(Per Shri Narendra Kawde, Hon’ble Member)
(1) This appeal is directed against the order dated 05/08/2005 passed by South Mumbai District Forum in Consumer Complaint No.150/2000, M/s.Gateway Industrial Safety Vs. Ace Laboratories Limited & ors. By way of this order, South Mumbai District Forum (hereinafter for the sake of bravety to be referred as to district forum) directed the opponent No.2 i.e. present appellant to pay a sum of `24,721/- together with interest @12% p.a. from 18/12/1999 within two months from the date of receipt of the certified copy of the judgement, failing of which the opponent party shall be liable to pay penal interest at the additional rate of 6% p.a. besides the awarded rate of 12% p.a. till final recovery.
(2) This is an old appeal placed on board for hearing and disposal on 09/09/2011 from sine-die list. Notices as directed were issued to all the parties and the matter was posted for final hearing on 23/11/2011. At the time of hearing, learned counsel Mr.Abhijeet Gondwal for the appellant was present. However, respondents or their advocates were not present at the time of hearing.
(3) Brief summary of the case is that,
The present respondent had filed consumer complaint before District Forum alleging deficiency in service on the part of the opponent No.1 to 3 as the goods were not re-booked for return journey by the appellant, since there was failure of making balance payment on account of transportation of goods by the opponent No.1, Ace Laboratories Ltd. (who is not a party to this appeal). The appellant who is doing business of transportation of goods and the respondent is proprietary concern engaged in manufacturing and dealing with commercial and medical safety equipments. Certain goods were transported from Mumbai to Jaipur as agreed by the present appellant to the opponent No.1, Ace Laboratories Ltd. mentioned in the complaint. However, balance payment of `24,721/- was not received by the respondent from opponent No.1 and therefore they issued written direction to the present appellant to re-book the said consignment of goods for getting back to Mumbai. The appellant’s contention is that the consignment of goods was delivered to the opponent No.1 i.e. Ace Laboratories Ltd. as per instructions and GR and also obtained receipts as a token of delivery and intimated same to the present appellant. Goods were delivered as agreed upon by the respondent which is admitted position on the record. However, for want of balance consideration of `24,721/- payable by the opponent No.1 i.e. Ace Laboratories Ltd., the respondent directed the appellant to re-book the same consignment of goods for reverse transport from Jaipur to Mumbai. Consignment is delivered to consignee and GR receipt is obtained, re-booking of said goods was out of question as contended by the present appellant. Aggrieved thereby, the respondent preferred to file the consumer complaint before District Forum claiming an amount of `24,721/- amongst other reliefs. The respondent/complainant preferred the claim against the opponent No.1, Ace Laboratories Ltd. for their failure to make this balance payment after receipt of consignment of goods. The prime claim as can be seen was preferred against the opponent No.1, Ace Laboratories Ltd. who is not a party in the present appeal. However, the District Forum for want of service against the opponent No.1, Ace Laboratories Ltd. and opponent No.3, Mr.H.S.Bhatiya, Sr.Manager, Jaipur Golden Transport Co.Ltd., order was directed against the present appellant who is opponent No.2 in the consumer complaint.
(4) Aggrieved and dissatisfied by the impugned order of the District Forum, the appellant has preferred this appeal. It is admitted position on record that the goods consigned were delivered as scheduled by the appellant transport company to the opponent No.1, Ace Laboratories Ltd. Once the consignment is delivered and goods receipt is obtained, the transaction is complete in so far as the transport company is concerned. In the instant case, the appellant discharged their obligations of delivering the consignment of goods as agreed upon by and between the parties. Non payment of balance amount by the consignee to the transport company will not pass on the burden of making such balance payment by the transport company and question of re-booking of goods at the later stage would not arise.
(5) Heard the learned counsel of appellant & perused the documents and evidence led by the parties. It is unusual to note that the opponent No.1 & 3 were not served and therefore, the District Forum in absence of such service directed the present appellant to pay balance amount of 24,721/-. Opponent No.3 is Sr.Manager of the opponent No.2 having same address as of the opponent No.2. When the notice could be served against the opponent No.2 (present appellant), it is somewhat unimaginable that their manager i.e. opponent No.3 could not be served. As against the opponent No.1, there is no evidence to show that the procedure as required u/s.28-A of Consumer Protection Act, 1986 was followed to serve the notice. Just for want of service of notice against the opponent No.1 who is a consignee in the present case and the claim of the complainant primarily was against opponent No.1. Procedure to serve as outlined in Consumer Protection Act, 1986 was required to be followed by the District Forum.
(6) In the facts & circumstances, the appellant’s contention is tenable in as much as the main claim of the complainant was directed against the opponent No.1 and without going into statement of claim and prayer, the district forum passed the impugned order against the appellant. The district forum erred in passing the impugned order against the present appellant and therefore, is required to be set aside. We hold accordingly and pass the following order.
-: ORDER :-
(1) Appeal is allowed.
(2) The impugned order dated 05/08/2005 passed by South Mumbai District Forum against appellant is quashed & set aside and Consumer Complaint No.150/2000 stands dismissed as against the appellant.
Pronounced on 23rd November, 2011.
