Punjab

Ludhiana

CC/14/654

Hussen Lal Verma - Complainant(s)

Versus

Dept of Posts - Opp.Party(s)

Sh.Vikrant

12 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 654 of 18.09.2014

Date of Decision    :   12.05.2016

              

Hussan Lal Verma, Kundan Puri, Civil Lines, Ludhiana-141001.(Pb)

….. Complainant

Versus

1.The Senior Supdt of Post, Department of Post, Bharat Nagar Chowk, Ludhiana-141001.(Pb)

2.The Manager, Dena Bank, Mata Rani Chowk, Ludhiana.

3.A.C.Service Pvt. Ltd., Near Telephone Exchange, Transport Nagar, Ludhiana through its Director.

4.The Manager, Dena Bank, Ghatak House, Nachan Road, Bhiringsri Durgapur-713213(W.B.).

…Opposite parties

 

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.BABITA, MEMBER

 

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Vikrant Verma, Advocate.

For Op1                         :         Sh.R.K.Gupta, Advocate

For OP2 and OP4          :         Sh.Gaurav Anand, Advocate

For OP3                         :         Sh.Yogesh Gandhi, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                          Complainant, a proprietor of the Firm M/s Vimmi Sewing Machine Co.(Regd) New Kundan Puri, Civil Lines, Ludhiana, filed complaint under section 12 of the Consumer Protection Act,1986(hereinafter in short referred to as ‘Act’) against OPs  by claiming that he received an order of sewing machines from M/s Shiva Trading   Co. Station Road, Durgapur (W.B.) through its Proprietor Sh.Rajesh Kumar. Complainant claims to be engaged in the business of manufacturing of sewing  machine etc. In pursuance of the received order, the complainant sent documents by registered post pertaining to the dispatch of sewing machines vide bill No.1277 dated 18.2.2014 for Rs.1,55,142/-, GR No.946927 dated 18.2.2014. These documents were sent to Dena Bank. H.Dishari Bush Stand, D.S.Roy, Avenue, Durgapur(W.B.) vide postal receipt No.EP24274068IN dated 18.2.2014. This dispatch was made against the above referred order of purchase placed by M/s Shiva Trading Company. These goods were dispatched through OP3, but GR documents were sent through Dena Bank with above referred address. Complainant did not got the payment and thereafter, he contacted the Manager of Dena Bank, Ludhiana for knowing about the profile of their branch at Durgapur vide letter dated 5.4.2014. Op2 vide letter dated 7.4.2014, informed the complainant that Dena Bank has only one branch at Durgapur with following address:-

Dena Bank, Ghatak House, Nachan Road, Bhiringsri Durgapur-713213 (W.B.) Phone No.0343-2583153.

Further, it was informed that Dena Bank has no other branch at any other location in Durgapur. Address of the bank was wrong, due to which, letter could not be delivered and as such, it should have been returned to the complainant at Ludhiana, but the said letter not received back till date. On enquiry from OP3, it was noticed that goods were delivered against the original GR which were sent to Dena Bank as referred above. It is claimed that delivery of the goods has been taken by someone in connivance either with postal department or the bank. Complainant claims to have suffered loss of Rs.1,55,142/-, worth of the dispatched goods. So compensation of Rs.1,55,142/- along with interest sought. Compensation for mental agony and harassment even claimed.

2.                In written statement filed by OP1, it is pleaded interalia as if the complaint in the present form is not maintainable; complainant has no cause of action against OP1; complainant has failed to disclose the capacity, in which, he filed the complaint; compensation is not permissible in view of the Post Office Guide and the provisions of the Indian Post Office Act, 1898; complaint bad due to non-joinder of necessary party like M/s Shiva Trading Company; contents of article delivered to the Postal Authorities with value thereof was not disclosed by the complainant and nor the said postal article was got insured and as such OP1 not liable; complicated question of law and facts are involved and as such, consumer complaint alleged to be not maintainable. Besides, it is claimed that complainant does not fall within the definition of a consumer as defined in the Consumer Protection Act, 1986 because the dispute relates to commercial transaction. Complainant himself wrongly disclosed the address of bank in his letter dated 18.2.2014 as Dena Bank H.Dishari Bush Stand, D.S.Roy Avenue Durgapur. This address was wrongly mentioned by the complainant to play fraud and cheat the OP1 in connivance with alleged purchaser M/s Shiva Trading Company, Station Road, Durgapur. Op3 has placed on record the photocopy of original GR tendered by M/s Shiva Trading Company at their Durgapur Branch for the delivery of the goods. As per copy of the GR placed on record, there is endorsement of Dena Bank, Durgapur in favour of M/s Shiva Trading Company and as such, the Transport company has delivered the goods to M/s Shiva Trading Company Limited on presentation of the original GR. M/s Shiva Trading Company has  forged and fabricated the endorsement of Dena Bank and as such, fraud alleged to be committed by M/s Shiva Trading Company either itself or in connivance with the complainant or the transport company and bank official. Jurisdiction of this Forum is ousted because fraud can be ascertained or established only by leading proper and effective evidence by the Civil of competent  jurisdiction, which alleged to be situate at       Durgapur(West Bengal). Complainant has filed the complaint in his individual capacity and not as a proprietor of M/s Vimmi Sewing Machine Company. So, complaint has not been filed by M/s Vimmi Sewing Machine Company, on whose behalf the article was booked. The complainant could have sent the valuable article under insurance cover by paying the requisite fee to OP1 and only then the complainant could have claimed the insured amount. If the insurance facility on the dispatched article is provided by the Post Office only then liability borne by the Post Office as per provisions of Indian Post Office Act, 1894 and the rules and regulations framed under the said Act. Complainant has not got the article insured and as such, in view of Section 6 of the Indian Post Office Act, 1898 and Rule 66(B) of Indian Post Office Rules 1933, OP1 not liable in any way. Services rendered by the Post Office are statutory and are not of contractual nature         and as such, compensation in any eventuality cannot be claimed in excess of the double of the amount of composite speed post charges paid or of Rs.1000/- whichever is less. Admittedly, the article was booked on 18.2.2014 under speed post from Central Post Office Ludhiana by M/s Vimmi Sewing Machine Company for the delivery of the article at Durgapur, but without disclosing the contents of article booked through post. Complainant disclosed through complaint alone that dispatched postal article contained blank documents and GR bearing No.946927 dated 18.2.2014.This valuable article/document could not have been sent through post without disclosing its nature. It is claimed that complainant has connived with M/s Shiva Trading Company, who succeeded in getting the delivery of the article in connivance with the officials of the bank but without making payment of the goods/hundi. The fault of the concerned official namely Sh.Kalo Baron Bairagya, the officiating Postman was that he delivered the post article along with other articles to the bank without obtaining the signatures of the bank official as well as the rubber stamp of the bank. In case  the party sends the documents through bank, then the   party is required to endorse the GR in favour of the bank and also execute a hundi in favour of the bank to the extent of the value of the goods and the payment to be received by the bank from the party. After receipt of the documents by the bank, the bank is to inform the party and the bank then to endorse the GR in favour of the party after receiving the payment. It was only thereafter,that party is to present the GR to the transport company for the delivery of the goods. So, question need to be determined as to how M/s Shiva Trading Company has obtained the original GR and presented the same to the transport company at Durgapur for delivery of the goods. Even it needs to be determined as to whether there is any connivance of M/s Shiva Trading Company with transport company. Such facts can be proved by leading evidence before the appropriate Civil Court. Each and every other averment of complaint denied.

3.                In separate written statement jointly filed by OP2 and OP4, it is pleaded interalia as if the complaint is not maintainable; complainant has no cause of action; complaint is barred by the provisions of Consumer Protection Act; complainant estopped by Principles of Estoppel, waiver, acquiescences and admission as well as  the complaint alleged to be bad due to non impleadment of M/s Vimmi Sewing Machine Company(Registered), M/s Shiva Trading Company, M/s Dynamic Impex as well as  Mr.Kunal Sharma, A.C.Service Private Limited Chirukunda. Rather, it is claimed that OP2 and Op4 have been unnecessarily dragged in the unwarranted litigation. Complaint being false, frivolous and baseless, merits dismissal with composite costs and also in view of the contents of the written statement. In view of defamatory allegations levelled against Op2 and OP4, they claimed to be reserving their right to file the separate complaint against the complainant for prosecuting him. Complainant alleged to have suppressed the material facts. Facts qua dispatch of registered post article alleged to be within the knowledge of OP1 and OP3 only. Wrong address of the bank was furnished by the complainant. Allegations of connivance of the bank official in delivery of the goods vehemently denied.

4.                In separate written statement filed by OP3, it is pleaded that complaint against Op3 is not maintainable because it has effectively performed its job of delivery of the goods at Chirkunda through consignment Note/Bilti No.946927. Op3 transported the goods and delivered the same. Op3 has no link or concern as to whether the complainant sent the document through registered post and as such, OP3 claims to have performed its duty properly. So, complaint against Op3 alleged to be devoid of merits. OP3 has no concern with the transaction between the complainant and   M/s Shiva Trading Company and nor it has any link or concern with the dispatch of documents through post to Dena Bank. Admittedly, complainant approached branch office of OP3 at Ludhiana for consignment/transportation of the sewing machines from Ludhiana to Chirkunda. Op3 has no link or concern as to whether the complainant received the payment or not or as to whether the complainant contacted the Manager of Dena Bank at Ludhiana. Goods were delivered by the complainant to OP3 against      the original consignment note/Bilti No.946927, which further were delivered vide Gate pass No.886092 dated 1.3.2014. So, matter of concern remains between the complainant and other OPs as to how the original consignment Note/Bilti No.946927 has been delivered by the Dena Bank without receiving any payment.

5.                Complainant to prove his case tendered in evidence affidavit Ex.CA along with documents Ex.P1 to Ex.P8 and then closed the evidence.

6.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.DA/1 of Sh.Suresh Kumar, Superintendent of Post Offices, City Division, Ludhiana along with documents Ex.R1/1 to Ex.R2/1 and thereafter, closed the evidence.

7.                Counsel for OP2 and OP4 tendered in evidence affidavit Ex.RW of Sh.Onkar Tripathi, Chief Manager of Dena Bank, Mata Rani Chowk Branch, Ludhiana and thereafter, closed the evidence.

8.                Authorized representative of OP3 along with counsel for OP3 tendered in evidence affidavit Ex.R3/A of Sh.Gulzar Singh, Branch Manager of OP3 along with documents Ex.R3/1 and Ex.R3/2 and then closed the evidence.

9.                          Written arguments submitted by the complainant alone but not by any of OPs. Oral arguments of counsel for the parties heard. Records gone through minutely. 

10.              First and foremost point for consideration is as to whether the complainant is a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. Complainant claims to have dispatched sewing machines to the purchaser M/s Shiva Trading Company, Station Road, Durgapur after receipt of order. Even in the complaint itself it has been claimed by the complainant that he is engaged in the business of manufacturing of sewing machines. So, from the allegations levelled in the complaint itself it is made out that sewing machines were dispatched by the complainant to purchaser M/s Shiva Trading Company for carrying on commercial activity. There is no allegation levelled in the complaint that complainant carrying on business for earning livelihood. As and when the goods sent by one firm to another by transport by sending the papers through a bank with rider that bank will collect the payment before releasing the bilti to the firm, then services of the bank availed by the complainant in relation to commercial purposes, due to which, the consumer complaint will not be maintainable because complainant concerned will not fall under the definition of consumer as  laid in Section 2(1)(d) of the Consumer                  Protection Act, 1986. In holding this view, we are fortified by law laid down in case titled as The Branch Manager, Punjab National Bank vs. M/s Bhaskar Textile-2015(1)CLT-89(N.C.). The facts of the present case are quite identical to the facts of the reported case because here the complainant as proprietor of M/s Vimmi Sewing Machine Company claims to have sent the goods through transporter namely OP3 to the purchaser M/s Shiva Trading Company in furtherance of commercial transaction. So, complainant does not fall within the definition of consumer and as such, consumer complaint  certainly   is   not    maintainable.  Even                                             otherwise on merits, it transpires that complicated question of facts and law are involved and as such, elaborate evidence required, due to which, complainant should approach the Civil Court.

11.              As per allegations levelled in the complaint and the produced evidence, complainant has not received the payment and that is why, he contacted OP3 for finding profile of Dena Bank Branch of Durgapur for finding that address on which, he sent the registered post, in fact has no branch. So, wrong address of the Dena Bank Branch at Durgapur was furnished by the complainant himself on the dispatched postal article.

12.              Whether the furnishing of the wrong address of the bank on the postal article by the complainant was bonafide? That bonafide in view of the produced evidence cannot be held because the complainant while carrying on commercial transaction must have ascertained as to whether the branch of Dena Bank exist at the place noted by him on the postal article. If such precaution would have been taken by the complainant, then in view of correct noting of address of Dena Bank, the postal authorities would not have found it difficult to locate the address of the addressee. From the allegations levelled in paras no.3 and 7 of the complainant itself it is made out that postal article was sent to the Dena Bank at a Branch different than the one on which the same exist at Durgapur and same facts even borne from letters Ex.P4 to Ex.P6 received by the complainant. It was for the complainant to disclose as to how he mentioned the wrong address of Dena Bank on the dispatched postal article. Explanation in that respect not submitted by the complainant in complaint or through produced evidence and as such, for that fault, he must bear. M/s Shiva Trading Company, to whom, the goods dispatched and from whom, the price of the dispatched sewing machines was to be received by the complainant, has not been impleaded as party. No affidavit of representative of M/s Shiva Trading Company produced qua non receipt of the dispatched sewing machines, despite the fact that bilti/consignment copy Ex.R2/1=Ex.R3/2 establishes that the said bilti endorsed by Dena Bank Branch by affixing the rubber stamp thereon. Endorsement of GP No.886092 dated 1.3.2014 also made on this Ex.R2/1=Ex.R3/2. So this supports the claim of OP3 qua delivery of sewing machines by it to addressee or to Dena Bank branch at Durgapur. Records of GP No.886092 dated 1.3.2014 has not been got produced either by the complainant or by any of OPs. In the absence of production of such record, it can’t be ascertained exactly as to whom the dispatched articles were delivered and by whom. Appearance of seal of Dena Bank branch at Durgapur on Ex.R2/1 and Ex.R3/2 enough to establish as if this consignment copy was received by the said bank at Durgapur branch. If such copy was received by Dena Bank Branch, then record of Dena Bank Branch at Durgapur must have been got produced to show as to whom the sewing machines were delivered against GP No.886092 dated 1.3.2014. That record has not been produced and even record of M/s Shiva Trading Company has not been produced for showing that sewing machines were not received by it. So, the produced evidence do not at all show as to who committed default in delivery of the dispatched articles. Even the produced evidence do not establish that actually consignment of sewing machines delivered to M/s Shiva Trading Company. If through GP No.886092 dated 1.3.2014, the sewing machines delivered to M/s Shiva Trading Company by OP3 or OP4, then the matter remained between the complainant and M/s Shiva Trading Company qua non payment of the price of the sold goods. Elaborate evidence as such required for ascertaining as to who committed fraud and at what stage. If M/s Shiva Trading Company has received the sewing machines, then liability remained of M/s Shiva Trading Company to pay the price. The bank even has not produced its record to show that sewing machines handed over to M/s Shiva Trading Company and as such, certainly submissions advanced by the counsel for OPs has force that without impleadment of M/s Shiva Trading Company, it could not have been ascertained as to who committed fraud and at what stage.

13.              As and when serious allegations of fraud, forgery and connivance levelled, then those cannot be gone into summary proceedings conducted under the Consumer Protection Act, 1986. Proper course for the complainant/concerned in such cases is to approach the Civil Court for determination of the disputed questions. This in fact is the proposition of law laid in cases titled as Nirmal Thakur vs. State Bank of India and another-2011(2)CLT-523(H.P.State Consumer Disputes Redressal Commission, Shimla); Lakhwinder Singh vs. Punjab and Sind Bank and another-2012(3)CPJ-15(State Consumer Disputes Redressal Commission, Punjab); UCO Bank vs. S.D.Wadhawa-2013(3)CPJ-523(N.C.) and N.Shivaji Rao vs. M/s.Daman Motor Company and others-1993(1)CPJ-88(N.C.). Ratio of all these cases is fully applicable to the facts of the present case because from the pleaded facts and adduced evidence, it cannot be ascertained exactly as to who committed fraud i.e. as to whether fraud committed by M/s Shiva Trading Company by not paying the price after receipt of the article or as to whether rubber stamp of Dena Bank Branch of Durgapur on Ex.R2/1=Ex.R3/1 is forged or as to whom the goods actually delivered through GP No.886092 dated 1.3.2014. Record of Dena Bank Branch at Durgapur or of M/s Shiva Trading Company not got produced and as such, the question of fraud or of connivance cannot be determined in these summary proceedings. Other arguments advanced by counsel for the parties pales into insignificance in view of all this. So, complaint merits dismissal but with liberty to complainant to avail remedy before appropriate Forum.

14.              Therefore, as a sequel of the above discussion, the present complaint stands dismissed with no order as to costs, but by giving liberty to complainant to avail remedy before appropriate Forum. Copies of order be supplied to the parties free of costs as per rules.

15.                        File be indexed and consigned to record room.

 

                                      (Babita)                            (G.K.Dhir)

                             Member                             President

Announced in Open Forum

Dated:12.05.2016

Gurpreet Sharma.