HON'BLE MR. JUSTICE R.C. JAIN ,PRESIDING MEMBERHON'BLE MR. ANUPAM DASGUPTA ,MEMBER
For the Appellant :
NEMO
For the Respondent :
NEMO
Dated : 25 Mar 2010
ORDER
JUSTICE R. C. JAIN, PRESIDING MEMBER (ORAL) The order dated 6.9.2004 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, (in short, the State Commission) in original complaint No. 23 of 2001, is under challenged in the present appeal, which has been filed by the XPS Cargo Services Ltd. (opposite party before the State Commission). By the impugned order, the State Commission has allowed the complaint filed by the respondent- M/s Morepen Laboratories Ltd. and has directed the opposite party/appellant to pay to the complainant/company, an amount of Rs.7,51,983/- towards the loss of goods suffered by it, besides awarding litigation cost of Rs.5,000/-. 2. The facts and circumstances of the case which led to the filing of the compliant have been amply noted by the State Commission in the impugned order. However, we may simply notice that a consignment of medicines contained in 160 boxes, was handed over to the opposite party for carriage from Cuttack in Orissa to Parwanoo in Himachal Pradesh and its delivery to the complainant/company. The consignment reached its destination but before it could be delivered to the complainant, it was stolen from the godown of the opposite party in the morning of 20.04.2001. A police report was lodged but neither the thieves were apprehended nor the stolen goods were recovered. As the consignment remained undelivered, so the complainant/company called upon the opposite party to pay a sum of Rs.7,51,983/-, the actual value of the consignment and on failure to do so, a complaint was filed claiming a sum of Rs.7,51,983/- alongwith a sum of Rupees One lakh as compensation for casing harassment and mental agony. 3. The complaint was resisted by the opposite party/Carrier by filing written version. It would appear that the said written version was found deficient as neither it was signed nor verified on behalf of opposite party though it was bearing the signature of the counsel representing the opposite party. The State Commission dealt with this aspect by observing as under:- 4.Straightaway the question that arisen is as to what is the legal value of the reply to the complaint filed by the opposite party in this given situation. The answer can only be that it is no reply in the eyes of law as the facts alleged therein are neither verified nor sworn as an affidavit, as per the legal requirement. Indeed, the reply is a meaningless document as it is not even signed by any competent person on behalf of the opposite party. 5. Proceeding on the above legal premise, there is no option but to accept the facts stated in the complaint and narrated above. Assuming for argument sake, that the facts as alleged in the reply are to be taken into consideration, then even the basic question involved in this complaint i.e. theft of goods stored in the godown of the opposite parties against consideratioin stands admitted therein. It necessarily follows that deficiency in service on the part of the opposite party is writ large on the face of the record. 4. It would appear that the State Commission largely guided by the version of the complainant and the fact that goods were stolen while they were in the custody of the opposite parties, has allowed the complaint as above. The appeal was heard and dismissed for the first time vide order dated 7.12.2004 by this Commission by repelling the contention of the appellant that the consignment was kept in a rented godown as the respondent was unable to take delivery thereof and therefore, the appellants were not liable for the loss occasioned to the goods. The appellants challenged the said order before the Supreme Court by means of S.L.P. (Civil) No. 4333 of 2005, which was disposed of by the Apex court vide order dated 27.3.2006, which reads as under:- The learned counsel for the petitioners submits that the petitioners had also raised the point tat the contract as carriers of cargo has come to an end and thereafter on the asking of the respondent the goods had been kept in a godown, at his instance. The relationship thereafter could be said to be as that of a bailor and bailee. This aspect though taken in the grounds of appeal before the Commission, was not considered. Accordingly, the impugned order of the National Commission is set aside and the matter is remanded back to the National Commission for consideration of all the issues on merits in accordance with law. The Special Leave Petition is disposed of accordingly. 5. Pursuant to the direction contained in the said order, the appeal was once again heard by this Commission and again dismissed vide order dated 01.12.2009. Review application No. 16 of 2010 was moved for review/recall of the said order dated 1.12.2009 and vide order dated 26.2.2010, the order dated 1.12.2009 passed by this Commission dismissing the appeal, was recalled and that is how, the appeal has been listed for hearing before us. 6. We have heard Ms. Shally B. Maheshwari, learned counsel representing the appellants and Ms. Divya Jain, learned counsel representing the respondent and have given our thoughtful consideration to their respective submissions. Learned counsel for the appellant would assail the impugned order primarily on the ground that it is not based on correct and proper appreciation of the facts and circumstances of the case and the respective pleas taken by the parties before the State Commission. Her argument is that the State Commission has not considered the defence plea put forth by the appellant in the written version, which was filed in response to the complaint. In this connection, she has taken us through the various objections and pleas raised in the said written version before the State Commission including the plea that after the arrival of the goods at Parwanoo and having offered to deliver the same to the complainant, the liability of the appellant-opposite party as a carrier of goods had come to an end. It is pointed out that since the opposite party/appellant had placed the non-delivered goods soon in a rented godown after the arrival of the consignment, the status of the parties had become that of the bailor and the bailee and any question in regard to any liability to pay for the loss of the goods which they were keeping in the capacity of bailee has to be decided in that capacity rather than as a carrier of goods within the meaning of Carriers Act, 1872. As regards the technical defect found in the written version, learned counsel for the appellant contends that it was a mere technicality and the State Commission was not justified in overlooking the pleas raised in the said written version, especially when the State Commission had relied and acted upon the admission of the fact about the loss of the goods due to theft. We are not inclined to accept this contention because the written version filed by the opposite party/appellant without the same having been signed by any authorized person for and on behalf of the appellant, could not be taken into consideration as rightly observed by the State Commission. However, this defect could have been cured by asking the opposite party/appellant to file a signed and verified version in accordance with law. Learned counsel for the appellant states that the appellant is willing to file written version taking the same plea which was raised earlier after due signature and verification. We permit the appellant to do so subject to payment of Rs.5,000/- as cost to the complainant. 7. Having considered the matter in its entirety, we are of the view that the defence plea raised by the opposite party/appellant in response to the complaint, more particularly, about their status having been altered to that of a bailee instead of a carrier after they had offered to deliver the goods to the complainant on their arrival at Parwanoo, has not been considered by the State Commission. Since this is an important plea, we deem it appropriate to set aside the impugned order and remit back the complaint to the State Commission for deciding it afresh in accordance with law. 8. In the result, the appeal is partly allowed and the impugned order is hereby set aside and the complaint is remitted back to the State Commission for deciding the same afresh, as expeditiously as it may be practicable, within a period of four months from the date of appearance of the parties before the State Commission. The parties are directed to appear before the State Commission on 19.04.2001, on that date, the appellant will file a signed and verified copy of the written version which was earlier filed by them in response to the complaint and pay the cost to the respondent/complainant. Needless to mention that observation made hereinabove as also in the previous orders will not amount to expression of any opinion, on merit of the case and the State Commission will be free to take its own view in the matter. If any amount has been deposited by the appellant in the State Commission, the same shall not be refunded/released to the appellant and shall await the final outcome of the complaint.
......................JR.C. JAINPRESIDING MEMBER ......................ANUPAM DASGUPTAMEMBER
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