COMPLAINT FILED: 25.05.2009
DISPOSED ON: 04.01.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 4TH JANUARY – 2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.1187/2009
Complainant | M/s Ashoka Farm Aids, No.11, 2nd Main, 2nd Block, Goruguntepalya, Yeshwanthpur, Bangalore. Rep: by its Partner Mr. J.A. Eranna. Advocate: Sri. D. Prabhakar V/s. |
OPPOSITE PARTIES | 1. M/s Sunrise Freight Carriers Pvt. Ltd., No.42, Shivatlla Street, Lakshmi Bhavan, 3rd Floor, Kolkatta – 700 007. Rep: by its Managing Director Advocate: Sri. Paras Jain 2. M/s Natraj Seed Store, Kacheri Bazar, Baruipur, Kolkatta, West Bengal. 3. Arihant Logistic Services Ltd., Registered office 13/22, KSV Nilaya, 3rd Main Road, Kalasipalyam, New Extension, Bangalore – 560 002. OPs- 2 & 3 Ex-Parte |
O R D E R
SRI. B.S. REDDY, PRESIDENT
The complainant filed this complaint U/s 12 of CP Act 1986, seeking direction against the Opposite Party-1 (herein after called as O.Ps) to pay an amount of Rs.1,96,932/- with interest at 24% p.a. along with costs of the litigation on the allegations of deficiency in service on the part of the OPs.
2. The case of the complainant is to be stated in brief is that:
The complainant is partnership firm carrying on business in processing and trading of seeds. OP-2 purchased the seeds and requested to dispatch the goods through M/s Arihant Logistic Services Ltd., Kalasipalyam, New Extension, Bangalore to its destination. OP-2 purchased the goods under the invoice dated 03.10.2006 valued at Rs.10,500/-, dated 14.10.2006 valued at Rs.33,240/-, dated 14.10.2006 valued at Rs.33,240/- and 04.11.2006 valued at Rs.33,240/- in all sum of Rs.1,10,220/-. The complainant supplied said goods on hundi basis, wherein OP-2 was to release the hundi sent through the bankers of the complainant. The complainant delivered goods to the said transporter and the said transporter has duly acknowledged the receipt of the goods so covered under the said invoices and issued lorry receipts / consignment notes. The complainant has sent the copies of invoices, original consignee note with its covering letter requesting the banker to deliver the documents to OP-2 only on receiving fully payment of the invoice amount. OP-2 failed to release the documents by tendering full payment; the bankers were constrained to return the hundi to the complainant along with original consignee receipt of invoices. In the meanwhile the said M/s Arihanth Logistics Services Ltd., was taken over / merged with OP-1. The complainant upon coming to know about the same, requested OP-1 to re-book the consignment from Kolkatta to Bangalore and in this regard the complainant had telephonic talk with OP-1 and at their request, the complainant has sent the xerox copies of the invoice, consignee note and bankers letter vide its letter dated 19.08.2008 and requested for rebook the consignment. OP-1 requested to send original consignee copy in order to rebook the consignment. Accordingly the complainant had sent the original consignee copy to the OP-1. OP-1 failed to rebook the consignment inspite of lapse of sufficient time despite the letters dated 11.09.2007 and 19.08.2008 OP-1 failed to rebook the consignment. The complainant got legal notice issued; OP-1 has received the notice, but failed to comply the request and has not replied for the notice. Thus OP-1 committed deficiency in service and made the complainant to suffer mental agony, hardship and loss. Thus the complainant claimed an amount of Rs.1,10,220/- towards the value of the goods as per invoice, an amount of Rs.61,712/- towards interest on the said amount from 04.11.2006 to 04.03.2009; an amount of Rs.25,000/- towards mental agony, harassment, loss and damages in all Rs.1,96,932/-. Hence the complaint.
3. On appearance, OP-1 filed version denying complaint averments. It is stated that complainant is total stranger to OP-1, there were no business transactions between OP-1 and the complainant, OP-1 does not know anything about the facts stated in the complaint. It is denied that OP-1 has taken over the business of M/s Arihanth Logistics Service Ltd., or the said concern has been merged with OP-1. OP-1 denied the receipt of original consignee copy or the legal notice from the complainant. The complainant has not delivered any goods to OP-1, in this state of affairs question of default or deficiency in service does not arise. Hence it is prayed to dismiss the complaint with a direction to the complainant to pay compensation of 15,000/- to OP.
4. On 08.10.2009 OP-1 filed memo stating that the complaint is filed in respect of goods sold to OP-2 on 03.10.2006 to 04.11.2006. Interest is calculated from 04.11.2006, the complaint is filed on 25.05.2009 that is after 30 months from the date of cause of action. The time fixed for filing the complaint is two years from the date of which the cause of action had arisen. The complaint is barred by time. The same is to be dismissed.
5. OPs-2 and 3 remained ex-parte.
6. In order to substantiate the complaint averments, the complainant filed affidavit evidence. The Manager of OP-1 filed affidavit evidence in support of defence version.
7. Arguments on both sides heard. Points for consideration are:
Point No.1:- Whether the complaint filed is within
the period of limitation?
Point No.2:- Whether the complainant proved
deficiency in service on the part of
the OPs-1 and 3?
Point No.3:- Whether the complainant is entitled for
the relief’s now claimed?
Point No.4:- To what Order?
8. We record our findings on the above points:
Point No.1:- Affirmative.
Point No.2:- Affirmative.
Point No.3:- Affirmative in part.
Point No.4:- As per final Order.
R E A S O N S
9. The complainant being a partnership firm carrying on business in processing and trading of seeds, dispatched the seeds through OP-3 to one of its customer’s OP-2. OP-2 purchased the seeds under invoice dated 03.10.2006, 14.10.2006, 14.10.2006, and 04.11.2006, for the total sum of Rs.1,10,220/-. The goods (seeds) supplied to OP-2 were on hundi basis, wherein OP-2 was to release the hundi sent through the bankers of the complainant. The complainant delivered goods to the OP-3 and had sent the copies of invoices, original consignee note with its covering letter requesting the banker to deliver the documents to OP-2 only upon receiving full payment of the invoice amount. OP-2 failed to release the documents by tendering full payment; the bankers were constrained to return the hundi to the complainant along with the original consignee receipt; the receipt of the lorry and invoice. In the meanwhile OP-3 was taken over, merged with OP-1. The complainant requested OP-1 to rebook the consignment from Kolkatta to Bangalore and at the request of OP-1, the complainant has sent xerox copies of invoices, original consignee receipt, bankers letter to OP-1 to rebook the consignment. OP-1 failed to rebook the consignment, then legal notice was issued on 15.09.2008. OP-1 inspite of receipt of the said notice failed to comply with demand and has also not replied for the same. Therefore the cause of action for the complainant arose to file the complaint in the month of September – 2008, when OP-1 failed to comply the demand of rebooking the consignment and has not replied for the notice. The complaint lodged on 25.05.2009 is within 2 years from the date of accrual of the cause of action. Hence it cannot be said that the complaint is barred by limitation as contended by OP-1. U/s. 24A of the C.P. Act, the period of 2 years limitation is from the date on which the cause of action had arisen. The principles laid down in (2009) 5 Supreme Court Cases 121 State Bank of India Vs. B.S. Agriculture Industries (I) cannot be made applicable to the facts of the case. In that case on the basis of the materials placed it was found that the compliant was filed beyond the period of limitation.
There is no merit in the contention that the cause of action has arisen on between 3.10.2006 to 04.11.2006 when the goods were sold to OP-2 under the invoices. When OP-2 failed to make full payment and get released documents from the banker to take delivery of the consignment, the complainant demanded OP-1 to rebook the consignment, only when OP-1 failed to comply the demand made in the legal notice, the cause of action to file the complaint arose to the complainant. Accordingly point No.1 answered in affirmative.
10. The main defence of OP-1 is complainant is a stranger, no business transaction has been taken place between OP-1 and the complainant and OP-1 does not know anything about these transactions. It is denied that OP-1 has taken over the business of OP-3 and further it is denied the receipt of original consignee copy and the legal notice issued. It is pertinent to note that the complainant after coming to know that OP-1 has taken over the business of OP-3 requested OP-1 to rebook the consignment from Kolkatta to Bangalore. As per the request of OP-1, complainant had sent the original consignee copy in order to rebook the consignment with covering letter dated 11.09.2007, the copy of the said letter produced by the complainant reveals that the complainant had enclosed 4 consignee copies original with a request to rebook the consignment. The postal acknowledgement copy produced reveals that the said letter has been received by OP-1 on 14.09.2007. Even after receipt of original consignee copy when OP-1 failed to rebook the consignment, the complainant had sent another letter dated 19.08.2008 with xerox copies of the documents requesting OP-1 to rebook the consignment, the said letter was sent through courier and the copy of the courier receipt produced reveals that OP-1 has received the same on 21.08.2008. Inspite of receipt of original consignee copy, OP-1 has not rebooked the consignment. The legal notice dated 15.09.2008 demanding OP-1 to rebook the consignment or to pay the value of the consignment with interest was duly served on OP-1 on 19.09.2008 as per the copy of the postal acknowledgment. OP-1 has not replied for the said notice and has also not complied the demand. In case if OP-1 has not taken over the business of OP-3, there was no reason for OP-1 to request the complainant to send the original consignee copy and other documents. If OP-1 has not taken over the business of OP-3 it could have returned the original consignee copy and the other documents to the complainant stating that OP-1 is nothing to with this transaction. Further nothing prevented OP-1 to reply for the legal notice denying its liability on the ground that it has not taken over the business of OP-3. The conduct of OP-1 receiving the original consignee copy and failure to reply the legal notice are the strong circumstances to hold that OP-1 has taken over the business of OP-3. Failure to rebook the consignment on the part of OP-1 or to pay the value of the consignment to the complainant amounts to deficiency in service on the part of OP-1. In view of the same OP-1 is liable to pay the amount to the complainant in respect of the seeds booked through OP-3. It is contended for OP-1 that the complainant has not produced any documents in support of its contention that OP-1 has taken over the business of OP-3, as such OP-1 is not liable to pay any amount to the complainant. In our view the taking over the business of OP-3 is within the knowledge of OP-1, the complainant cannot be expected to produce any documents in support of the same. As already observed the very conduct of OP-1 in requesting the complainant to send the consignee copy for rebooking and after receipt of the documents; even after receipt of legal notice failure to reply the same are sufficient circumstances to hold that OP-1 has taken over the business of OP-3.
11. The complainant has produced the consignment note issued by OP-3 to deliver the goods to the OP-2. The total value of 4 invoices under which the seeds were sold to OP-2 and booked for deliver through OP-3 is amounting to Rs.1,10,220/-. The complainant has claimed interest at 24% p.a. on the said amount and further compensation of Rs.25,000/-. Interest claimed at 24% p.a. appears to be on higher side, considering the facts and circumstances we are of the view that it is just and reasonable to award interest at 12% p.a. and compensation of Rs.5,000/- towards mental agony and harassment. OP-2 is to only a formal party, no relief is sought against OP-2. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is allowed in part. OP-1 is directed to pay an amount of Rs.1,10,220/- with interest at 12% p.a. from 04.11.2006 till the date of realization and compensation of Rs.5,000/- with litigation cost of Rs.2,000/- to the complainant. This order is to be complied within 4 weeks from the date of this order.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 4th day of January – 2011.)
PRESIDENT
MEMBER MEMBER
Snm:
