KERALA STATE CONSUMER DISPUTES REDRESSAL 

     COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM

                                              OP.NO. 81.2001

                       JUDGMENT DATED:30-11-2010

PRESENT

SHRI.M.V. VISWANATHAN                    : JUDICIAL MEMBER

St. Mary’s Oil Mills,

Development Area, Aroor,

R/by its Sole Proprietor,                           : COMPLAINANT

P.V.Alexander, Pattara House,

Aroor.

(By Adv.Sri.Johnson P.John)

          Vs.

Shree Jain Roadways, Lake View-3,

Opp. Kasavukada, Churchlanding Road,          : OPPOSITE PARTY

Ernakulam, R/by its authorized Officer.

                                        JUDGMENT

SHRI.M.V. VISWANATHAN: JUDICIAL MEMBER

Complaint filed under Sec.12 and 18 of the Consumer Protection Act, 1986.

2. The case of the complainant is as follows:-

The complainant is a proprietorship concern doing the business in Copra, coconut oil and allied products at Aroor.  The complainant is represented by its sole proprietor, P.V.Alaxander.  The opposite party is a road carrier operator  approved by the Indian Bank Association having its Head Office at  Jaipur and Branch Office at Ernakulam.  Complainant dispatched one consignment of coconut oil from Aroor to M/s Span Projects Private Ltd, Bommasandra Industrial Area, Bangalore as per lorry receipt No.10899.  The consignment was dispatched on 6/10/99 having the invoice value of Rs.6.15.764/- having 96 quintals of coconut oil.  The invoice and demand draft along with consignee copy of the lorry receipt were sent to the State Bank of India, main branch, Bangalore through the State Bank of India branch at Alappuzha.  The State Bank of India discounted the bills for the complainant.  The documents were presented to the drawee of the bills, but they were dishonoured by non payment and they were returned to the State Bank of India, Alappuzha by the collecting bank Viz, State Bank of India, Bangalore.  State Bank of India issued notice to the complainant and the bank debited Rs.46,503/- in the account of the complainant.  The complainant addressed the opposite party requesting to settle the liability in consultation with the consignee, M/s Span Projects Private Limited, Bangalore.  It is informed that the bank also issued a legal notice dated:17/3/2000 to the opposite party.  Thereupon the opposite party collected a sum of Rs.1,50,000/- from the consignee and the same was handed over to the bank by DD.  Further the opposite party paid Rs.49,850/- on 4/5/2000 and Rs.10,000/- on 20/10/2000 in partial discharge of the above said liability.  The opposite party sent the cheque dated:15/11/2000 for a sum of Rs.4,15,914/- drawn by the consignee on the Vysya Bank Ltd, Bangalore.  The said cheque on presentation returned unpaid for insufficiency of funds.  The cheque was returned with dishonour memos.  The complainant also requested the State Bank of India, Alappuzha to pursue appropriate legal recourse against the consignee and the opposite party.  Since the bills were dishonoured, the complainant had to pay Rs.6,15,764/- towards the value of bills less the amount paid which the complainant discounted from the bank with interest and commission and obtained the documents returned.  As per the terms of the lorry receipt the transport operator shall not give delivery of the goods without production of consignee copy of the lorry receipt.  The opposite party/transport operator delivered the goods to the drawee of bills without the consignee copy and other documents.  The aforesaid action of the opposite party in delivering the goods to the drawee of the bill without production of the consignee copy of the lorry receipt is an unauthorized Act and it will amount to deficiency of service on the part of the opposite party.  The goods were delivered without drawee effecting payment and getting the consignment notes and other documents related to the consignment.  Due to the deficiency of service, the complainant suffered financial loss of Rs.5,93,670/-.  The complainant is also entitled to get cost and damages of Rs.50,000/- from the opposite party.  Thus, the complainant prayed for a total of Rs.6,43,670/- as compensation for deficiency of service on the part of the opposite party/Shree Jain Roadways. 

3. The opposite party entered appearance and filed written version contending as follows:-

The complaint is not maintainable either in law or on facts.  The complaint is filed without the mandatory notice under Sec.10 of the Carriers Act.  The complaint is bad for non joinder of necessary party.  M/s Span Projects Private Limited, Bangalore, the consignee in the transaction is a necessary party.  The complainant is not a consumer.  The bank purchased/discounted for value of the lorry receipt and thereafter the complainant has no right to proceed against the consignee or the transport operator.  The bank gained absolute right over the goods besides its custody and control.  Nothing is reverted to the complainant to proceed against the opposite party.  The complainant has misconceived his remedy.  There was no deficiency of service on the part of the opposite party.  The consignment was delivered to the consignee with the consent of the complainant.  There was no space or facility to keep the consignment which was coconut oil contained in a tanker lorry.  The said tanker lorry was taken on hire and the same could not be retained for a long time.  The consignee copy of the lorry receipt and other documents did not reach the bank at Bangalore in time.  The documents reached the State Bank of India, Bangalore only on 12/10/1999 and the consignee was informed on 14/10/1999.  There was no fault or deficiency of service on the part of the opposite party in delivering the consignment to the consignee.  At the instance of the opposite party demand drafts amounting to Rs.2,9,850/- were delivered by the opposite party to the bank on various dates.  As a matter of fact, the consignee made the payment on account of the pressure exerted upon them both by the bank and the opposite party.  The opposite party had no obligation or responsibility to collect payment from the consignee.  The opposite party did not admit the value of the consignment at Rs.6,15,764/-.  The opposite party is not bound to make good the loss to the complainant much less Rs.4,52,417/-.  The opposite party is not liable for the amount of Rs.46,503/- debited in the account of the complainant by the bank.  The interest claimed at the rate of 18% per annum is exorbitant and arbitrary.  The opposite party is not liable to any amount by way of interest.  The amount claimed by the complainant is also exorbitant and arbitrary.  Thus, the opposite party prayed for dismissal of the complaint.

4. The evidence in this case consists of the oral testimony of the complainant as PW1 and Exts.A1 to A6.  No evidence was adduced from the side of the opposite party.   After closure of the evidence, both parties were heard in detail.  The learned counsel for the complainant and opposite party filed argument notes in support of their oral submissions.

5. The points that arise for consideration are:-

1.    Whether the complaint in OP.81/01 is maintainable?

2.    Whether the complainant is a consumer as defined under Sec.2(1)d(ii) of the Consumer Protection Act, 1986.

3.    Whether the complaint is bad for non joinder of necessary parties?

4.    Whether the case of the opposite party that the consignment was delivered to the consignee, without getting the consignee copy of the lorry receipt and other documents, with the consent of the complainant/consigner can be upheld?

5.    Whether there was any deficiency of service on the part of the opposite party being the transport operator of the consignment covered by Ext.A1 lorry receipt?

6.    What order as to Reliefs and costs?

6. Points 1 to 4:-

There is no dispute that the complainant entrusted the consignment of 96 quintals of coconut oil for onward transport and delivery to the consignee M/s Span Projects Private Ltd.  Ext.A1 is the lorry receipt dated:6/10/99 with respect to the aforesaid consignment of 96 quintals of coconut oil with the invoice value of Rs.6,15,764/-.  The consignee bank’s name is shown as SBI main branch, Bangalore.  It is specifically stated in Ext.A1 consignee copy of lorry receipt as follows:-

“The consignment covered by this lorry receipt shall be stored at the destination under the control of the transport operator and shall be delivered to or to the order of the consignee bank whose name is mentioned in the lorry receipt.  It will under no circumstances be delivered to any one without the written authority from the consignee bank or its order endorsed on the consignee copy or on a separate letter of authority.”

7. Admittedly, the opposite party being the transport operator had undertaken to follow the stipulations in A1 consignee copy of the lorry receipt with respect to the delivery of the consignment.  There is no case for the opposite party that the consignment was delivered with the written authority from the consignee bank Viz. State Bank of India main branch, Bangalore.  There is also no case for the opposite party/transport operator that the consignment was delivered with the endorsement of the consignee bank or on getting the consignee copy of the lorry receipt or any letter of authority.  It is admitted by the opposite party/transport operator that they delivered the consignment to the consignee without getting the lorry receipt or without the sanction or authority of the consignee bank.  Admittedly, complainant is the consignor of the said consignment of 96 quintals of coconut oil which was entrusted by the complainant/consignor with the opposite party/transport operator.

8. The complainant, St. Marys Oil Mills is represented by its sole proprietor, P.V.Alexander.  He was examined before this State Commission as PW1.  Ext.A1 to A6 documents were also marked through PW1.  PW1 has categorically deposed that the State Bank of India, Alappuzha branch discounted the bills with respect to the aforesaid consignment and subsequently the complainant had to pay Rs.6,15,764/- towards the value of the bills less the amount paid.  It is also deposed that on payment of the amount to the bank he got the documents returned.  Ext.A1 consignee copy of the lorry receipt, A2 invoice, A3 Marine Cargo certificate of insurance, A4 demand note dated:6/10/2009 endorsed in favour of State Bank of India would make it clear that the complainant got the original of the consignee copy of lorry receipt and other documents related to the consignment from the bank.  This would make it further clear that the complainant had to pay the amount to the bank which had discounted the bills with respect to the said consignment.  Thus, the complainant got the right to proceed against the opposite party/transport carrier for realization of the amount from the opposite party for the deficiency of service on the part of the opposite party/transport carrier.  Ext.A6 letter dated:21/5/2001 issued by the State Bank of India, Alappuzha to the complainant would make it clear that the complainant being the owner and consignor of the consignment is having the right to proceed against the consignee or the transport operator for realization of the value of the consignment covered by A1 lorry receipt.  In such an event the consignee bank or the State Bank of India, Alappuzha branch need not be impleaded in the present complaint.  It is filed for recovery of compensation from the opposite party/transport carrier on the ground of deficiency of service on the part of the transport carrier.

9. The opposite party has got a case that the consignee, M/S Span Projects Private Ltd, Bangalore is a necessary party in the present complaint.  It is to be noted that the complainant entrusted the consignment with the opposite party/transport carrier.  It was the duty of the opposite party being the transport carrier to deliver the goods to the consignee on getting the consignee copy of the lorry receipt and other documents related to the consignment.  A1 lorry receipt would make it abundantly clear that the opposite party/transport carrier had no authority to deliver the consignment without the written authority of the consignee bank viz. State Bank of India, Bangalore.  The complainant paid the amount due to the consignee bank and he got the original documents related to the consignment from the bank.  Then the complainant being the consignor can very well proceed against the opposite party/transport carrier for realization of the damages sustained by the complainant/consignor.  It is the definite case of the complainant that there was deficiency of service on the part of the opposite party in delivering the consignment to the consignee without obtaining the original consignee copy of the lorry receipt and other documents.  It is for the aforesaid deficiency of service the present complaint is filed.  So as far as the present complaint is concerned, the consignee,  M/S Span Projects Private Ltd, Bangalore is not a necessary party.  Therefore the contention of the opposite party that the complaint is bad for mis-joinder or non joinder of parties cannot be upheld.

10. The opposite party has also got a case that the consignment was delivered to the consignee M/S Span Projects Private Ltd, Bangalore with the consent of the complainant/consignee.  But the aforesaid case of the opposite party has been denied by the complainant as PW1.  It is categorically deposed by PW1 that no such consent was given to the opposite party/transport operator to deliver the goods without getting the consignee copy of the lorry receipt and other documents or without the authority or consent of the consignee bank viz. State Bank of India, Bangalore Branch.  Then, it is for the opposite party to substantiate its case regarding the consent obtained from the complainant.  But, the opposite party/transport operator miserably failed in establishing the aforesaid contention regarding obtaining of consent from the complainant/consignor.  It is pertinent to note at this juncture that A1 consignee copy of the lorry receipt would make it abundantly clear that the transport operator (opposite party) is not expected to deliver the consignment without written authority from the consignee bank or its order endorsed on the consignee copy or on a separate letter of authority.  Thus, it is made crystal clear that the opposite party/transport operator delivered the consignment to M/S Span Projects Private Ltd, Bangalore without the authority or consent of the complainant/consignor.  Thus, there was deficiency of service on the part of the opposite party/transport operator in delivering the consignment to the consignee M/S Span Projects Private Ltd, Bangalore.

11. The opposite party would contend that the complainant is not a consumer coming within the ambit of the Consumer Protection act as the complainant availed the service of the opposite party for commercial purpose.  It is to be noted that the entrustment of the consignment with the opposite party/transport operator was on 6/10/99.  The consignment was delivered to the consignee at Bangalore by the opposite party in October 1999 itself.  There can be no dispute about the fact that the complainant being the entrusted the consignment with the opposite party for transporting the same to Bangalore and for delivering the same to the consignee on getting the sanction or authority from the consignee bank.  Thus, A1 lorry receipt would also make it clear that the complainant as consignor of the consignment availed the service of the opposite party/transport operator prior to the amendment of the Consumer Protection Act by amending Act 62/02.  The aforesaid amendment came into force with effect from 15/3/2003.  It is only by the said amendment the service availed or hired for commercial purpose has been excluded from the purview of the Consumer Protection Act, 1986.  In other words, prior to the said amendment, a person who avails or hires the service for commercial purpose was also included under the definition ‘consumer’ as defined under Sec.2(1)d(ii)  of the Consumer Protection Act, 1986.  In the present case on hand, the complainant availed the service of the opposite party/transport operator prior to the said amendment which came into force on 15/3/2003.  In such a situation, the complainant can be considered as a consumer as defined under Sec.2(1)d(ii) of the Consumer Protection Act, 1986.

12. The learned counsel for the opposite party argued for the position that the aforesaid amendment of Sec.2(1)d(ii) which came into force on 15/3/2003 has got retrospective operation. The learned counsel for the opposite party relied on the decision rendered by the Hon’ble Supreme Court in Lekshmi Engineering Works Vs. P.S.G. Industrial Institute reported in II (1995) CPJ 1 (SC). It is true that the Hon’ble Supreme Court in the aforesaid decision has held that the explanation added by the Consumer Protection Amendment Act 50/1993 with effect from 18/6/1993 is clarificatory in nature and applies to all pending proceedings.  But the principle enunciated in the aforesaid reported decision cannot be made applicable in the present case on hand.  Here, we are not concerned with the explanation added to Sec.2(1)d of the Consumer Protection Act.  But we are only concerned with the amendment effected by the Amendment Act 62/02 which came into force on 15/3/2003.  It is also to be noted that there is no decision available to support the aforesaid argument advanced by the learned counsel for the opposite party/transport operator.  It is held by the Hon’ble Supreme Court in the decision reported in 2009 (4) CPR 421 (SC) at paragraph 14 to 18 that the decisions are to be cited for a proposition after reading the facts of the case and reasoning contained therein.  A reading of the aforesaid decision in Lakshmi Engineering Company’s case, it can be concluded that the aforesaid principle regarding retrospective operation cannot be made applicable as far as the present case on hand is concerned.  In another decision, it has been held by the Hon’ble National Commission that amendment brought by the Consumer Protection Amendment Act, 2002 was prospective in nature.  “M/s Ritugram Udyog Samiti Vs. New India Assurance Company Ltd. 2008 (3) CPR 192 (NC)”.  It is further held that prior to the coming into force of the amended provision, a person would be a consumer for the services which are to be rendered for commercial purposes.  So, the aforesaid discussions would make it clear that the complainant herein is a consumer as defined under section 2(1)d(ii) of the Consumer Protection Act and the dispute involved herein can be considered as a consumer dispute.  Hence we hold that the complaint as framed is maintainable in law.  These points are answered accordingly.

13. Point No.5:-

The materials on record and the findings on the previous points would make it clear that the opposite party/transport operator delivered the consignment against the terms and conditions of A1 lorry receipt.  The opposite party/transport operator miserably failed in establishing its contention that the consignment was delivered to the consignee M/S Span Projects Private Ltd, Bangalore with the consent of the complainant/consigner.  The evidence of PW1 would also make it clear that the complainant suffered financial loss and mental agony on account of the negligence on the part of the opposite party in delivering the consignment to the consignee without the sanction or authority of the consignee bank or the consignor/complainant.  The materials available on record would also show that the complainant got the consignment bill discounted from State Bank of India, Allappuzha branch.  On account of the failure of the consignee to honour the bills resulted in repayment of the bill amount by the complainant to the bank viz. State bank of India, Alappuzha branch.  Thus, the complainant had also suffered financial loss and inconvenience on account of the deficiency of service on the part of the opposite party/transport operator.  Hence this point is found accordingly.

14. Point No.6:-

Ext.A1 consignee copy of the lorry receipt and A2 invoice would make it clear that the consignment is having the value of Rs.6,15,764/-.  Ext.A3 Marine Cargo Certificate of insurance would also support the case of the complainant regarding value of the consignment.  The aforesaid consignment was insured for a sum of Rs.6,80,000/-.  Ext.A4 demand note would also support the case of the complainant that the consignment was worth Rs.6,15,764/-.  Ext.A5 is the letter issued by the opposite party to the Assistant General Manager, State Bank of India, Alappuzha.  In the said letter the opposite party has not disputed the liability of the consignee to pay the value of the consignment.  On the other hand, the opposite party had collected a sum of Rs.1,50,000/- from the consignee, M/S Span Projects Private Ltd, Bangalore and handed over that amount by way of DD on 27/3/2000 and requested for 3 months time to settle the account.  It is further to be noted that the opposite party had not cross-examined PW1 (complainant) with respect to the value of the consignment mentioned in A1 lorry receipt, A2 invoice and in the other connected papers which were marked as Ext.A1 to A6.  Thus, it is established in this case that the consignment was worth Rs.6,15,764/-.

15. The complainant has categorically pleaded that a sum of Rs.46,503/- was debited in his account on 24/2/2000 towards the interest and cost.  So, the complainant suffered loss of the aforesaid sum of Rs.46,503/- on account of the deficiency of service on the part of the opposite party/ transport operator.  The complainant has also claimed interest at the rate of 18% per annum on the amount due to him.  It is to be noted that the transaction was a commercial transaction and the complainant can very well claim interest at the rate of 18% per annum on the value of the consignment and the other incidental charges incurred by the complainant.  So, the claim for interest at the rate of 18% from 25/2/2000 can be treated as reasonable.  It is to be noted that the consignment was delivered to the consignee in October 1999; but the complainant has only claimed interest at the rate of 18% on the said amount from 25/2/2000.  We have no hesitation to allow the claim for interest at the rate of 18% per annum from 25/2/2000 till 1/10/2001 on the outstanding amount.

16. The complainant has categorically admitted payment of Rs.1,50,000/- on 27/3/2000 and a further sum of Rs.49,850/- on 4/5/2000 and Rs.10,000/- on 20/10/2000.  Thus, the total amount paid by the opposite party has been credited and the balance amount outstanding has been calculated at Rs.5,93,670/-.  The aforesaid calculation is clearly stated under the heading valuation, in the written complaint.  The aforesaid calculation of the amount at Rs.5,93,670/- can be accepted as true and correct.

17. The complainant has also claimed a sum of Rs.50,000/- by way of compensation for the loss sustained by the complainant.  It is to be noted that the complainant is awarded interest at the rate of 18% per annum from 25/2/2000 onwards till the date of institution of the complaint.  The loss suffered by the complainant is compensated by awarding interest at the rate of 18% per annum.  In such a situation, the claim for compensation of Rs.50,000/- is to be treated as unwarranted and unsustainable.  So, the aforesaid claim for Rs.50,000/- by way of general damages is disallowed.  Thus, the complainant is entitled to get Rs.5,93,670/- from the opposite party/transport operator.  The complainant is also entitled to get cost of the legal proceedings. We estimate the cost at Rs.2,000/-.  So, the opposite party/transport operator is made liable to pay a sum of Rs.5,93,670/- to the complainant with cost of Rs.2000/-.  The aforesaid amount is to be paid within one month from the date of receipt of copy of this order failing which the decree amount will carry interest at the rate of 9% per annum from the date of this order till the date of realization.  This point is answered accordingly.

In the result the complaint in OP.81/01 is allowed.  The opposite party Shree Jain Roadways being the transport operator is made liable to pay Rs.5,93,670/- to the complainant on account of the deficiency of service on the part of the opposite party/transport operator.  The complainant is also entitled to get cost of Rs.2000/- from the opposite party.  The decreed amount with cost is to be paid within one month from the date of receipt of copy of this order, failing which the decree amount will carry interest at the rate of 9% per annum from the date of this order till the date of realization.

M.V. VISWANATHAN  : JUDICIAL MEMBER

VL.

                                      APPENDIX

COMPLAINANT’S EXHIBITS

Ext.A1        : Consignee copy of the lorry receipt.

Ext.A2        : Inoive.

Ext.A3        : Marine Cargo certificate of insurance,

Ext.A4        : Demand note dated:6/10/2009 endorsed in favour

                     of State Bank of India.

Ext.A5        : Letter dated:31/3/2000 issued by opposite party.

Ext.A6        : Letter dtd:21/5/2001 issued by the SBI, Alappuzha.

COMPLAINANT’S  WITNESS

PW1           : P.V.Alexander, Proprietor, St. Marys Oil Mill.

M.V. VISWANATHAN  : JUDICIAL MEMBER