1) Sri Suresh Kumar Rajgarhia, 21/1/7, Ballygunge Place, Kolkata-700019. ---------- Complainant ---Verses--- 1) DRS Transport Private Limited, 23A, 661A, Tollygunge Circular Road, Kolkata-700053. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Smt. Jhumki Saha, Member. Sri T.K. Bhattachatya, Member. Order No. 2 8 Dated 0 5 / 1 0 / 2 0 0 9 . Complainant Suresh Kumar Rajgorhia by filing a Petition of Complaint under Section 12 of the Consumer Protection Act, 1986 on 10.05.2005 has prayed for issuing a direction upon the OPs for delivery of the Hyundai Sonata vehicle of the Complainant covered under the Consignment Note No. 296405 dated March 30, 2005 at his premises No. 20/1/7, Ballygunge Place, Kolkdta-700 019; alternatively, in absence of such delivery of vehicle a sum of Rs. 7,00,000.00 being the price of the vehicle to be given to the Complainant and for issuing further direction upon the OPs to repair all damages caused to the household goods covered under the same Consignment Note or alternatively pay a sum of Rs. 1,00,000.00 as compensation and pay further compensation on account of the denial of the use of the vehicle between April 6, 2005 till April 26, 2005 @ Rs. 2000.00 per day for 11 days equivalent to Rs. 22,000.00 and to pay further compensation of Rs. 20,000.00 for his mental pain and agony and interim order in terms of the above prayer and litigation cost. It is the specific case of the Complainant that for the purpose of shifting of goods and his vehicle from New Delhi to Kolkata at his residence at 20/1/7, Ballygunge Place, Kolkata-700 019. The O.P. No. 1 DRS Transport Pvt. Ltd. of 23A,661A, Tollygunge Circular Road, New Alipore, ‘O’ Block, Kolkata-700053 through their authorized representative at New Delhi O.P. No. 2 – Agarwal Packers & Movers represented to the Complainant that they had requisite expertise to transport the movable household goods and vehicle of the Petitioner. They would take proper care of all movable items and the vehicle and no damage would be caused to the same, and if any damage is caused they would repair the same at their own cost. So relying on the bonafide of such representation of the OP the Complainant booked the household goods and the Hyundai Sonata car for transportation from New Delhi to Kolkata. It was agreed between the parties that out of total cost of Rs. 45,000.00, 50% of the freight charge would have to be given to the OP at New Delhi and the rest 50% would be given on receipt of goods and vehicle in Kolkata. An inventory list was prepared on 05.04.2005. The O.P. No. 1 informed the Complainant to take delivery of the household goods at his premises at Ballygunge Place, Kolkata where the O.Ps sent the cartons containing the goods of the Complainant and when he opened the same cartons he found that some of the goods including some furniture were damaged, and the OPs assured that on the next date they will make necessary arrangements for repairing the same, and on suspicion the Complainant opened some other cartons and found the same thing. And the O.Ps. assured that on the next date, i.e., on 06.04.2005 they will repair positively. Their authorized representative on 05.04.2005 received the balance money for the consignment price of Rs. 24,500.00 on the next date of 06.04.2005. The Complainant found that no person attended the residence of the Petitioner at Kolkata to repair the damaged household goods. He made numerous contacts both to their Kolkata office and New Delhi office and they replied that damages would not be repaired and they are not responsible for such damage. Finding no other alternative the Complainant gave instruction to the concerned bank for stop-payment of the balance sum of Rs. 24,600.00 out of consignment price of Rs. 45,000.00. O.Ps informed him that the vehicle would not be delivered unless the Complainant pays the balance consignment price of Rs. 24,5000.00. OPs have no right to withhold the delivery of his vehicle; making him unable to use his car for which he claims penalty to the extent of Rs. 2,000.00 per day should be levied against the OPs. Finding no other alternative the Complainant on service of lawyer’s notice upon the OPs has filed this case with the aforesaid prayers. The OPs have filed their WV on 05.09.2006. They have admitted that the consignment price for transportation of the household goods and vehicle of the Complainant was fixed at Rs. 45,000.00 and the 50% of the freight charge would be paid in New Delhi and the balance of 50% would be paid at Kolkata. They have asserted that the Complainant received the household goods as it was booked at New Delhi except the vehicle and he did not express his grievances as to the conditions of the household goods he received in Koilkata and there was no deficiency of service on their part with regard to the delivery of household goods of the Complainant in Kolkata and the allegation of damage of the household goods found inside the cartons is a manufactured story prepared for the unlawful gain of the Complainant. The Complainant gave the same instruction of stop-payment of the cheque was only for the purpose of saving him from the criminal proceeding under Section 138 of the N.I. Act, being a Case No. CC-698 of 2005 as well as Civil Case OS 4063 of 2005 at Hyderabad under Section 39 Rule 1 & 2 of CPC in which the Petitioner has already appeared and contesting the said case. They have also denied that they assured to deliver the car to Petitioner on 06.04.2005 for giving the said instruction of stop-payment to the bank the OPs have suffered a lot as those cases are pending the OPs cannot do anything unless and until those cases are disposed of and accordingly they have prayed for dismissal of the complaint filed by the Complainant. DECISION WITH REASONS Admittedly, the Complainant gave two cheques to the O.P. for shifting of his household goods and the car from New Delhi to Kolkata. The second cheque could not be encashed by the O.P. because the Complainant gave instruction to the bank of stop-payment on the ground that he found that some of the goods contained in the cartons were damaged and ultimately the OPs informed him that unless he pays the full amount his car will not be released to him. The OPs have not filed the WV but they filed an Affidavit on Evidence wherin they have contended that in order to avoid the payment; the Complainant has made out false case against them and their further contention is that the Complainant has made out the case of shifting some goods in damaged condition after his knowledge of threat of case under Section 138 of NI Act filed by the OPs. Their further contention is that they have filed a Civil Case being No. 4063/05 and IA No. 710 of 2005 under Order 39 Rule 1 & 2 of Civil Procedure Court and another Criminal Case being CC No. 698 of 2005 against the Complainant and a nonbailable warrant has been issued against the Complainant. But the OPs, for the best reasons known to them. have not filed any Order of the Court but they have filed the notice of case under Section No. 138 of NI Act and the summons of CC Case No. 698 of 2005 and the warrant of arrest of the said case. He has filed the copy of the plaint of O.S. No. 4063 of 2005 but the Complainant has not filed any Order of the Court. So in absence of any Order from any Court this Forum has no knowledge about the case referred to hereinabove. We have also perused the Affidavit of Evidence filed by the Complainant and the contents of them have been corroborated by the Petition of Complaint under Section 12 of the Consumer Protection Act, 1986. The OPs in their written argument have contended that there is an Order of Injunction passed in IA No. 710 of 2005 Annexure ‘B’ dated 30.06.2005 restraining the Complainant from interfering with the possession of Sonata car till 26/07/2005. Thereafter the OPs have not filed any Order of any other Court. In the warrant of arrest Annexure ‘E’ in CC Case No. 698 of 2005 the Complainant was directed to appear before the Court, viz., Hon’ble XI Additional Metropolitan Magistrate, Secondrabad on 09.01.2008. But the OPs have not filed any other Order in respect of compliance of the warrant of arrest issued against the Complainant. No other Order of any Court whatsoever has yet been filed by the O.Ps that the Complainant in CC Case No. 698 of 2005 was convicted or any Order of Civil Case against him. So in absence of any such Order of any Court of competent jurisdiction we cannot presume that only pendency of those cases, if any, stands in the way of giving relief to the Complainant in the instant case. Ld. Lawyer for the O.Ps has filed a decision reported in (206)CPJ563 that with regard to nonpayment of deposits and when the matter is subjudice before the Additional Chief Metropolitan Magistrate the complaint is not maintainable. We have already mentioned that the OPs have not filed the present position of those cases, Civil Case and the case under Section 138 of the Negotiable Instruments Act. The very intention of Consumer Protection Act is speedy disposal of the cases and to give relief to a bonafide consumer. With this view in mind and considering the admitted position of the case on the point of engagement of the OPs for transportation of his household goods and vehicle from New Delhi to Kolkata and acceptance of the same by the OPs including part payment of money of the consignment agreed upon between both the paties and non-delivery of the car in question, vide Annexure ‘D’ of the Petition of Complaint, the claim of the Petitioner who is a bonafide consumer cannot be defeated only on the ground that the case is not maintainable as alleged by the O.Ps. In view of the fact that Civil cases and a case under Section 138 of the NI Act is pending against the Complainant at Hyderabad and more precisely in absence of the filing of last Order of any of those cases showing the present position and status of those cases the present case cannot be defeated. But it is not understood that in terms of the consignment Rs. 22,500.00 is 50% of Rs. 45,000.00 as mentioned in Annexure ‘A’. But the Complainant in his Petition of Complaint has stated that he paid Rs. 24,500.00 as 50% of the consignment price and rest 50% to be paid in Kolkata after completion of delivery of domestic articles and car in question. In Annexure ‘B’ consignor’s copy Rs. 24,500.00 has been mentioned as freight charge. However, withholding the current and more precisely the last Order of the Civil and Criminal cases including the case under 138 of the NI Act of Hyderabad Court, we safely presume that the OP has withheld the best evidence and an adverse presumption under Section 114 G of the Indian Evidence Act goes against the OPs. In view of this position we are of the candid opinion that the Complainant is entitled to get the relief as ordered hereunder. And we are further of the opinion that the charge of deficiency of service and unfair trade practice against the OP is established. We are not inclined to pass any Order directing the OPs to refund Rs. 7,00,000.00 as price of the vehicle in question because the Complainant has not filed any adequate documents as to such price of his old and used vehicle. Hence ordered that the Petition of Complaint is allowedon contest with cost against the O.P. Nos. 1 & 2 on further payment of Rs. 22,500.00 by the Complainant within 30 days from the date of delivery of judgement and on receipt of such money by the OPs from the Complainant the OPs 1 & 2 will have to deliver the car in question, viz., Hyundai Sonata (old, used and not for sale) car No. DLIC-9529, Chassis No. AF-31-FF No. 344023, Engine No. GLCPM-566962 in good and road-worthy condition as it was at the time of consignment dated 30.03.2005 in New Delhi to the complainant positively within the date fixed at the cost of the OPs to the residence of the Complainant in Kolkata. The Com0plainant do also get an award of compensation of Rs. 10,000.00 & Rs. 5,000.00 as litigation cost and grand total of the amount of Rs. 15,000.00 would have to be paid by the OPs positively within 30 days from the date of communication of this Order, and in default of such payment it will carry interest @ 10% per annum till full realization of the said amount. Fees paid are correct. Supply Certified Copy of this Order to the parties on payment of prescribed fees. Sd- Sd- Sd- ____________ ____________ ____________ MEMBER MEMBER PRESIDENT |
