IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC 56/2015.
Date of Filing: 13.05.2015. Date of Final Order: 31.05.2017.
Complainant: M/S Sonar Bangla Cement (A Division of century Textiles & Industries Lld) works,
Vill. Dholo, P.O. Gankar, P.S. Raghunathganj, Dist. Murshidabad.
-Vs-
Opposite Party: The Manager, M/S Jai Mata Di Cargo Services (P) Ltd., 13C, Kashinath Mullick Lane,
2nd Floor, Kolkata-700073.
Present: Sri Anupam Bhattacharyya …………………. President.
Sri Samaresh Kumar Mitra ……………………..Member.
FINAL ORDER
Sri Anupam Bhattacharyya,Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for payment of Rs.4,84,937.59 for loss of goods not delivered and for compensation of Rs.10,000/- and cost of Rs.10,000/-.
The complainant’s case, in brief, is that complainant the cement product manufacturing company purchased some goods from several Companies who entrusted upon the OP of delivery on different consignments which were not delivered inspite of several requests including Adocate’s notice and then the complainant was compelled to file the instant complaint . Hence, the instant complaint case.
The written version filed by the OP in brief, is that the OP has denied the entire allegations of the complainant categorically. The consignment dt. 21.5.2014 was signed by and between Active Rubber Co. Ltd and the complainant and as such the complainant has no locus standi to file the instant complaint. The case is bad for defect of parties. The OP shall not be liable for loss due to circumstances beyond control. The goods were lost on transit without any fault on the part of the OP and for that the OP is not liable for that loss and the matter was informed and FIR was lodged with Kaliganj P.S and its P.S case No. 327/14 dt. 24.5.14 u/s 392, IPC and for the delay moved to DIG operation CID vide letter dt. 07.11.14 and then on enquiry some goods relating to that case were seized and the same was under the custody of Sri Surajit Saha and the said case is pending without any charge of negligence against OP. The complainant has suppressed about almost the instant police case and as such he has not come with clean hands and for that the case is liable to be dismissed. The terms and conditions mentioned on the back of the invoice as to jurisdiction being only Calcutta jurisdiction , the instant case is barred by territorial jurisdiction and for that the OP prays for dismissal of the case. Hence, the instant written version.
Considering the pleadings of both parties the following points have been framed for the disposal of the case.
Points for decision
- Whether the case is maintainable in its present form and in law?
- Whether the case is barred by the principle of waiver, acquiescence and estoppels?
- Whether the case hits the law of limitation?
- Whether the complainant is entitled to get the relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with reasons.
Point Nos. 1 to 5.
All the points are taken up together for the sake of convinience.
The instant case is for paying Rs.4, 84,937.59 for loss of goods not delivered and for compensation of Rs.10, 000/- and cost of Rs.10, 000/-.
The complainant’s case is that the OP has not delivered the goods consigned.
On the other hand the OP’s case is that the case is barred by territorial jurisdiction and defect of parties. The goods were lost in transit which was beyond control and FIR was lodged with Kaliganj P.S. u/s 392 IPC and for that the complainant is not entitled to get any relief.
In this case the complainant has adduced evidence on affidavit along with several relevant documents in support of his case but the ld. lawyer for the complainant has not advanced argument in spite of giving several opportunities.
For ends of justice to avoid further delay and also for the prayer of the complainant for speedy disposal this forum has no other alternative but to take up the case for disposal on merit.
The complainant’s case is that the complainant is a cement products manufacturing company. The complainant purchased some goods for manufacturing purpose of the company as per schedule of the complaint petition in respect of seven consignments amounting to Rs. 4, 84,937.59 from different Companies who entrusted the same for consignment upon OP but OP failed to deliver the same to the complainant being hijacked during transit. The same being not delivered to the complainant inspite of several requests the complainant has filed this instant complaint.
To prove the case, the complainant has adduced evidence on affidavit only.
In this case the complainant has not adduced any documentary evidence.
Be that as it may admittedly seven separate consignments as per schedule of the complaint petition were consigned through the OP for delivery to the complaint amounting to Rs.4, 84137.59 but the same could not be delivered.
Now, the OP has challenged the complainant’s case by filing written version and several relevant documents in support of the case.
OP’s case is that OP has denied the entire allegations of the complainant categorically. The consignment dt. 21.5.2014 was signed by and between the Active Rubber Co Ltd and the complainant and as such the complainant has no locust standi to file the instant complaint. The case is bad for defect of parties. The OP shall not be liable for loss due to circumstances beyond control. The goods were lost on transit without any fault on the part of the OP and for that the OP is not liable for that loss and the matter was informed and FIR was lodged without Kaliganj P.S and its P.S case No. 327/14 dt. 24.5.14 u/s 392, IPC and for the delay moved to DIG operation CID vide letter dt. 07.11.14 and then on enquiry some goods relating to that case were seized and the same was under the custody of Sri Surajit Saha and the said case is pending without any charge of negligence against OP. The complainant has suppressed almost the instant police case and as such he has not come with clean hand and for that the case is liable to be dismissed. The terms and condition mentioned on the back of the invoice as to jurisdiction being only Kolkata jurisdiction , the instant case is barred by territorial jurisdiction and for that the OP prays for dismissal of the case
The OP has contested the case till argument stage by advancing strong argument relying upon the documents filed.
The OP has filed declaration of the Director of the OP Company and also filed other relevant documents including Advocate’s notice of the complainant enclosing the list of seven consignments and Xerox copy of letter dt. 07.11.14 addressed to DIG Operation, CID Bhavani Bhavan regarding hijack of vehicle No. WB -3C-8545 and Tax Invoice showing terms and conditions of consignment particularly showing disputes subject to Kolkata jurisdiction and one Zimmanama showing custody of seized articles to Sri Surajit Saha authorized person of OP-Company relating to Kaliaganj PS. Case No. 327/14 dt. 24.05.2014 U/S - 392 IPC. Those seized articles under Zimmanama are 36 pcs Lungi, 5 kg Sutly, 60 pcs Chappal, 6pcs.Iron made Balti, 3 pcs Electric Fan.
From the documents filed as well as the argument advanced by the Ld. lawyer for the OP it is clear that the consigned articles which could not be supplied by the OP as the same was hijacked during transit and Kaliganj P.S. Case No. 327/14 U/S 392 IPC was started but thereafter referred to DIG Operation, CID , Bhawani Bhavan and the same is pending.
Further, it appears from the materials on record as per terms and conditions of OP Transport Company the jurisdiction is Kolkata.
Also, it appears that the necessary parties are the consignors from whom the articles were purchased by the complainant but they have neither been impleaded nor they have not claimed damages as well as refund of articles from the OP-Company.
Considering the above discussions as a whole we have no other alternative but to conclude that in this case before this Forum the complainant is not entitled to get any relief and as such the case be dismissed.
Hence,
Ordered
that the Consumer Complaint No. 56/2015 be and the same is hereby dismissed on merit.
There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
MEMBER PRESIDENT.
