QUORUM
President: Sh. Sanjay Garg
Member: Sh.Tarlok Singh
C.C. No. 23 of 2011.
Date of Institution: 7.1.2011
Date of Decision: 28.7.2011
M/S Manak Chand Gobind Ram, Mandi No.1, Abohar, Tehsil Abohar District Ferozepur through its Prop. Sunil Mittal.
…….Complainant.
Versus
1. Manager RLN Godown Complex, Opp. JCT Factory, Fazilka Road, Abohar, Tehsil Abohar, District Ferozepur.
2. National Collateral Management Services Ltd., through its M.D., Gayatri Tower, 954, Appasheb Maratha Marg, Parbha Devi, Mumbai-400024.
…..Opposite Parties.
Complaint under Section 12 of
the Consumer Protection Act, 1986.
*******
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PRESENT :
For the complainant : Sh. S. P. Khariwal Representative
For the opposite party No.1 : Ex Parte
For the opposite party No.2 : Sh. Deepak Monga, Advocate
ORDER
TARLOK SINGH MEMBER
The present complaint has been filed by the complainant firm M/s Manak Chand Gobind Ram Abohar against the opposite parties stating that the complainant had hired the services of the opposite parties on 10-12-2009 for consideration and stored 1611 bags of Barley weighing 1211 qtls 50 kgs in the godowns of opposite party no.1 on payment of storage charges of Rs.60,193/- paid vide cheque No.792762 dated 28.9.2010 drawn at Punjab & Sind Bank Abohar Branch. Thereafter, the complainant had taken the delivery of the said goods from the opposite party as per weighment slips on 29/30.9.2010 and against the storage of 1611 bags weighing 1211.50 qtls, delivery of 1610 bags weighing 1167.050 qtls. was given to the complainant by the opposite party No.1 and a short delivery of 10 bags and 44.450 qtls was given to the complainant. At the rate of Rs.1150/- per qtl. The complainant has suffered loss of Rs.51,117.50 paise on account of short delivery given by the opposite parties. The opposite party no.1. is working under the direct control and supervision of the opposite party No.2. Alleging
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the short delivery of deposited goods as deficiency in service on the part of opposite parties, the complainant has claimed the amount of Rs.51,117.50 ps as value of the short delivered stocks, Rs.10,000/- as compensation and Rs.5500/- on account of litigation expenses alongwith any other suitable relief.
2. Notice of the complaint was sent to the opposite parties. Sh. Deepak Monga Advocate has come present on behalf of opposite party No.2 and filed written statement. The opposite party No.1 remained absent despite service and was proceeded against exparte vide order dated 16.5.2011.
3. In its written statement, the opposite party no.2 has taken some preliminary objections to the effect that the complaint has been filed with malafide motives to extort money from the opposite party No.2, the complainant is guilty of concealment of facts and has not come to the forum with clean hands, the business of the complainant is a commercial activity and as such, the complainant is not a consumer of the opposite parties. The commodity i.e. Barley stocks of 1611 bags weighing 121.150 was received for storage from the complainant on said to contain basis and the said stocks were stored from 10.12.2009. On merits, the storage of goods by opposite party no.1 has been admitted but the allegations levelled in the complaint have been denied. It has been pleaded that the stocks for storage was
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accepted on the basis of number of bags and on ‘said to contain basis’ and there was no question of any weighment as there is no weighment facility in the warehouse. The weighment slips produced by the complainant are of Sh. Hanuman Dharam kanta. After taking the delivery from the godowns of the opposite parties, the complainant is free to deal with the stocks in any manner including its weighment. The complainant has produced only 6 weighment slips which amounts to concealment of facts. In case there was any deficiency in delivery of stocks, it was for the complainant to refuse to accept the stocks and after taking the delivery of stocks, the complainant cannot blame the opposite parties that there was short delivery of stocks. The liability of the opposite party no.2 jointly and severally with opposite party no.1 has also been denied and pleading no deficiency in service on the part of opposite party no.2, the dismissal of complaint has been prayed for.
4. The parties have led their evidence.
5. We have heard the learned representative of the complainant and counsel for the opposite party no.2 and have also gone through the evidence and record produced on the file and our finding on the matter in dispute are as under :-
6. Admittedly, the complainant has taken delivery of stocks on 29/30.9.2010. The opposite party No.2 has placed on file the copies of gate
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pass no.249610 dated 29.9.2010 for 250 bags, as Ex R 4, Gate Pass No.249609 dated 29.9.2010 Ex R 5 for 230 bags, Gatepass No.249612 dated 29.9.2010 Ex R 6 for 225 bags, Gate Pass No.249611 dated 29.9.2010 Ex R 7 for 250 bags, 249614 dated 30.9.2010 Ex R 8 for 230 bags, 240613 dated 29.9.2010 Ex R 9 for 226 bags, 249616 dated 30.9.2010 Ex R 10 for 10 bags and Gatepass No.249615 dated 30.9.2010 Ex R 11 for 210 bags i.e. delivery of total 1611 bags has been proved vide these Gate Passes in favour of the complainant firm. These Gate Passes have not been denied and this evidence has not been rebutted by the complainant.
7. There is no proof of weighment of stocks at the time of storage of the same with the opposite party no.2 and on the warehouse receipt Ex C2, the weight of the stocks has been mentioned as 121.150. qrtls “ on said to contain basis.” The complainant has relied upon the 6 weighment slips bearing ticket no.290,291,292,300,306 and 307 placed on file as Ex C 3 to Ex C 8. Though the reliance cannot be placed on the weighment slips getting the stocks weighed after taking delivery from the godowns, however as per the calculation of these slips, the complainant has taken delivery of 1371 bags weighing 1011.50 qtls. After proving delivery of these 1371 bags weighing 1011.50 qtls, there remained 230 bags weighing 200 qtls. The complainant has not placed the 7th and 8th weightment slip on the file and
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without going through the said slip, it cannot be believed that the complainant was given short delivery by the opposite party no.1.
8. There is no other document on the file from which, it can be gathered that the short delivery of stocks was given to the complainant. The copies of two weighment slips have not been placed on the file. So, in our view, the complainant has failed to prove his case of short delivery of goods against the opposite parties. Resultantly, the complaint fails and the same is hereby dismissed. No order as to costs.
9. The arguments in this complaint were heard on 21.7.2011 and the order was reserved. Now the order be communicated to the parties. File be consigned to the record room.
Announced (Sanjay Garg)
28.07.2011 President
(Tarlok Singh)
Member
