BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD
FA.No.1403/2007 AGAINST C.C.No.345/2006, DISTRICT FORUM-I, Hyderabad.
Between:
M/s.Karnataka Roadways,
Carriers, Contractors & Commission Agents,
No.4-33/4/E, Hassan Nagar, Opp:Bus stop,
Hyderabad. Rep. by N.Satyanarayana. ..Appellant/
Opp.party No.1
And
1. M/s.Agarwal Foundries
Rep. by its Proprietor, Mr.Pramod
Agarwal, S/o.Sri M.L.Agarwal,
Aged about 42 years, Occ:Business,
R/o.2-1-113, Tobacco Bazar,
Secunderabad-500 003.
2. Mrs. Chandrakala,
R/o.1-27-24, Bapujinagar,
Bowenpally, Secunderabad ..Respondents/
Complainant/O.P.2
Counsel for the Appellant: M/s.Y.Subash
Counsel for the Respondents: R1-Mr.G.Venkataswamy Goud
R2-M/s.Mirza Nisar Ahmed Baig
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SMT.M.SHREESHA, MEMBER
AND
SRI G.BHOOPATHI REDDY, MEMBER.
TUESDAY, THE TWELFTH DAY OF AUGUST,
TWO THOUSAND EIGHT
Oral Order:(Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.345/2006 on the file of District Forum-I, Hyderabad opposite party No.2 preferred F.A.No.1098/2007 and opposite party No.1 preferred F.A.No.1403/2007. Since both the appeals arise out of the same C.D., they are being disposed of by a common order.
The brief facts as set out in the complaint are that the complainant booked a consignment of 17.075 tonns of TMT steel bars worth Rs.3,67,778/- through opposite party No.1 for delivery in time to consignee M/s.Mukesh & Company at Bangalore, for which Rs.10,000/- was paid in advance towards freight charges under receipt dated 24-12-2005. The said consignment was loaded in the truck of transport supplier of opposite party No.1 in vehicle bearing No.AP9W 5481, owned by Mrs.Chandrakala of Secunderabad i.e. opposite party No.2. Opposite parties agreed to deliver the consignment at the destination by 26-12-2005 but the said consignment did not reach the consignee on 26-12-2005 as scheduled to be delivered. On enquiry, opposite party No.1 informed that the said vehicle was missing and on that the complainant had given a report to Mahankali Police Station, Secunderabad about the missing lorry with the consignment. The driver of the vehicle also gave a report at Bangalore about the vehicle being missed, when it was parked at Hebbal Ring Road, Bangalore. The police registered the F.I.R. During investigation, the police seized the vehicle, but the iron rods in it weighed 3 tons only and the complainant sent letters dated 14-2-2006 and 16-2-2006 to opposite parties informing them that there was short delivery of iron bars and that they have to account for 13.46 tonns, amounting to Rs.3,21,511/- and pay the said amount with interest at 24% p.a. from 24-12-2005 till the date of payment. Though the said letters were received by opposite parties, they failed to give any reply. The complainant, therefore, got issued a legal notice on 12-4-2006 demanding the opposite parties to pay the amount but till date the opposite parties failed to settle the claim. Hence the complaint for a direction to pay the cost of short supply of 13.46 tonns of TMT steel bars valued at Rs.3,21,511/- together with interest at 24% p.a. from the date of loading till the date of filing the complaint, Rs.25,000/- + Rs.20,000/- towards incidental charges, Rs.1,00,000/- towards compensation for mental agony and costs of Rs.10,000/-.
Opposite party No.1 stated that he is an agent, who arranged the vehicle belonging to opposite party No.2 for transportation of consignment of 17.075 tons of TMT steel bars worth Rs.3,67,778/- for delivery to the consignee at Bangalore and admitted that Rs.10,000/- was received in advance towards hire charges. He admitted that there was a theft of the vehicle bearing No.AP9W 5481 on 26-12-2005 and the driver gave a complaint to P.S. Hebbal, and the P.S.Hebbal registered an F.I.R.No.405 dt.27-12-2005 and investigated the matter and during investigation recovered the vehicle which was under the custody of C.M.M.court and subsequently opposite party No.2 got released the vehicle from the said court. He submitted that the complainant has not filed any documents to show that the said consignment was loaded like lorry receipt or goods receipt which usually the carrier issues after receiving the consignment. He also submitted that the complainant has not filed any document to show that opposite party No.2 has delivered only 3 Tons of TMT bars and submitted that usually whenever a consignment is loaded in the truck, the carrier will issue an L.R. or G.R and the consignee will make an endorsement on the back of the said L.R. with regard to receiving of the said consignment but no such document is filed by the complainant to prove his allegation that the consignee received only 3 tons out of 17.075 tons. He also denied receipt of the legal notice dated 12-4-2006 issued by the complainant. He further submitted that even if there is any shortage of any material, the carrier is liable, since the material was handed over to the carrier and during his custody, the material was lost and he being an agent, who arranged the vehicle as per the instructions of the complainant cannot be held liable for any loss or damage suffered by the complainant due to the negligence of opposite party No.2 driver. He also contended that the complainant is not a ‘consumer’ under Consumer Protection Act and that the transaction is a commercial transaction and submitted that the civil court only has jurisdiction and prayed for dismissal of the complaint.
Opposite party No.2 filed version and denied the allegations made in the complaint. She submitted that there was no privity of contract between her and the complainant. The complainant is a business firm doing commercial activity and therefore is not a ‘consumer’ hence the Forum had no jurisdiction to entertain the complaint. She also submitted that she has no knowledge of the missing of the lorry and its seizure with 3 Tons of iron rods. She further submitted that she had no knowledge of the letters sent by the complainant and submitted that the claim is not maintainable and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A20 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite parties 1 and 2 jointly and severally to pay Rs.3,21,511/- to the complainant with interest at 18% p.a. from 25-12-2005 till the date of payment together with compensation of Rs.15,000/- and costs of Rs.5,000/-.
Aggrieved by the said order, opposite party No.2 preferred F.A.No.1098/2007 and opposite party No.1 preferred F.A.No.1403/2007.
The brief point for consideration is whether there is any deficiency of service on behalf of opposite parties 1 and 2 and if the complainant is entitled to the relief sought for against them?
We have perused the material on record. It is the complainant’s case that he booked a consignment of 17.075 tonns of TMT steel bars valued at Rs.3,67,778/- to be delivered to M/s.Mukesh & Company at Bangalore and paid an advance of Rs.10,000/- to opposite party No.1 vide receipt dated 24-12-2005. The learned counsel for the complainant submits that the consignment was loaded in vehicle bearing No.AP9W 5481 belonging to opposite party No.2. The learned counsel for the complainant contended that the said consignment did not reach the consignee on 26-12-2005 as scheduled and therefore, a complaint was made to Mahankali Police Station, Secunderabad that the said lorry was missing in transport with the consignment. It is an admitted fact that the driver of the said lorry also made a complaint at Bangalore that the aforesaid vehicle was missing at Bangalore. It is also an admitted fact that during investigation, the police were able to trace the vehicle but it had only 3 tonns of iron rods at the time of seizure. The learned counsel for the complainant submitted that a complaint was made to opposite parties 1 and 2 with respect to short supply of goods and that they have to account for 13.46 tonns amounting to Rs.3,21,511/- with interest and costs. A legal notice was also served upon the opposite parties to compensate for the short supply of the goods.
The learned counsel for the appellant/opposite party No.1, who filed F.A.No.1403/2007 submitted that he only arranged the lorry in the capacity of a broker for his Commission and it was the option of the consignor whether to enter into the contract or not. It is the case of opposite party No.1 that there is no privity of contract between him and the complainant and lies with the lorry owner i.e. opposite party No.2, who carried the consignment.
It is the case of opposite party No.2 that there is no privity of contract between her and the complainant and that payment was made to opposite party No.1 only, who engaged opposite party No.2. He further contended that the complainant is not a ‘consumer’ and that the goods were transported for commercial purpose and relied on the decision of State Commission of Chandigarh in II (1991) CPJ 658 in PROCOLOR PHOTOGRAPHS PRIVATE LTD., v. OCL PHOTO INDUSTRIES (P) LTD. (MARKETING) & ANR. in which the Commission had held that
‘goods with defect in paper processor for expansion of photograph
trade cannot come within the purview of Consumer Protection Act.
The contention of the learned counsel for opposite party No.2 that the complainant is not a ‘consumer’ is unsustainable on the ground that the complainant has only booked the consignment for transport and not trading in the very transport services. Hence the citation relied upon by him in II (1991) CPJ 658 is not applicable in the instant case.
On perusal of the material on record we observe that Ex.A1 is the receipt dated 24-12-2005 issued by opposite party No.1, Karnataka Roadways to the complainant towards receipt of advance of Rs.10,000/- which establishes that the amount was paid by the complainant only to opposite party No.1. Ex.A2 is the invoice-cum-challan raised by the complainant for 17.075 tonns where the assessable value is Rs.3,16,178/- and the excise duty is Rs.51,600/- totalling to Rs.3,67,778/-. Admittedly the vehicle which is loaded is AP9W 5481 which belongs to opposite party No.2 and hired by opposite party No.1. To reiterate, the amount of advance was admittedly paid only to opposite party No.1 and opposite party No.2 was hired by opposite party No.1 to carry the consignment. We find force in the contention of opposite party No.2 that there is no privity of contract between complainant and opposite party No.2, since payments are made only to opposite party No.1. The complainant had established deficiency of service against opposite party No.1 only and we, therefore, set aside the order of the District Forum with respect to opposite party No.2 only and modify the order directing opposite party No.1 alone to pay the amount of Rs.3,21,511/- to the complainant. Now we address ourselves to the aspect of 18% interest that was awarded by the District Forum. Consistently the Supreme Court and the National Commission have been awarding interest at the rate of 9% to 12%. In the instant case, we are of the considered opinion that interest can be reduced from 18% to 12% to meet the ends of justice and also keeping in view that the District Forum has awarded damages of Rs.15,000/- by way of compensation and costs of Rs.5,000/-.
In the result F.A.No.1098/2007 filed by appellant/opposite party No.2 is allowed and F.A.No.1403/2007 filed by opposite party No.1 is allowed in part reducing the interest from 18% p.a. to 12% p.a. while confirming the rest of the order of the District Forum with respect to opposite party No.1 alone. Time for compliance four weeks.
PRESIDENT. LADY MEMBER. MALE MEMBER.
JM Dated 12-8-2008
