DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.354 of 04-08-2010 Decided on 19-11-2010
Darshan Kumar S/o Sh. Paras Lal Jain, Prop. of M/s Darshan Kumar Sunil Kumar, Wholesale Cloth Merchants, 215-New Cloth Market, Bathinda.
.......Complainant Versus
Jalandhar Bombay Transport Co. (Registered), N.N:2/8 Building, Patel Chowk, Jalandhar, through its Manager. Mahal Cargo Carrier, Barnala Bye-Pass, Gali No.7, Bathinda, through its Manager.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Dr. Phulinder Preet, Member. Sh. Amarjeet Paul, Member.
Present:- For the Complainant: Sh.Mohal Lal Garg, counsel for the complainant. For Opposite parties: Sh.Gurdeep Singh, counsel for opposite party No.2. Opposite party No.1 exparte.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act'). In brief, the complainant has filed the present complaint with allegations against the opposite parties that M/s Bombay Dying and manufacturing Company Ltd. dispatched 2 Bales of Cotton Cloth vide GR No.7747 dated 11.07.2009 bearing Bale No.12704 and 12705 to be transported from Bhiwandi to Bathinda. Out of above 2 Bales, Bale No.12705 has not been delivered to the complainant and another Bale bearing No.2945/1 was dispatched vide GR No.7748 dated 11.07.2009 has also not been delivered to the complainant. A short certificate was issued by agent/representative of opposite party No.1 i.e. opposite party No.2 at Bathinda. The opposite party No.1 was requested to make the payment of claim, detail of which is as under:- Bale No.12705 Rs.17,328/- Bale No.2945/1 Rs.17,380/- ________ Total Rs.34,708/- But, the opposite party No.1 has been postponing the matter on one or the other pretext despite of written requests of opposite party No.2 as well as the complainant. The complainant has suffered a loss of Rs.5,205/- which he was to get as profit as the goods were sold in advance and the complainant has suffered a loss of Rs.525/- p.m. as interest since 15.07.2009 when only one Bale was delivered. Hence, the complainant has filed this complaint with prayer and to seek directions to the opposite parties to pay a sum of Rs.34,708/- being cost of the short goods, Rs.5,205/- on account of loss due to non-delivery of bales, to pay Rs.525/- p.m. as interest w.e.f. 15.07.2009 till payment and compensation to the tune of Rs.30,000/- alongwith Rs.5,500/- as cost of litigation expenses. 2. The opposite party No.2 has raised legal objections that the opposite party No.2 is unnecessarily made a party to the present complaint as the opposite party No.2 is only to deliver the goods, received from the opposite party No.1. In this case, out of the three Bales, the opposite party No.2 has received only one bale which has already been delivered by the opposite party No.2 to the complainant. The second legal objection raised by the opposite party No.2 is that the present complaint regarding the commercial transaction and the Consumer Forum has no jurisdiction to entertain and decide the present complaint. The opposite party No.2 has further pleaded that the complainant got booked three Bales vide GR No.7748 dated 11.07.2009 and GR No.7747. The cotton cloth bale got booked through GR No.7748 has not been received while out of the two Cotton Cloth Bales got booked through GR No.7747, one has been received and the same has been delivered. In this manner, out of three bales, only one has been received by the opposite party No.2 and the other two have not been received, there is shortage of the same and regarding this, the opposite party No.2 has informed the opposite party No.1. The driver of the opposite party No.1 has also delivered only one bale under his signatures. Hence, the opposite party No.2 pleaded that there is no deficiency in service on its part. 3. The opposite party No.1 despite service of notice has failed to appear before this Forum. Hence, exparte proceedings are taken against opposite party No.1. 4. Parties have led their evidence in support of their respective pleadings. 5. Arguments heard. Record alongwith written submissions submitted by the parties perused. 6. The complainant has got booked three cloth bales and M/s. Bombay Dying and Manufacturing Co. Ltd. dispatched two Bales of Cotton Cloth vide GR No.7747 dated 11.07.2009 bearing Bale No.12704 and 12705 to be transported from Bhiwandi to Bathinda and another Bale bearing No.2945/1 was dispatched vide GR No.7748 dated 11.07.2009 which has bot been delivered to the complainant. Meaning thereby that out of three bales, two bales were not delivered to the complainant, only one bale was delivered to him. The complainant has given a detail of missing bales which is read as under:- Bale No.12705 Rs.17,328/- Bale No.2945/1 Rs.17,380/- ________ Total Rs.34,708/- The complainant further alleged that he has suffered a loss of Rs.5,205/- and he has to get as profit were sold in advance and Rs.525/-p.m. as loss of interest since 15.07.2009 when only one bale was delivered. The complainant has also sent a legal notice to the opposite parties through his counsel. 7. The opposite party No.2 has admitted that the complainant got booked three bales i.e. one GR No.7748 dated 11.07.2009 and two bales vide GR No.7747. Out of the two bales which was booked through GR No.7747, one was delivered to the complainant. In this manner, out of three bales, only one has been received by opposite party No.2 and the other two have not been received by it. The driver of opposite party No.1 has also delivered only one bale under his signatures. The opposite party No.2 is not liable for any shortage of bale and if, there is any shortage, the same is due to the reasons of the opposite party No.1. The opposite party No.2 has raised two main objections that the complainant is not consumer u/s 12 of the 'Act'. The consumer has booked three bales with opposite parties and they have failed to deliver the same. He has also paid a consideration for that as per definition of the 'Consumer' under Consumer Protection Act,1986, the complainant is consumer with regard to Transport Company as he has hired the services from those transport companies. The second main legal objection of the opposite party No.2 is that this transaction is commercial in nature. In the present case, the case of the complainant is only with regard to the delivery of Cloth Bales which has been misplaced by the transport company. Ex.C-6 which has been issued by Bombay Dying and Manufacturing Co. Ltd. that bale numbers 12704 and 12705 are not received by opposite parties. A short certificate dated 03.10.2009 has been issued by Ram Singh, Manager/Agency Holder of opposite party No.2 Ex.C-8, which is reproduced as under:- “We have been delivered only one bale with Pvt. Marka No.12704 but 2nd bale with Pvt. Marka No.12705 not received. Its value is Rs.17,325/-. Against 2nd G.R.No.7748 x1 bale not received. Its value is Rs.17.380/-.” 8. A perusal of Ex.C-9 and Ex.C-10 shows that the complainant had booked three bales with Jalandhar Bombay Transport Co.on 11.07.2009 and value of these bales were Rs.34,656/- and 17,379/-. Out of these three bales, the complainant had received only one bale and the remaining two bales have been misplaced during transaction. A perusal of Ex.R-3 shows that two bales are short and this document is duly signed by Sabhi Singh, driver of opposite party No.1. Mr. Ram Singh, Manager/Agency Holder has deposed in his affidavit Ex.R-1 that from three bales of cotton cloths, two bales were less and we have delivered the bale to the complainant which had been received by us and also issued short certificate. Ram Singh has also deposed in his affidavit that he also requested the opposite party No.1 many times to pay the claim amount to the complainant. Out of three bales, only one bale has been received by opposite party No.2 and other two bales have not been received by opposite party No.2 and the opposite party No.2 has informed the opposite party No.1 that two bales were short and driver of the opposite party No.1 has also delivered one bale under his signatures. The opposite party No.2 has got less bales from the opposite party No.1. Hence, there is deficiency in service on the part of the opposite party No.1 as whatever was received by opposite party No.2, that has been delivered to the complainant. The record placed on file shows that the complainant has booked three bales, out of these three bales, one is delivered and two have not been delivered by opposite party No.1 to opposite party No.2. Meaning thereby that the opposite party No.1 has acted negligently in handling the cloth bales of the complainant. Due to this act of opposite party No.1, the complainant has suffered a loss to the tune of Rs.34,708/-. Hence, this complaint is accepted against opposite party No.1 with Rs.2,000/- as cost and Rs.5,000/- as compensation and dismissed qua opposite party No.2. The opposite party No.1 is further directed to pay Rs.34,708/- or to supply the lost cloth bales to the complainant within 30 days from the date of receipt of copy of this order. 7. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '
Pronounced in open Forum (Vikramjit Kaur Soni) 19.11.2010 President
(Dr. Phulinder Preet) Member
(Amarjeet Paul) Member |
