BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
OF 2008 AGAINST C.C.NO.489 OF 2007 DISTRICT CONSUMER FORUM-II HYDERABAD
Between
Denison Hydraulics India Limited
Rep. by its Director Sri V.G.Srinivas
Regd. Office: Plot No.44, 4th Floor, HCL Towers
Chikoti Gardens, Begumpet, Hyderabad-016
Appellant/complainant
A N D
1. M/s Union Roadways Limited
rep. by its Zonal Manager
Plot No.12A, 3rd Floor, Twin City
Market Complex, J.N.Road
Hyderabad-001
2. M/s Union Roadways Limited
rep. by its Managing Director
25, Mehta Chambers, 127-A
Kalyan Street, Mumbai-009
Respondents/opposite parties
Counsel for the Appellants Sri KVR Chowdary
Counsel for the Respondents No.1 & 2 Sri V.Mohan Srinivas
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
FRIDAY THE NINETH DAY OF JULY
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The unsuccessful complainant is the appellant. The brief facts of the complaint are that the complainants raised a purchase order dated 12.1.2004 for supplying of two sets of Hydraulic Power Packs and two hydraulic cylinders along with spare seal kits. The complainant raised two different invoices for the products, invoice No.006/2004-5 dated 30.4.2004 for an amount of Rs.1,44,141/- for two sets of Hydraulic Power Packs and another invoice No.023/2004-05 dated 5.6.2004 for an amount of Rs.2,16,211/- towards two hydraulic cylinders. The said products on the directions of M/s Hindustan Dorr-Oliver Limited were booked separately in the opposite party no.1 branch for transportation in the name of M/s Hy-Grade Pellets Limited, Kirundel which is the consignee vide consignment notes No.14384 dated 30.4.2004 and No.14456 dated 5.6.2004 respectively.
The consignee did not claim the consignment sent through the consignment note no.14384 dated 30.4.2004. Therefore, the complainant asked the opposite parties to rebook the said consignment under the said consignment note No.14384 dated 30.4.2004 to the complainant but the opposite parties failed to rebook the said consignment. The complainant got issued a legal notice dated 9.9.2005 asking the opposite party company to rebook the unclaimed consignment dated 30.4.2004. The second opposite party gave reply dated 20.9.2005 stating that the complainant has to submit the original consignee copy of the consignment for rebooking purpose. The complainant approached the opposite parytno.1 along with letter dated 23.9.2005 requesting them to receive the original invoice but they refused to do so. The complainant sent several remainders but in vain. If there is unclaimed material of the complainant the opposite parties are at liberty to dispose of the said consignment after one month from the date of reaching the destination as per the terms noted in the booking receipt after giving a minimum of 15 days notice to the consignor. The opposite parties had not issued any such notice to the complainant. Hence, the complainant filed the complaint before the District Forum seeking direction to the opposite parties to rebook and deliver the consignment to the complainant along with interest, compensation and costs.
The opposite parties resisted the case contending that the complainant had several times insisted upon rebooking of the consignment; the complainant and M/s Hindustan Dorr Oliver Ltd., instructed the opposite parties orally to deliver the consignment to the consignee without collecting the consignee copy of the consignment note and that the complainant also received the value of the goods vide cheque No.088658 dated 3.8.2007 for a sum of Rs.2,35,689/- of Bank of India. It is confirmed as per the copy of e-mails dated 3rd and 4th, August 2007. As the opposite parties were under impression that the matter is under compromise informed the same to the District Forum but on 13.9.2007 the counsel for the complainant informed that he has no instructions from his client to withdraw the complaint. The opposite parties contended that the transaction is a commercial transaction and therefore the complainant does not fall under the purview of C.P.Act. Hence, prayed for dismissal of the complaint.
The complainant has filed his affidavit and documents Exs.A1 to 21.
The opposite parties filed counter by way of counter affidavit. Exs.B1 to B3 have been marked on behalf of the opposite parties.
The Opposite parties filed their written arguments.
The District Forum dismissed the complaint opining that the complainant did not pay the freight charges to the opposite parties no.1 and 2 but only promise was made which was not fulfilled and without making any payment, the complainant demanded for the transportation of the material.
The point for consideration is whether the impugned order warrants any interference?
It is not in dispute that M/s Hindustan Dorr-Oliver Limited raised a purchase order dated 12.1.2004 on the complainant company for the supply of two sets of Hydraulic Power Packs and two hydraulic cylinders along with spare seal kits. The consignments were booked separately with the opposite party no.1 at Hyderabad vide consignment note no.14384 dated 30.4.2004 and the consignment note no.14456 dated 5.6.2004. It is the contention of the complainant company that the consignment sent through consignment note bearing No.14384 dated 30.4.2004 was not claimed by the consignee. Further, it is contended that the complainant company requested the opposite parties to rebook the consignment and on failure of the opposite parties the complainant company got issued legal notice dated 9.9.2005 for which the second opposite party gave a reply that the complainant company has to submit the copy of the consignment note which was furnished to them and remainders dated 15.10.2005, 30.10.2005 and 12.11.2005 were sent to the opposite parties which, however, evoked no response from them.
The opposite parties contended that the complainant and M/s Hindustan Dorr-Oliver Limited instructed them orally to deliver the consignment to the consignee without collecting the consignee copy of the consignment note and as such they had delivered the consignment to the consignee for which the complainant company had received the value of the goods through cheque bearing No.088658 dated 3.8.2007 for a sum of Rs.2,35,689/- drawn on Bank of India.
The complainant company has not denied the statement of the Senior Divisional Manager of the opposite party no.1 that the complainant had received the amount of Rs.2,35,689/- sent through cheque issued by the consignee who after receipt of the consignment made the payment due to the complainant company. The opposite parties had specifically stated the number of the cheque along with its particulars such as the date of issue and the amount mentioned therein. In the circumstances, it cannot be said that the opposite parties had retained the consignment arbitrarily causing loss to the complainant company. It is pertinent to note that the complainant company has not disputed the realization of the amount covered under the cheque issued by the consignee.
Admittedly, the complainant had submitted the copy of consignee consignment note to the opposite party no.1 whereupon the opposite party no.2 had delivered possession of the consignment to the consignee. The complainant company has not denied the fact, in fact it has admitted that the opposite parties delivered the consignment to the consignee, however, it is the grievance of the opposite parties that without production of the consignment note, the opposite parties delivered the consignment to the consignee. It is true, the original consignee consignment note was not produced before the opposite parties. It is equally true the opposite parties had delivered the consignment to the consignee only after the submission of consignee consignment copy. The receipt of consignee consignment copy by the opposite parties coupled with the receipt of cheque in lieu of the value of the consignment amply establish the fact that the opposite parties had not committed any deficiency in service in effecting delivery of the consignment to the consignee.
Having received the value of the goods under consignment through cheque bearing No.088658 dated 3.8.2007 for a sum of Rs.2,35,689/- drawn on Bank of India towards the value of the consignment, the complainant company cannot say that the opposite party ought not to have handed over the consignment without the consignee consignment note. The learned counsel for the complainant company had relied upon the Hon’ble Supreme Court in Civil Appeal No.3096 of 2005 in M/s Transport Corporation of India Limited Vs M/s Viiljan Hydrair Limited. The facts of that case and that of the case on hand are completely different and as such the ratio laid in that decision is not applicable to the facts of this case. In that case, the carrier informed the consignor that the consignment was not traced and it was under the process of being traced. In those circumstances, the consignor/consignee was held to be entitled not to pay the freight charges. In the case on hand the consignment has been very much in possession of the opposite parties and the consignee had not claimed it. Therefore, the decision of the Apex court relied upon by the counsel for the complainant is not applicable to the facts of the case. In the circumstances, we are inclined to uphold the impugned order however for different reasons.
In the result, the appeal is dismissed confirming the order dated 15.11.2007 of the District Forum along with costs of Rs.2,000/-.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.09.07.2010
KMK*
