Haryana

Panchkula

CC/624/2019

HET RAM. - Complainant(s)

Versus

NASIM & SONS FRUIT MERCHANT. - Opp.Party(s)

COMPLAINANT IN PERSON.

08 Sep 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	624 of 2019
Date of Institution	:	02.12.2019
Date of Decision	:	08.09.2023

 

Het Ram, Prop.  Het Ram Chauhan & Sons, SCF No.3, Sector-20, Panchkula(Haryana).

    ..….Complainant

Versus                                                                  

1.     Nasim & Sons Fruit Merchant, 2/1, Ballav Das Street, Kolkata through its authorized signatory.

2.     MMR Roadways, SHOP No.81, Apple Market, Sector-20, Panchkula through its authorized signatory.

                                                                        ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav, Member

 

For the Parties:   Complainant in person with Sh.Moin Hussan,  Advocate for the complainant.

                        Sh. Sunil Kumar Mukhi, Advocate for OP No.2.

                       

 

ORDER

(Satpal, President)

 

1.The brief facts, as alleged in the present complaint, are that the complainant is running the business of the commission agent of fruits, under the name and style of Het Ram Chauhan & Sons, SCF No.3, Sector-20, Panchkula, for earning his livelihood for him and his family members and the said business is only source of income of his and his family members.  It is stated that the OP No.1 i.e. Nasim & Sons Fruit Merchant is a Consignee and the OP No.2 i.e. MMR Roadways is the transporter in the above said complaint. It is stated that the OP No.1 placed an order for delivery of 619 boxes of apples to the complainant for Rs.6,79,784/- vide bill no.801 to 804 dated 10.08.2019 and after  receiving order from OP No.1, the complainant booked a consignment with the OP No.2 for the transportation of the above said consignment vide consignment no.475 dated 10.08.2019 with vehicle no.NL-01-L-7138. The total amount of transportation was Rs.80,000/- and out of which Rs.15,000/- was paid in advance by the complainant and it was settled that the remaining amount will be paid after the confirmation of the delivery of consignment to OP No.1. It is stated that the services of OP No.2 was hired by the complainant only on the basis of trust and belief that he would provide quality services to the complainant and would deliver the consignment well in time to OP No.1 and also to take care about the consignment during the delivery period. The consignment was got loaded in the truck bearing registration no.NL-01-L-7138 from Panchkula to Kolkata. The payment of the consignment was to be paid by OP No.1 to complainant through online mode after the receipt of the said consignment. The said consignment having 619 boxes of apples was sent to OP No.1 on 10.08.2019 through driver of OP No.2 having mobile no.9720356772 and when the complainant contacted the OP No.1 and asked about the delivery of the consignments, the OP No.1 replied that the consignment has not been received. The consignment was having perishable items and thus, the complainant was worried about the delivery of the consignment so he contacted the OP No.2 and asked about the delivery of the consignment and OP No.2 replied that soon it will be delivered to OP No.1. It is stated that after enquiring from OP No.1 it was learnt that the consignment was not delivered  to OP No.1 and thus, the due to the deficient services of the OP No.2, the complainant had suffered a loss amounting to Rs.6,79,784/-. It is stated that the Ops are hand in gloves with each other and had not made the payment to the complainant. Due to the act and conduct of the OPs, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.Initially, notice was not issued against OP No.1. However, notice to it was issued, as per the request of the complainant, in pursuance to the order dated 06.06.2023. Notice was received back unserved with the report of post office, which is not clear.  

                Upon notice, OP No.2  appeared through counsel and filed written statement raising preliminary objections that the complainant is a habitual defaulter and is a known cheater, having committed number of defaults and frauds with various dealers and commission agents.

                On merits, it is admitted that the complainant Mr. Het Ram booked an Apple consignment with the OP No.2 vide consignment no.475, dated 10.08.2019, by truck no.NL-01-L-7138. It is submitted that the consignment was duly delivered at the designated place through a person, namely, Sanjay Pardesi of the complainant. A sum of Rs.28,000/- was paid to the truck driver against the due amount of Rs.6,500/-. It is submitted that the consignment containing apples was sold by said Sh. Sanjay Pardesi through Sh.Vicky Bhai but a complaint was lodged by the complainant with eh police qua the non delivery of consignment by OP No.2 to OP No.1. It is submitted that the consignment containing apples  was sold by the said Sanjay Pardeshi through Vicky Bhai at the directions of the complainant and in this regard, the conversation between the OP No.2 with Sh.Sanjay Pardeshi and also by concerned police official/officer with said Sh.Sanjay Pardeshi was duly recorded which can be produced for verification. It is submitted that the conversation of the complainant that he had not received the amount in respect of apples sent by him his false and incorrect as the consignment was sold by Sh.Sanjay Pardeshi through Vicky Bhai vide bill dated 16.08.2019 issued by M/s Lucky Enterprises and thus, there is no deficiency in service on the part of OP No.2 and as such, the complaint is liable to be dismissed.

3.The complainant has tendered his affidavit as Annexure C-A along with document Annexure C-1 to C-3 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP No.2 has tendered nothing into evidence and closed the evidence on 17.03.2022 by making a separate statement.  

                On 29.08.2022, a duly sworn affidavit of Sh.Rahul Kakkar, Proprietor of OP No.2 was tendered, which was taken on record as Mark “A” for the adjudication of the controversy in a proper and fair manner.

4. We have heard the learned counsel for the complainant assisted by the complainant in person as well as the learned counsel for OP No.2 and gone through the entire record including the written arguments filed on behalf of the complainant, minutely and carefully.

5.During arguments, the learned counsel for the complainant reiterating the averments as made in the complaint as also in the affidavit(Annexure C-A) contended that the OP No.2 had been deficient, while not delivering the consignment to OP No.1, as no receipt was provided by it to the complainant regarding the delivery of the consignment in question. It is contended that it was binding upon the OP No.2 i.e. transporter to deliver the consignment containing 619 boxes of apples. vide consignment bill (Annexure C-1) to OP No.1. It is contended that the complainant has suffered financial loss as well as mental agony and harassment due to deficient services of OP No.2 and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint. Reliance has been placed the following case laws:-

i.        Transport Corporation of India Ltd. Vs. Dinesh Agarwal s/o Muralilal Agarwal, 2020(1) CPR 554(NC).

ii.       M/s Dujodwala Products Ltd. Vs. National Insurance Co. Ltd. 2021(1) CPJ 60 (NC).

iii.      Dr. Vijil & Ors. Vs. Ambujakshi T.P. & Ors. 2022(2) KHC 34(Kerala High Court).

iv.      Babu Lal Sharma & Anr. Vs. Subhash Kumar, 2022(3) CPR 168(NC).

6.The OP No.2 has contested the complaint on several counts. The learned counsel on behalf of OP No.2 vehemently argued that a notice by the consignee i.e. OP No.1 was to be given within a period of six days qua the non receipt of the consignment, as per notification dated 28.02.2011 issued by Road Transport and Highways Authority. It is contended that no notice, whatsoever, was given by the consignee i.e. OP No.1, thus, the complaint is liable to be dismissed. The learned counsel refuting the contentions of the complainant qua the non delivery of the consignment to OP No.1, argued that consignment was duly delivered to M/s Lucky Enterprises through Sh.Sanjay Pardeshi on the directions of the complainant. It is contended that the complainant has already received the payment from the said firm i.e. M/s Lucky Enterprises. The learned counsel invited our attention towards bill dated 22.08.2019 issued by M/s Lucky Enterprises to show that 567 boxes of apples were  delivered to M/s Lucky Enterprises vide truck no.NL-01-L-7138. Concluding the arguments, the learned counsel has prayed for dismissal of the complaint being frivolous, baseless and meritless.

7.Admittedly, the consignment containing 619 boxes of apples was to be delivered through truck no.NL-01-L-7138 to Nasim & Sons Fruit Merchant, 2/1, Ballav Das Street, Kolkata i.e. OP No.1 as per  consignment/GR No.475 (Annexure C-1). According to the complainant, the OP No.1 had purchased the apples amounting to Rs.6,79,784/-, as alleged, from him as per bill dated 10.08.2019 (Annexure C-2 to C-5) issued by him(the complainant). As per the complainant, the said consignment was not delivered to OP No.1, whereas according to OP No.2 i.e. transporter, the consignment was duly delivered to M/s Luck Enterprises through Sanjay Pardeshi on the directions of the complainant.  

8.As per bill dated 22.08.2019 issued by M/s Lucky Enterprises 567 boxes of apples were delivered to it vide truck no.NL-01-L-7138 ON 22.08.2019. It is the specific, consistent and categorical assertions of the OP No.2 that the complainant has already received the payment from said M/s Lucky Enterprises qua the sale of 567 boxes of apples and in this regard, the OP No.2 has claimed that an audio recording of conversation between OP No.2 & M/s Lucky Enterprises through Sh. Sanjay Pardeshi is available with him & the same can be produced for verification of facts qua transfer of sale amount pertaining to 567 boxes of apples by the said M/s Lucky Enterprises through Sh. Sanjay Pardeshi in favour of the complainant. On the other hand, the complainant is silent qua the alleged transfer of sale amount by said M/s Lucky Enterprises in his account qua sale of 567 boxes of apples/pears etc.

9.Pertinently, the complainant cannot be permitted to draw any kind of benefit out of the consignment/GR No.475(annexure C-1),  if he had already received the payment from said M/s Lucky Enterprises qua the sale of 567 boxes of apples/pears as alleged by OP No.2. As such, the adjudication of the dispute between the complainant and the OP No.2 as alleged in the present complaint is not feasible without hearing M/s Lucky Enterprises. In view of the aforementioned facts, the issue whether the complainant had received the payment from said M/s Lucky Enterprises, qua the sale of 567 boxes of apples or not is a very complicated and intricate question of facts.

10From the above stated factual position, it is clear that the adjudication of the present complaint involves complicated questions of laws and facts, wherein examination and cross examination of the witnesses is required, which is not permissible under summary procedure being adopted in the adjudication of the consumer complaint under Consumer Protection Act, 2019. Therefore, the present complaint is not maintainable under the Consumer Protection Act. However, in the interest of justice, without commenting on the merits of the case, we deem it appropriate to dispose of the present complaint with the direction to the complainant to approach the appropriate Tribunal/ Authority/Court as per law if he/she is so advised. The complainant shall be at liberty to file an application before the concerned Court/Authority/ Tribunal under Section 14 of the limitation Act for excluding the period spent before this Commission for the purposes of computation of limitation in terms and observations made by the Hon’ble Apex Court in the case of “Luxmi Engineering Works Vs. PSG Industrial Institute 1995(III) SCC P.583”.

11.The original papers/documents, if any, attached with the present complaint be returned to complainant on his request after retaining the photocopy of the same on record. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.  

 Announced on: 08.09.2023

 

 

         Dr. Barhm Parkash Yadav    Dr.Sushma Garg                Satpal

                  Member                            Member                 President

 

Note: Each and every page of this order has been duly signed by me.

                                           

      Satpal

                                             President