DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 271 of 10.9.2007<br /> Decided on : 4.12.2007<br /> <br /> 1.Garg & Bains Fertilizers & Seed Store, Adda Noorpur, Sarhal Quazian, District Nawan Shahar through its Proprietor Rajinder Kumar.<br /> 2.Maharashtra Pesticides Limited, 3 New Ganpati Agro Storage Complex, Malout Road, Bathinda through S. Gurdev Singh Brar S/o Sh. Jaspal Singh, Business Manager. <br /> ...... Complainants<br /> <br /> Versus. <br /> <br /> 1.Lucky Transport Service, Chungi (Octroi), Nawan Shahar Road, Banga-144505, District Nawan Shahar (Punjab) through its Partner/Proprietor/Manager.<br /> 2.Nav Bharat Goods Carrier, Opposite Street No. 4, Harpal Nagar, Barnala By Pass, Bathinda through its Partner/Proprietor/Manager.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh.Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainants : Sh. Sunder Gupta, Advocate<br /> For the opposite parties : Exparte <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT:-<br /> 1. Complainant No. 2 is manufacturer of pesticides. Complainant No. 1 is its authorised agent and is dealing in the sale of pesticides and seeds. Pesticides worth Rs. 33,610/- were returned by complainant No. 1 to complainant No. 2 through opposite party No. 1 on 7.6.2006 vide G.R. No. 5372. Assurance was given by opposite party No. 1 to deliver the goods to complainant No. 2 at Bathinda through opposite party opposite party No. 2. It is alleged that goods have not been delivered. Notice dated 15.11.2006 was sent by complainant No. 1 to opposite party No. 1 through Ondot Courier and Kargo Limited with request to deliver the pesticides to the addressee, but to no effect. In these circumstances, instant complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to the opposite parties to deliver the goods to complainant No. 2 at Bathinda or in the alternative, to pay Rs. 33,610/- alongwith interest @ 18% P.A from the date of booking of the goods till realization; pay Rs. 25,000/- to them for mental tension and agony and Rs. 5,000/- as costs of the complaint.<br /> 2. Registered A.D notice was sent to opposite part No. 1 on 25.9.2007. Neither registered cover nor A.D was received back within 30 days. Accordingly, opposite party no. 1 was deemed to have been duly served. No-one came present on its behalf. Hence, it was proceeded against exparte. Opposite party No. 2 refused to accept service. It has also been proceeded against exparte.<br /> 3. In exparte evidence, complainants produced affidavits (Ex.C.3 & Ex.C.5) of S/Sh. Gurdev Singh Brar, Business Manager of complainant No. 2 & Rajinder Kumar, Proprietor of complainant No. 1 respectively, photocopy of G.R. No.5372 dated 7.6.2006 (Ex.C.1), photocopies of letters (Ex.C.2 & Ex.C.4) respectively & photocopy of details of goods returned (Ex.C.6).<br /> 4. We have heard the learned counsel for the complainants and gone through the record. Apart from this, we have considered written arguments submitted by the complainants.<br /> 5. Mr. Gupta, learned counsel for the complainant argued that deficiency in service on the part of the opposite parties is established as they could not deliver the goods to complainant No. 2 at Bathinda. For this, he drew our attention to the documents Ex.C.1 to Ex.C.6 referred to above.<br /> 6. We have given our thoughtful consideration to the submission of the learned counsel for the complainants. Onus to prove the version in the complaint is upon the complainants. They are to establish it by way of leading cogent and convincing evidence. Merely on the basis that opposite parties stand proceeded against exparte is itself no ground to hold that complaint must be accepted. Copy of the G.R. No. 5372 dated 7.6.2006 is Ex.C.1. Its terms and conditions have been printed on its backside as is clear from the special note given underneath its front page. Complainants did not muster courage to produce the back portion of Ex.C.1 for the reasons best known to them. During the course of arguments, learned counsel for the complainant was specifically requested to produce the consignee copy so that case may be effectively and properly adjudicated. Accordingly, he produced the consignee copy of G.R having the terms and conditions on its backside. Even the photocopies of the G.R have been produced. A perusal of the consignee copy produced by the learned counsel for the complainant reveals that complainant No. 1 has not declared the value of the goods allegedly sent to complainant No. 2 through opposite party No. 1 on 7.6.2006. Complainants themselves rely upon this G.R. No. 5372. Accordingly, complainant No. 1 is bound by its terms and conditions. Condition No. 17 is that if the value of the goods is above Rs. 100/- it must be insured otherwise the company will not be responsible. According to complainant No. 1, goods sent were worth Rs. 33,610/-. Neither value was declared nor were they insured. Hence, as per terms and conditions company i.e. opposite party No. 1 is not liable for the alleged loss. According to term and condition No. 7, if there is any claim on account of goods receipts, the same shall have to be made within 15 days failing which the same shall be considered as null and void. In this case, the goods were allegedly sent to complainant No. 2 through opposite party No. 1 on 7.6.2006. For the first time, letter dated 15.11.2006 was written to opposite party No. 1 requesting to deliver the goods within a week's time at Bathinda with damages equivalent to 24% of the value of goods or make payment of the goods. Copy of this letter is Ex.C.2. If the goods were not delivered by opposite party No. 1 to complainant No. 2 through opposite party No. 2, complainant No. 1 could lodge this claim against the opposite parties, particularly against opposite party No. 1 within 15 days from 7.6.2006 onwards. It has not been done. Hence claim has become null and void as per term and condition No. 7. <br /> 7. No satisfactory evidence has been led to prove that alleged goods sent were certainly of the value of Rs. 33,610/-. Complainant No. 1 has not proved the total value of the goods received by it from complainant No. 2. No-doubt, affidavits of S/Sh. Gurdev Singh Brar of complainant No. 2 and of Rajinder Kumar, complainant No. 1 have been brought on record, but no document of complainant No. 2 has been produced and proved to establish the details of the goods given to complainant No. 1 by complainant No. 2 out of which goods worth Rs. 33,610/- were allegedly returned to complainant No. 2 through opposite party No.1. It cannot be said that manufacturer of the pesticides i.e. complainant No. 2 would not be maintaining any record of the pesticides which are sent by it to its authorised agents. Ex.C.4 is the copy of the letter of complainant No. 1 to complainant No.2. Even in this letter, the details of the goods received by it out of which goods worth Rs. 33,610/- have been shown to have been returned have not been given. Complainant No. 1 has attempted to establish the names of the pesticides and the value thereof on the basis of document dated 8.8.2006, copy of which is Ex.C.6. It is merely writing of complainant No.1. It has not been addressed either to complainant No. 2 or to the opposite parties. No reliance can be placed on Ex.C.6, especially when complainant No. 1 has not proved the total goods received from complainant no. 2 and the fact that goods mentioned in Ex.C.6 are out of them and their value is certainly Rs. 33,610/- as per record of complainant No.2. If the pesticides/goods were certainly of the value of Rs. 33,610/-, complainant no. 1 could declare the value at the time of getting issued the G.R from opposite party No. 1 on 7.6.2006.<br /> 8. In view of the forgoing discussion, crux of the matter is that complainants have failed to establish deficiency in service on the part of the opposite parties by way of leading plausible and satisfactory evidence. Accordingly, complaint is dismissed. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 4.12.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br />