M/s Ashok Transport Co.Basaveswara Circle Railway Over Bridge Raichur
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by the complainant K.S.S.B Hi Tech Rice Industries by it Manager B.Veerakumar against Opposite Transport Company U/sec. 12 of Consumer Protection Act for to direct the opposite to pay an amount of Rs. 2,97,500/- with interest and Rs. 50,000/- as a compensation with cost and other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainant case are that, they consigned BTS Quality of Rice weighing 17 tonnes worth of Rs. 2,97,500/- through opposite transport company on 18-10-08 in lorry bearing No. MH-25-B/9346 for to deliver it to M/s. Silver Enterprises and Raghunandana Traders at Vashi (New Mumbai). Thereafter the said 17 tonnes of rice not delivered to the addressee in spite of sufficient time taken by the opposite, he enquired the matter with opposite for non delivering the goods to the addressee but opposite is avoiding to trace out the goods by giving one or other reasons, as such this complaint was filed by him for the reliefs as noted in his complaint. 3. The Opposite appeared in this case through its Advocate, filed written version by denying the entire case of complainant and allegations made by him. No such goods booked in its transport company, as such there was no question of delivering the goods to the addressee as contended, this is the false complaint filed by the complainant which is not maintainable. The lorry number noted in the first notice is different to the lorry number noted in the second notice as such the entire case filed up by the complainant is false for to get relief by one or other reasons, accordingly he prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, he consigned 17 tonnes of BTS quality rice worth of Rs. 2,97,500/- on 18-10-08 in opposite transport company lorry bearing No. MH 25 B/9346 in Raichur for to deliver it to M/s. Srinivas Enterprises and Raghunandana Traders at Vashi ( New Mumbai) but opposite transport company not delivered the said goods to the addressee at Mumbai, and not returned the goods to him thereafter shown its negligence in tracing out the said goods in spite of repeated oral and written request and thereby opposite transport company found guilty under deficiency in its service..? 2. Whether complainant is entitled for the reliefs as prayed in the complaint. 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgement and as sated in the final order . (3) In-view of the findings on Point Nos- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of the Manager of the complainants firm was filed, he was noted as PW-1, affidavit-evidences of the owner of the another rice mill by name Veeranna was filed, he was noted as PW-2, affidavit-evidence of Srikarnag partner of M/s. Raghavendra Par-bioled Industries was filed, he was noted as PW-3. Similarly affidavit-evidences of M. Srinivas, K. Vinod, Krishnamurthy, T. Krishna and M.R. Naveen are filed and they have been noted as PWs 4 to 8 respectively. Documents Ex.P-1 to Ex.P-31 are marked. On the other hand affidavit-evidence of one Mohd. Mehmood Hussain of opposite was filed he was noted as RW-1. No documents filed and marked. 7. The learned advocate for opposite raised some legal and factual point for our consideration. Among them the first ground him is that the lorry number in which the said goods loaded is shown in the first notice issued to him dt. 24-11-08 is as MH-25 B/7346, but in second legal notice at Ex.P-5 the complainant shown the lorry number as MH-25 B/9346, as such the contention of the complainant cannot be considered as he himself not definite in which the goods loaded by the opposite. Therefore this is the false complaint filed by the complainant and it is liable for dismissal. 8. The learned advocate for complainant gave explanations to this point raised by the advocate for opposite. In pursuance of the submissions made on both sides, now we have to appreciate the facts from the material placed on record before us. As per the pleadings of Para-1 of the complaint, complainant noted that his consignment was loaded in the lorry bearing No. MH-25 B/9346 in the affidavit-evidence of PW-1 the consigned lorry number is noted as MH-25 B/9346. In document at Ex.P-1 & Ex.P-2 lorry loading intimation shows that the goods loaded in lorry of the opposite bearing No. MH-25 B/9346. No doubt in Ex.P-3 which is the first legal notice dt. 24-11-08 the lorry number is shown as MH-25 B/7346. In the second notice at Ex.P-5 dt. 17-12-08 lorry number is shown as MH-25 B/9346, that means to say that in Ex.P-3 lorry number MH-25 B/7346 might have shown due to typographical error as 7346 instead of 9346, the pleadings, evidence and documents Ex.P-1 & Ex.P-2 shows the lorry number as MH-25 B/9346, as such we are of the view that, this discrepancy is not a material discrepancy to discard the case of complainant, accordingly we are not inclined to accept this contention of the opposite to reject the complaint. 9. The second point that was raised before us by the learned advocate for opposite is that present complainant Veerakumar cannot file this complaint in the capacity as a Manager on behalf of the firm M/s. K.S.S.B. Hi Tech Rice Industries, he cannot be a complainant as he is not a consumer, he is not a beneficiary under the alleged transaction, he cannot file affidavit-evidence on behalf of the firm, subsequent power of attorney filed in this case cannot cure the defect already crept in the proceedings. In support of this contention he referred section 12 of C.P. Act and also relied on the ruling reported in (I) 2008 (IV) Civil. L.J 532 Basanthkumar V/s. Romeshkumar. 10. The learned advocate for opposite submitted his counter arguments regarding the maintainability of the complaint by the present complainant in reference to section 12 of C.P. Act. 11. In pursuance of the submissions made on both sides in this regard, we are of the view that section 2(1)(b), 2(1)(d), 2(1)(e) and section 12 of Consumer Protection Act provides answeres for the above contentions of the opposite. Section 2(1)(b) defines the meaning of the complainant, the said section defines 5 categories of complainants section 2(1)(c) deals with the manner in which complainant has to file before the consumer forum, section 2(1)(d) defines the meaning of consumer and 2(1)(e) defines the meaning of consumer dispute and section 12(1)(a) to (d) says regarding the manner in which the complaint shall be made before consumer forum. 12. In the instant case this is the complaint filed by the complainant K.S.S.B. Hi Tech Industries Raichur through its Manager Veerakumar by alleging that 17 tonnes of rice consigned in the lorry of opposite transport company and the said consignment was not delivered to addressee as noted in bills at Ex.P- 1 & Ex.P-2. The present complainant is not a voluntarily consumer association required to be registered under the Companies Act 1956 or under any other law for time being inforce as required U/sec. 2(1)(b)(ii) of the said Act. As per the meaning and definition of section 2(1)(b)(i) of the said act the complainant firm is a consumer, the said firm can file this complaint U/sec. 12 of C.P. Act through its Manager, under the said circumstances the present complainant can raise consumer dispute the meaning and definition of 2(1)(c) by filing a complaint against opposite service provider, as per section 2(1)(b) of C.P. Act. 13. Hence we are of the view that there is no necessity for the complainant to file Special or General Power of Attorney along with this complaint or subsequent to it. In the instant case the complainant filed power of attorney at a later stage but as per the ruling referred by learned advocate for opposite in Basanthkumars case, the earlier defect in the proceedings cannot be rectified by filing G.P.A. or Special or subsequent to it. With great respect to their lordships of the said case, we are of the view that in the instant case the principles of the said ruling cannot be made applicable to the facts and circumstances of this case as the complainant itself is a consumer under the meaning and definition of section 2(1)(b) of C.P. Act, as such we have not accepted the submission of the learned advocate of the opposite to dismiss the complaint by holding that the present complaint is maintainable in the present form, is Manager is entitled to take part in this proceedings on behalf of the complainants firm by filing affidavit-evidence. 14. Third point for our consideration is as to whether the complainant proved that he loaded 17 tonnes BTC quality of rice in the lorry of opposite transport company for to deliver it to the addressee at Vashi (New Mumbai) but opposite transport company neither delivered the said goods to the addressee nor returned to him, it shows its negligence in tracing out the goods in spite of repeated requests and thereby opposite found guilty under deficiency in its service. 15. To establish this fact, the complainant himself gave affidavit-evidence who is noted as PW-1 affidavit-evidences of (7) witnesses who are the owners of different rice mill in Raichur filed with documents. On the other hand affidavit-evidence of opposite was filed, no documents filed. Among the documents filed by the complainant Ex.P-1 & Ex.P-2 relates the present loading 17 tonnes BTC quality of rice in the opposite transport company lorry to deliver it to the addressee at New Mumbai. Ex.P-10 to Ex.P-29 are other bills issued by opposite with lorry loading intimation letters while they have consigned good to the opposite in their course of business. In the instant case opposite flatly denied these documents and also the case of complainant. Ex.P-1 & Ex.P-2 and documents Ex.P-1 to Ex.P-29 identified by witnesses PWs- 2 to 8, as those documents one of the opposite transport company. Under such circumstances there are no proper and acceptable rebuttal evidences from the opposite to discard the evidences of PWs-1 to 8 with their documents Ex.P- 1 & Ex.P-2 & Ex.P-10 to Ex.P-29, as such we came to a conclusion that there are no merit in the submissions made by the learned advocate for opposite to hold that these documents were concocted by the complainant and other witnesses. It is further fact that the consignment booked by the complainant was neither delivered to the addressee at Vashi (New Mumbai) nor returned it to the complainant by the opposite. It appears from the evidences of the complainant and evidences of other witnesses that opposite shown its negligence in tracing out the goods and thereby there is deficiency in service on its part, accordingly we accepted the affidavit-evidence of PWs-1 to 8 and documents Ex.P-1 to Ex.P-31 and came to a conclusion that the complainant proved the deficiency in service on the part of this opposite by not delivering the goods to the addressee not returning it to the complainant, accordingly we answered Point No-1 in affirmative. 16. As regards to the liability of the opposite is concerned, there are no written agreement in between the parties, with regard to limited liability or the liability of the opposite for the loss sustained by the complainant. No such conditions printed either on Ex.P-1 or at & Ex.P-2, in the said circumstances the liability of opposite is to the extent of worth of goods lost in the transit. As per the evidences placed on record 17 tonnes BTS rice worth of Rs. 2,97,500/- was entrusted to the opposite transport company for to deliver it to the addressee at Vashi (New Mumbai). In the absence of written agreement between the parties with regard to liability, we are of the view that the complainant is entitled to recover the entire price of the rice of 17 tonnes worth of Rs. 2,97,500/- accordingly the complainant is entitled to recover Rs. 2,97,500/- from the opposite. 17. As regards to the deficiency in service, complainant is entitled to recover a lump sum amount of Rs. 3,000/- from the opposite under this head. The complainant is also entitled to recover a lump sum amount of Rs. 2,000/- towards cost of this litigation, as such complainant is totally entitled to recover an amount of Rs. 3,02,500/- from the opposite. The complainant claimed exorbitant and excessive rate of interest, as such we have taken note of the entire facts and circumstances of this case and opined that granting interest at the rate of 9% p.a. on the total amount of Rs. 3,0,2,500/- is the proper and reasonable rate of interest, accordingly complainant is entitled to recover interest at the rate of 9% p.a. on total sum of Rs. 3,02,500/- from the opposite from the date of this complaint till realization of the full amount, accordingly we answered Point No-2. POINT NO.3:- 18. In view of our findings on Point Nos-1 & 2 we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 3,02,500/- from the opposite. The complainant is also entitled to get future interest at the rate of 9% p.a. from the date of this judgement till realization of the full amount. Opposite is given one month time from the date of the judgement for making payment of the above said entire amount to the complainant. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-10-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.
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