State Consumer Disputes Redressal Commission
State Bank Of India Erode (Code 0837) ... vs P.S. Duraisamy S/O. Senimalai Gounder ... on 29 September, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., JUDICIAL MEMBER
Tmt. VASUGI RAMANAN MEMBER II F.A.NO.376/2009 (Against order in CC.NO.12/2003 on the file of the DCDRF, Erode) DATED THIS THE 29th DAY OF SEPTEMBER 2011
1. State Bank of India Erode (Code 0837) Rep. by its Branch Manager D-48, State Bank Road Erode- 638 001
2. The State Bank of India Chandra Branch State of Bihar Appellants/ 1 & 4 Opposite parties Vs.
1. P.S. Duraisamy S/o. Senimalai Gounder Prop. Tara Tex Towel Manufacturers 77, Shandhankarukku Surampatti Road, Erode-9 Respondent/ Complainant
2. The Manager MAA Annapurna Transport Agency Pvt.
Ltd., Erode Branch 20, Kandasamy Street Erode- 638 003
3. The Post Master Chanda Post Office State of Bihar Respondents/ 2 & 3 opposite parties The 1st Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay a sum of Rs.22400/- alongwith interest, and compensation of Rs.35000/- and cost. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.08.08.2008 in CC.No.12/2003.
This petition coming before us for hearing finally on 15.09.2011. Upon hearing the arguments of the counsel on either side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellants/ Opposite parties: M/s. P.D.Audikesavalu, K.Kumaran Counsel for the 1st Respondent/Complainant : M/s. R. Marudhachala Murthy 2 & 3 Respondents/ 2 and 3 opposite parties : Served absent M. THANIKACHALAM J, PRESIDENT
1. The opposite parties 1 & 4 are the appellants.
2. Facts leading to the case:
The complainant/1st respondent, dealing with fancy cloth items, had sold the towel items, under two invoices to one Rajeswar Prasad Seth, having his business concern at Chanda Post, Araria District, Bihar, for a total sum of Rs.22,400/-. The invoices, and hundis were sent for collection, through 1st opposite party bank, who is competent to send the same to their counter part at Chanda, who in turn will collect the amount, and deliver the bill, on which basis the purchaser is entitled to take delivery of the goods, sent through the 2nd opposite party. Despite the lapse of more than 30 days, amount was not collected by the 1st opposite party, and reminder by the complainant also failed to yield any positive result. Thus by the negligence committed by the opposite parties 1 and 2, the complainant was put to monetary loss of Rs.22400/-, in addition causing mental agony, for which the complainant is entitled to compensation of Rs.35000/-.
Thus claiming originally, the consumer complaint was filed, against opposite parties 1 and 2.
3. After objections raised by the opposite parties, regarding non-joinder of parties 3 and 4, were impleaded as per order in CMP.No.131/2003 dt.25.6.2003.
4. The opposite parties 1 and 4 resisted the case, interalia contending that on receipt of way bill hundis, they were sent to Chanda branch, Bank, through registered post by post office, which was intercepted by somebody, and the goods were taken by the consignee, for which they cannot be held responsible, since they have not committed either negligence or deficiency in service, thereby prayed for the dismissal of the complaint.
5. The 2nd opposite party, admitting the transport of goods through them, would contend that the purchaser by name Rajeswar Prasad Seth, had taken delivery of the goods on 15.6.2001, paying the freight charges, since the way bill said to pay and accordingly the basis of the original documents, since goods delivered, they are not liable to answer the claim of the complainant, since at no point of time, they have committed any negligence, or deficiency, as the case may be.
6. The case against the 3rd opposite party was dismissed for non-prosecution, as per the notespaper, and even as recorded in the preamble of the judgement, dt.8.8.2008.
7. The District Forum, while evaluating the matter, not applying the mind properly, forgetting the fact, that the case against 3rd opposite party was dismissed, unfortunately passed an award, as seen from the relief column, even against the 3rd opposite party, directing to pay the amount, thereby showing inconsistency. Hence, since the 3rd opposite party was not called upon to contest the case, there could be no order against the 3rd opposite party, and the order against the 3rd opposite party should be upset, for that the appeal is to be allowed, to that extent even at present.
8. The 2nd opposite party being the carrier, according to the District Forum, has not committed any deficiency, since goods were delivered to the person, purchased, on production of the original documents. Thus the 2nd opposite party was relieved from the claim, not challenged by the complainant, and in this view, the dismissal order of the case, against the 2nd opposite party should be confirmed.
9. The District Forum, by going through the materials, felt the opposite parties 1 and 4 alone have committed negligence/deficiency, in view of the fact they have not proved, that the original documents entrusted with the opposite party, was delivered to the proper person. In this view, fixing negligence/ deficiency, as if the complainant suffered monetary loss, a direction came to be issued to pay the value of the goods, as per the invoices, as well a further sum of Rs.15000/- towards compensation for mental agony, in addition to cost of Rs.1000/-, though the complainant had claimed cost of Rs.500/-. Aggrieved by the said order, as said above, the opposite parties 1 and 4 alone have preferred this appeal.
10. The learned counsel for the appellants would contend, that on receipt of the documents, from the complainant, including hundi, way bill etc., they were sent by registered post, but unfortunately that registered article, was not delivered to the 4th opposite party, whereas somebody had intercepted, committing forgery, fabricating the documents, obtained the original, and took delivery of the goods, for which neither the 1st opposite party, nor the 3rd opposite party could be held responsible, which was not properly considered by the District Forum, requiring deep consideration, by this commission, in order to upset that finding, which is opposed.
11. Admittedly, the complainant had consigned the goods, and under two credit invoices, through the 2nd opposite party, on 4.5.2001 to one Rajeswar Prasad Seth, Chanda, Harariya District, Bihar, mentioning the consignee as self not mentioning the name of the purchaser. The credit invoices and the hundis prepared, as seen from the exhibits, were handed over to the 1st opposite party/ banker, not in dispute.
It is also not in dispute, that the 1st opposite party sent those documents to the 4th opposite party, for the purpose of collecting the amount, handing over the original documents to the consignee, thereby empowering, the consignee to take delivery of the goods from the 2nd opposite party transporter. But unfortunately, as seen from the records, the documents were not handed over to the 4th opposite party, and somebody intercepted, as recorded by the District Forum also, fabricating or forging the documents, then the purchaser took delivery of the goods, straightaway from the 2nd opposite party, without the knowledge of the 4th opposite party. The 2nd opposite party also, not knowing, whether there was any bank transaction or not, seeing the invoice alone, or way bill alone, since it is said to pay, amount paid, delivered the goods, that cannot be faulted, and that is why the 2nd opposite party was relieved from the claim From the above admitted facts, one thing is certain, that the 1st opposite party, as a banker, performed their duty, in sending the documents, through registered post, by post office, which cannot be per se faulted.
12. It is repeatedly contended by the 4th opposite party in the written version, which is also supported by some of the documents, that the 4th opposite party has not received the documents, sent by the 1st opposite party. Therefore, prima-facie, as far as the 4th opposite party is concerned, there is no material, that the 4th opposite party, having received the way bill hundi, failed to collect the amount, and handed over the documents to the purchaser. If the purchaser had fabricated the documents, cheated the complainant, without reference to bank, we cannot say the 4th opposite party had committed negligence, or deficiency, that too, in view of the fact, there was no privity of contract between 4th opposite party, and the complainant. The District Forum, without understanding, or assessing the relationship between the complainant and the 4th opposite party, taking into account, this is also one of the branch office of the State Bank of India, unnecessarily in our opinion, affixed the seal of negligence and deficiency, that should be erased, without trace. Therefore, we are of the opinion that the order against the 4th opposite party also should go.
13. It is not the case of the parties before us, or before the trial court, that the goods consigned were not taken by the consignee viz. the purchaser, though credit invoices were raised, and way bills were prepared, indicating the consignor, as the consignee i.e., self, giving without address. Thus it is seen, the documents had been sent by the 1st opposite party, and it reached the destination also. The 1st opposite party, being the banker, have to depend upon the post office, and accordingly they have sent the cover containing the hundi, and waybill, to 4th opposite party. Therefore, we are inclined to say that the 1st opposite party did their duty properly, not committing any deficiency. This being the position, we find no reason to direct the 1st opposite party, to refund the value of the goods, or any compensation for the alleged mental agony, said to have been suffered by the complainant, since it is the mistake of the complainant, in sending the goods to an unknown person, that too without proper address, as seen from the way bill, as well as, as seen from the credit invoices. In this context, we have to see, what was the role played by the post office and why the complainant failed to implead the consignee, who had taken delivery of the goods, admittedly.
14. The complainant, having failed to realize the amount, addressed a letter to the 1st opposite party, who in turn informed the same to the 4th opposite party, about the dispatch of the lorry receipts, on 21.5.2001. The State Bank of India, Chanda branch, denying the receipt of the registered article, after conducting local enquiry, informed the 1st opposite party, that there was no such business man as claimed by the complainant, in the said remote village, which was agrarian based. Thereafter, the 1st opposite party addressed the post office, and the post office informed, that the registered letter No.689 dt.21.5.2001, of Erode Head office, was delivered to the addressee on 2.6.2001, and in the communication, we see some acknowledgement also, and it is not clear, who had received the letter. But the fact remains, the post office delivered the receipts to somebody. This can be find out only after investigation, that too only in the presence of the purchaser viz. Rajeswar Prasad Seth, who is not impleaded as a party. Further the complainant also failed to prosecute the case, as indicated above, against the post office, who alone is competent to say, to whom, the letter sent by the 1st opposite party, was delivered.
Thus, in the absence of necessary parties viz. post office (against whom the case was dismissed for non-prosecution), and in the absence of consignee-purchaser, it is impossible to fix any deficiency, or negligence upon the 1st opposite party alone, since admittedly, or as proved, they have sent the documents to Chanda, where the documents were received by the consignee, and the consignment also taken delivery. The complainant instead of proceeding against the consignee, has followed the short cut method, to proceed against the bank, who have not committed any deficiency, in our considered opinion. The records would indicate, there might have been probably impersonation, forgery, fabrication of documents, misappropriation of the goods, etc., and these things could be decided effectively by elaborate enquiry, approaching the appropriate forum, impleading all parties, as said above, and cannot be decided in a summary way, on the basis of the affidavit, that too in the absence of the post office, as well as in the absence of the consignee, and these facts were not properly considered by the District Forum. Therefore in our opinion, the District Forum has erroneously slapped an order against the opposite parties 1 and 4, when the alleged negligence and deficiency were not proved, which requires to be upset, for that, the appeal deserves acceptance.
15. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.12/2003, dt.08.08.2008, and the complaint is dismissed against all the opposite parties. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellants/1st and 4th opposite parties, duly discharged.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER I JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Bank