Hon'ble Mrs. Rumpa Mandal, Member.
The basic fact of the case of the Complainant in a few words as described in the complaint is that the Complainant Ajit Kr. Das is the registered owner of a Truck bearing No. WGT 1609. For the purpose of his livelihood he hired the vehicle through Truck owners Association. The OP being the proprietor of Das Enterprise is a transport carrier being Agent of Star Cement. OP booked the vehicle of the Complainant on 10.03.21 for delivery of Star Cement from Cooch Behar to Chilakhana at M/S Paul Hardware Store at Bhanukumari, Chilkirhat through tax invoice No. IUCB/01293/20-21 dated 10.03.21 for 160 bags of Cement which was loaded at the Truck of the Complainant. After loading on 11.03.21 at 6.00 hours unfortunately the Truck of the Complainant was stolen alongwith loaded cements. The Complainant informed the matter to the OP and lodged a written complaint at Pundibari P.S. which was registered as Pundibari P.S. case No.128 dated 15.03.21 under section 379 I.P.C. against unknown miscreants. Subsequently, the Complainant requested the OP to handover the hire charges for current or previous bill of Rs.20,950/-+ Rs.5,385/-= Total Rs.26,335/- to the account of the Complainant vide bill dated 02.03.21 and 16.04.21. The OP stopped the previous bill dated 02.03.21 and 16.04.21 illegally against previous delivery of goods. Previously the OP used to transfer the hired charge to the account of the Complainant bearing No.0240010219851. Subsequently on 01.04.21 and 22.04.21 the Complainant filed written complaint to the Truck Association. Thereafter, the Complainant sent a legal notice on 27.12.21 which the OP received on 31.12.21. The aforesaid activities of the OP amounts to deficiency in service and it is a malpractice by the OP. The cause of action arose on 11.03.21 and on subsequent dates. The Complainant therefore prayed for an award for a sum of Rs.26,335/- towards hired charges, Rs.50,000/- towards deficiency in service and unfair trade practice and Rs.10,000/- towards litigation cost.
The OP contested the case by filing written version wherein they denied each and every allegation of the Complainant. The defence case of the Complainant as stated in the written version is that the OP is a carrier Agent of Star Cement Limited and hired vehicles to transport the goods in several places for which the OP issued proper tax and bill invoice in favour of the hired vehicle. The OP hired vehicle No.WGT 1609 on 10.03.21 for delivery of 200 bags of Star Cement of M/S Paul Hardware Store at Bhanukumari, Chilakhana. After the said booking of vehicle WGT 1609 the OP issued proper bill and tax invoice and loaded the vehicle on 11.03.21 with 200 bags of Cement. The said vehicle left the place towards Bhanukumari, M/S Paul Hardware Store but unfortunately the loaded Truck did not reach Bhanukumari. When the OP asked the vehicle owner about the goods, they informed that the loaded Truck was stolen in front of Truck stand Khagrabari. The place of loading the vehicle is storage building of Star Cement LTD. SGU- Cooch Behar-2, Chakchaka NH-31 and the place of stolen Truck is Khagrabari Truck stand which is contradictory. The OP always hired vehicle with proper bill and tax invoice. Previously the said Truck was not hired on 02.03.21. The fact of hiring the Truck on 16.04.21 did not arise. The OP informed the false story of stolen Truck with loaded Cement to the President of Truck Malik Kalyan Samiti on 12.03.21. The OP did not hire the vehicle No. WGT 1609 on 02.04.21 and 16.04.21 and did not issue false and fabricated bills and tax invoices. The Complainant with a fraudulent intention filed this false case to Pundibari P.S. The OP claimed that the case is liable to be dismissed with cost.
The specific allegation and claim of the Complainant vis-à-vis the denial of the same and counter case of the OP led this Commission to ascertain the following points for proper adjudication of the case.
Points for Determination
- Whether the case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The OP raised the question as to maintainability of the case on the ground that the Complainant does not come under the purview of section 2(d) of C.P. Act.
In course of argument however Ld. Defence counsel did not raise any such point but he agitated one point that the Complainant is not the owner of the said vehicle bearing No.WGT 1609 but his wife is the owner of the said vehicle. In fact this is just a positive fact and its denial of the same which is restricted as affidavit versus counter affidavit. The Complainant in his complaint claimed that he is the owner of the said vehicle by swearing affidavit, whereas the OP filed written version with verification but without any affidavit. The OP also did not cross-examine the Complainant in this respect in course of evidence. The Complainant categorically adduced evidence inter alia that he is the registered owner of the said vehicle.
It is also revealed from the materials on record that the OP hired services from the Complainant by means of hiring charge for transportation of goods on particular dates i.e. on 11.03.21 for a sum of Rs.20,950/-. The Complainant filed document being Annexure-A1. The OP also admitted that the said vehicle was hired for transportation.
Thus the pleadings of both the parties and the documents of the case record make it evident that the relation between the Complainant and the OP comes under the purview of the C.P. Act.
In view of the aforesaid observation this Commission is of the view that the present case is maintainable in its present form and prayer. However, the entitlement of relief would be decided under the next two points.
Accordingly, point No.1 is answered in affirmative on behalf of the Complainant.
Point Nos. 2 & 3.
Both the points are very closely interlinked with each other and as such these are taken up together for convenience and brevity of discussion.
While deciding the points as to entitlement of relief regard being had to the defence case wherein the OP categorically admitted in Para-5 and 6 of written version to the effect that the OP hired the vehicle No. WGT 1609 on 10.03.21 for delivery of 200 bags of Star Cement to M/S Paul Hardware Store, at Bhanukumari, Chilakhana. After booking the vehicle the OP issued proper bill and tax invoice in favour of the said vehicle No. WGT 1609 and loaded on 11.03.21 with 200 bags of Cement.
Although admitted fact need not be proved yet the Complainant proved the said bill as Annexure-A1.
The OP further admitted the fact that after loading the vehicle left the place towards Bhanukumari, M/S Paul Hardware Store but unfortunately the loaded Truck did not reach there. When the OP asked the vehicle owner about the goods, they informed that the loaded Truck was stolen in front of Truck Stand of Khagrabari.
It is also the specific case of the Complainant that after being loaded the said Truck was stolen.
It is further found from the case record that the Complainant lodged a written complaint to the Pundibari P.S., Cooch Behar on 11.03.21 informing the said theft of the vehicle No.WGT 16.09 which was registered as Pundibari P.S. case No.128 dated 15.03.21 under section 379 I.P.C.
In course of argument Ld. Defence counsel argued that the Complainant fraudulently made out a case of theft. The said argument is not acceptable in as much as there is nothing to show that police filed any final report or the investigation ended with the result of final report. In fact the fate of the said criminal case is yet to be ascertained and as such the said criminal case cannot be said to be false or fraudulent.
However, the OP denied the liability towards other two bills on the ground that the OP always hired vehicle with proper bill and tax invoices. The OP did not hire the vehicle on 02.03.21 and 16.04.21. The bills submitted are false and fake.
The OP also pleaded that they lodged a complaint to the President of Truck owner Kalyan Samiti on 12.03.21. But could not file any copy thereof. Nor could they file any document regarding the fate of the said complaint.
Ld. Defence counsel also argued that the said goods were booked with proper tax invoice which are Annexure-A and A2.
In fact there is no doubt to the plea of the Complainant that the said goods were loaded with proper tax invoice in the said Truck.
However, the Ld. Defence counsel argued further that the said vehicle is alleged to have been stolen but it was recovered by the Complainant himself. He further questioned as to the discrepancy regarding the two places on the ground that Star Cement Warehouse is at Chakchaka but the Truck was recovered at Durgabari which is the centre point of the town.
In fact these are the matter to be investigated by the police but the fact remains that the said Truck was loaded and complained to have been stolen. The Truck was duly hired by the OP. It is not the case of the OP that since the goods were not delivered so claim is not acceptable. The OP took the major defence plea that the said disputed two other bills dated 02.03.21 and 16.04.21 are false and fake.
It is fact that the said other two bills cannot be co-related with the present bill in question.
Thus in view of the discussion made herein above vis-à-vis the evidence led by the parties the Commission comes to the findings that the OP hired the vehicle of the Complainant for transportation of cement, which is claimed to have been stolen. The fate of the criminal is yet to be ascertained accordingly the Complainant is entitled to get the hired charges for sum of Rs.20,950/-. Since the said hired charges was not paid for long time, it tantamounts to deficiency in service which should be compensated by money.
The discussion made herein above led to the inference that the Complainant is entitled to get the relief for certain amount of money from the OP.
Consequently point No.2 & 3 are answered in affirmative.
In the result the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/3/2022 be and the same is allowed on contest with cost of Rs.5,000/-.
The Complainant do get an award for a sum of Rs.20,950/- towards hired charge of the vehicle No. WGT-1609 and Rs.5,000/- towards deficiency in service.
The OP is directed to pay a sum of Rs.30,950/- to the Complainant within 30 days from the date of passing the Final Order failing which the Complainant shall be entitled to get interest @ 6% per annum from the date of Final Order till the date of realisation thereof.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
DA to Note in the Trial Register.
Dictated and corrected by me.
