BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC.45/11.
THIS THE 22nd DAY OF MARCH 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- MRN Industries, Plot No. 6/60, Gadwal Road, By
its partner Sri. M.R. Naveen Kumar S/o. M.R. Narasayya Shetty, age 39 years, R/o. H.No. 6-1- 4/1, Kanyakya Parameshwari Layout, Jawaharnagar, Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. Sri. Balaji Road Lines, Shop No-2 APMC, Complex, Rajendra Gunj, Raichur- 584 101.
2. V. Baskar Reddy @ Baskar S/o. Thimma Reddy,
Partner, Sri. Balaji AP Roadlines.
3. G. Veera Reddy S/o. G. Lakshmi Reddy, Partner, Sri.
Balaji AP Road lines.
4. G. Malla Reddy S/o. Narsa Reddy, Partner, Sri. Balaji AP Roadllines.
CLAIM :- For direct the opposite to pay an amount of Rs.
8,42,618/- with interest at the rate of 24% p.a. and Rs. 1,00,000/- as a compensation with cost and other reliefs as deems fit to the circumstances of this case.
Date of institution :- 20-06-11.
Notice served :- 20-06-11.
Date of disposal :- 22-03-12.
Complainant represented by Sri. C. Kesava Rao. Advocate.
Opposite Nos. 1 & 3 Ex-parte.
Opposite Nos. 2 & 4 represented by Sri. Sateesh.V. Advocate.
-----
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Gururaj, Member:-
This is a complaint filed by the complainant MRN Industries Raichur thrugh its Partner through M.R.Naveen Kumar against Opposite Transport Company and its partners U/sec. 12 of Consumer Protection Act for to direct the opposite to pay an amount of Rs. 8,42,618/- with interest at the rate of 24% p.a. and Rs. 1,00,000/- as a compensation with cost and other reliefs as deems fit to the circumstances of this case.
2. The brief facts of the complainant case are that, the complainant booked through the opposite party for transport two consignment of rice each weighing 17 tonnes worth of Rs. 4,21,309.30/- each on 09-04-2011 through one lorry bearing No. TN-32-A/6215 for to deliver it to M/s. Sri. Vigneshwara Traders No. 3172 SRV Kovil St. Thrivallur, Chennai and another one lorry bearing No. TN-10/L-1195 to deliver to M/s. Annai Traders No-8 2nd street, Dr. Subbarayan Nagar Goddambakkam, Chennai under the consignment notes bearing No. 398 & 399 respectively. Thereafter despite of lapse of about two months, the said rice loaded in two lorries have not delivered to the addressee in spite of sufficient time taken by the opposite, the complainant enquired the matter with opposite for non delivering the rice loaded in two separate lorries weighing 17 tonnes each to the addressee but opposite is avoiding to trace out the rice by giving one or other reasons, from such act, the complainant suffered with huge loss and it is also caused strained business relationship with the customer of the complainant who were consignee of the said goods, as such this complaint was filed by him for the reliefs as noted in this complaint.
3. The opposite Nos. 1 & 3 have remained absent, even after service of the notice and through order dt. 08-07-2011 they have placed Ex-parte. The Opposite Nos. 2 & 4 appeared in this case through their counsel, filed written version by denying the entire case of complainant and allegations made by the complainant. It is contended that, they are not at all the partners of the alleged transport and no such goods entrusted to this opposite for to transport, as such there was no question of delivering the goods to the addressee as contended, this is the false complaint filed by the complainant which is not maintainable. They have not at all received any notices from the complainant. The alleged transactions between the parties are purely commercial one and therefore the present complainant is not at all the consumer as per C.P. Act, and therefore the complaint of the complainant is hit by the Section 2(1)(d)(i) and 2(1)(d)(ii) of C.P. Act. The complaint filed by the complainant is with regard to two alleged independent transactions and the cause of acting for those two alleged transactions is distinct. As such, the entire case filed up by the complainant is false for to get relief by one or other reasons, accordingly he prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, he booked through the opposite party for transport two consignment of rice each weighing 17 tonnes worth of Rs. 4,21,309.30/- each on 09-04-2011 through one lorry bearing No. TN-32-A/6215 for to deliver it to M/s. Sri. Vigneshwara Traders No. 3172 SRV Kovil St. Thrivallur, Chennai and another one lorry bearing No. TN-10/L-1195 to deliver to M/s. Annai Traders No-8 2nd street, Dr. Subbarayan Nagar Goddambakkam, Chennai under the consignment notes bearing No. 398 & 399 respectively, but opposite transport company not delivered the said goods to the addressee at Chennai, and not returned the goods to him thereafter shown its negligence in tracing out the said goods in spite of repeated oral and written request and thereby opposite transport company found guilty under deficiency in its service..?
2. Whether complainant is entitled for the reliefs as prayed in the complaint.
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative.
(2) As discussed in the body of this judgement and as sated in the final order.
(3) In-view of the findings on Point Nos- 1 & 2, we proceed to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
6. To prove the facts involved in these two points, affidavit-evidence of the of M.R. Naveen Kumar, partner of the complainant firm was filed, he was noted as PW-1. Documents Ex.P-1 to Ex.P-35 are marked as per order sheet dt. 12-01-2012. On the other hand affidavit-evidence of one G. Mallareddy i.e, opposite No-4 and opposite No-2 by name Veerareddy was filed, on two different dates they were noted as RW-1 & 2. No documents filed and marked.
7. The learned advocate for opposites has raised some legal and factual point for our consideration. Among them the first ground by him is that the opposites Nos. 2 & 4 are not at all the partners of the alleged transport and no such goods entrusted for them to transport and they are not related to allege transport. Hence question of paying the consignment amount along with interest with compensation to the complainant does not arise at all and sought for the dismissal of the complaint.
8. The learned advocate for complainant gave explanations to this point raised by the advocate for opposite. In pursuance of the submissions made on both sides, now we have to appreciate the facts from the material placed on record before us. As per the pleadings of Para-1 of the complaint, complainant noted that one of the consignment of 17 tonnes of rice loaded in the lorry bearing No. TN-32-A/6215 for to deliver it to M/s. Sri. Vigneshwara Traders No. 3172 SRV Kovil St. Thrivallur, Chennai and another 17 tonnes of rice loaded in the another lorry bearing No. TN-10/L-1195 to deliver to M/s. Annai Traders No-8 2nd street Dr. Subbaraya Nagar, Goddambakkam Chennai On perusal of the Ex.P-5 to Ex.P-8 & Ex.P-8(1) it is crystal clear that, the complainant has booked his consignment through Opposite Transport Company on 09-04-2011 to Chennai through lorry No. TN-32-A/6215 & TN-10/L-1195. The Ex.P-9 to Ex.P-10(1) are the documents which are further confirms the said consignments and contentions of the counsel for the complainant and the pleadings noted in the complaint. Under such circumstances, the two consignments have been made by the complainant through opposite No-1 Transport Company cannot be discarded. Now, the main point for our consideration is that, whether the opposite Nos- 2 & 4 are the partners are not? and whether they have related with the Opposite Transport Company and have accepted the consignment as alleged by the complainant or not. In this regard, we have perused the Ex.P-11 & Ex.P-11(1) i.e, the documents which is issued by the Cashier, BSNL Main Exchange and Telephone Bill are clearly shows the one of the Telephone Land Number ‘08532-235539’ is stands in the name of opposite No-4 in the said Exhibits. Similarly the said phone number is also appearing in Sri. Balaji AP Road Lines i.e, opposite Road Lines consignment receipts produced under Ex.P-8 & Ex.P-8(1) now, the question before us is that, if at all, the opposite No-4 who is not at all concerned to the said opposite No-1 Road Lines, then why the said number was appearing in the Ex.P-8 & Ex.P-8(1). If, we have gone through in detail regarding this fact is concerned the denial of the opposite No-4 regarding their relationship with the Road Lines holds no good at all. Under such circumstances, the counsel for opposite shall not have any base to say that, the opposite No-4 is not at all related to the opposite No-1 Transport Company. Hence, we have rejected the contention of the opposite No-4 in this regard. However, the relationship of the opposite No-2 with the opposite No-1 is not acceptable since, there is no documents to show that, he is related to opposite No-1. Hence allegations made against the opposite No-2 by the complainant is accepted as there is no document to shows that, he is the one of the partners and he has got relationship with the opposite No-1 Transport Company. Opposite Nos. 1 & 3 are placed Ex-parte. Hence complainant affidavit-evidence is believed.
9. The second point that was raised before us by the learned advocate for opposite is that present complainant cannot file this complaint, as he is not a consumer as per C.P. Act. And therefore the complaint of the complainant is hit by the section 2(1)(d)(i) and 2(1)(d)(ii) of the C.P. Act. and also relied on the ruling reported in 2011 AIAR (civil) 199 Supreme Court of India. Wherein it was held that, goods purchased by commercial purpose of earning of more profits by offering services such services to be considered as for commercial purpose and if any complaint for alleged deficiency in service is not maintainable. But in reply the counsel for complainant has also filed judgment cited in (1) AIR 2000 Supreme Court 1461, (2) 1 (2011) CPJ 571 of Hon’ble Kerala State Commission, (3) 2011 CJ 702 NC, (4) II (2009) CPJ 341, (5) III (2009) CPJ 76 NC, (6) IV (2009) CPJ 396 NC, we have perused the all the above judgments submitted by the counsel for the complainant. Wherein the Hon’ble Supreme Court, National Commission, The Kerala State Commission, Rajasthan State Commission, Delhi State Commission, Andhra Pradesh State Commission, in their valuable dictums under the above said judgments it was clearly held that, when a person entrusts a goods to a common carrier for transportation and the carrier excepts the same there is a contract for “service” within the meaning of C.P. Act. Therefore, when the goods are not delivered there is a deficiency of service and for that, the Transport Company is liable to compensate the consignor and he is the consumer in the ambit of C.P. Act. The above said rulings are amply applicable to the case of the complainant. Under the above circumstances, dictum laid down under the rulings and facts in hand we have not accepted the contention of the opposite regarding non maintainability of the complaint hence we have with great respect not accepted the ruling of the complainant.
10. Third point for our consideration is as to whether the complainant proved that he loaded 34 tonnes of rice in the two lorries of opposite transport company for to deliver it to the addressee at Chennai but opposite transport company neither delivered the said goods to the addressee nor returned to him, it shows its negligence in tracing out the goods in spite of repeated requests and thereby opposite found guilty under deficiency in its service.
11. To establish this fact, the complainant himself gave affidavit-evidence who is noted as PW-1 and two certificates under Ex.P-3 & Ex.P-4 and weigh bridge receipts under Ex.P-5 & Ex.P-6, loading slips under Ex.P-7 & Ex.P-8. On the other hand affidavit-evidence of opposite was filed, no documents filed. Among the documents filed by the complainant Ex.P-3 to Ex.P-8 are relates to the present loading 34 tonnes of rice in the opposite transport company ‘s two lorries to deliver it to the difference addressee at Chennai. Ex.P-10 & Ex.P-10(1) are the two documents which are clearly shows that, the same has been intimated to the Department of Commercial Taxes regarding the consignment of the goods to the opposites. In the instant case opposite flatly denied these documents and also the case of complainant. Under such circumstances there are no proper and acceptable rebuttal evidences from the opposite to discard the evidences of PW-1 with his documents Ex.P-3 to Ex.P-10, as such we came to a conclusion that there are no merit in the submissions made by the learned advocate for opposite to hold that these documents were false and the case of the complainant is false and baseless. It is further fact that the consignment booked by the complainant was neither delivered to the addressee at Chennai nor returned it to the complainant by the opposite. It appears from the evidence of the complainant and documents that opposite shown its negligence in tracing out the goods and thereby there is deficiency in service on its part, accordingly we accepted the affidavit-evidence of PW-1 and documents Ex.P-3 to Ex.P-10(1) and came to a conclusion that the complainant proved the deficiency in service on the part of this opposite by not delivering the goods to the addressee not returning it to the complainant, accordingly we answered Point No-1 in affirmative.
12. As regards to the liability of the opposite is concerned, there are no written agreement in between the parties, with regard to limited liability or the liability of the opposite for the loss sustained by the complainant. No such conditions printed either on Ex.P-8 & Ex.P-8(1), in the said circumstances the liability of opposite is to the extent of worth of goods lost in the transit. As per the evidences placed on record 34 tonnes of rice (17 tonnes in two lorries) worth of Rs. 8,42,618/- was entrusted to the opposite transport company for to deliver it to the addressee at Chennai. In the absence of written agreement between the parties with regard to liability, we are of the view that the complainant is entitled to recover the entire price of the rice of 34 tonnes worth of Rs. 8,42,618/- accordingly the complainant is entitled to recover from the opposite Nos. 1, 3 & 4 jointly and severally.
13. As regards to the deficiency in service, complainant is entitled to recover a lump sum amount of Rs. 3,000/- from the opposite under this head. The complainant is also entitled to recover a lump sum amount of Rs. 2,000/- towards cost of this litigation, as such complainant is totally entitled to recover an amount of Rs. 8,47,618/- from the opposite. The complainant claimed exorbitant and excessive rate of interest, as such we have taken note of the entire facts and circumstances of this case and opined that granting interest at the rate of 9% p.a. on the total amount of Rs. 8,47,618/- is the proper and reasonable rate of interest, accordingly complainant is entitled to recover interest at the rate of 9% p.a. on total sum of Rs. 8,47,618/- from the opposite from the date of this complaint till realization of the full amount, accordingly we answered Point No-2.
POINT NO.3:-
14. In view of our findings on Point Nos-1 & 2 we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed with cost.
The complainant is entitled to recover a total amount of Rs. 8,47,618/- from the opposite Nos. 1,3, & 4 jointly and severally.
The complainant is also entitled to get future interest at the rate of 9% p.a. from the date of this judgment till realization of the full amount.
Opposite is given one month time from the date of the judgment for making payment of the above said entire amount to the complainant.
This complaint against opposite No-2 is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 22-03-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
