0BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

                                                                   RBT/CC No.143 of 2022

                                                               Date of Inst. 29.04.2022

                                                                   Date of Decision: 26.10.2022

1.       Punjab State Warehousing Corporation 74-75 Bank Square,    Sector 17-B, Chandigarh through its District Manager.

2.       District Manager Punjab State Warehousing Corporation, 65,   Guru Teg Bahadur Nagar, Jalandhar.

..........Complainants

Versus

1.       Parbhakar Trasporters, Hoshiarpur Road, Lamba Pind Gate, Jalandhar 144004 through its proprietor Vijay Kumar

2.       Vijay Kumar Proprietor, Parbhakar Transporters, Hoshiarpur Road Lamba Pind Gate, Jalandhar-144004.

3.       Sh. Harpreet Singh S/o Jaswant Singh R/o 687 Basti Peer Daad Jalandhar (owner of the Tata truck bearing registration no.PB 32A 0477.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)             

Present:       Sh. Neeraj S. Luthra, Adv. Counsel for the Complainants.

Sh. Asim Akhtar, Adv. Counsel for the OPs No.1 to 3.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been remanded back by the Hon’ble State Commission, vide order dated 15.03.2022, whereby the order of this Commission dated 24.12.2012 was set-aside and the District Commission was directed to decide the complaint on merit as per the law.

2.                Brief facts of the complaint are that the complainant stores food grain at its different Warehouses. The complainants through tender invites the different transporters for their assistance in the day to day business and after proper procedure adopted by the department the opposite party no.1 was appointed as transporters at Jalandhar for the year 2009-10 for day to day assistance. The complainant has hired the services of opposite parties No 1 to 3 for transporting 50 new gunny bales consisting of 500 bags each in a Bale, total amount to Rs. 8,06,500/- for gunny bags, from State Warehouse Jalandhar to its Purchase centre Mau Sahib. The opposite party no.2 Sh. Vijay Kumar is the proprietor of Prabhakar Transporters, Hoshiarpur Road, Lamba Pind Gate, Jalandhar and whereas the opposite party no.3 Sh. Harpreet Singh S/o Jaswant Singh is the owner and driver of Tata truck bearing registration no. PB 32A 0477 and whereas the opposite party no.l is a proprietorship firm. It was on 21.10.2009 when the 50 new gunny bales were loaded in the Tata truck bearing registration no. PB 32A 0477 to shift through the transporter opposite party no.1. from Jalandhar to Mao Sahib Mandi vide gate pass bearing no. 1526/81 dated 21.10.09 by the opposite party no.1 to 3 and the opposite parties were wholly custodian of the goods till its proper acknowledgment at the destination. During the transit of 50 new gunny bales on 21.10.09 the opposite party no.3 truck was passing through the high voltage low tension line overhead/road wire near Nurmahal Mao Sahib via Talwan outside Bhagwan Budh Mandir near 33 KV Sub Station, Talwan which strucked to the truck and sparks fell on the jute bags which resulted into the catching fire of 50 new gunny bales and truck which resulted in totally destroy of 50 new gunny bales. It was all due to the negligence of the driver of the truck/opposite party no.3 who did not carefully pass through overhead wires as it was his duty to drive the truck safely and carefully to deliver the goods to its destination on the same day. The opposite parties are liable to pay the amount of the bales ie Rs.8,06,500.00 and Rs.24,720.00 interest @ 18% per annum along with the damages to the tune of Rs.30,000/- and Rs.20,000/- on account of deficiency in services and Rs.11,000/- lawyer's fee and Rs. 2,000/- towards the misc. expenditures for litigation. On such like averments, the complainants have prayed for directing the opposite parties to pay them Rs. 1,16,700/- along with interest.

3.                Notice of the complaint was given to the OPs, who filed their separate written replies. In its separate written reply, the opposite parties No. 1 and 2 pleaded that the complaint is not maintainable and same is liable to be dismissed. In fact by virtue of agreement dated 06-04-2009 entered into between District Manager Punjab Warehousing Corporation Limited, Jalandhar and M/s Prabhakar Transporters, Hoshiarpur Road, Near Lama Pind, Jalandhar opposite party No.1 agreed to work of transportation for the agency of the Punjab Warehousing Corporation on the terms and conditions specified in the agreement for the purpose of transportation of good grain/gunny bales and other articles of the complainant at a reserve centre Jalandhar City, Rail Head to various destinations. It was agreed that answering opposite party shall be responsible for arranging the Trucks for the transportation of the food grains within 72 hours. It was also agreed in the clause No.4 of the agreement that the Govt. shall have the right to forfeit the amount of security in full in the event of any shortage and loss of stocks entrusted to the answering opposite party No.1 and in the event of forfeiture of the security in full, the transporter shall be bound to furnish such security as is asked by the Govt., to make a good deficiency so caused. It is further agreed as per the clause No.7 of the agreement that all the disputes, differences etc, arising between the parties or their representative, touching agreement, subject matter thereof shall be referred to the sole arbitrator or to be concerned Head of the agency or any person nominated by him on his behalf and the decision shall be final on the party to the agreement. It is further agreed that in case successful tender failed to execute the work in time, the agency shall have the right to black list and forfeit his security deposited. In the present case sum of Rs.70,000/- has already been deposited at the time of the agreement between the parties. A Bill approx. of Rs.1,50,000/ payable by the complainant to the opposite party No.1 is due and has not been paid by the complainant inspite of the repeated requests and demands. Even otherwise, there is no deficiency or negligence on the part of the opposite party No.1 in execution of the work entrusted to the opposite party by the complainant by virtue of agreement dated 06.04.2009. In fact on 21.10.2009, a truck bearing No PB32-A 0477 driven by Sukhwinder Singh opposite party No.3 was going from Jalandhar to Mau Sahib through gate pass No.81/152061 carrying fifty gunny bales belonging to the complainant. When the said vehicle was passing through the road of Village Talwan, Tehsil Phillaur District Jalandhar, a high voltage wires passing over the road sparked suddenly and sparking fell on the gunny bales as a result thereof the gunny bales caught fire and entire material including the said Truck damaged due to fire and reduced into ashes at the spot and inspite of the best efforts by the said driver, he could not save the material and truck. The driver also called the Fire Brigade at the spot as a result of thereof seven vehicles of Fire Brigade reached at the spot immediately and immediately the matter was brought to the notice of District Manager and Inspector Mau Sahib Warehouse and Police of PS Bilga who also visited the spot immediately and inspected the entire occurrence and no fault of the driver was found there. The owner of the said truck namely Harpreet Singh opposite party No.3 claimed damages from the P.S.E.B. and filed a suit for recovery of damages of Rs.9 Lakh which is pending in the court of Sh. Jatinder Pal Singh, Civil Judge, Jr. Divn. Phillaur. The DDR No.22 dated 21.10.2009 was also recorded by the Police of PS Bilga regarding the said occurrence on the statement of Sukhdev Singh driver of the said Truck. There is no negligence on the part of opposite party regarding the cause of loss and there is no deficiency in the service on the part of the opposite party. It denied other material allegations of the complainants.      

4.                In its separate written reply, opposite party No.3 took up preliminary objections regarding the maintainability, want of cause of action, the complainant being not consumer etc. On merits, written reply filed by opposite party No.3 is on the same line as that of opposite parties No.1 and 2. It pleaded that there was no negligence on his part.

5.                The counsel for the complainant has tendered in to evidence affidavit as Ex.CW1 along with copies of documents Ex.CA/1 to Ex.CA/5 and closed his evidence.

6.                On the other hand the counsel for the opposite parties No.1 and 2 has tendered in to evidence affidavit Ex DW1/A along with copies of documents Ex.DW2/A to Ex DW3/A and closed the evidence. The counsel for opposite party No.3 tendered in to evidence affidavit Ex.OPA2, Ex.OPA/1 along with documents Ex.OP1 to Ex.OP5 and closed the evidence.

7.                We have carefully gone through the record and have also heard learned counsel for the parties.

8.                It is not disputed that the complainant entered into an agreement with OP No.1 for transportation i.e. for supply of trucks for the purpose of transportation of good grain, gunny bales to various destinations on 21.10.2009. This agreement has been proved by the complainant Ex.CA/1. 50 new gunny bales were transported and the same were entered in the register and the register has been proved by the complainant Ex.CA/2 and gate pass has been proved by the complainant Ex.CA/3. These gunny bags were to be transported from Punjab State Warehousing, Jalandhar to its purchase centre to Mao Sahib Mandi and these gunny bales were consisting of 500 bags each in a bale, total amounting to Rs.8,06,500/- for gunny bags. It has further been alleged that when the 3 trucks were passing through the high voltage low tension line overhead/road wire near Nurmahal Mao Sahib, its strucked to the truck and the 50 new gunny bales got caught fire. The OPs were wholly custodian of the goods till its proper acknowledgment at the destination. The gunny bales have been destroyed, which is proved from the DDR Ex.OP/1.

9.                The contention of the OPs is that there is an arbitration clause in the agreement and the present complaint is not maintainable. It is the arbitrator only who will go into the question whether there was any fraud or not. He has referred the agreement Ex.C-1, which is containing the arbitration clause and has relied upon the law laid down the Hon’ble Supreme Court in 2009 (1) R. C. R. Civil 109, where the Hon’ble Supreme Court has held that whether there is an arbitration clause, the dispute will be referable to the arbitration, if there are allegations of fraud, coercion and undue influence, but the law relied upon by the OPs is not applicable to the facts of the present case. The Hon'ble National Commission has categorically held in M/s Emaar Mgf Land Ltd. Vs. Aftab Singh CPJ 2015(I) SC, in which it has been laid down by the Hon’ble Supreme Court that “an arbitration clause on the agreement does not bar the jurisdiction of the Consumer Forum to entertain the complaint”. The Hon’ble Supreme Court vide its judgment in M/s Emaar Mgf Land Ltd. Vs. Aftab Singh has conclusively decided that if a dispute brought before the Consumer Forum arises from an agreement, which has an arbitration clause, the Consumer Forum will be the appropriate Forum for hearing the dispute. The decision of the Hon’ble Supreme Court was based on the premise that the consumer disputes are of a public nature and consequently the remedies under the Arbitration and Conciliation Act, 1996 for the same are barred by implication. . It has been held by the Hon’ble Supreme Court in Civil Appeal No.5611 of 2010, decided on 17.02.2010, titled as “Economic Transport Organization Vs. M/s Charan Spinning Mills (P) Ltd. & Anr.”, that once the goods are entrusted to the carrier for transportation and there is a loss of goods in transit, it is a deficiency in service as the contract between the consumer and transport company is to safely transport the goods through the entire distance and hand them over for delivery to the consignee at the opposite end. If the goods are lost in the transit, the consumer shall be entitled to get the compensation against the transport company as there is breach of contract. As per the law laid down, by the Hon’ble Supreme Court, the consignor is entitled to recover the amount of loss from the carrier as he is consumer.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay Rs.8,06,500/- alongwith interest @ 9% per annum from the date of loading of gunny bales till its realization. Further, OPs are directed to pay a compensation of Rs.10,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

26.10.2022         Member                          Member           President