F.A.No.99  OF 2012 AGAINST C.C.NO.47 OF 2011 DISTRICT FORUM RANGA REDDY  

Between:

1.   Navata Road Transport
rep. by its Manager, O/o P.B.No.912
Bose Buildings, Kanuru, Vijayawada-007

2.   Navata Road Transport
rep. by its Branch Manager
Branch Off: Plot No.1, Block No.1

Auto Nagar, Vanasthalipuram,
Hyderabad                                                                                 Appellants/opposite parties

                        A N D

M/s Fortune Hybrid Seeds Limited
rep. by its Accounts Manager,
Having its office at # 3-5-821,
1^st Floor, Doshi Square, Hyderguda
Hyderabad

                                                                                                Respondent/complainant

Counsel for the Appellant              M/s R.Chakradhar

Counsel for the Respondent           M/s R.Anil Reddy

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                        &

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

      MONDAY THE EIGHTEENTH  DAY OF MARCH

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.             The opposite party is the appellant.  The appeal is challenge to the order of the District Forum which has allowed the complaint directing the appellant to pay `75,000/- towards cost of the consignment and `25,000/- towards compensation and damages and also `2,000/- towards costs.

2.             The respondent booked a consignment consisting of 5 bags of Bt Cotton Deepti Bt2 seeds, each bag containing 20 packets totalling 100 packets worth Rs.75,000/- through the second appellant on 22.5.2009 to be delivered to its dealer Sri Sai Shakti Builder, Nakkarekal.  The appellants failed to deliver the consignments to the dealer of the respondent.  The consignment was not traced.

3.             The respondent has contended that its dealer informed it that the consignment was not delivered and that the dealer would sustain an amount of `25,000/- which should be set off by the respondent which the respondent said to have brought to the notice of the appellants that the goods of the consignment would expire in 9 months and the respondent would suffer loss to the tune of Rs.75,000/- as also its reputation would be damaged.  The respondent requested the appellants to trace the consignment.  The staff of the appellants verified the transaction details on 18.1.2010 and informed the respondents’ agent that they will settle the issue within two months.  The respondent lodged complaint on 29.3.2010 with the appellant no.2 and got issued notice on 9.9.2010 for which the appellants issued reply on 15.10.2010.  The respondent issued rejoinder  on 16.12.2010 to the reply of the appellants.

4.             The appellants resisted the claim on the premise that the respondent booked many consignments three years prior to the transaction in question and that the consignment was not loaded in the vehicle at the godown of the respondent by the mischief played by their staff and the accounts of stock at the office of the respondent and accounts of the respondents dealer are to be verified along with the statement submitted by them to the Agricultural Department.    The appellants requested the respondent to furnish stock particulars from 2009 to August 2009 and the statement submitted to the Agricultural Department.  It is contended that the respondent  has no cause of action to file the complaint and the District Forum has no jurisdiction to adjudicate the matter and that the complaint was not filed within the period of limitation.  Hence, prayed for dismissal of the complaint.

5.             On behalf of the respondent, the Senior Manager (Acc) of the respondent and the Proprietor of Sri Sai Shakthi Traders have filed their affidavits and the documents, Exs.A1 to A22.  On behalf of the appellants, the Manager of the appellant no.2 filed his affidavit and no documents have been filed.   

6.             The District Forum has allowed the complaint on the premise that the appellants failed to deliver the consignments and the respondent continuously pursued the matter which amounts to cause of action for the respondent to file complaint within the period of limitation as also in view of the letters Exs.A4 to A6 written by the staff of the respondent company.  It is observed that the appellant company is liable to indemnify the respondent to the extent of cost of the consignment. 

7.             Feeling aggrieved by the order of the District Forum, the opposite parties have filed the appeal contending that the transaction of the consignment was disputed on the premise that the consignment was not loaded in the vehicle.  It is contended that the respondent company tried to take advantage of lorry receipt which was issued by the mischief played by the staff of the appellant company.  It is contended that the complaint is not maintainable because of the respondent not issuing mandatory notice as per Sec.16 of Carriage by Road Act, 2007 and that the letters Exs.A4 to A6 of the staff of the respondent company do not extent cause of action. 

8.     The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?

9.             The claim is resisted on the premise that the respondent has not sent the consignment and the respondent has not issued the notice within the statutory period prescribed, i.e 180 days from the date of cause of action. The respondent has stated that it had sent consignment containing 100 packets of Bt Cotton seeds to its dealer, Sri Sai Shakti Traders, Nakirekal on 22.05.2009 whereas the appellants contend that no consignment was sent on 22.05.2009 and due to the mischief played by their staff the Lorry Receipt was issued in favour of the respondent.

10.            The respondent has contended that it had addressed letter dated  29.03.2010  bringing to the notice of the appellant no.2 of the non-receipt of the consignment by its dealer, Sri Sai Shakthi Traders at Nakirekal whereas the appellants would submit that the consignments used to be taken from the godown of the respondent and the staff of the appellants played mischief by issuing the lorry receipt on 22.05.2009 though no consignment was loaded in the lorry nor was it sent by the respondent on 22.05.2009.  The appellants in their reply dated 15.10.2010 raised objection that the respondent had not sent any consignment on 22.05.2009.  In the third paragraph of the reply it is stated :

“My client states that your client has been booking so many consignments through my client for the last three or four years.  My client never received this type of complaint from your client earlier and the services of my client were appreciated by your client.  Unfortunately, this complaint was made by your client.  The consignments are being booked at the request of your client and for the convenience of your client, the staff of my client are going to the go-down of your client and the consignments are being loaded in the vehicle belonging to my client at your client’s go-down and the consignments are being loaded in my client’s vehicle by the workers of your client.  On 22.5.2009 your client booked five bags of Bt.Cotton DEEPTI Bt 2 (Seeds) and receipt was given to your client.  Howevber, the above consignment was not loaded in the vehicle of my client.  The staff of my client inadvertently could not brought to the notice of the Management that the said consignment of five bags of Bt.Cotton DEEPTI Bt (seeds) was not loaded in the vehicle at the go-down of your client.  Taking advantage of the same your client got issued this notice claiming that the consignment was not delivered to the dealer of your client at Nakrekal.  My client states that the receipt was prepared and issued to your client that the consignment was booked with my client.  But the said consignment consisting of five bags (five cartoons) of the above seeds were not actually loaded at the to-down of your client in my client’s vehicle as per the usual practice.”

11.            The appellants disputed the fact that the consignment was loaded in the Lorry on 22.05.2010. In support of their contention the appellants divided the whole transaction into two parts, the first part dealing with booking of the consignment by the respondent and issuing receipt therefor, by the appellant and the second part deals with the aspect of loading the booked consignment into lorry at the godown of the respondent.  Booking the consignment at one place and loading the same consignment at the godown of the respondent is pleaded as normal practice by the appellant.

12.            The respondent on the other hand issued rejoinder to the reply of the appellants denying that the consignments were booked at one place and loaded another place at the request and for the sake of convenience of the respondent. In third paragraph of the rejoinder the denial of booking the consignment and collection of the consignment at other place is mentioned as under:

“Your client stated in his reply notice dated 15.10.2010 that my client has been booking so many consignments through your client for the last three or four years.  Further, your client stated that, your client never received this type of complaint from my client earlier and the services of your client were appreciated by my client and unfortunately, this complaint was made by my client.  Your client stated that, the consignments are being booked at the request of my client and for the convenience of my client, the staff of your client are going to the go-down of my client and the consignments are being loaded in the vehicle belonging to your client at my client’s go-down and the consignments are being loaded in your client’s vehicle by the workers of my client. It is true that on 22.5.2009 my client booked five bags of Bt.Cotton DEEPTI Bt 2 (seeds) (each bag containing 20 packets and total 100 packets) and receipt was given to my client.  But it is false to allege that the above said consignment was not loaded  in the vehicle of your client”.

13.            Thus, there have been disputed questions of fact in regard to issuing the consignment receipt without being immediately followed by handing over the consignment by the respondent to the appellants. The disputed questions of facts cannot be adjudicated in summary proceeidngs before Consumer Forum. The parties are required to be relegated to civil court for proper adjudication of the matter.

14.              In “Oriental Insurance Company Limited Vs Munimahesh Patel” IV (2006) CPJ 1,  the insurance company disputed the genuineness of the documents and the Hon’ble Supreme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matter and the complainant was entitled to seek relief in court of competent jurisdiction.

“9. The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondent’s wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.

10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.

11. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.

12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.

13. Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costs”.

15.               The National Commission in ‘Transport Corporation Employees Provident Fund Trust  vs Orissa small Industries and another ‘ III(2007) CPJ 316(NC) and ‘Omprakash vs Allahabad Bank’ III(2206)CPJ 418, held that the matter involving adjudication of disputed questions of facts has to be tried by competent court. Thus, we are inclined to give opportunity to the complainant to approach competent court for adjudication of the matter.

16.            In the result, the appeal is allowed setting aside the order of the District Forum.  Consequently, the complaint is dismissed with liberty to the respondent to approach the Civil Court or any other Forum. In the event the respondent approaches the Civil Court or any other Forum, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Hon’ble Supreme Court in “Trai Foods Ltd vs National Insurance Company Ltd and others” reported in III (2012) CPJ 17”.

                                                                   MEMBER

                                                                   MEMBER

                                                               Dt.18.03.2013

కెఎంకె*