Haryana

Panchkula

CC/625/2019

HET RAM. - Complainant(s)

Versus

PROGRESSIVE INTERNATIONAL OFFICE. - Opp.Party(s)

COMPLAINANT IN PERSON.

08 Sep 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	625 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.     Progressive International office of N945 APMC Fruit Market Turbhe. Navi Mumbai through its authorized signatory.

2.     South India Roadways SCF 108, 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 averred that the OP No.1 i.e. Progressive International is the consignee and the OP No.2 i.e. South India Roadways is the transporter. It is submitted that the OP No.1 had placed an order, for the delivery of 681 boxes of apples, upon the complainant for Rs.7,85,978/- and after receiving the order from OP No.1, the complainant had booked a consignment  with the OP No.2 for the transportation  of the above said consignment vide consignment invoice no.23 dated 25.07.2019 and vehicle no.RJ-40-GA-0809. The total amount of transportation was Rs.76,000/-, out of which Rs.23,000/- was paid in advance by the complainant and it also included Rs.4200/- as an insurance premium and it was settled that the remaining amount would be paid after the confirmation of the delivery of consignment to OP No.1. It is averred 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. It is averred that the consignment dated 25.07.2019 having 681 boxes of apples, was delivered to OP No.1 through driver of OP No.2. It is stated that the OP No.1 was requested to make the payment of Rs.7,85,978/- after the receipt of the consignment but OP No.1 asked him (complainant) to wait for two days. It is stated that the OP No.1, after two days, informed the complainant that the apples and pears had got rotten because of the negligent act of the OP No.2 and thus, denied to make the payment as per agreed rates. It is averred that the OP No.1 had made the payment of Rs.3,48,160/- out of Rs.7,85,978/-. It is further averred that the OP No.1 had failed to give any satisfactory answer to the complainant qua short payment and avoided to make the payment of balance amount on one pretext or the other. 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 with the report as “no such person” and it was ordered that notice be served through whatshapp.

                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 was earlier running the business of commission agent as alleged but he had been thrown out of the said premises later on due to his nefarious and fraudulent activities.  It is submitted that the complainant(Het Ram) had  booked an consignment, with the OP No.2 vide GR/consignment no.23, dated 25.07.2023, vide truck no.RJ-40-GA-0809 from Panchkula to Bombay, containing 681 boxes of apples and pears for a freight of Rs.76,000/-, out of which Rs.23,000/- was given in advance to the truck, driver of the said truck while the balance of Rs.53,000/- was due to the truck driver. It is submitted that the truck driver after reaching in APMC fruit market contacted OP No.1, who asked him(driver) to park the truck in front of his shop and the OP No.1 kept on selling the apples and pears after picking the numbers of boxes as sold by auction. Since it was raining continuously for two days, the OP No.1 requested the driver to stay back till all the boxes of fruits were sold. It is submitted that it was a rainy season being the month of July. It is wrong to allege that the apples and pears had got rotten due to the negligence of OP No.2, who had only booked the truck for transporting the apples from Panchkula to Mumbai for getting a paltry commission of Rs.2,000/-. It is submitted that the OP No.1 had performed its duty by transporting the boxes of fruits from Panchkula to Mumbai as agreed. It is submitted that OP No.2 is not liable for any loss or damages which had allegedly occurred after the reaching of consignment at its designated place of OP No.1. It is submitted that the loss or damages, if any, sustained by the complainant, was to be claimed from the insurance company. It is submitted that a sum of Rs.53,000/- is still have not been paid to OP No.2. It is submitted that the complainant is an influential person having links with the police where he has lodged a false complaint. So, there is no deficiency in service on the part of the 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 affidavit as Annexure R-2/A along with documents as Annexure R-2/1 & R-2/2 and closed the evidence.  

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.The learned counsel for the complainant, during arguments, reiterating the averments as made in the complaint as also in the affidavit(Annexure C-A) contended that the complainant had suffered a loss amounting to Rs.4,37,818/-, due to the deficient services of OP’s as he had received a sum of Rs.3,48,160/- only against the agreed amount of Rs.7,85,978/-. It is contended that both the OPs i.e. OP No.1 as well as OP No.2 are equally responsible for causing  loss to him(the complainant) as the apples had got rotten due to their lapses and negligence and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

6.On the other hand, the learned counsel on behalf of the OP No.2 reiterated the averments as made in the written statement as also in the affidavit Annexure R-2/A and contended that the consignment in question was duly delivered to OP No.1 without any delay. It is contended that the losses or damages, if any, sustained by the complainant, had happened on account of the negligence of OP No.1 alone and thus, there was no negligence on the part of OP No.2.

7.As per rival contention as raised by the complainant on the one hand and the learned counsel for the OP No.2 on the other hand, it is found that the controversy between the parties is qua the factors, which had contributed towards the apples getting rotten as well as damaged. In this regard, the complainant has alleged that the apples had got rotten due to the negligence of OP No.1 as well as OP No.2 whereas the OP No.2 has refuted the contentions of the complainant alleging that the apples had got rotten due to the incessant rain continuously for two days. As such, there is serious dispute between the parties qua the factors, which had contributed towards the apples getting damaged and rotten, which is not feasible to be ascertained on the basis of documentary evidence alone.

8.From 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”.

9.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

 

CC No. 625 of 2019

 

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

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

 

Case is fixed for 08.09.2023, but it is taken up today for hearing on the joint application of the complainant and the learned counsel for OP No.2 as also a separate application of complainant. Arguments heard. Now, case is adjourned to 07.09.2023 for orders.

Dt. 25.08.2023

 

        Dr. Barhm Parkash Yadav     Dr.Sushma Garg            Satpal

              Member                          Member                 President

 

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

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

 

The case was fixed for 07.09.2023 for orders but the Government of Haryana vide its notification no.28/67/2008-1HR-I has declared 07.09.2023 as Gazetted holiday on account of festival (Janmashtami); thus, the case is taken up today i.e. 08.09.2023.

Vide a separate detailed order of even date, the present complaint is hereby disposed of accordingly.

         A copy of the order be sent to the parties concerned free of costs and the file be consigned to the record room after due compliance.

Dt. 08.09.2023

 

        Dr. Barhm Parkash Yadav     Dr.Sushma Garg            Satpal

              Member                         Member                   President