State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd., ... vs M/S Parsons Textiles, 1043, Bahadurpur ... on 30 November, 2012
F.A. No. 1251 of 2008 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1251 of 2008
Date of institution : 31.10.2008
Date of decision : 30.11.2012
United India Insurance Co. Ltd., Regional Office, SCO No. 123-
124, Sector 17-B, Chandigarh, through its duly constituted
Attorney.
.....Appellants/O.Ps
Versus
M/s Parsons Textiles, 1043, Bahadurpur Road, Hoshiarpur,
through its Partner Parshotam Dass Sood
........Respondent/complainant
First Appeal against the order dated
03.09.2008 passed by the District
Consumer Disputes Redressal Forum,
Hoshiarpur.
Before:-
Sardar. Jagroop Singh Mahal,
Presiding Judicial Member.
Sh. Vinod Kumar Gupta, Member Present:-
For the appellant : Sh. D.K. Dogra, Advocate
For the respondent : Sh. C.S. Marwaha, Advocate
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER:-
This is O.Ps appeal under section 15 of the Consumer Protection Act against the order dated 03.09.2008 passed by the learned District Consumer Disputes Redressal Forum, Hoshiarpur (hereinafter referred to as the District Forum) vide which the complaint was accepted and the O.Ps were directed to pay USD 1074.326 (as assessed by the surveyor-Lloyd's Agency) towards first claim and $ 71 towards the second claim to the complainant F.A. No. 1251 of 2008 2 with interest @ 9% per annum and also to pay litigation cost of Rs. 1000/-.
2. The present complaint was filed on behalf of the complainant by its partner Parshotam Dass Sood alleging that the complainant firm is carrying on business of Woollen Textiles for the purpose of earning their livelihood by means of self employment. The complainant firm took a marine certificate on 11.10.2005 for a sum of Rs. 30,30,0001/-. It sent 72 bales containing woollen shawls from India to Kuwait to the consignee-Mohammad Al-Mosawi & Sons Co. Kuwait but when the consignment reached the consignee, the goods were short worth US$ 1074.33. The complainant lodged a complaint with the O.Ps but the same was delayed on one pretext or the other. Thereafter on 28.11.2005, 10 bales were sent to Dubai by sea in which there was shortage of 19 pieces worth US$
71. In this respect also, the claim was lodged with the O.Ps but they did not pay the amount.
3. After sending a number of letters to the O.Ps, the complainant filed a complaint before the Learned District Consumer Forum but the same was dismissed by the order dated 02.04.2007 being pre mature. The complainant was directed to supply all the material documents to the O.Ps for settlement of claims within ten days. The complainant submitted all the material documents to the O.Ps but the G.R., shortage certificate issued by F.A. No. 1251 of 2008 3 the competent authority were not submitted, its demand being illegal. When the claim was not decided by the O.Ps/appellants, the complainant filed the present complaint claiming US$ 1074.33 and US$ 71=Rs. 53000/- alongwith interest @ 24 percent p.a., Rs. 30,000/- as compensation for inconvenience, harassment, mental tension and Rs. 5500/- as cost of litigation.
4. The complaint was opposed by the appellants alleging that the District Forum had no jurisdiction to try the complaint and the same was bad for non joinder of parties. It was contended that intricate questions of law and facts are involved and it should be therefore referred to Civil Court for adjudication. The complaint was said to be estopped by its act and conduct from filing the present complaint. On merits, it was admitted that the complainant purchased a marine certificate on 11.10.2005 but it was denied if 72 bales containing woollen shawls were sent from India to Kuwait or 10 bales containing woollen shawls from India to Dubai. It was also denied if there was any shortage in the said consignments nor the shortage certificate from any independent agency was obtained by the complainant. It was denied if the complainant was entitled to the compensation prayed for.
5. Both the parties produced evidence in support of their contentions.
F.A. No. 1251 of 2008 4
6. Learned District forum after hearing arguments of the learned counsel for the parties and perusing the record, allowed the complaint as mentioned in Para No. 1 above. The O.Ps have challenged the same through this appeal.
7. We have heard the arguments of the learned counsel for the parties and have perused the record.
8. Learned Counsel for the appellants has argued that the complainant has not produced any G.R. to prove if 72 bales containing woollen shawls and again 10 bales containing woollen shawls from India to Kuwait and Dubai respectively. There is no denying the fact that G.R. is the document which would show that the consignment was actually sent from India to Kuwait or Dubai. The complainant has admitted that the O.Ps had demanded G.R. and the same was not submitted to the O.P/appellant. The reason given by the complainant is that the demand of said document made by the O.P/appellants was illegal. The said G.R. was not produced even before the learned District Forum for the reasons best known to it. We are of the opinion that an adverse inference is to be drawn against the complainant that no such bales were sent by the complainant and the question of there being shortage in the consignment did not arise. The G.R. would have been an important document to prove if the consignment was sent and in its absence no such fact would be admitted to have been proved. F.A. No. 1251 of 2008 5
9. As regards the shortage, again there is no worthwhile evidence to prove the same. The learned District Forum in its order has referred to a survey report but a perusal of the record shows that the survey report was never tendered into evidence. The documents which were tendered by the complainant find mention in Para No. 6 of the complaint as well in the statement dated 12.2.2008 made by the complainant before the learned District Forum. No such survey report was tendered by the complainant. However at the stage of arguments, a survey report was produced alongwith the written arguments. The survey report dated 19.05.2008 is not the document perse admissible in evidence. The author of the survey report has not been produced nor his affidavit has been tendered. In the written arguments, there is no request for admitting the documents as additional evidence. No opportunity has been afforded to the O.P/appellants to rebut this document given at the time of argument nor a copy of the same appears to have been supplied to the counsel opposite. We are therefore of the opinion that the documents attached with the written arguments cannot be read in evidence unless the same are perse admissible and the copy of the same has been furnished to the O.Ps to give a reply thereto. The survey report therefore was wrongly read in evidence by the learned District Forum. If this F.A. No. 1251 of 2008 6 report is excluded, there is virtually no evidence to prove the shortage.
10. Otherwise also, as per coloumn No. 5, the survey was conducted at consignee office in Kuwait. The delivery of the goods had already been taken by the consignee and he was free to temper with the same. The conclusion shows that the shortage could be due to pilferage and short shipment. As discussed above, the consignment was in the office of the consignee and there is no such evidence to suggest if the pilferage was not done at his premises. As regards short shipment, this relates to prior to the loading of the goods by the complainant in the container. In any case, the pilferage or short shipment is attributable to the complainant and his consignee.
11. The learned counsel for the O.P/appellants submitted that a shortage certificate could be obtained from the Customs Department when the complainant took delivery of the consignment. However no such certificate was obtained. Apart from that shortage could be proved by bringing it to the notice of the representative of the O.P/appellants before the delivery was taken which method was also not implied. We therefore have no reliable evidence to prove that there was shortage in the goods.
12. Learned counsel for the complainant/respondent has argued that there is a bill of lading dated 07.10.2005, a copy of which was F.A. No. 1251 of 2008 7 produced alongwih written argument filed by the complainant on 19.05.2008. According to him, this document proves that 72 bales containing 10 woollen shawls were sent from Ludhiana to Kuwait. This document also cannot be read in evidence because the complainant had not submitted it in evidence as is the case of the survey report, the bill of lading was not tendered in evidence by the complainant on 12.2.2008 nor any application for additional evidence was moved to admit this document in evidence. The bill of lading is not admissible perse nor the person who issued it has been produced. It was produced on the back of the O.P/appellant and no opportunity was given to the appellant to rebut the same nor a copy of it appears to have been supplied to the appellant. This document therefore cannot read in evidence.
13. Otherwise also, the bill of lading shows that the goods were received for shipment on 07.10.2005. The marine policy Mark A was however obtained subsequently on 11.10.2005. According to the learned counsel, the goods which had already been sent on 07.10.2005 cannot be covered under the policy which was issued subsequently.
14. In view of the above discussion, we are of the opinion that in the present case neither the shipment is proved nor the shortage. The material documents which proved the same have been withheld by the complainant for the reasons best known to him. F.A. No. 1251 of 2008 8 We are of the opinion that there was no merit in the complaint and it was liable to be dismissed but has been wrongly allowed. We accordingly allow the appeal, set aside the impugned order dated 03.09.2008 and consequently dismiss the complaint.
15. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 31.10.2008. The amount of Rs.25,000/- with interest, if any, accrued thereon be refunded by the registry to O.Ps/appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
Copies of this order be sent to the parties free of cost.
(JAGROOP SINGH MAHAL)
PRESIDING JUDICIAL MEMBER
November 30, 2012. (VINOD KUMAR GUPTA)
Rupinder MEMBER
F.A. No. 1251 of 2008 9