State Consumer Disputes Redressal Commission
M/S Om Logistics Limited vs M/S Cosmas Reaserch Lab Limited on 4 September, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.531 of 2022
Date of Institution: 16.06.2022
Reserved on : 28.08.2024
Decided on : 04.09.2024
1. M/s Om Logistics Limited, 130, Punjabi Bagh (T.C.), Ring
Road, New Delhi-110035 through its Authorized Signatory
Sanjay Kumar.
2. M/s Om Logistics Limited, B-24, Phase-V, Focal Point, Near
Rockman Industries, Ludhiana.
.....Appellants/opposite parties
Versus
M/s Cosmos Research Lab Limited, having its operations at village
Gaunspura, PO Nurpur, Humbran, Ludhiana through Rozer Tandon
its Authorized Representative.
.....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against
order dated 12.02.2022 passed by District
Consumer Disputes Redressal
Commission, Ludhiana in CC/578/2018
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Ms. Kiran Sibal, Member Present:-
For the appellants : Sh. L.S. Sidhu, Advocate
For respondent : Ms. Monika Thatai, Advocate
KIRAN SIBAL, MEMBER:-
It is pertinent to mention here that earlier vide order dated 02.01.2017, the District Commission dismissed the complaint First Appeal No.531 of 2022 2 filed by the respondent/complainant on the ground of maintainability. The respondent/complainant preferred an appeal against the order dated 02.01.2017 in this Commission, which was allowed and the complaint was remanded back to District Commission with a direction to decide the case afresh on merits in accordance with law. Accordingly, the District Commission vide impugned order dated 12.01.2022 has decided the complaint on merits. Hence, this appeal has been preferred by the appellants/Opposite parties against order dated 12.01.2022 passed by District Consumer Disputes Redressal Commission, Ludhiana (in short, "the District Commission"), whereby the complaint filed by respondent/ complainant against opposite parties (in short 'OPs') was allowed as under:-
"13. As a result of above discussion, the complaint is allowed with an order that the OPs shall pay a sum of Rs.2,89,476/- along with interest @7% per annum from 07.08.2013 till date of actual payment to the complainant. The OPs shall further pay composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant......"
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts, as averred in the complaint, are that the complainant is a public limited company and it availed services of OP No.2 for delivering a consignment of medicine and pharmaceuticals to M/s Invision Medi Sciences Private Limited, 231/3, 12th Cross Wilson Garden, Bangalore-27. The consignment First Appeal No.531 of 2022 3 was handed over to OP No.2 along with invoice No.5087 dated 09.08.2012 for a sum of Rs.2,89,476/- and OP No.2 issued GR No.19010316958 dated 10.08.2012 in token of having received the consignment from the complainant. The consideration for the carriage services was to be paid by the consignee at the time of delivery of the consignment at its destination. The complainant further stated that the OPs used to deliver the goods entrusted to them at the destination at Bangalore within a period of 5-6 days but the said consignment was not delivered at its destination by them. The complainant had been repeatedly asking the OPs for the delivery of goods but to no effect. The OPs only informed the complainant that the consignment entrusted to them was loaded in Vehicle No.HR-38-Q-0131 from their Jamalpur Hub on 13.08.2012. The complainant in order to know the status of delivery also served a legal notice dated 01.03.2013 upon the OPs but all in vain. However, in order to cover up their lapse the OPs sent an ante dated letter, purported to have posted on 22.08.2012, whereby the complainant was intimated that consignment had been destroyed during transit on account of a fire incident involving the vehicle in which the goods were being carried to the destination. However, the OPs did not reimburse the loss sustained by the complainant on account of alleged occurrence. Alleging negligence in handling the consignment as well as deficiency in service on the part of the OPs, the complainant filed consumer complaint before the District Commission and sought directions against the OPs to pay a sum of First Appeal No.531 of 2022 4 Rs.4,89,476/- on account of deficiency in service resulting in loss of consignment during transit and for having caused inconvenience and mental agony to the complainant.
4. The complaint was contested by the OPs by filing written reply, wherein they raised certain preliminary objections, which are not required to be reproduced here for the sake of brevity. On merits, the OPs stated that on 16.08.2012, all the consignments which were being transported through truck in question bearing No.HR-38-Q-0131 was set ablaze on fire by the mob along with the truck. There was a total loss of the consignments as well as the vehicle. The driver of the truck lodged a FIR No.183 of 2012 with the concerned police station at District Jaalnaa, Maharashtra. This fact was duly communicated to the complainant company, vide letter dated 22.08.2012, which was duly received by its employee. The OPs further stated that the entire story in the complaint was cooked up to file a false and frivolous case and the legal notice dated 01.03.2013 was also based on frivolous facts and the same was sent by the complainant after the lapse of the statutory period. After denying the other averments made in the complaint the OPs prayed for dismissal of the complaint.
5. The parties led there evidence in respect of their respective contentions before the District Commission. The District Commission, after going through the record and hearing learned counsel on their behalf, allowed the complaint of the complainant, First Appeal No.531 of 2022 5 vide impugned order as above. Aggrieved with the same the present appeal has been preferred by the appellants/OPs.
6. We have heard the learned counsel for the parties and have also carefully gone through the written arguments submitted by the parties.
7. The learned counsel for the appellants/OPs has vehemently contended that the order passed by the District Commission is illegal, null and void and contrary to the order passed by the Hon'ble Supreme Court, according to which limitation period, had already suspended and further all the courts in India were working restrictively. The District Commission has decided the complaint without issuing any notice to the counsel for the appellants, which is in violation of natural justice as well as contrary to the directions issued by the Hon'ble Supreme Court. The learned counsel further argued that the District Commission has failed to consider Section 16 & 17 of the Carriage by Road Act, 2007, according to which respondent/complainant has to give notice under these provisions of the Act, but the District Commission has not given any such finding on the validity of the notice. The District Commission has also ignored the provision of Section 12 of the Carriage by Road Act, according to which burden to prove the criminal negligence is on the plaintiff. The District Commission has failed to appreciate the fact that the respondent/complainant has itself placed on record the letter dated 22.08.2012 as Ex. C-2, therefore it is not lie in the mouth of the respondent/complainant that First Appeal No.531 of 2022 6 it was not aware of the said incident regarding setting ablaze the truck carrying the goods in fire. The learned counsel further argued on the similar lines as stated in the written reply and prayed for acceptance of the present appeal by setting aside the impugned order.
8. On the other hand, the learned counsel for the respondent/complainant has contended that the order passed by the District Commission is a well reasoned order and it had rightly allowed the complaint in favour of the respondent/complainant after appreciating the pleadings and the evidence placed on record by the parties. The learned counsel has submitted that no terms and conditions regarding Carriage by Road Act were ever supplied to the respondent/complainant at the time of booking of the consignment nor ever explained, so the respondent/complainant is not bound by any such terms and conditions. The learned counsel further argued on the similar lines as stated in the complaint, and prayed for dismissal of the present appeal.
9. We have given our thoughtful consideration to the contentions raised by the parties.
10. Admitted facts of the case are that the complainant availed services of OP No.2 for delivering a consignment of medicine and pharmaceuticals to M/s Invision Medi Sciences Private Limited, 231/3, 12th Cross Wilson Garden, Bangalore-27. The consignment was handed over to OP No.2 along with invoice No.5087 dated 09.08.2012 (Ex.C-4) for a sum of Rs.2,89,476/- and OP No.2 issued First Appeal No.531 of 2022 7 GR No.19010316958 dated 10.08.2012 (Ex.C-5) in token of having received the consignment from the complainant. It is also an admitted fact that the consignment entrusted to OPs was loaded in Vehicle No.HR-38-Q-0131 from Jamalpur Hub on 13.08.2012. The complainant alleged that the OPs used to deliver the goods entrusted to them at the destination at 'Bangalore' within a period of 5-6 days but the said consignment was not delivered at its destination by them. The complainant further alleged that in order to know the status of delivery, it also served a legal notice dated 01.03.2013 (Ex.C-6) upon the OPs but all in vain. Alleging negligence in handling the consignment as well as deficiency in service on the part of the OPs, the complainant filed consumer complaint before the District Commission, which was allowed in his favour vide impugned order as above. Aggrieved with the same, the present appeal has been preferred by the appellants/OPs.
11. The foremost contention raised by the appellants/OPs is that the District Commission has decided the complaint without issuing any notice to the counsel for the OPs, which is in violation of natural justice as well as contrary to the directions issued by the Hon'ble Supreme Court. In this regard, we observe that this Commission remanded back the case twice i.e. firstly vide order dated 01.04.2016 and secondly vide order dated 17.11.2017 to District Commission for deciding the case afresh on merits in accordance with law. The District Commission, in compliance of the order passed by the State Commission has listed the case for First Appeal No.531 of 2022 8 arguments for deciding the same on merits. No doubt due to Covid-19, the District Commission was working restrictively and the case was adjourned for more than four years from the date of its remand for deciding the same on merits, however, keeping in view the long pendency of the case, the District Commission has decided the case on merits, vide impugned order, after considering the objections raised by the OPs in its written reply as well as the evidence placed on record by the parties. Hence, we are of the considered opinion that the District Commission has legally decided the case keeping in view its long pendency. Accordingly, we do not find any force in the contention raised by the appellants/OPs and the same is hereby rejected.
12. Another contention raised by the appellants/OPs is that the District Commission has failed to consider the provisions of Sections 12, 16 & 17 of the Carriage by Road Act, 2007. The appellants has submitted that the respondent/complainant has to give notice under the provision of Section 16 of the Act. The said section 16 of the Act is reproduced as under:-
"16. Notice for institution of a suit:- No suit or other legal proceedings shall be instituted against a common carrier for any loss of, or damage to, the consignment, unless notice in writing of the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceedings and within one hundred and eighty days from the date of booking of the consignment by the consignor."
As per above said provision under the carriage by road Act, the notice in writing of the loss or damage to the consignment was First Appeal No.531 of 2022 9 required to be served on the common carrier before the institution of the suit or other legal proceedings and within 180 days from the date of booking of the consignment by the consignor. Be that as it may, it is pertinent to mention here that the respondent/complainant has specifically stated in its complaint that the OPs used to deliver the goods entrusted to them at the destination within a period of 5-6 days but the said consignment was not delivered at its destination by them and the complainant was never given any information by the OPs as to how the goods were handled by the officials of the OPs during the transit. The complainant has further stated that after issuing the legal notice dated 01.03.2013, the OPs in order to cover up their lapses sent an ante dated letter to the complainant purported to have been posted on 22.08.2012 allegedly intimating the complainant that the consignment in question has been destroyed during transit on account of fire accident involving the vehicle and the goods of the complainant. In the present case, the OPs have failed to prove on record by leading any cogent evidence that they have duly informed the complainant regarding the alleged occurrence by delivering the letter dated 22.08.2012 at the relevant time to the complainant. The District Commission has rightly observed qua non delivery of the said letter at the relevant time to the complainant in its impugned order. The relevant part of the impugned order is reproduced as under:-
"11..................................................................... ..............However, the OPs have not let any evidence to prove that the letter Ex.R-2 was sent through post on First Appeal No.531 of 2022 10 22.08.2012 as no postal receipt has been tendered in evidence. The OPs have tendered affidavit Ex.RA of Sh. Rajendra Singh Pachar, who in para No.3 of the affidavit, has alleged that the letter dated 22.08.2012 was duly received by the complainant but he has not stated anything as to how the letter Ex.R-2 was delivered to complainant. It has not been mentioned whether the letter was sent by post nor any postal receipt has been placed on record. It has also not been stated as to whether the letter was delivered in person, but again no evidence has been led as to whom the letter was delivered. The OPs have further not placed on record any dispatch register maintained by them to show that the letter Ex.R-2 was actually issued/sent to the complainant on 22.08.2012. In the absence of concrete evidence of the dispatch of the letter dated 22.08.2012, it cannot be said that the alleged letter was sent to the complainant. Since the OPs have failed to prove on record that the letter Ex.R-2 was issued at any time, much less on 22.08.2012, they cannot raise plea of non- maintainability of the complaint under Section 10 of the Carriers Act.................."
Moreover, in the letter dated 22.08.2022, it has been mentioned that the alleged incident happened on 16.08.2012 and the truck driver had lodged an FIR regarding the same, whereas, as per FIR, the incident took place on 17.08.2022. Accordingly, an adverse inference is drawn against the appellants/OPs that the letter dated 22.08.2022 was hurriedly and randomly sent after the legal notice, without even verifying the contents of the letter. Even, in the present appeal, the appellants/OPs have failed to place on record any document to establish the delivery of the letter dated 22.08.2022 to the respondent/complainant at the relevant time. Once, the respondent/complainant had not known the fate of his consignment, the question of issuing notice qua loss or damage to the consignment, within 180 days from the date of booking of the First Appeal No.531 of 2022 11 consignment under the provision of Section 16 of the Act, does not arise at all.
13. So far as the contention of the appellants/OPs that the District Commission has ignored the provisions of Section 12 & 17 of the Carriage by Road Act, 2007, is concerned, the appellants/OPs had not taken any plea qua applicability of the provisions of Section 12 and 17 of the said Act in their written reply before the District Commission although, the same has been agitated in the present appeal. It has been specifically submitted by the respondent/complainant that he was never made aware about Sections 12 & 17 of the said Act by the appellants/OPs, even the terms and conditions with regard to the said carriage and road act were not supplied to the respondent/complainant at the time of the booking of the consignment. Had that been done, the respondent/complainant would have exercised his option whether to choose the services of the appellants/OPs or not accordingly. The appellants/OPs have failed to establish on record by leading any cogent evidence that they ever made aware about the provisions of the said act and have supplied the terms and conditions to the respondent/complainant at the time of booking of the consignment. Hence, the respondent/complainant is not bound by any such terms and conditions, which were neither supplied nor explained. Accordingly, we do not find any force in the contentions raised by the appellants/OPs and the same are hereby rejected. First Appeal No.531 of 2022 12
14. It is pertinent to mention here that the Consumer Protection Act came into being in the year 1986 and it is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The respondent/complainant has filed the consumer complaint against the appellants/OPs for deficiency in providing the services. The OPs are under obligation to deliver the consignment booked by them at its destination with proper care and caution. The onus to protect the consignment of the goods from any untoward incident is on the shoulder of the carriage company, who undertake to send it to its destination safely. The appellants/OPs are bound to compensate for the loss suffered by the respondent/complainant for failure to deliver the consignment at its destination. The act and conduct of the appellants/OPs, for not informing the respondent/complainant qua fate of his consignment as well as not protecting the consignment from untoward incident is a clear cut case of deficiency in service. The District Commission has rightly held the appellants/OPs deficient in rendering their services and need no interference in the impugned order.
15. Sequel to the above, we do not find any material infirmity and irregularity in the impugned order passed by the District Commission and the same is hereby upheld. Finding no merit in the appeal the same is hereby dismissed.
First Appeal No.531 of 2022 13
16. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal and further deposited an amount of Rs.2,20,000/- in compliance with the order dated 24.08.022 passed by this Commission. These amounts alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. The respondent/complainant may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
17. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER September 04, 2024.
(Dv)