JUDGMENT 3.9.2010 Justice Pritam Pal, President 1. The aforementioned two appeals arise out of one and the same order dated 15.4.2002 passed by the District Consumer Forum-Yamuna Nagar at Jagadhri whereby complaint bearing No.154/1999 filed by M/s Krishna Metal Works Jagadhri (hereinafter to be referred as complainant) was allowed and M/s Sant Motors and M/s All India Roadways (hereinafter to be referred as OPs) were directed to make the payment of Rs.1,26,398/- to the complainant alongwith interest @ 12% p.a. from the date of delivering the material to the complainant till the date of payment. 2. In fact both appeals have been by OPs No.1 & 2 separately for setting aside the impugned order dated 15.4.2002. Since, in both these appeals common questions of law and facts are involved, so, we are deciding these appeals by this common judgment. 3. In nutshell, the facts culminating to the commencement of these two appeals may be recapitulated thus ; That the complainant booked some material through OPs for delivering the same to M/s Leader India Moradabad. The GRs stood in the name of M/s Sant Motors through M/s Lakshmi Transport Company, Moradabad. The invoices pertaining to the said goods were routed through the bank for negotiation. The consignee did not retire the invoices from the bank and the documents as such were returned to the complainant. M/s Sant Motors through its agent M/s All India Roadways dropped the material at the office of M/s Lakshmi Transport Company and delivered the material to the consignee direct without invoices and OPs took the responsibility of the payment by giving representation to the complainant to handover the material at their own costs. OPs though arranged to make some part payment but some of the amount remained outstanding for which OPs were liable to make the payment of Rs.2,79,687/-. The complainant tried his level best seeking payment but to no avail. Alleging deficiency in service on the part of OPs, complainant filed complaint before the District Forum, Jagadhri seeking directions to OPs to supply the material worth Rs.2,79,687/- or in the alternative sought costs of the above material besides compensation/costs etc. 4. OPs contested the complaint by filing joint reply inter-alia stating therein that there existed no relationship of consumer with OPs because no freight was ever paid by the complainant; that the consignee who was a necessary party has not been made a party. The complainant intentionally and deliberately did not disclose the GR Number and date , invoice numbers and the statement of accounts etc. The complainant being unregistered partnership firm could not file the complaint. Further the complaint was stated to be time barred as GRs were of the month of January,1996 and the first payment was received by the complainant in the month of April,1996 whereas complaint was filed in 1999. It was pleaded that the OPs carried the booked material carefully and cautiously and delivered at the destination to M/s Lakshmi Transport Company (OP NO.3 in the complaint) as per advice of complainant. The goods were delivered to the consignee because it was a routine practice of the complainant with the consignee to get the material lifted as per its oral instructions. After the delivery the material, complainant also received part payment of the material delivered from the consignee. It was pleaded that on receiving the notice from complainant, OPs made inquiry from the consignee and it was revealed that complainant has already received the amount more than the bill amount. 5. Parties adduced their respective evidence before the District Forum alongwith documents. 6. The District Consumer Forum after going through the evidence and hearing the learned counsel for parties, allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved, Opposite parties No.1 & 2 had filed their respective appeals before the Haryana State Consumer commission which have been transferred to this Commission under directions of the Hon’ble National Commission. 7. We have heard learned counsel for the parties and have perused the file carefully. It has been argued on behalf of OPs that the consignments booked through OP NO.2 were delivered to OP NO.3 and thereafter the same were duly received by the consignee M/s Leader India Moradabad. As per GR, the consignments were to be delivered at the place of M/s Luxmi Transport Company, Moradabad and it was for OP NO.3 to deliver the consignments to the consignee after retiring the documents through the bank if at all there was any such instructions in this regard and if the consignments had been delivered by OP No.3 without retiring the documents then OPs NO.1 & 2 cannot be held liable for any alleged deficiency in service or for any alleged loss regarding these transactions. It was further argued that the consignments in dispute related to 8.1.96 and the documents in this regard were returned unpaid by the bank in the month of February/March,1996, thus, the cause of action if at all accrued against the OPs, that was in Feb/March,1996 whereas the complaint was filed on 19.5.1999 which barred by limitation. It was next argued that the delivery of consignments had been made to the consignee and complainant had started receiving amount towards the consignments in installments but the consignee had not been made a party who was liable to make the payment as in the absence of principal debtor the others cannot be held liable. It was contended that the there was no misappropriation of goods and same were delivered to the right person and in that eventuality transporter is not responsible for non-receipt of the payment by the complainant . To support this contention, learned counsel for OPs cited the following authorities ; (i)Sun poly Industry Vs The branch Manager, Shri Ramadoss Motor Transport Ltd. & Anr I(2000) CPJ 334 (ii)Saurashtra Ceramic Ind.Vs Sadhana Trans.Co. 1(2001)ACC466 (iii)Josephine John Vs Aviation Express (P) Ltd. & Ors. III(2006)CPJ 223(NC) However, these points of arguments have been repelled by the learned counsel for complainant. 8. We have given our thoughtful consideration to the entire matter, the case law cited by the learned counsel for OPs and found that here in the instant case, there is no dispute about the delivery of consignments to the right person. A perusal of the GR reveals that in the column of ‘address of delivery office’ the name of Laxmi Transport Company has been mentioned. The consignments booked by the complainant through transporter had been delivered to the said transport company and the said transport company ultimately delivered the consignments to the consignee. In these circumstances it is neither a case of misdelivery or non-delivery/misappropriation of the consignment. 9. It is pertinent to mention here that the complainant had filed complaint for recovery of cost of the consignment worth Rs.2,79,687/- but after filing the complaint, the consignee had made certain payment and the learned District Forum directed OPs to make the balance amount of Rs.1,26,398/-. There is no allegation of deficiency of service on the part of OPs in the matter of delivering the consignments or any misappropriation of goods and the consignments had been delivered to the consignee who had made its part payment and complainant is simply asking for recovery of balance payment of goods delivered to the consignee who had not been made a party. Even otherwise, the prayer of the complainant made in the complaint seeking supply of material stood abandoned with the delivery of consignment and with regard to its alternative prayer of recovery of amount, Fora can not grant any relief in the recovery matter. 10. In view of the foregoing discussion, we are of the considered opinion that the impugned order passed by the learned District Forum is not sustainable and same is set aside. Consequently both appeals are accepted and complaint is dismissed, leaving the parties to bear their own costs. 11. However, before parting with this order, it is made clear that complainant would be at liberty to approach the competent court of law for recovery of the balance amount, if any recoverable from the consignee to whom the consignments had been delivered, in accordance with law. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | | 
