State Consumer Disputes Redressal Commission
Rohit Agarwal vs M/S Vijay Lakshmi Transport Co. & ... on 3 December, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 129 / 2008
Sh. Rohit Agarwal alias Rohit Singhal
Partner M/s K B Computer Forms
Head Office: D-5, Industrial Estate, Patel Nagar, Dehradun
......Appellant/ Complainant
Versus
1. M/s Vijay Lakshmi Transport Co. (Regd.)
Regional Office: Near Collectrate, Raja Road Chowk
Gandhi Road, Dehradun
Through Local Manager Sh. Devendra Kumar
2. M/s Vijay Lakshmi Transport Co. (Regd.)
Head Office: 4112, Naya Bazar, Dehli-06
Through Partner Sh. Sumit Kumar
......Respondents/ Opposite Parties
Mr. Rajeev Acharya, Learned Counsel for the Appellant
Ms. Anupama Gautam, Learned Counsel for the Respondents
Coram: Hon'ble Mr. Justice B.C. Kandpal, Chairman
Mr. D.K. Tyagi, Member
Dated: 03/12/2014
ORDER
(Per: Mr. D.K. Tyagi, Member):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 filed by the complainant/appellant against the order dated 06.05.2008 passed by the District Forum, Dehradun in consumer complaint No. 147/2007. By the order impugned, the District Forum has allowed the consumer complaint and has directed the opposite parties/respondents to pay to the complainant a sum of Rs. 27,182/- together with interest @ 9% per annum on the said amount, from the date of filing the consumer complaint till the date of actual payment.2
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant is the Partner of M/s K B Computer Forms, who supplies stationary to the Government and private offices. He received an order from Gujarat Urja Vikas Nigam Ltd., Baroda (Gujarat) for supply of bill forms for their Palampur and Mehsana offices on 27.05.2005. The complainant booked the goods to the opposite party No. 1 on 28.09.2005, which were to be delivered at the offices of Gujarat Urja Vikas Nigam Ltd. The complainant made payment of Rs. 7,182/- through cheque as freight on 28.09.2005 against the bill No. 18284 of the opposite party No. 1. The Manager of opposite party No. 1 has apprised the complainant that his goods have already delivered. The printed stationary to be sent to Palampur and Mehsana in 270 packages. On 17.07.2007, Sh. Pradeep Agarwal, employee of the complainant's company, went to the offices of Gujarat Urja Vikas Nigam Ltd., Bardoa (Gujarat) and asked to pay bill amount, but the offices have informed him that the goods have never reached there. The opposite party No. 1 did not deliver the goods at the destination and no reason was shown to the complainant about non- delivery of goods. The opposite parties have given loss to the complainant at the tune of Rs. 1,60,722.90 paise and Rs. 7,182/- towards freight, total Rs. 1,67,904.90 paise. The complainant also lodged an F.I.R. dated 26.07.2007 against the opposite parties in the Police Station, Patel Nagar, Dehradun. The complainant sent the notices to the Manager and Partner of the opposite parties through registered post dated 31.08.2007 delivered on 03.09.2007. Learned counsel for the opposite parties sent a reply of said notices on 19.09.2007.
3. The opposite parties filed written statement before the District Forum and pleaded that the complainant is not a consumer of the opposite parties and there is no deficiency in service on their part. The consumer complaint has not been instituted within the period of limitation as prescribed under the Consumer Protection Act, 1986. It was the direction of the complainant on the basis of which the opposite parties acted. It is 3 admitted that the goods of M/s K B Computer Forms-complainant's company were got booked to the opposite party No. 1, which were to be delivered as per their directions and as such the goods were loaded on 28.09.2005 from Dehradun, but on 29.09.2005 instructions were given to the opposite party No. 1 that the goods be not delivered to the party for whom it was booked and the same be unloaded till further instructions. Accordingly, the goods were unloaded at Delhi border in the godown of the opposite party No. 2 and where it was kept for three months awaiting further instructions from the complainant's company and when no such instructions came, the goods were thereafter shifted to Delhi godown of the opposite parties under intimation to the complainant. It is admitted that the goods, which were booked on 28.09.2005, the payment of the said order was made by cheque on 31.03.2006 and during this period on several times the complainant booked the order for delivery of goods to his customers at different destinations and as such the complainant was fully in touch with the opposite parties. It is admitted that the goods were booked on 28.09.2005, which were in 270 packages vide bill No. 18284 dated 28.09.2005 and the said packages are still lying in the godown of the opposite party No. 2 and the complainant is not taking the same nor giving any instruction which they have not given after 29.09.2005 till date and they are liable to pay demurrage charges as per the rules of the opposite party Firm. The complainant was throughout in the knowledge of 270 packages are with the opposite parties as per their instructions. It is wrong that the complainant ever inquired about the date of 270 packages, as they were throughout aware of the actual position of those goods. It is wrong that the opposite parties ever avoided any enquiry as no such inquiry was made about the goods, which are the subject matter of the present consumer complaint. It is wrong to say that the opposite parties took the charges for loading and delivery of the goods by speaking lie. It is wrong to say that the opposite parties have committed any breach of trust with the complainant. Real fact is that it was on 29.09.2005 as per the directions of the complainant, the goods were got unloaded at Delhi border and was 4 shifted to Uttar Pradesh border godown of opposite parties and after three months, when no further intimation came from the complainant, the same were transported and shifted to Delhi godown of the opposite parties under intimation to the complainant and awaited for their instructions and it was because for the complainant's directions, the goods could not be delivered and sent to its destination. The complainant is not taking back these goods and is not giving instructions to the opposite parties because he has to pay demurrage charges for the same to the opposite parties. It is wrong that the opposite parties have given any loss to the complainant.
4. The District Forum on an appreciation of the material on record, partly allowed the consumer complaint vide its order dated 06.05.2008 in the above manner. Aggrieved by the said order, the complainant-appellant has filed the present appeal.
5. We have heard learned counsel for the appellant-complainant and respondents-opposite parties and have also perused the record.
6. There is no dispute with regard to the fact that the appellant had booked the goods of his company to the respondent No. 1. There is also no dispute that 270 packages of stationary (bills forms) were booked to the respondent No. 1 to be delivered on two offices of Gujarat Urja Vikas Nigam Ltd. at Palampur and Mehsana. There is also no dispute that the appellant paid a sum of Rs. 7,182/- as freight to the respondent No. 1 through cheque against the booking order. Learned counsel for the respondents has submitted that the goods of M/s K B Computer Forms were got booked to the respondents, which were to be delivered as per their instructions and as such the goods were loaded on 28.09.2005 from Dehradun, but on 29.09.2005 the instructions were given to the respondents that the goods be not deliver to the party for whom it was booked and the same be unloaded till further instructions. Learned counsel also submitted that accordingly as per the instructions of the appellant, the goods were 5 when no such instructions were came, the goods were thereafter shifted to Delhi godown of the respondent No. 2 under intimation to the appellant. Learned counsel for the respondents also submitted that the appellant despite being in full knowledge of the position of these goods, which are in 270 packages, is not taking back or is not giving instructions to the respondents because the appellant has to pay the demurrage charges for the same to the respondents. Learned counsel for the appellant has submitted that by not delivering the goods at the destination, the appellant suffered the loss at the tune of Rs. 1,67,904.90 paise whereas the learned District Forum has allowed the consumer complaint partly for a sum of Rs. 27,182/- only. The respondents have not delivered the goods to the destination, therefore, it is deficiency in service on the part of the respondents. Learned District Forum has not passed order in favour of the appellant for payment of costs of goods.
7. From the perusal of the documents filed by the appellant and submissions raised by the learned counsel for the parties, we are of the view that the appellant, partner of M/s K B Computers Forms, in his affidavit (Paper No. 19) has not mentioned about the instructions given by him on the next date of booking of goods, i.e. 29.09.2005, whereas the respondents have filed the affidavit of Sh. Sumit Banga, registered partner of M/s Vijay Lakshmi Transport Co. (Regd.) at paper Nos. 28-34. This affidavit was filed before the District Forum in evidence in which Sh. Sumit Banga has deposed in para No. 6 of the affidavit that the goods of appellant were got booked to the opposite party, which were to be delivered as per their directions and as such the goods were loaded on 28.09.2005 from Dehradun, but on 29.09.2005 instructions were given to the opposite party that the goods be not deliver to the party for whom it was booked and the same be unloaded till further instructions. Sh. Sumit Banga has also deposed in the affidavit that accordingly the goods were unloaded at Delhi border in the godown of the opposite party No. 2 where it was kept for three months awaiting further instructions from the 6 complainant's firm and when no such instructions came, the goods were thereafter shifted to Delhi godown of the firm of opposite party under intimation to the appellant. The respondents have admitted that the goods, which were booked on 28.09.2005, the payment of the said order was made by cheque on 31.03.2006 and during this period on several times the complainant-appellant booked the order for delivery of goods to their customers at different destinations and as such the complainant-appellant was fully in touch with the opposite party. Sh. Sumit Banga has also filed his counter affidavit dated 23.04.2009 before this Commission, which is at paper Nos. 50-52. In that affidavit, the deponent, Sh. Sumit Banga, has deposed in para No. 7 that the goods were loaded on 28.09.2005 from Dehradun, but on 29.09.2005, the respondent was telephonically informed that the goods booked for the person in Gujarat were not to be delivered there as such the goods be unloaded till further instructions by the appellant. On the said instructions, the goods were unloaded at Delhi border in the godown of the respondent No. 2 and the same remained there for about three months, but no instructions were received as such the goods were shifted to Delhi godown with an intimation to the appellant. In the counter affidavit deponent-Sh. Sumit Banga has also stated that the payment for the goods booked on 28.09.2005 was made by cheque on 31.03.2006 and during this period the appellant and respondent continued their other business transactions. He has also stated that the 270 packages are still lying in the godown of the respondent, which the appellant can take back after paying the demurrage charges as per the rules of the respondent. The copy of this counter affidavit was received by the learned counsel for the appellant on 29.04.2009, even then the appellant has not filed any rejoinder affidavit to controvert the submissions stated therein. From the perusal of the counter affidavit, it is evident that after 28.09.2005 on the instructions of appellant, the goods were unloaded at Delhi border and were kept in the godown. The appellant did not give any further instructions about the goods, whether the goods be deliver at destination or no effort to get back these goods was done by the appellant. The appellant has not 7 explained why did he waited up to the month of July, 2007 to inquire about his goods from the respondents. According to the appellant, he enquired about his goods from the respondents in the month of July, 2007 only. This shows that the appellant himself was negligent to either take back his goods or to give instructions to deliver the goods at destination, just after booking or within a few months after booking the goods.
8. Learned counsel for the appellant cited a decision of Hon'ble Tamilnadu State Commission in the case of Sushil Jain & Others vs. Ganesh Roadways; II (1995) CPJ 15. In the said case, the lorry which carried 300 tyres has not reached the destination and nothing is heard of the lorry or the consignment. The opposite party transporter is liable for the loss, as there has been deficiency in service in the transport of this consignment. But with due respect to the Hon'ble Tamilnadu State Commission this citation is not applicable in the instant case, because the respondents have specifically mentioned in the counter affidavit that the goods booked were unloaded on 29.09.2005 at the instructions of the appellant and no further instruction has been given by the appellant to the respondents. The goods were unloaded at Delhi godown of respondent No. 2 and is still lying there in packed condition.
9. From the perusal of the evidence on record as well as the submission raised by the learned counsel for the parties, we are of the view that the appellant has not given any instruction to the respondents after 29.09.2005 for delivery of the goods. Therefore, the goods booked by the appellant in 270 packages are still lying in the godown of respondent No. 2. The District Forum has considered all the facts and circumstances of the case and rightly allowed the consumer complaint vide its order dated 06.05.2008. The respondents have not filed any appeal against the impugned order, therefore, no relief can be given to the respondents. The impugned order passed by the District Forum does not suffer from any 8 infirmity and is fit to be upheld. The appeal lacks merit and is liable to be dismissed.
10. For the reasons aforesaid, the appeal is dismissed. The impugned order dated 06.05.2008 passed by the District Forum in consumer complaint No. 147 of 2007 is hereby confirmed. No order as to costs.
(D.K. TYAGI) (JUSTICE B. C. KANDPAL)