State Consumer Disputes Redressal Commission
A. Viswanathan,Head Office, Door ... vs J. Thirumalai Rajan S/O.S.P. ... on 30 December, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBERF.A.482/2010
[Against order in C.C.No.79/2006 on the file of the DCDRF, Dindigul] DATED THIS THE 30th DAY OF DECEMBER 2011 A. Viswanathan, | S/o. Arumugam, | Appellant/2nd Opposite Party Proprietor, M/s.K.R. & Sons Lorry Service, | Head Office, Door No.21/15A, Ramar Koil Street, | Coimbatore.
Vs.
1. J. Thirumalai Rajan, | 1st Respondent / Complainant S/o.S.P. Jayabharathi Rajan, | W-9/5, 32, TRSP Street, Aalapatti, HoH | Pannaikadu Post, Kodaikonnal Taluk, | Dindugal District.
2. The Administrator, | 2nd Respondent/ 1st OP.
M/s.K.R. & Sons Lorry Service, | 12, Taluk Office Road, | Dindugal Town Post. | 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 Rs.5,06,875/- the total value of the pepper and also for compensation. The District Forum allowed the complaint against the opposite parties, against the said order, this appeal is preferred by the opposite parties praying to set aside the order of the District Forum dt.05.11.2009 in C.C.79/2006.
This appeal coming before us for hearing finally on 01.12.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant /2nd OP. :
M/s.A.R.Suresh, Advocate.
Counsel for the 1st Respondent/Complainant : Mr.A.Mohan, Advocate.
Counsel for the 2nd Respondent/1st OP : [Dismissed for not taking steps] M. THANIKACHALAM J, PRESIDENT
1. The second opposite party, who suffered an award, wherein, a direction has been issued against not only him, but also against another opposite party, to pay a sum of Rs.2,39,165/- with interest thereon along with costs of Rs.5,000/-, is the appellant.
2. The first respondent/complainant, who had taken lease of pepper garden, collected pepper weighing 1650 Kgs. worth about Rs.1,93,050/- on various dates and the said pepper were packed in 22 bags each weighing 25 kgs., which was transported through the first opposite party, to be delivered by the second opposite party at Coimbatore on the basis of self-consignment on 17.08.2006, agreeing to pay the charge on taking delivery. Accordingly delivery receipts/way bills were issued. On 18.08.2006, the complainant had been to the second opposite partys office at Coimbatore, requested to deliver the consignment, offering to pay the amount and at that time, the second opposite party represented that using the name of the complainant, someone had taken delivery, further assuring and promising to get back and deliver the pepper bags. Despite days gone, reminders, the opposite parties failed, resulting a Police complaint also, followed by registration of a case under Section 420 of Indian Penal Code. The Police were unable to trace out the culprit and the opposite parties also failed to get back the pepper bags misdelivered, thereby making the complainant, to incur expenses to the extent of Rs.18,790/-, further causing mental agony including transport charges. Thus, in all, including the value of the pepper, the opposite parties are liable to pay a sum of Rs.5,06,875/-. Thus, a consumer complaint came to be filed before the District Forum, Dindigul.
3. The opposite parties, admitting entrustment of the consignment of 22 bags of pepper, resisted the case inter alia contending, that on reaching the goods at Coimbatore, the complainant came with two Mini Tempo to the second opposite party and took delivery of the goods also, with the help of the Loadmen, promising to sign the delivery receipt at later point of time, that thereafter complainant failed to come and sign in the receipts, that on complaint to the Police, investigation revealed that the complainant alone had taken delivery of the goods and therefore no further proceedings was initiated by the police against the opposite parties, that as such, the opposite parties have not committed any negligence, causing damage to the complainant, and prayed for the dismissal of the case.
4. The parties in order to make out the case as pleaded, filed affidavits and the complainant alone had filed 9 documents in addition and no document has been filed on behalf of the opposite parties.
5. The District Forum while evaluating the materials, felt the story projected by the opposite parties, as if, the complainant had taken delivery of the goods is not proved, since not supported by any acceptable evidence. In this view, it came to the conclusion, based upon the documents, the complainant is entitled to the value of the goods namely Rs.1,93,050/-. In addition, the District Forum has come to the conclusion, that because of the non-delivery of the goods, the complainant had incurred unnecessary expenses to the tune of Rs.18,790/-, which was also, ordered to be paid by the opposite parties.
Curiously, a further direction was given as transport charges to bring bags to the first opposite party, which the complainant is not entitled, since that is the natural expenses ought to have incurred, by the complainant alone even in the case delivery of the goods.
When the District Forum has awarded the costs of the goods, awarding Rs.2,325/- being the transport charge is against the factual position and therefore this order is liable to be set aside and we conclude so here itself.
6. It is the further conclusion of the District Forum, that for the loss in business, mental agony, the complainant is entitled to a sum of Rs.25,000/-. Thus in all, a sum of Rs.2,39,165/- was ordered to be paid, that too, with interest from 17.8.2006, from the date of the consignment with costs of Rs.5,000/-, as per the order dated 05.11.2009, which is impugned by the second opposite party alone, not questioned by the first opposite party.
7. It is admitted by the opposite parties themselves, that the complainant had consigned 22 bags of pepper through the first opposite party on 17.8.2006, which is to be delivered at Coimbatore by the second opposite party. The value of the goods are not in dispute and they are supported by affidavit issued by owner of the pepper garden, as seen from Ex.A2 and Ex.A3 as well as Village Administrative Officer Certificate. Therefore, it can be safely concluded that the value of the 22 bags entrusted to the first opposite party, to be transported to Coimbatore was Rs.1,93,050/-. The learned counsel for the appellant also has not challenged the value of the pepper before us. The consignment is also evidenced by Ex.A2, the way bill, wherein the complainant has agreed to pay Rs.880/- at the destination namely the second opposite party, not very much in dispute. When the transport namely the opposite parties had undertaken to deliver the goods for consideration, they should have delivered the same, as the service provider and the failure to deliver the goods will come within the meaning of deficiency in service, which is also not very much in pute.
8. It is the specific case of the complainant, that when he approached the second opposite party on 18.08.2006, they have not delivered the consignment, whereas, they have delivered previously to someone which is against the terms of the contract. In the way bill produced by the complainant, there is no provision for acknowledgment, taking delivery of the consignment by the complainant. In the usual course, when the goods consigned are delivered to the consignee, being Self it is the duty of the service provider, namely the transport to get signature, acknowledging the receipt of the consignment, which is admittedly absent in this case. Therefore, the burden is upon the opposite parties to prove that the complainant alone had came and received the goods, for which, even as per the Written Version, though many chances might have been there, not utilized and proved. It is the said in the Written Version, two Tempos bearing certain registration numbers were brought by the complainant, in which, the consignment was loaded by the named Load men. If that is correct, nothing prevented the opposite parties, from examining the drivers of those Tempos or the load men getting their affidavits, which they failed.
Therefore, the story projected in the Written Version, that the complainant had taken delivery of the goods by himself appears to be unbelievable, as rightly recorded by the District Forum.
9. The probabilities and the conduct of the parties are also against the opposite parties in this case. If really, the complainant had taken delivery of the goods consigned, there would not have been any cause of action or motive for complaint, to proceed againstm, which is also not pleaded to demand the bags once again, going to the Police, preferring complaint, spending the amount. Therefore, the subsequent steps taken by the complainant, in preferring police complaint also strengthen the case of the complainant. As an answer to the police complaint, a defence has been taken, as if, police have enquired and they came to know that the complainant had taken delivery and that is why, further action was not taken by Police. If that is so, certainly police should have filed a final report atleast informing mistake of fact or since the complainant had taken delivery, complaint given by the complainant is false, which is not the case admittedly. The fact, police has not filed any final report, closing the FIR, makes it abundantly clear that the theory projected by the opposite parties is only to escape from their deficiency, which was correctly appreciated by the District Forum, which findings, we are compelled to endorse having regard to the facts and circumstances of the case.
Therefore, as said above, for the non-delivery of the consignment, the opposite parties should pay the value of the pepper.
10. As far as extra claim of Rs.18,790/- though the District Forum has accepted, we find no material for that spending and therefore, we declined to endorse that payment and that should be set aside, in addition, a sum of Rs.2,325/- as already, observed at the first instance itself.
11. The District Forum had granted a sum of Rs.25,000/- as compensation. For the value of the pepper, from the date of consignment, 12% interest is awarded, that should take care of the compensation, for the deficiency in service committed by the complainant, and if interest as well as compensation are ordered, that may amount to double benefit to the complainant, which we are not willing to do so since it is the settled position of law also, when interested is ordered, compensation should be negatived, unless extra ordinary circumstances is made out, bringing the act within the meaning of unfair trade practice or otherwise, which are all absent in this case. Therefore, setting aside the order regarding Rs.18,790/- and Rs.2,325/- as well as compensation of Rs.25,000/-, the order of the District Forum is to be modified confirming otherwise.
12. In the result, the appeal is allowed in part, order of the District Forum is modified, setting aside the compensation, expenses granted and transport charges awarded, otherwise confirming the order of the District Forum, including costs, value of the pepper and interest.
J. JAYARAM M.THANIKACHALAM JUDICIAL MEMBER PRESIDENT