JUDGEMENT

          Complainant by filing this complaint has submitted that complainant is a proprietorship firm being represented by Ashok Kr. Agarwal, the proprietor who runs the business for earning his livelihood and the op is a common carrier who carries goods from one place to another and for the purpose of sending some goods from Dombivali to Kolkata, complainant handed over 20 bells containing cloths for delivery the said goods at Calcutta through op and complainant handed over the said consignment to the op for carrying the said goods safely and properly and to deliver the same at Calcutta and complainant paid against the said consignment charges vide Consignment Note Nos.287131, 287132, 287133, 287127, 287128 and 287129 all on the same date i.e.12.07.2012.

          Further the said consignment has not yet been delivered to the complainant at the destination at Calcutta and the valuation of the said goods was Rs.6,01,681/-.  Complainant severally requested the op to deliver the goods to the complainant but without any result.  Complainant issued legal notice on 13.06.2013 through their Ld. Advocate asking the op to deliver the goods but even then the op did not respond.  Though it is the obligation of the op to carry the goods safely and properly and to deliver the same in good condition but op failed and neglected to do so and for which complainant has been suffering much and failure on the part of the op to deliver the goods to the complainant in good condition constitute a case of negligence and deficiency in service on the part of the op and in the present situation complaint complainant has prayed for redressal.

          On the other hand op by filing written statement submitted that complainant is not a consumer in view of the fact that it is a commercial business and further it appears from the complainant’s own document that the purchased goods was packed by   Dhanalaxmi Dying and Printing Mills Pvt. Ltd in respect of the aforesaid goods and no doubt complainant handed over the aforesaid goods at the warehouse of the op at Dombivile, Mumbai on 12.07.2012 for sending it to Kolkata on payment of necessary charges for transportation, at owner’s risk.  But the complainant did not declare the valuation of the goods to the op at the time of handing over the aforesaid goods for transportation at Mombivile, Mumbai and further did not make any insurance of his goods.

          No doubt op is engaged in the business of transportation of goods of various parties from one place to another place on payment of freight charges only and owner of the goods are required to make insurance of their goods while same are being transported by the op and op did not charge any amount for insurance or undertake to provide special care for the goods of various parties.  But the op undertakes to deliver the goods at the place of destination only by charging freight charges at the risk of the owner of such goods.

          Fact remains that the goods were transported by the op under owner’s risk and they are not liable to make goods any losses arising out of any accident involved during transportation of such goods as they are usually covered by insurance and it is made by the owner.  Fact remains that the goods of the complainant along with goods of other parties were loaded in truck No.WB-41E-9954 for transportation/delivery at Kolkata by road and during such transit/transportation from Dombivile to Kolkata, the aforesaid truck met with an accident on 22.07.2012 in the State of Orissa, under the area of Bisoi Police Station in the district of Mayurbhanj, near Village- Rajabase, on NH-6 and due to such accident, the said truck bearing No. WB-41E-9954 was completely destroyed in fire along with the goods that were being transported in the said truck.

          Complainant was informed by the men of the op about the aforesaid accident and was also informed that the goods were destroyed in the fire caused due to such accident and hence delivery of goods to the complainant could not be done.  Complainant in spite of such knowledge about the aforesaid accident ultimately pressed for delivery of the aforesaid goods by finally serving a notice on 13.06.2013 through their advocate.  Further it is submitted that complainant did not deliver any goods to the op on 12.07.2012 for sending them and/or transporting them to Dhanalaxmi Dying & Printing Mills Pvt. Ltd. of Plot No.B-40, MIDC, Badalpur.  But actually complainant delivered goods to the op by challans dated 26.07.2012 for deliver at Dhanalaxmi Dying & Printing Mills Pvt. Ltd. of Plot No.B-40, MIDC, Badalpur.

          Further op submitted that complainant cannot be a consumer in the instant case, because complainant is a private limited company and the articles were purchased for commercial purpose and business purpose as because it was transported at owner’s risk and complainant did not declare the value of such goods at the time of packing/booking for such goods for transportation and op is not liable for such loss of goods in transit.

          Moreover complainant did not insure his goods and same was not disclosed by the complainant at the time of booking on 12.07.2012.  So the valuation of the goods as stated in the complaint is completely false and fabricated and fact remains that there was no negligence or deficiency on the part of the op for not supplying of the same or deliver the same to the complainant.  When op has no negligence or deficiency on their part, when same was burnt due to accident of the said vehicle, so the entire complaint is false and fabricated and no negligence and deficiency on part of the op is proved for which the compliant should be dismissed.

                                                      Decision with reasons

          In the present case fact remains that complainant has filed this complaint stating himself as a proprietorship firm being named and styled M/s. Anuja Saree, a proprietorship firm of 47, Sir Hari Ram Goenka Street, 3^rd Floor, Kolkata-700007 being represented by Ashok Kr. Agarwal.  Fact remains that complainant has claimed in the complaint that he has been running this business for his own livelihood, for earning his livelihood.  But at the time of advancement of the arguments, op pointed out that the complainant filed some documents that is packing slip of Dhanalaxmi Dying & Printing Mills Pvt. Ltd. dated 11.07.2012 and said goods were packed by Dhanalaxmi Dying & Printing Mills Pvt. Ltd.  But in this regard Ld. Lawyer for the op submitted that the present company is not a partnership firm but it is a private limited company named and styled as M/s. Anuja Saree Pvt. Ltd.  of 47, Sir Hari Ram Goenka Street, 3^rd Floor, Kolkata-700007.  But complainant has suppressed that fact before this Forum only for the purpose of getting benefit under the C.P. Act. 

          Further op submitted by filing internet copy of company masters details wherefrom it is found that present complainant is M/s. Anuja Saree, a private limited company of 47, Sir Hari Ram Goenka Street, 3^rd Floor, Kolkata-700007 being company Registration No.170248 and category of company is Company Ltd by shares and class of company is private and address of the company is 47, Sir Hari Ram Goenka Street, 3^rd Floor, Kolkata-700007 and E-mail Id No. is anujasaree@gmail.com and company’s status is active and Directors are Ashok Kr. Agarwal and Anju Kumari Agarwal and their residential address is same i.e. 93, Binodpur-Kathihar 854150, Bihar, India.  So, from the company masters details it is clear that the present complainant Ashok Kr. Agarwal is director of Anuja Saree Pvt. Ltd. and that business is run by the present complainant at present address and it is a company limited by shares and it is a private company and it is a registered company as per Companies Act.

          So, it is clear that complainant has suppressed the fact that it is a private limited company.  Moreover complainant procured trade license in the name and style M/s Anuja Saree Pvt. Ltd but actually M/s Anuja Saree is a Pvt. Ltd. company having Company’s Registration No. is 170248 and Company’s category is company limited by share and present complainant Ashok Kr. Agarwal is one of the directors and Anuja Kumari Agarwal is another director.  But all these facts have been suppressed only for the purpose of getting benefit and if same would be disclosed in the complainant, the complaint would be rejected at the time of admission.

          Considering the present situation and the fact it is clear that present complainant submitted the complaint disclosing some false status of the complainant as proprietorship firm and truth is that M/s. Anuja Saree, is practically Anuja Saree Pvt. Ltd. and a registered company under Companies Act having registration No. 170248 and they have registered their business at the said address of 47, Sir Hari Ram Goenka Street, 3^rd Floor, Kolkata-700007 and present complainant Ashok Kr. Agarwal is one of the directors, and another director is Anuja Kumari Agarwal.

          So, we are convinced to hold that complainant appeared before this Forum with black hands and practically complainant is a private limited company and it is not a proprietorship firm and truth is that they have procured trade license by false representation before the Kolkata Municipal Corporation and procured trade license noted name and style M/s. Anuja Saree, but even then it is Private Limited.

          Another factor is that it is no doubt a private limited company in view of the above fact and the complainant as per complaint has alleged that the goods were packed at Dhanalaxmi Dying & Printing Mills Pvt. Ltd. and complainant has produced that receipt and from that receipt it is also found that the goods which are booked/packed and belt was in the name of M/s. Anuja Saree Pvt. Ltd.  So, it is clear that complainant is a private limited company.  So, it is a completely commercial business, so there was no question to believe that the complainant is a proprietorship firm.  But in the complaint it is falsely stated by the complainant for getting relief and in view of the fact it is clear that complainant is not a consumer as per provision of the C.P. Act.

          Further fact is that op reported to the complainant about the accident of the said vehicle at Orissa in respect of the vehicle No.WB-41E-9954 which met an accident on 22.07.2012 near Village-Rajabase, NH-6 under Badalpur Police Station, District- Mayurbhanj and all the goods which were loaded in the said truck were burnt and that incident took place on 22.07.2012 and it was reported by the op forthwith but fact remains after lapse of one year complainant sent a notice on 13.06.2013.  Then it is clear that complainant was aware of the said incident and accident.  So, apparently there is no fault or deficiency on the part of the op which is all proved.

          Another factor is that complainant did not insure the articles because from the challan issued by the op, it is specifically mentioned that the consignment article was taken by the op for consignment at owner’s risk and complainant did not insure the article, did not pay any freight charges which is evident from the receipt and further no valuation was noted in the said receipt and as per terms and conditions of the Carriage Contract and it is the owner’s risk about the article and it is the duty of the owner of the goods to insure it as consignor.

          So, it is clear that complainant also did not comply with the terms and conditions of the Carriage Contract of Owner’s Risk and practically the op did not receive any freight charges because it was noted that it shall be paid when it shall be delivered.  So, considering all the above facts, it is clear that there was no fault on the part of the op and it is completely out of the control of the op to deliver it because the truck faced accident what is undisputed fact and the truck was gutted and all the goods of the complainant and other owners are destroyed due to burnt.

          Further from another invoice S.B. Creations it is clear that complainant’s company’s name is Anuja Saree Pvt. Ltd.  So, considering all the above facts and materials it is clear that the complainant is a private limited company and that has been suppressed and for which complainant is not a consumer in the eye of law and the whole transaction in respect of Anuja Saree Pvt. Ltd. company and the article which was handed over to the op for delivery at Dombivile of Mumbai was not insured.  But as per contract Carriage terms and conditions of the op, it is handed over at their own risk and they did not insure and no freight charges was received by the op at the time of booking the said article and same was not paid. 

          But complainant agreed to pay subject to delivery of the same at Kolkata.  So, receipt also supports that no freight charges was paid by the complainant and another factor is that it was not insured and it was handed over to the op with complainant’s own risk without any insurance.  So, invariably complainant is liable for that.  Truth is that there was no deficiency or negligence on the part of the op.  But an impossible situation was created due to such accident for which the op was unable to deliver it.  So, anyway op cannot be blamed for that as per principle of Law of excess.

          Further in the consignment receipt, complainant did not note down the valuation of the goods.  So, in all respect, it is found that complainant practically stated some false statement because in the complaint, complainant has noted that he paid freight charges but that is false and no document was handed over to the op at the time of delivery of the goods about the actual value of the articles.  So, in all respect the complainant is found at fault and laches was on the part of the complainant in all respect for not insuring the article not disclosing the valuation of the article or goods and also supplying part name of his company.

          In the light of the above observation and findings we are convinced to hold that the present complaint is not maintainable as complainant is not a consumer as complainant is not a proprietorship firm but it is a private limited company, registered under Companies Act and present complainant Ashok Kr. Agarwal is one of the directors and another director is Anuja Kumari Agarwal.  Fact remains that this company lastly submitted balance sheet on 31.03.2013 and company’s status is active and that company has valid license up to 12.12.2014.  So, it is clear that complainant disclosed false status of the complaint  though complainant is a private limited company under Company’s Act having its registration No. 170248 and CIN No. U51909WB2011PTC 170248 and category of company Limited by shares and E-mail Id. No. is anujasaree@gmail.com and address of the said company is 47, Sir Hari Ram Goenka Street, 3^rd Floor, Kolkata-700007.

          In the light of the above observation it is found that a big business man private limited company tried to get relief against the op suppressing their status as private limited company and exposing complainant as a partnership firm and such an act is no doubt a black marketers act and for which the entire complaint is vexatious and uncalled for and for which the complainant should be imposed penalty.

          Thus this complaint fails.

          Hence, it is

                                                            ORDERED

          That the complaint be and the same is dismissed on contest against the op.  

As because complainant adopted unfair practice by filing this complaint by suppressing the status of the complainant as private limited company and it is no doubt vexatious complaint and for which complainant is imposed penalty of Rs.10,000/- which shall be paid by the complainant to this Forum within 15 days failing which for each day’s delay complainant shall have to pay further punitive interest @ Rs.200/- per day till full payment of penal cost to this Forum and if complainant fails in that case penal action u/s 27 of C.P. Act 1986 shall be started against him.