by complainant
Ex.R5: 13.06.2012: Copy of Reply letter written by opposite party No.1 to complainant
Ex.R6: 23.06.2012: Copy of letter written by complainant to OP 1
Ex.R7: 15.12.2011: Transport Authorisation
Ex.R8: 31.01.2012: Notary attested Xerox of original product Indent
Dated: 04.01.2017 PRESIDENT
