MS VENKA AGRO FOODS V/S XPS CARGO SERVICS - Consumer Court Case

Andhra Pradesh

StateCommission

FA/1266/06

XPS CARGO SERVICS - Complainant(s)

Versus

MS VENKA AGRO FOODS - Opp.Party(s)

MS S HARSHVARDHAN LAL

05 Oct 2009

ORDER

First Appeal No. FA/1266/06

(Arisen out of Order Dated null in Case No. of District Prakasam)

1. XPS CARGO SERVICS

10 RAMBAGH OLD ROTHAK ROAD DELHI 110007

BEFORE:

PRESENT:

ORDER

BEFORE THE ADDITIONAL BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.

Between

1. XPS Cargo Services,

10, Rambagh, Old Rothak Road,

Delhi-110 007.

2. XPS Cargo Services,

Opposite to Andhra Bank,

D.No.14-1-B, Munthavari Centre,

Chirala.

3. XPS Cargo Services,

Raxual, Bihar. Appellants/

Opp.parties

A N D

M/s.Vanka Agro Foods,

Vetapalem, Prakasam Dist.,

Rep. by its Proprietor Venkata

Satyanarayana Swamy,

S/o.Venkata Subba Rao,

Aged about 33 years. Respondent/

Complainant

Counsel for the Appellants M/s.S.Harshvardhan Lal

Counsel for the Respondent Mr.D.A.S.Mohana Rao

QUORUM: SMT M.SHREESHA, PRESIDING MEMBER

SRI K.SATYANAND, MEMBER

MONDAY, THE FIFTH DAY OF OCTOBER,

TWO THOUSAND NINE

( Typed to the dictation of Sri K.Satyanand, Hon’ble Member)
***

This is an appeal filed by the opposite parties before the District forum against whom the Forum passed an order imposing liability for deficiency in service.

The facts of the case are briefly as follows:

The complainant claimed to have engaged the services of the opposite parties who represent one and the same cargo service but at different levels on 9-9-2005 paying freight charges to send consistent cashew kernnels from Chirala to Sri Reshma Enterprises, Adarshnagar, Beergang, Nepal. According to the complainant, the said consignment was never delivered to the said consignee as intimated to it by the consignee party. As such, the complainant claimed to have issued notices to the opposite parties but with no effect. As such the complainant filed this consumer complaint claiming the value of the consignment quantified at Rs.98,800/- with interest at the rate of 12% p.a. as also compensation of Rs.10,000/- for causing annoyance.

The opposite parties filed a combined counter through opposite party No.2 adopted by the others resisting the claim. It is the case of the opposite parties that the said consignment was duly delivered to the consignee at the destination identifying it as Sri Reshma Enterprises, Khatmondu, Nepal after proper identification on 16-9-2005 and went on contending that there was absolutely no case of deficiency of service against them and the said fact was conveyed even in the reply notice dated 1-2-2006 issued by them. It is how the opposite parties claimed that the complaint was liable to be dismissed.

In support of its case the complainant filed the affidavit of the proprietor and relied upon Exs.A1 to A6. Likewise, the opposite parties also got filed an affidavit and they too relied upon documents marked as Exs.B1 to B4.

On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that the consignment was not delivered at the place it was marked to be delivered even according to the document of the opposite parties and this lapse marks the deficiency in service, on that basis, it granted relief.

Aggrieved by the said order, the opposite parties filed this appeal on the grounds inter alia that the District Forum failed to appreciate that the goods consigned under Ex.A1 had clearly come to be delivered under the delivery receipt Ex.B1 and it misguided itself in the appreciation of evidence to give a finding of deficiency in service. The District Forum failed to see that the consignment was delivered to M/s Sri Reshma Enterprises as per Exs.B1 and B3 and as such there was no occasion to find fault with the opposite parties. The District Forum failed to call upon the complainant to prove Ex.A4 as it constituted the cause of action. It also failed to note that the complaint was bad for non joinder of parties. Finally it is urged that the complainant would hardly come under the description of consumer.

During the course of the pendency of this file, both parties filed petitions virtually seeking permission to tender additional evidence. The appellants filed a petition seeking to adduce additional evidence calculated to prove that Sri Reshma Enterprises as such, the consignee firm, requested by way of a letter dated 8-9-2005 altering the destination to Khatmondu instead of Beergang as it was only Sri Reshma Enterprises that was the consignee at both places though representing different branches. Similarly the complainant also filed documents with a view to prove that the amount in question remained outstanding due to it from the consignee obviously correlating it to the lapse on the part of the opposite party to deliver the consignment.

Heard both sides.

The points for consideration are whether there are any infirmities in the order of the District Forum calling for an interference by this Commission and to what result?

This is a very simple case as the disputed facts are minimum. Under Ex.A1 to A3 the complainant sent some goods to Sri Reshma Enterprises, Adarshnagar, Beergang, Nepal. Exs.A1 to A3 are not at all in dispute. The complainant relied upon Ex.A4 which is equally undisputed that the consignee as described in Exs.A1 to A3 clearly informed to the complainant that the consignment was not traced. Ex.A4 is dated 5-12-2005 more than three months after the entrustment of the consignment. The opposite parties both in their reply Ex.A6 as also in their original documents showing delivery marked as Ex.B1, they clearly maintained that the consignment was delivered to Sri Reshma Enterprises, Khatmondu, Nepal. It is necessary to note here that even according to them the consignment was not delivered to Sri Reshma Enterprises at Beergang but it was delivered to Sri Reshma Etnerprises, Khatmondu. This clearly shows that they delivered the consignment to a different party. In order to show that the consignee and the party that actually took delivery are one and the same but having their branches situated at two different places, they tried to rely upon a document now tendered as additional evidence. The said document is sought to be shown as the consignee making a request to the opposite party branch at Bihar to deliver the consignment in question to a different place than what was indicated in Exs.A1 to A3 namely Khatmondu instead of Beergang. The reception of this document into evidence is very much resisted by the respondent/complainant stating that its genuineness cannot be readily accepted in the absence of any affidavit supporting it by the so called person who executed the said document on behalf of Sri Reshma Enterprises. It is also commented that it never indicated even on its face that it was Sri Reshma Enterprises at Beergang that had executed or gave instructions to divert the consignment as it did not purport to have been executed by the consignee as described in the consignment note. There is any amount of force in this argument. Strictly speaking the said document turned out to be incomplete as it did not say that it was purported to have been executed by some body in the Beergang branch if at all it was a branch of the self same, if at all they are same, Sri Reshma Enterprises. In this view of the matter the said document cannot be fastened with any credibility and consequently its reception must not be acceded to. The said I.A. for that purpose is therefore dismissed. Till this point of discussion, it is abundantly clear that the consignment was not delivered at the place assigned as per the contract. Any justification for its diversion or deviation cannot be countenanced especially when the evidence in that regard is highly tenuous, belated and unreliable as observed above. It is abundantly clear from Ex.A4 that three months after the actual forwarding of the consignment on 9-9-2005, the consignee addressed the consignor that the said material was not available. This clearly shows the non delivery. On the face of it, the cargo service in question has no business to alter the destination. However, during the course of the arguments, the bench wanted to ascertain from the respondent whether the respondent realized the value of the consignment from the consignee or not as between the consignor and the consignee, it is only the one that losses in the bargain that can validly claim reparations. In order to substantiate that aspect that the complainant was the loser in the bargain, he filed documents clearly showing that an amount of Rs.98,800/- was still outstanding due from Reshma Etnerprises which figure correlated with the substantive claim in question. So these documents are of immense importance not in the context of fortifying the claim of the complainant but for the purposes of seeing to it that the complainant would not take an unfair advantage from out of this litigation centering round the deficiency in service alleged against the appellants. We are satisfied that the complainant did not make any attempt to take undue advantage of the non delivery to the detriment of the real consignee. Thus the finding of the District Forum that the appellants were guilty of deficiency in service is flawless. We, therefore, do not see any reasons to interfere with the said order.