State Consumer Disputes Redressal Commission
Gajanan Rajebhau Thombre vs G.S.Transport Corp.Shradha ... on 14 January, 2013
1 FA No. : 96/2012
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI.
CIRCUIT BENCH AT AURANGABAD.
First Appeal No. FA/96/2012
(Arisen out of Order Dated 27/02/2012 in Case No. 543/2010 of District
Aurangabad)
1. Gajanan Rajebhau Thombre
R/O.R.M.266/3,Near B.S.N.L.-
Godawn,Shivajinagar,Bajaj Nagar,Aurangabad,Tq.&
Dist.Aurangabad. ...........Appellant(s)
Versus
1. 1.Manager,
G.S.Transport Corp.Shradha Complex,Rajput Petrol
Pump,Pandharpur,Aurangabad.
2. Manager, G.S.Transport Corp.
JetaBuilding,1st floor,Near Habbib School.Seens
Buinder Post Office,Dongri,Mumbai. ...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.SHAIKH PRESIDING MEMBER
HON'ABLE MR. K.B.GAWALI MEMBER
PRESENT:Adv.Shri.S.B.Choudhary , Advocate for the Appellant 1
Adv.Shri.Syed Sharifoddin, Advocate for the Respondents
ORDER
Date : 14.01.2013.
Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.
1. This appeal is preferred against the judgment and order dated 27.2.2012 passed by District Forum Aurangabad in C.C.No.543/1010, by which said complaint has been dismissed.
2. Complainant`s case in brief is that he had consigned goods namely opticals total worth Rs.96,894/- to respondent No.1 at Mumbai for transporting the same by it`s vehicle to Waluj, Aurangabad on 1.9.2010.
2 FA No. : 96/2012The said goods were to be received by respondent No.1 transporting company at Pandharpur of District Aurangabad within 30 days of it`s consignment. However complainant did not receive the same till filing of the complaint, despite of making enquiries by the complainant with the respondent No.1 from time to time. Respondent gave evasive reply to the complainant. Therefore complainant claimed that direction be given to both the opponents to pay him Rs.96,894/- towards the loss sustained by him.
3. Respondent No.1 filed written version and submitted in brief that two boxes weighing 60 Kg were consigned by the complainant to it`s office at Mumbai and there upon the said goods were sent to it`s transport company at Pandharpur and that complainant in order to save payment of octroi over the said goods, sent one mediator namely Mohd.Arif Khan alongwith xerox copy of the driving license and informed on phone to the respondent No.1 to hand over the said goods to the said Mohd.Arif Khan. It is therefore submitted by respondent No.1 that in view of the message given on phone to it by the complainant, it handed over the said goods to Mohd.Arif Khan after verifying the photo, identity proof of the complainant. Respondent No.1 therefore submitted that complaint may be dismissed.
4. District Forum below after considering the evidence brought on record and hearing advocates of both sides came to the conclusion that affidavit of Mohd.Arif Khan filed on record by respondent No.1 has proved that complainant had authorised him to collect the goods on his ( complainant )behalf to save octroi and that the said Mohd.Arif had shown driving license of complainant to respondent No.1. It also held that as the driving license of the complainant was shown by Mohd.Arif to respondent No.1 it is proved that they know each other and that 3 FA No. : 96/2012 complainant did not file any complaint against Mohd.Arif for deceiving him and therefore it cannot be accepted that complainant has not received the goods worth Rs.96,894/-. It therefore dismissed the complaint.
5. Adv.Shri.S.B.Choudhary appeared for appellant and Adv.Shri.Syed Sharifoddin appeared for respondents. We heard both the counsels finally at admission stage with their consent.
It is submitted by Adv.Shri.S.B.Choudhary appearing for the appellant that no authority letter and copy of billti/receipt was given by complainant to Mohd.Arif Khan for receiving the goods on behalf of complainant. He also submitted that as per affidavit of Mohd.Arif, he is person who helps the businessman in evading octroi and therefore he is not reliable person. He therefore argued that there was no cogent ground to dismiss the complaint. He therefore submitted that complainant has proved from his affidavit and from the billti/receipt produced by him that no such person was authorised by him to collect the goods and therefore appeal may be allowed and impugned judgment and order may be set aside. Complainant may be granted compensation as claimed in the complaint.
6. On the other hand, Adv.Shri.Sayed Sharifoddin submitted that complainant has not proved that he was doing road side businessmen and therefore he had no occasion to evade octroi. He further submitted that both parties had acquaintance with each other since long due to their relationship as businessmen and transporter and therefore respondent No.1 acted on phone call of complainant and delivered the goods to Mohd.Arif Khan as per message given on phone by the complainant to the respondent. He also submitted that complainant had 4 FA No. : 96/2012 given xerox copy of his driving license to Mohd.Arif Khan and on that basis on receiving phone call, respondent No.1 had handed over the goods of the complainant to Mohd.Arif Khan. He also submitted that complainant did not lodge any report against Mohd.Arif Khan. Thus he supported the impugned judgment and order and submitted that appeal may be dismissed.
7. It is thus not disputed that goods namely opticals total worth Rs.96,894/- were consigned by complainant/appellant to the office of respondent No.1 at Mumbai and respondent No.1 issued receipt called as billti about the same and that said goods were not actually delivered to complainant at Waluj, Dist.Aurangabad. Copy of said billti/receipt dated 1.9.2010 produced by complainant shows condition that goods consignment in the name of the party shall be delivered directly to consignor`s named in the said receipt without obtaining consigner`s copy. As per said receipt/billti consigner is respondent No.1 and consignee is the complainant. Therefore it was necessary for the respondents to deliver the said goods to the complainant only on verifying the copy of said billti/receipt dated 1.9.2010 from him. Handing over the said goods to any third person is against the direction given in the said billti/receipt. In our view as no such copy of billti/receipt was shown by Mohd.Arif Khan to the respondent No.1 herein, it cannot be said that Mohd.Arif was authorised by complainant to collect the said goods on his behalf.
8. It is simply the case of respondent that complainant had informed on phone to respondent No.1 to hand over the goods on his behalf to Mohd.Arif so as to evade payment of octroi. Mohd.Arif Khan in his affidavit also stated that in order to evade payment of octroi he is collecting goods on behalf of consignee from concerned transport 5 FA No. : 96/2012 company. In our view person who is indulged in such illegal activities, can be said to be untruthful person. His affidavit therefore cannot be relied upon.
9. Moreover the affidavit of said Mohd.Arif Khan is also very vague. He has not stated in his affidavit as to why he did not collect the billti/receipt dated 1.9.2010 from complainant for showing the same to the respondent and why he simply collected the Xerox copy of only driving license of the complainant. He has not stated in his affidavit that as to what charges were paid to him by complainant for collecting goods on his behalf and bringing the same to the complainant. He has not stated in his affidavit as to whether he had given acknowledgment to respondent about receiving the goods on behalf of complainant. Copy of billti/receipt produced by respondent also do not show the name of Mohd.Arif Khan as the person who received the goods on behalf of complainant. Said billti/receipt also does not show that who received the said goods on behalf of complainant.
10. On the contrary affidavit filed by complainant is also very specific. Besides putting his case in the affidavit, he also stated that he did not send Mohd.Arif Khan to collect the goods on his behalf and he did not hand over Xerox copy of driving license to him. He has also stated in his affidavit that he does not do business at Aurangabad but he does business by the road side at Waluj & Pandharpur and therefore there was no reason for him to bring it at Aurangabad. No evidence was adduced before District Forum showing that as the complainant was doing business at Aurangabad and he wanted to evade octroi of those goods.
11. No phone number is given by respondents on which or by which 6 FA No. : 96/2012 complainant had contacted with the respondents for handing over his goods to Mohd.Arif Khan. Copy of such driving license can be obtained from any other source and hence on its basis goods cannot be delivered to person showing it. In our view it was the responsibility of respondent to hand over the goods to the consignee only. It cannot be said that complainant should have made complaint against Mohd.Arif Khan for deceiving him as observed by learned District Forum. Complainant has got right to claim that amount from respondents and therefore fact of not making complaint against Mohd.Arif by him has got no bearing on present case. District Forum below has given undue weightage to the fact of not making complaint by complainant against Mohd.Arif Khan to the police about deceiving him. It was for the respondents to file such complaint against Mohd.Arif Khan for deceiving them.
12. Thus we hold that complainant has proved that he did not receive goods worth of Rs.96,894/- after they were consigned to respondents for transportation to the given destination. Hence there is deficiency in service provided by respondents to the complainant. Complainant is therefore entitled to Rs.96,894/- as compensation towards loss of said goods from custody of both the respondents. We thus hold that District Forum below has erred in dismissing the complaint. Complaint thus deserves to be allowed. Hence we pass the following order.
O R D E R 1. Appeal is allowed.
2. The impugned judgment and order passed by District Forum in C.C.No.543/2010 on 27.2.2012 is hereby quashed and set aside.
3. The complaint is allowed.
4. Original opposite parties i.e. both the respondents herein are 7 FA No. : 96/2012 directed to pay to the complainant/appellant compensation of Rs.96,894/- with interest @ 9% p.a. from the date of complaint i.e. 30.9.2010 till it`s realisation.
5. Both the opposite parties i.e. respondents herein shall also pay Rs.1000/- to the complainant towards mental harassment and Rs.500/- towards cost of complaint within one month from the date of receipt of copy of this order.
6. Copies of the judgment and order be issued to both the parties.
Pronounced on 14.01.2013.
[HON'ABLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'ABLE MR. K.B.GAWALI] MEMBER Mane