State Consumer Disputes Redressal Commission
Umesh Kumar & Anr. vs Mohinder Singh & Anr. on 4 January, 2010
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- DATE OF DECISION: 4.1.2010. In the matter of: FIRST APPEAL NO.131/2007. 1. Umesh Kumar son of Sh. Mohan Lal, R/O Village Parga, P.O. Lower Koti, Tehsil Rohru, District Shimla, H.P. 2. Shri Prithvi Raj son of Shri Kehar Singh, R/O Village Khilargi, P.O. Jagothi, Tehsil Rohru, District Shimla, H.P. Appellants. Versus 1. Shri Mohinder Singh son of Sh. Jai Krishan, R/O Village Bijori, Tehsil Rohru, District Shimla, H.P. Respondent/Complainant. 2. M/S Shishan Forwarding Agency, Seema Rantri, Tehsil Rohru, District Shimla, H.P. through its Proprietor Sh. Shishan Lal Ranta. Respondent. Present: Mr. Peeyush Verma, Advocate, For the appellants. Mr. T.S. Chauhan, Advocate, For respondent No.1. Respondent No.2 already ex-parte. FIRST APPEAL NO.132/2007. 1. Umesh Kumar son of Sh. Mohan Lal, R/O Village Parga, P.O. Lower Koti, Tehsil Rohru, District Shimla, H.P. 2. Shri Prithvi Raj son of Shri Kehar Singh, R/P Village Khilargi, P.O. Jogothi, Tehsil Rohru, District Shimla, H.P. Appellants. Versus 1. Shri Sunil Chauhan son of Sh. Shawla Nand, R/O Village Barthu, P.O. Seema, Tehsil Rohru, District Shimla, H.P. Respondent/Complainant. 2. M/S Shishan Forwarding Agency, Seema Rantri, Tehsil Rohru, District Shimla, H.P. through its Proprietor Sh. Shishan Lal Ranta. Respondent. Present: Mr. Peeyush Verma, Advocate, For the appellants. Mr. T.S. Chauhan, Advocate, For respondent No.1. Respondent No.2 already ex-parte. ------------------------------------------------------------------------------------------------------------ Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? Yes ------------------------------------------------------------------------------------------------------------ O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
1. By means of this common order, we propose to dispose of these appeals as identical questions of law and fact are involved.
2. It may also be noted in this behalf that Appeal No.131/2007 has arisen out of the order passed by District Forum below in Complaint No.530/2003 on 13.3.2007. While allowing the complaint, appellants have been directed jointly and severally to indemnify respondent No.1 in the sum of Rs.27,600/- alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 20.4.2004 till realization alongwith cost of Rs.1500/-.
3. Likewise Appeal No.132/2005 has arisen out of the order passed in Complaint No.531/2003 on 13.3.2007 by the said Forum. While allowing the complaint of respondent No.1, appellants in this case also have been held jointly and severally liable to indemnify the respondent No.1 in the sum of Rs.1,16,400/- alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 20.4.2004 till its realization alongwith cost of Rs.1500/-. In both these complaints, appellants have been directed to comply with the impugned orders within 45 days from the date of receipt of copy of the orders.
4. Mr. Peeyush Verma, learned Counsel for the appellants in both the appeals submitted that there was no privity of contract between the appellants on one side and respondent No.1 in these appeals on the other. Reason being that Umesh Kumar was the owner of the vehicle whereas Prithvi Raj was the driver of the said vehicle employed by the former. The vehicle was attached to Rohru Truck Operators Union. Therefore, according to him appeal was bad for non joinder of the said Union. With a view to buttress this submission Mr. Verma submitted that there was no direct dealing between his clients and respondent No.1 in these cases. In the alternative, he submitted that at best his clients can be said to be agent and nothing more. Therefore unless principal is held liable, holding the agent liable as is the situation in these appeals is not sustainable in the eyes of law. In addition to this, Mr. Verma submitted that respondent No.1 in both these appeals had already received money from Rohru Truck Operators Union for the loss of the apple boxes which were subject matter of both the complaints. Reliance in this behalf was placed by him on paragraph 4 of the affidavit filed by way of evidence. Therefore if the impugned orders are upheld, it will tantamount to undue enrichment of respondent No.1 in these cases, as such on this ground also the impugned orders are liable to be set aside. Lastly, it was urged that both these appeals in any case deserve to be allowed for want of notice under Carriers Act to his clients even if earlier all submissions fall to the ground.
5. All these pleas were seriously contested and resisted by Mr. T.S. Chauhan, learned Counsel for respondent No.1 in these appeals. He forcefully urged that so far payment of money by Rohru Truck Operators Union to his clients is concerned, appellants cannot take any benefit from it as his clients had paid extra money in addition to the freight charges for ensuring that no loss was caused to the apple consignment in such a situation. Therefore according to him, there is no question of undue enrichment. Besides this, on admitted facts said Union was neither necessary nor a proper party and thus complaints were not bad for its non joinder. Since carriage of goods is admitted by the appellants, therefore the plea of their being agent only is without merit and was liable to be rejected. At the same time, he further submitted that there was no need for having issued notice under the Carriers Act while invoking jurisdiction of Fora under the Consumer Protection Act, 1986. He thus prayed for dismissal of both these appeals with costs.
6. In both the complaints, grievance of respondent No.1 in these appeals who were the complainants before the District Forum below was that they had sent their apple crop for being transported to Subzi Mandi, Delhi. Truck of appellant No.1 being driven by appellant No.2 was hired through respondent No.2, the forwarding agent against payment of freight charges. It met with accident on 21.9.2003. F.I.R. was registered at Police Station, Rohru on 22.9.2003 and the apple boxes were completely destroyed. It was in these circumstances that the complaints were filed which were allowed by the District Forum below as noted in the preceding paras.
7. So far plea that the complaints were not maintainable for want of notice under the Carriers Act to the appellants is concerned, this question is no more res integra in view of the decision of the Honble Supreme Court in the case of Transport Corpn. Of India Ltd.
Versus Veljan Hydrair Ltd., (2007) 3 Supreme Court Cases 142. Nothing to the contrary was brought to our notice on behalf of the appellants.
Accordingly this plea urged by Mr. Verma, learned Counsel for the appellants is hereby rejected.
8. So far appellants having received money from Rohru Truck Operators Union is concerned, it was not disputed on behalf of the appellants that with a view to secure himself, respondent No.1 in both the cases had paid extra money over and above the freight charges payable to appellant No.1 in these cases so as to get themselves indemnified in case of a mishap.
In these circumstances, appellants cannot be allowed to take benefit of the payment received by them from respondent No.1 in both these appeals.
Reason being that they were reaping the fruits of the amount paid by them in case of a mishap. Appellant No.1 was rendering service after charging freight, therefore his liability is de hors as well as in addition to what was contracted between the Union and the appellants. For deficiency in service by the appellant No.1 as a service provider after charging freight, he is liable to make good the loss sustained by respondent No.1 in both these cases and cannot be allowed to shun the same by raising frivolous as well as hyper-technical pleas. Once this conclusion is arrived at, there is no question of respondent No.1 getting undue enrichment as was urged by Mr. Verma. Here it may be appropriate to mention that it is not the case of the appellants that either the respondent No.1 in these cases had not paid extra amount to the Union at Rohru for being indemnified by the said Union or it was he who had paid this extra amount to the Union.
9. No other point was urged.
In view of the aforesaid discussion, we find no substance in these appeals which are accordingly dismissed, leaving the parties to bear their own costs while upholding the orders passed in the two above referred complaints out of which these appeals have arisen.
Office is directed to place an authenticated copy of this order on the file of Appeal No.132/2007.
Learned Counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per rules.
Shimla, January 4, 2010.
( Justice Arun Kumar Goel ) (Retd.) President ( Saroj Sharma ) Member /BS/ (Chander Shekhar Sharma ) Member