BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.119 of 2015

                                 Date of institution:          13.03.2015

                                              Date of Decision:            23.09.2015

M/s. Samed Laboratories through its Partner G.R. Satija, SCO 1, Near Railway Crossing, Old Ambala Road, Dhakoli, Zirakpur, District SAS Nagar, Mohali (Punjab).

                                     ……..Complainants

                                        Versus

1.     M/s. VRL Logistics Ltd. thorough its Director, Pabhat Godown Area, Pabhat Road, Behind Cipla Godown, Zirakpur, District SAS Nagar, Mohali (Pb.)

2.     M/s. VRL Logistics Ltd. through its Director, Corporate Office, a annexe Circuit House Road, Hubballi 580029 (Karnataka).

                                                                ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Mrs. R.K. Aulakh, Member.

Present:    Shri Janak Raj, Manager of the complainant.

Shri Gurdeep Singh, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant is a partnership firm and the present complaint has been filed through G.R. Satija, its partner.  In the present complaint following directions have been sought to the Opposite Parties (for short ‘the OPs’) to:

(a)    pay Rs.49,495/- being the invoice amount with interest @ 24% per annum from 21.01.2014 till realisation.

(b)    pay Rs.50,000/- as professional deficiency in service.

(c)    pay Rs.1,00,000/- as harassment charges.

(d)    pay Rs.20,000/-as costs of litigation.

                The case of the complainant is that it deals in various kind of drugs and medicines for past many years. M/s. Mansi Medicose, Ward No.46, Shop No.3, Amlidin Main Road, Raipur is regular customer of the medicines being manufactured by the complainant. On 20.01.2014 M/s. Mansi Medicose purchased goods of Rs.,48,485.00 in DOD basis from the complainant.  The complainant delivered the goods to OPs for delivery on the Mansi Medicose by directing it receive DOD against delivery.  However, OP No.1 handed over a cheque dated 31.01.2014 to the complainant which on presentation was returned with remarks ‘funds insufficient’. The complainant sent letter to the OPs in this regard but the OPs kept on lingering the matter on one pretext or the other.  Again the OPs gave two cheques to the complainant for Rs.24,496/- and Rs. 25,000/-. The complainant sent a legal notice dated 10.11.2014 to the OPs but no purpose was solved till then.     With these allegations; the complainant has filed the present complaint against the OP.

2.             Upon notice the OPs appeared and filed written reply in which they took preliminary objections that the complainant has not approached this Forum with clean hands as they had given detailed reply dated 24.11.2014 to the notice dated 10.11.2014 sent by the complainant. This Forum does not have territorial jurisdiction to entertain and try the complaint. The complaint is bad for non joinder and misjoinder of necessary parties.  The OPs have no role to pay in the present matter as the actual dispute is between the complainant and M/s. Mansi Medicose.  On merits, they have denied the allegations of the complainant and sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-11.

4.             Evidence of the OPs consists of affidavit of Prahlad Yadav, their Assistant Manager, Ex.OP-1/1 and copies of documents Ex.OP-1to Ex.OP-3.

5.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

6.             The complainant has availed the services of the Ops and booked a consignment under Way Bill No.446984467 of four packages of medicines from Zirakpur to  Raipur. The consignment was to be delivered to the consignee on collecting demand draft of Rs.49,495/-.  Thus, the OPs were given written instructions by the complainant as per Ex.C-2 to collect the payment from the consignee by way of demand draft only.  The OPs upon delivery of goods to consignee collected the payment from the consignee by way of cheque dated 31.01.2014 Ex.C-3 and not by way of demand draft as per specific written instructions of the complainant. Upon presentation of the cheque, the same was dishonoured by the banker vide memo Ex.C-4 with the remarks ‘insufficient funds’.  Thereafter, the complainant brought the fact to the notice of the OPs and demanded the payment of Rs.49,495/- alongwith interest as the Ops have failed to follow the instructions of collection of payment by demand draft. The Ops thereafter again issued two cheques one for Rs.24,496/- dated 15.08.2014 and another for Rs.25,000/- dated 10.08.2014 instead of draft. The complainant returned the said freshly issued cheques to the OPs and reiterated its request to make the payment of Rs.49,496/- alongwith interest @ 24% per annum w.e.f. 20.01.2014 and Rs.706/- in lieu of CST. The original cheques having been returned alongwith Ex.C-6, the photocopies thereof are annexed as Ex.C-7 and C-8.  Instead of taking up the matter with the consignee, the OPs informed the complainant that the matter regarding payment by way of demand draft pertains to the consignee and not with the transporter and, therefore, the OPs asked the complainant to take up the matter with the consignee as they have no role whatsoever to play in the payment issue between the consignor and consignee. As per complainant since the OPs have failed to follow the written instructions of the complainant and due to that it has suffered a loss of Rs.49,495/- on account of dishonouring of the cheque issued by the consignee, the OPs have indulged into unfair trade practice and deficiency in service by not following the specific instructions of the complainant.

7.             The Ops in their reply have admitted the booking of four packages of medicines and delivery of the same to the concerned quarters i.e. consignee vide way bill Ex.C-2. As per the description provided on the way bill ‘HLM DOD Amount Rs.49,495/- clearly  casts an obligation on the Ops to collect the payment from the consignee by demand draft. Acceptance of cheque dated 31.01.2014 by the OPs from the consignee and delivery of the same to the complainant is a clear cut contravention to the specific instructions provided in Ex.C-2. Thus, at the face of it the OPs have violated the terms of transaction duly accepted by them vide Ex.C-2. Further the OPs have, instead of taking up the matter regarding dishonouring of the cheque with the consignee, have of their own volition issued two new cheques instead of demand draft. Once the OPs have received back the newly issued cheque, as per Ex.C-6, it was still under an obligation to get the disputed payment from the consignee by way of demand draft. The Ops have again miserably failed to discharge their obligation.

8.             The plea of the Ops in their written statement and written arguments that the dispute of payment of Rs.49,495/- by the consignee to the consignor i.e. the complainant either by way of demand draft or cheque and the OPs are in no way concerned with  such dispute between the consignor and the consignee. In support of this contention, the counsel for the OPs has drawn our attention to the inscription mentioned on the invoice dated 20.01.2014 that the payment should be made by account payee bank/cheque/draft.  We have gone through invoice Ex.C-1 which is a document governing the relationship between the consignor and the consignee whereas the dispute in the present complaint is regarding deficiency in service/unfair trade practice on the part of the Ops. As per Ex.C-2 i.e. the way bill and the terms mentioned in way bill are binding on the parties i.e. the complainant and the OPs and the OPs cannot take the benefit of unrelated document i.e. Ex.C-1 as the same is not governing the relationship of transaction between the complainant and the OPs.  As per Ex.C-2 the OPs were specifically required to collect the payment by way of demand draft which the OPs have failed to and instead of demand draft have collected the payment by way of cheque from the consignee. The cheque having been dishonoured by the banker has caused financial loss to the complainant and further has caused mental agony to the complainant when the Ops have failed to redress the grievance of the complainant. Thus, due to the acts of omission and commission on the part of the OPs, the complaint deserves to be allowed and the complainant deserves to be compensated.

9.             In view of above discussion, the complaint is allowed against the OPs. Both the Ops are jointly and severally  directed to :

(a)    pay to the complainant Rs.49,495/- (Rs. Forty nine thousand four hundred ninety five only) with interest thereon @ 9% per annum w.e.f. 30.01.2014 till actual payment.

(b)    to pay to the complainant Rs.15,000/-  (Rs. Fifteen thousand only) a lump  sum compensation towards mental agony, harassment and costs of litigation.

                Compliance of the above order be made within a period of thirty days from the receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

September 23, 2015.    

                          (Mrs. Madhu P. Singh)

                                                                        President

(Mrs. R.K. Aulakh)

               Member