National Consumer Disputes Redressal
Powerware India Pvt. Ltd. vs Economic Transport Organisation And ... on 20 December, 2005
ORDER
K.S. Gupta, J. (Presiding Member)
1. This revision is directed against the order dated 21.4.2004 of Consumer Disputes Redressal Commission Orissa, Bhubneshwar allowing appeal against the order dated 27.2.2001 of a District Forum and dismissing complaint.
2. Petitioner/complainant had purchased raw materials from Steel Authority of India, Rourkela which was booked for transportation through respondent No 1/opposite party No. 1 on 8.3.1995, to its works site at Mancheswar. The gross weight of booked raw materials was 10 MTs. It was alleged that when the raw material was unloaded at the works site on 11.3.1995 its weight was found to be 8670 kgs. There was shortage of 1330 kgs valuing Rs. 46,845. On not settling claim for shortage, the petitioner filed complaint which was contested by the respondents/opposite parties. In written version it was alleged that for transportation of raw materials, the respondents had hired a truck and it had come to their knowledge that the private truck during the course of transportation had misappropriated the materials. So, an FIR was lodged with the police and on basis there of, charge-sheet under Section 407, I.P.C. has been submitted. Criminal case is pending before SDJM, Bhubneshwar. It was stated that in view of pendency of criminal case, the complaint is not maintainable. It was denied that petitioner is a consumer.
3. Complaint was allowed by the District Forum with direction to the respondents to pay amount of Rs. 46,845 with interest and cost to the petitioner which order was set aside by the State Commission in appeal by the respondents on the grounds of petitioner not being a consumer it having not paid any freight; complaint not being maintainable in view of pendency of criminal case before SDJM, Bhubneshwar and delivery of raw material being taken by the petitioner without raising any objection or protest regarding shortage.
4. I have heard Mr. Rajendra Pal for petitioner and Mr. S.K. Das for respondents and have been taken through the record.
5. Respondent No. 1 does not dispute that the raw materials booked for transportation was sent by it through a private truck against a lorry receipt dated 8.3.1995 (copy at page 21). In this lorry receipt amount of Rs. 1,900 is shown as being paid in advance and balance hire charges of Rs. 2,855 were to be paid by the petitioner on receipt of raw materials at destination. In view of payment of part hire charges in advance the petitioner would fall within the definition of Consumer under Section 2(a)(d)(ii) of Consumer Protection Act, 1986 and the finding returned by State Commission in regard to petitioner not being a consumer being erroneous cannot be legally sustained.
6. Criminal case pending before SDJM, Bhubneshwar is for prosecution of the accused under Section 407, I.P.C. Value, etc. of the missing raw materials in this case is sought to be recovered based on deficiency hi service on the part of respondents. Nature of two proceedings being different the pendency of criminal case would not come in the way of Consumer Fora in granting the relief in the complaint. View taken by the State Commission , to the contrary being bad cannot be upheld.
7. Coming to the third ground referred to above, it may be notice that immediately after taking delivery of raw materials, the petitioner sent a letter dated 11.3.1995 (copy at page 27) to the respondents wherein amount of Rs. 46,845 < was demanded towards shortage of materials. Thus, the finding recorded by the State Commission that delivery of raw materials at works site was taken without raising any objection or protest by the petitioner being contrary to the record deserves to be set aside.
8. Based on Zimanama dated 11.3.1995, copy whereof has been handed over during the course of hearing, the submission advanced on behalf of respondents was that the delivery even that of shortage of 1330 kgs. of materials had been taken by the petitioner. Particularly paras 4 and 5 of this Zimanama which are material, are reproduced below:
4. Dispatch weighment slip dated 10.3.1995 with truck No. OR-04 163 being Nov. 8670 Kgs.
Seized Coils.
NCH 93/3902 NW 2060 as per SAIL slip NCH 94/6875 " 1080 -Do-
NCH 94/7423 " 690 -Do- NCH 94/4566 " 2220 -Do- NCH 94/1757 " 1770 -Do- NCH 95/0648 " 1910 -Do-
Copy of invoice raised by SAIL is at page No. 19, Details as given in above para 5 have been lifted from this invoice. On a combined reading of both the paras it is manifest that out of 10,000 kgs. material the delivery given was of 8670 kgs. only to the petitioner.
9. For the foregoing discussion, while allowing revision aforesaid orders of State Commission is set aside and order that of District Forum restored. Petitioner is entitled to cost which is quantified at as Rs. 5000.