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Delhi District Court

Ashiq Ahmed vs Rajdhani Transport Service on 1 February, 2019

        IN THE COURT OF SHRI RAJNISH BHATNAGAR
         DISTRICT & SESSIONS JUDGE (NORTH­WEST)
                  ROHINI COURTS, DELHI

CS No. 576077/16

Ashiq Ahmed
R/o. F­1168, Mangol Puri
New Delhi.                                                ......Plaintiff

                               Versus

1.          Rajdhani Transport Service
            Office at CSC­5, DDA Market,
            Shop No. 22, 1st Floor,
            Sector­1, Rohini,
            Delhi­110085.

2.          Sh. Vijay Kumar (Driver)    (Dropped vide order
            s/o Sh. Tulsi Ram             dated 26.09.16)
            r/o Chandpur

3.          Smt. Sudha Tiwari
            r/o C­335, Gali No. 11
            Prem Vihar, Shiv Vihar
            Karawal Nagar
            Delhi­110094.                           ........Defendant

Date of institution :                      23.04.2015
Date of hearing arguments :                01.02.2019
Date of decision :                         01.02.2019


CS No. 576077/16                                        Page No. 1 of 15
                                   JUDGMENT

1. By this Judgment, I shall dispose of the present suit filed by the plaintiff against defendants seeking recovery of Rs.7,44,190/­ with throughout cost.

As per the case of the plaintiff, defendant no. 1 is a transport company and is engaged in the business of transportation, defendant no. 2 is the driver working under the supervision and control of defendant no. 1 and defendant no. 3 is the registered owner of vehicle no. HR­55 N­7074. It is further averred that on 27.10.2014, plaintiff booked the aforesaid vehicle for shifting his house hold articles from Delhi to Pavrta, Bihar.

Accordingly, the plaintiff deposited an amount of Rs.20,000/­ with defendant no. 1 for this purpose to which no receipt was given to the plaintiff towards transportation charges. It is further averred that the household articles were supposed to be delivered after three days at Bihar, but the same were delivered after 12 days. It is further averred that during transportation, all the household articles worth of Rs.4,44,190/­ were got damaged and are not usable.

It is further averred that when the plaintiff saw the articles at destination, they were completely damaged then the plaintiff called defendant no. 1 and defendant no. 1 assured the CS No. 576077/16 Page No. 2 of 15 plaintiff to compensate him when the plaintiff would reach Delhi.

It is further averred that since then the plaintiff has been visiting the office of defendant no. 1 for compensation but defendant no. 1 did not pay any heed and even started threatening the plaintiff "tere ko truck ke niche kuchalwa dunga". It is further averred that the plaintiff has been continuously suffering great hardships including mental agony and tortures due to false assurances, promises and deficient services of defendant no. 1 and 2 as the plaintiff has used all his savings for making these household articles. It is further averred that when all the efforts of the plaintiff to recover the money from defendants failed, plaintiff called upon the defendants through legal notice dated 10.03.2015 to pay Rs.4,44,190/­ towards cost of household articles and Rs.3,00,000/­ towards compensation on account of mental agony, torture, inconvenience and hardships caused by them to the plaintiff, but despite receipt of legal notice, defendants neither replied the same nor complied with the terms of the same.

On these allegations, the plaintiff has filed the present suit against the defendants seeking recovery of Rs. 7,44,190/­, out of which Rs. 4,44,190/­ towards damaged goods and Rs. 3,00,000/­ towards compensation on account of mental agony, torture, inconvenience and hardships caused to him by the defendants.

2. It is pertinent to mention here that during the course of the proceedings on 26.09.2016, defendant no. 2 namely Vijay Kumar was dropped from the array of the parties on the request of the learned Counsel for the plaintiff.

3. Defendant no. 1 has filed written statement wherein he has taken preliminary objections that household items which were sent through it were old and used household articles and were hardly worth of Rs.50,000/­ to Rs.60,000/­, therefore, allegations and demand of plaintiff is wrong and it is only to extort the money from the defendants; that suit of the plaintiff is based on concocted and manipulated facts and same is liable to be dismissed and the same has been devised as a tool to harass the answering defendant. Further, defendant no. 1 has denied all the allegations made in the suit and has stated that the plaintiff had agreed to pay a sum of Rs.20,000/­ to defendant no. 1 for the said transportation but only deposited Rs.2000/­. It is further stated that the balance amount of Rs.18,000/­ was to be paid at the time of delivery of goods and in order to skip liability of Rs.18,000/­, the plaintiff is making all these false allegations.

It is further stated that defendant no. 1 had duly replied the legal notice of the plaintiff through Counsel and denied all the allegations.

It is further stated that rather defendant no. 1 is suffering great loss of reputation and name in the market by such false allegation. It is accordingly prayed that the present suit is liable to be dismissed with cost.

4. Though defendant no. 3 has also filed her written statement but she filed the same after expiry of prescribed period of 30 days from the date of service of summons and she failed to move an appropriate application for condonation of delay in filing the written statement despite opportunities and later on, she was proceeded ex parte vide proceedings dated 19.12.2017. Hence, the contents of written statement of defendant no. 3 cannot be taken on record.

5. The plaintiff did not chose to file replication to the written statement of defendant no. 1. From the pleadings and contents of the parties, following issues were framed on 21.02.2017 :

(i) Whether the plaintiff is entitled for a decree in the sum of Rs.7,44,190/­ as prayed? OPP.

     (ii)      Whether the plaintiff has not come before this court with
               clean hands, as alleged? OPD

     (iii)     Whether the present suit does not disclose any cause of
               action? OPD



CS No. 576077/16                                             Page No. 5 of 15
      (iv)        Relief

6. In order to prove his case, the plaintiff appeared in the witness box as PW1 and tendered his affidavit as Ex. PW1/A in evidence, which is on the identical lines as per the plaint.

PW1 was duly cross examined.

7. On the other hand, defendant no. 1 examined two witnesses on its behalf, the detail of whom are here as under :

DW1 ­ Sh. Ranbir Singh, Proprietor of defendant no. 1 and DW2 ­ Sh. Prem Singh.

Both the above said DWs appeared in the witness box as DW1 and DW2 and tendered their affidavits as Exs. DW1/A and DW2/A respectively in evidence.

DW1 relied upon two documents viz. Ex. PW1/D1 i.e. the inventory list and Ex. DW1/1 which is the reply dated 01.04.2015 to the legal notice. DW2 relied upon the copy of his aadhar card which is exhibited as Ex. DW2/1.

Both the DWs have duly been cross examined.

8. I have heard learned Counsel for the plaintiff and defendant no. 1 and have gone through the entire record carefully.

Considering the pleadings, the issues framed, the evidence led and the arguments addressed, my issue­wise finding is as under :­ CS No. 576077/16 Page No. 6 of 15 ISSUE NO. (i):

"Whether the plaintiff is entitled for a decree in the sum of Rs.7,44,190/­ as prayed? OPP."

9. The onus to prove this issue is upon the plaintiff.

10. The plaintiff examined himself as PW1 and proved his affidavit in evidence as Ex. PW1/A which is on the identical lines as per the plaint. According to the plaintiff, he had sent his household articles to Pavrta, Bihar, through defendant no. 1 via vehicle bearing no. HR­55N­7074 and had deposited a sum of Rs. 20,000/­ with defendant no. 1 on 27.10.2014 as transportation charges, but no receipt was issued by defendant no. 1 in this regard. It is further alleged by the plaintiff that the goods booked by him were amounting to Rs. 4,44,190/­ and got totally damaged during the transportation, hence, became unusable. It is further urged by the plaintiff that despite various demands, defendant no. 1 has not compensated the plaintiff towards the cost of the damaged goods, therefore, he is claiming a sum of Rs. 4,44,190/­ towards cost of damaged goods and a sum of Rs. 3,00,000/­ towards mental agony, torture, inconvenience and hardships faced by him due to the said act of defendant no. 1.

11. In support of his case, the plaintiff has not relied upon any document. Though the plaintiff has mentioned about various CS No. 576077/16 Page No. 7 of 15 documents in his affidavit Ex. PW1/A, but when he gave his statement in the Court as PW1, none of the said documents were exhibited/proved by him during his oral examination under oath in the Court.

12. On the other hand, the proprietor of defendant no. 1 namely Ranbir Singh appeared in the witness box as DW1 and tendered his affidavit as Ex. DW1/A in evidence, wherein he has deposed that plaintiff has concealed the material facts as the articles, so booked by the plaintiff, were old and used articles and the same were worth Rs. 50,000/­ to Rs. 60,000/­ hardly. He further deposed that the said articles were duly received in good and fine condition by the son of the plaintiff by acknowledging the receipt thereof. He further deposed that the plaintiff had agreed to pay a sum of Rs. 20,000/­ to defendant no. 1 towards transportation charges, but he only deposited a sum of Rs. 2000/­ with defendant no. 1 and in order to skip balance payment of Rs. 18,000/­, the plaintiff is making false allegations regarding damage of the articles/goods. DW1 has relied upon the reply dated 01.04.2015 to the legal notice which is exhibited as Ex. DW1/1 and upon the inventory listed Ex. PW1/D1.

13. The plaintiff has not placed any document on record to show as to what articles were transported by him through defendant CS No. 576077/16 Page No. 8 of 15 no. 1. On the other hand, during the cross examination of the plaintiff (PW1), the learned Counsel for defendant no. 1 had put a document i.e. the list of articles of the plaintiff which were transported through defendant no. 1, which is exhibited as Ex. PW1/D1, to the village of the plaintiff and a perusal of the said document shows that the articles/goods were delivered in perfect condition which have been received by one Sonu whose signatures are appearing at point A on Ex. PW1/D1. In cross examination, PW1 has admitted that the name of his elder son is Sonu. He further admitted that he was not present at the spot when the goods were being loaded for transportation, but later on, he admitted that the goods were loaded on a small vehicle (TATA 407) from his residence in his presence. He further admitted that Ex. PW1/D1 i.e. the inventory list was signed by his son Sonu. A further perusal of Ex. PW1/D1 shows that son of the plaintiff had accepted the goods without any objection and it is not understood that if the goods were in damaged condition then why such fact was not mentioned by the son of the plaintiff while taking the delivery of the goods/articles.

14. It is also pertinent to mention here that the plaintiff is claiming a sum of Rs. 4,44,190/­ towards compensation for his damaged goods, but not even a single bill has been placed/proved by him on record to show that the goods/articles were ever CS No. 576077/16 Page No. 9 of 15 purchased by him or in which year they were purchased or what was purchase price.

15. The plaintiff (PW1) has further admitted in his cross examination that he has not placed any bills on record as the same have been stolen along with the jewellery, meaning thereby the plaintiff had bills of all the articles which were transported through defendant no. 1, but as per him the same were stolen. No report has been filed by the plaintiff on record along with plaint to show that all the bills were stolen along with jewellery as alleged by him. Therefore, this contention of the plaintiff has no force.

16. The plaintiff has not even placed on record any photograph of the damaged goods and he has admitted this fact in his cross examination. The plaintiff (PW1) has further stated in his cross examination that the figure of Rs. 4,44,190/­ has been calculated by him on the basis of his diary record, but he has not placed on record such diary on the basis of which he has arrived at a figure of Rs. 4,44,190/­.

17. On the other hand, DW1 has relied upon the document Ex. DW1/1 i.e. the reply dated 01.04.2015 to the legal notice of the plaintiff wherein it has been totally denied by defendant no. 1 that the articles/goods worth Rs. 4,44,190/­ were sent through it and it is submitted therein that the goods were old and used and of not more CS No. 576077/16 Page No. 10 of 15 than of Rs. 50,000/­ to Rs. 60,000/­ in costs. Apart from that, all the averments made in the legal notice by the plaintiff, have been denied by defendant no. 1.

18. Defendant no. 1 examined one more witness namely Prem Singh in support of its case who appeared in the witness box as DW2 and tendered his affidavit as Ex. DW2/A in evidence wherein he deposed that he has been working with defendant no. 1 as a free lancer labour for the last 4­5 years and has knowledge that the plaintiff had approached defendant no. 1 for shifting/moving his household articles from Delhi to Parvta, Bihar, for which defendant no. 1 had booked a vehicle. He further deposed that at that time, he had got down all the articles from the said vehicle and that the said household articles of the plaintiff were old and used articles worth Rs. 50,000/­ to Rs. 60,000/­. During his cross examination, DW2 stated that he was not aware of the valuation of the said goods/articles. He further stated that he had himself loaded the goods of the plaintiff.

19. It is a matter of record that the plaintiff has not even placed on record the legal notice issued by him to the defendant and there is nothing in his examination in chief and cross examination of DW1 and DW2 which could show that the articles/goods were got damaged during transportation.

20. Therefore, in my opinion, the plaintiff has miserably failed to prove that the goods worth Rs. 4,44,190/­ were sent by him through defendant no. 1 or that they were damaged during their transportation to Bihar for which he is claiming damages.

21. The plaintiff has further claimed a sum of Rs. 3,00,000/­ towards compensation on account of mental agony, torture, inconvenience and hardships allegedly caused by the defendants to him. It is not understood as to how the plaintiff suffered mental agony. The plaintiff has even not brought on record any document to show that he was in constant touch with the defendants for claiming compensation of damaged goods/articles.

22. No doubt, defendant no. 1 has not filed any counter claim demanding balance transportation charges of Rs. 18,000/­ from the plaintiff, but it cannot be said that no transportation charges were due towards the plaintiff. Therefore, in my opinion, the plaintiff has failed to prove that he suffered mental agony, shock etc. Even otherwise, I have already dismissed the prayer of the plaintiff whereby he is claiming an amount of Rs. 4,44,190/­ towards damaged articles, hence, I do not find any ground to grant compensation on account of mental agony, torture etc. to the plaintiff. This issue is, therefore, decided against the plaintiff and in favour of the defendant.

ISSUE No. (ii) :

"Whether the plaintiff has not come before this court with clean hands, as alleged? OPD"

23. The onus to prove this issue is upon defendant no. 1.

24. It has been urged by the learned Counsel for defendant no. 1 that the plaintiff has simply filed the present suit for harrassing the defendants and to skip the balance transportation charges. It is further urged by him that not even a single document has been proved on record by the plaintiff in support of his case. I have also perused the entire material placed on record. Though the plaintiff has mentioned numerous documents in his affidavit Ex. PW1/A, but when he was examined under Oath, he did not rely upon those documents. Therefore, in my opinion, the plaintiff had no documents in his favour at the time of filing of the present suit otherwise there was no reason for him for not relying upon those documents under Oath. Therefore, I have no hesitation to hold that the plaintiff has not approached this Court with clean hands. This issue is according decided in favour of defendant no. 1 and against the plaintiff.

ISSUE No. (iii) :

"Whether the present suit does not disclose any cause of action? OPD"

25. The onus to prove this issue is also upon defendant no. 1.

26. According to defendant no. 1, the articles/goods were not damaged during the transportation and, therefore, the plaintiff had no cause of action to file the present suit. I totally agree with the contention of defendant no. 1 because not even an iota of evidence has been placed on record by the plaintiff to show that the goods were received by him or by his son in damaged condition. Signatures of son of the plaintiff on Ex. PW1/D1 clearly shows that the goods were received in good/perfect condition and they were not damaged during the transportation. Even otherwise, the plaintiff could have placed on record the photographs of the damaged goods which has also not been done by him. Therefore, in my opinion, at the very first instance, the plaintiff had no cause of action to file the present suit. This issue is, therefore, decided in favour of defendant no. 1 and against the plaintiff.

RELIEF :

27. In the light of above discussions, the plaintiff is not entitled to any relief. Suit is accordingly dismissed. However, CS No. 576077/16 Page No. 14 of 15 parties are left to bear their own costs. Decree sheet be drawn accordingly and file be consigned to Record Room.

                                     RAJNISH          RAJNISH BHATNAGAR
                                     BHATNAGAR        Date: 2019.02.06
                                                      15:19:34 +0530

   Announced in the open Court       (RAJNISH BHATNAGAR)
   today i.e. 01.02.2019              District & Sessions Judge
                                        North­West District
                                        Rohini Courts, Delhi




CS No. 576077/16                                       Page No. 15 of 15