State Consumer Disputes Redressal Commission
M/S M.R.F Ltd vs M/S Lalji Mulji Transport Co.Ltd on 28 December, 2022
Details DD MM YY
Date of Judgement 28 12 2022
Date of filing 17 08 2000
Duration 11 04 22
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD
C.C. No. 93 of 2000
Court No. 1
1. M/S M.R.F. LTD.
A PUBLIC LIMITED COMPANY DULY REGISTERED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956., AND
HAVING 11'S REGISTERED OFFICE AT: 124, GREAMS
ROAD, CHENNAI 600 006.
THROUGH IT'S POWER OF ATTORNEYHOLDER MR. P
MOHANKUMAR NAIR AGE ABOUT: 37 YEARS.
OCCUPATION: SERVICE. ADDRESS: MAHAKANT. GROUND
FLOOR, OPP. V.S. HOSPITAL. ASHRAM ROAD,
ELLISBRIDGE, AHMEDABAD. 380 006. ..Complainant
Vs
1. THE BRANCH MANAGER
M/S LALJI MULJI TRANSPORT CO.
KUVADAVA ROAD, RAJKOT.
2. THE BRANCH MANAGER.
M/S/ LALJI MULJI TRANSPORT CO.
KHANNA MARKET, PLOT NO: 10, WORD:
12-B, SRC GODOWN. GANDHIDHAM
KUTCH.370 201 ...Respondants
Coram : Hon'ble Mr. Justice V. P. Patel, President
Hon'ble Ms. A. C. Raval, Member
APPERANCE : Ld. Adv. Mr. B.N. Shah and Mr.H.B. Shah for the appellant.
Ld. Adv. Mr. Niraj H. Gupta for the respondent. Order By : (Hon'ble Ms. A. C. Raval, Member)
1. This complaint was earlier dismissed vide order dated 11.05.2012. And said order was challenged before the Hon'ble National Commission by the complainant by filing First Appeal no. 465 of 2012. The Appeal before the Hon'ble National Commission has been ADIT cc-93-2000 Page 1 of 14 decided vide order dated 02.07.2022. The matter was remanded back with the following observations.
"In the result, the appeal is allowed. The order of the State Commission dated 11.05.2012 passed in CC/93/2000 is set aside. Matter is remanded to State Commission, Gujarat at Ahmedabad who shall restore the same to its original number and shall proceed to decide on merit in accordance with law. The appellant may appear before State Commission on 02/09/2022. Thereafter State Commission will fix a date in accordance with its convenience."
Therefore, the matter was restored at its original number and placed for hearing before this commission. For the complainant Learned Advocate Mr. B. N. Shah and Mr. H. B. Shah filed their vakilatnama on 21.09.2022 and for the opponent Learned Advocate Mr. Niraj Gupta and Mr. A. J. Majgoankar filed their appearance on 03.10.2022. The complainant filed closing purshis on 09.11.2022. The complainant filed his written arguments on 14.11.2022 and the opponent filed their written arguments on 15.11.2022. The written arguments filed by both the sides are taken on record and the matter was heard at length.
2. Facts of the case:
The Complainant Company is a Ltd. Company. Mainly engaged in to the Business of Manufacturing and Marketing of Rubber Tyres and Tubes of various kinds and purposes and other connected products. The opponent No. 1 and No. 2 are Branches of one transporter firm engaged in the business of Handling, Carting and Transportation of goods. The Complainant Company has entered in to a written Agreement on 15.02.1994 with the Opponent No. 1 for the purpose of Transportation of the goods of the Complainant Company. The Complainant Company had handed over goods worth Rs. Rs.6,39,233/- to the Opponent No:1 for transporting the same at Gandhidham, to a Consignee M/S Yogeshwar Tyres.
2.2 As per the Terms and Conditions contained in the said agreement, the Opponent No. 1 was under obligations to act strictly as per terms and conditions and observe the same as far as the handling and transportation of the said goods are concerned. It was binding duty and obligation upon the Opponent No: 1 to hand over the said goods as per the procedure laid down into the said Agreement, and deviation therefrom will result in the breach of the terms and conditions of the said Agreement. The Opponent No:1 and 2 acted negligently and carelessly and handed over the said goods to the Consignee M/S Yogeshwar Tyres at Gandhidham without receiving the lorry receipt duly discharged by the bank, which was mandatory pre-requisite as per agreement. Due to that negligence of ADIT cc-93-2000 Page 2 of 14 opponents, the Complainant Company sustained heavy loss and loss of interest as well as profits on the said goods.
The Complainant Company lodged a Claim Bill before the Opponent No:1 being No: 17/2000 dated 26-04-2000 claiming Rs.6,39,233/-. The Opponent No:1 did not paid any attention to the said Claim Bill, so, the Complainant Company again sent the reminder and demanded the said amount of claim by its letter dated 29-04-2000. The Cause of Action has arisen on 26-04-2000 when the Complainant Company filed Claim Bill before the Opponent No:
1 and demanded payment of the Claim Bill on 29.04.2000. 2.3 Relief sought:
The Complainant Company has prayed as under:
A. The Honourable State Commission may be pleased to pass an Order for the payment of Rs.702,998/- including Rs.639,233/- for loss of value of goods, Rs. 28.765/- being interest @ 18% per annum till 29-6-2000, Rs.25,000/- Miscellaneous Expenses and Rs.10,000/- Cost of this Complaint.
B. The Honourable State Commission may be pleased to award interest @ 18% per annum from the date of filing this Complaint till realization of the amount of award.
C. The Honourable State Commission may be pleased to grant any other relief as is deemed fit and necessary in the interest of justice.
2.4 Documents :
The complainant has produced following documents on record:
1. The agreement between complainant and opponent dated 15.02.1994. 'Annexure A'
2. Copy of GC notes issued by the opponent. 'Annexure B (Collectively)'
3. Copy of invoice issued by the complainant. 'Annexure C (Collectively)'
4. Copy of the claim bill dated 02.02.2000
5. Copy of the letter of claim dated 26.04.2000. 'Annexure D'
6. Copy of the letter of re-booking dated 29.04.2000. 'Annexure E'
7. Copy of the power of attorney dated 28.07.2000. 'Annexure F'
8. Copy of letter of re-booking dated 20.04.2000. 'Annexure G'
3. Defence:
The opponent appeared before the court and filed the written statement at exhibit 14 and denied averments made in the complaint. The complainant has not produced the original copy of the agreement dated 15.02.1994. The opponents have contended that as per section ADIT cc-93-2000 Page 3 of 14 65 of the evidence act the secondary evidence can not be accepted as primary evidence. The complaint has been filed through the Power of attorney holder who does not have the personal knowledge of the transactions. Hence, the complaint is not maintainable, as the original copy of power of attorney is not produced on record. The responsibility of the carrier was to hand over the delivery of the goods to the consignee, which was already delivered and the consignee had put his stamp at the back side of the receipts. This is the proof that the goods were delivered to the consignee and the opponents are not liable to pay any damages. The complainant has not produced the Bilti ( lorry receipt) endorsed by the bank to the complainant, but has produced the Xerox copy of the bills only. The complainant has not joined the consignee or bank as the party to the proceedings. The complainant cannot be considered as consumer of the opponent and could not be covered under the Consumer Protection Act, 1986, as the goods are sent for commercial purpose to earn profit.
3.1 Documents produced by the opponents :
The opponent has produced the following documents:
1. The copy of G.C. Notes with the stamp of Yogeshwar Tyers
2. Inter-office memo by Rajkot office to Gandhidham office regarding rebooking dated 27-04-2000
3. The copy of rebooking letter from the complainant dated 20-04-
2000 along with the letter dated 13-04-2000 by the complainant
4. The copy of the cheque dated 25-10-2000 signed by Yogeshwar Tyers in favor of MRF Limited.
4. Argument of the complainant:
It is argued by the Learned Advocate appearing for the complainant that the complainant company has entered into an agreement with opponent no. 1 on 15.02.1994, for the job of transportation of goods of the complainant company. By signing the said agreement both the parties have accepted the terms and conditions contained in the said agreement. It is argued that in clause 6, it is mentioned that under no circumstances the opponent will deliver the product to the customer or their authorized representative without the lorry receipts endorsed by the bank. As per clause 12 of the agreement the opponents agreed to accept the full responsibility of the goods/ product delivered to them until they are turn over to the respective customers against lorry receipts. The opponents also agreed to accept all responsibility and liable for loss, damage due to non delivery or short delivery of the products. And as per clause 15 of the agreement the company can rebook the consignment which may not be delivered as per the agreed terms.ADIT cc-93-2000 Page 4 of 14
The complainant company had handed over goods worth Rs. 6,39,233 to the opponent no. 1 for transporting the same to Gandhidham to consignee Yogeshwar Tyers. The said consignment is not handed over to the consignee against the lorry receipts. If the goods have been delivered by the opponent against the lorry receipts, they could have produced receipts before this commission. It is the case of the complainant that they have not received any amount towards those goods though the bank. The said consignment was delivered to consignee without procuring lorry receipts duly discharged by the bank.. The complainant company has sustained having loss and has to incur heavy expenses and loss of interest as well as profit on the said goods. The complainant has rebooked the consignment as per the terms and conditions. All the original documents have been forwarded to the opponents at the time of rebooking. The other side failed to prove that they have acted as per the terms and conditions of the contract, hence, the complaint may be allowed and the complainant may be awarded the relief as prayed in the complaint memo.
5. Argument of the opponent:
The opponents have filed their written arguments. It is also contended that all the transactions have been made on different dates therefore, could not be tried under one complaint. That the State commission does not have territorial jurisdiction to try the present dispute. The complainant has not produced the original copy of the agreement and other documents. The complaint has been filed by the power of attorney holder who does not have the personal knowledge of the transaction. The responsibility was to hand over the delivery of the goods to the consignee, and it has been handed over as per direction of the complainant. The complainant has not mentioned the consideration and is not covered under the consumer protection act. From the interrogatory it is proved that the goods have been delivered to the consignee as per direction of complainant, therefore, opponent submits that this is a false and frivolous complaint against the opponent and the complaint is required to be rejected.
6. Hon'ble National Commission has already passed an order and allowed joining of different cause of actions, no bar of limitation, and no bar of territorial jurisdiction, hence they are not required to be discussed.
Following issues arise from pleading for consideration:
(A) Whether the complainant proves that there was agreement between him and opponents regarding transportation and delivery of goods against lorry receipts?ADIT cc-93-2000 Page 5 of 14
(B) Whether the complainant proves that opponents delivered the goods without any lorry receipts and due to that deficiency in service caused huge loss to him? if yes, how much loss ?
(C) Whether the opponents prove that they delivered the goods as per instruction of complainant, and there was no need of lorry receipts ?
(D) Whether the complaint is required to be allowed ? if yes , what order?
Conclusions to issues are as under:
(A) Affirmative (B) Affirmative (C) Negative (D) As per order Merits of the case:
7. It is the undisputed fact that the complainant company has entered into an agreement on 15 February 1994 with the opponent no.1 for the purpose of transportation of the goods of the complainant company. The terms and conditions of the agreement were binding to both the parties. The complainant company handed over certain goods worth Rs. 6,39,233 to the opponent no.1. The goods were to be delivered at Gandhigdam to the consignee M/s Yogeshwar Tyers.
8. The honorable National Commission has in the order dated 02/07/2022 observed and set aside the view of the state commission relating to joinder of causes of action is concerned, citing the judgement of Hon'ble Supreme Court in Brigade Enterprises Ltd vs Anilkumar virmani, (2022)4 SCC 138, in which it is held that joinder of causes of action is permissible under section 12(1)(a) of the consumer protection act, 1986.
9. The plea regarding territorial jurisdiction of the state commission is also dealt with and it is observed by the honorable national commission in para 9 of the judgement that:
"In the present case, all the opposite parties, residing within the territorial jurisdiction of the state commission, Gujarat. Therefore the complaint before the state commission, Gujarat was maintainable. Dismissal of the complaint on the preliminary issues was illegal."
10. Further the aspect of limitation is also considered and held that complaint is not barred by any delay, and the direction was given that the order passed by the state commission dated 11/05/ ADIT cc-93-2000 Page 6 of 14 2012 passed in CC No. 93/2000 is set aside. Matter is remanded to the state commission, Gujarat at Ahmedabad who shall restore the same to its original number and shall proceed to decide on merit in accordance with law.
Therefore, the matter is required to be decided on merits, according to law.
11. The opponents have raised the objection regarding non-joinder of party in the proceedings, i.e. the consignee and the bank through which the lorry receipts were sent to the consignee, are not joined as necessary party. It is an undisputed fact that the complainant had booked goods with the opponents. The complainant has thus availed of the service of the opponent for consideration. That being so, the opponent being a transporter owed an obligation towards the complainant to deliver the goods to the consignee. As per the contention of the complainant the transporter failed to deliver the goods as per agreed conditions, and hence there is contravention of conditions mentioned in agreement and deficiency in service on part of the opponents. Further, the complainant is the commander of its suit, and he can choose to join or not join certain party in the complaint at his own risk. The complainant has send goods to the opponents, and they have failed in their duty to fulfill certain obligations, and hence according to the complainant there is deficiency in service. Therefore, the consignee or the bank are not necessary party, and their non-joinder would not rendered the complaint incompetent.
12. Another objection was raised by the opponent is about the filing of a complaint through a power of attorney who has no personal knowledge regarding the transaction. However, when the matter is based on the documentary evidence, in that case personal knowledge is not required. Documents can be perused and on the basis of the available record, evidence can be given and submission can be made.
13. In a larger five judge bench ruling reported in (2010) 4 SCC 114 in the case of Economic Transport Organization v. Charan Spinning Mills (P) Ltd., the question was whether an insurer, who honours its contract, and pays the insured the agreed money, in the event of an insurable incident such as an accident, can maintain a consumer complaint against the carrier, who is responsible for the accident. The Honble Apex court held that such complaints are not barred:
"29. In all three types of subrogation, the insurer can sue the wrongdoer in the name of the assured. This means that the insurer requests the assured to file the suit/complaint and has the option of joining as co- plaintiff. Alternatively, the insurer can obtain a special power of attorney ADIT cc-93-2000 Page 7 of 14 from the assured and then to sue the wrongdoer in the name of the assured as his attorney.
38. On the other hand, if the assured (who is the consumer) is not the complainant, and the insurer alone files the complaint in its own name, the complaint will not be maintainable, as the insurer is not a "consumer", nor a person who answers the definition of "complainant" under the Act. The fact that it seeks to recover from the wrongdoer (service provider) only the amount paid to the assured and not any amount in excess of what was paid to the assured will also not make any difference, if the assured- consignor is not the complainant or co-complainant. The complaint will not be maintainable unless the requirements of the Act are fulfilled. The remedy under the Act being summary in nature, once the consumer is the complainant or is a co-complainant, it will not be necessary for the Consumer Forum to probe the exact nature of relationship between the consumer (assured) and the insurer, in a complaint against the service provider.
40. If in a summary proceedings by a consumer against a service provider, the insurer is added as a co-complainant or if the insurer represents the consumer as a power-of-attorney, there is no need to examine the nature of rights inter se between the consumer and his insurer. When the complaint is by the consignor-consumer, with or without the insurer as a co-complainant, the service provider cannot require the Consumer Forum to consider the nature of relationship between the assured and the insurer or the nature and true purport of the document produced as a letter of subrogation. A wrongdoer cannot side-track the issue before the Consumer Forum. Once the "consumer", that is the assured, is the complainant, the complaint will be maintainable subject to fulfillment of the requirements of the Act."
14. The main contention of the opponents throughout the proceedings is that the complainant has not produced original copy of the documents like power of attorney, agreement between the parties, bills, etc. therefore as the complainant failed to lead primary evidence, the secondary evidence cannot be looked upon in absence of any efforts by the complainant to prove them.
At this juncture, it would be relevant to note the Judgement reported in 2010 SCALE-4-662, in the case of the V.Kishan Rao vs Nikhil Super Speciality Hospital, the honorable Supreme Court observed in para 8 that:
"8. Before the district forum, on behalf of the respondent no. 1, it was argued that the complainant sought to prove yashoda hospital record without following the provisions of sections 61, 64, 74 and 75 of the evidence act. The forum overruled the objection, and in our view rightly, that complaints before the Consumer Fora are tried summarily and evidence act in terms does not apply. This court had in the case of Malay Kumar Ganguly vs Dr Sukumar Mukherjee and others, reported in JT 2009(10) SC 256 that provisions of evidence act are not applicable and the forum under the act, had to follow principles of natural Justice."ADIT cc-93-2000 Page 8 of 14
In our view, when the proceedings before the commission are summary triable and when the provisions of civil procedure code are not applicable in all the manner, the provisions of evidence act also does not apply in the proceedings before the consumer commissions in its stricto senso effect.
15. The contention of the opponent is that the deficiency in services and unfair trade practices is required to be proved by the complainant by leading cogent evidence and the provisions of carriers act does not apply to the proceedings before the consumer forum.
The complainant has produced the documents like agreement between the parties, the lorry receipts, the letter of rebooking, the legal notice etc. By producing such documents, the complainant has discharged his initial burden of proof, now it is for the opponent to rebut the contentions in the complaint. When the complainant has discharged his primary duty, the burden of proof shifts on the opponents. . In the civil appeal number 5611/1999 in the case of Economic Transport Organisation vs Charan Spinning Mills (P) Ltd and others, it is observed in para 29 that :
"29. Again in Economic Transport Organization vs. Dharward District Khadi Gramodyog Sangh - 2000 (5) SCC 78, this Court reiterated the principle stated in Patel Roadways and added the following :
"Even assuming that section 9 of the Carriers Act, 1865 does not apply to the cases before the Consumer Fora under Consumer Protection Act, the principle of common law above- mentioned gets attracted to all these cases coming up before the Consumer Fora. Section 14(1)(d) of the Consumer Protection Act has to be understood in that light and the burden of proof gets shifted to the carriers by the application of the legal presumption under the common law. Section 14(1)(d) has to be understood in that manner. The complainant can discharge the initial onus, even if it is laid on him under section 14(1)(d) of the Consumer Protection Act, by relying on section 9 of the Carrier Act. It will, therefore, be for the carrier to prove absence of negligence."
16. It is the undisputed fact that, complainant had handed over goods worth Rs. 6,39,233 to the opponent no.1 for transporting the same to Gandhidham, to a consignee, namely, M/s Yogeshwar Tyres. The said consignments were handed over on 13/01/2000, 17/01/2000 and on 02/02/2000. As per the agreement, upon payment of the bill amount, the bank would release the lorry receipts to the consignee. And against those endorsed lorry receipts the transporter, i.e. the opponents, will release the goods as per invoice. The opponents negligently and carelessly handed over the goods in question to the consignee without receiving any lorry receipt duly discharged by the bank. The complainant company raised the claim bill dated 26/04/2000 claiming Rs. 6,39,233. It appears from the documents produced on record that opponents have not followed the terms and conditions of the agreement.
ADIT cc-93-2000 Page 9 of 14The relevant terms and conditions of the agreement are as follows:
"13 . The contractors agreed to accept full responsibility for the products delivered to them until they are turned over to the respective customers against lorry receipts. The contractors also agreed to accept, responsibility and to hold themselves liable for loss, damage, non- delivery, or short delivery of the products due to any act of fire, explosion, floods, earthquake, rainwater, strikes, lockdowns, prior words, civil commotion, malicious damage, Wind Storm, seizure of trucks, road accidents, breakages theft, burglary, pilferage and or any other reasons. The decision of the company in respect of all claims for loss, damages, non-delivery or short delivery as aforesaid shall be final and binding on the contractors. The contractor shall promptly issue a certificate in respect of the product lost, they managed, non-delivered or short delivered. The company shall be entitled, without prejudice to any other right or earlier maybe vested in goods and under or in pursuance of this agreement or in law, conducts, recover and/or set off from all over any of the contractors bills or any account whatever the amount determined by the company to be payable to it is by the contractors for laws, damage, non-delivery, short delivery of the product as aforesaid.
15. The contract agrees that if any, consignment of the products are not accepted by the customer they will upon receipt of written instructions from the company and consignee's copy duly endorse within reasonable time rebook such unaccepted consignment back to the district office/depot or other places. In the event if such a rebooked consignments the contractors shall charge the company written freight at the rates mentioned in the schedule, plus octroi terminal or entry charges.
24. The contractors agree to effective delivery to the consignees, also agree not charge demurrage to consignees for a period of 30 days from the date of receipt of the consignment and stock. After this period, the contractors would be at liberty to collect demurrage charges from the consignees of Rs.1/-per quintile will stop the contract confirming that they are having storage facility at the destination mentioned in the agreement."
17. The complainant has produced from page number 39 at Annexure C, collectively, copies of the invoices. The opponents have not disputed the lorry receipt or the invoices. The only dispute is regarding the non-production of original documents. The opponents filed an application for production of original documents at Exhibit 23, page number 293. By said application, the opponents called upon the complainant to produce original documents. At Exhibit 24, page number 295, the complainant filed an affidavit against an application for production of original documents. In Para.2 of the said affidavit, the complainant has made it clear that as the process of rebooking of the goods in question was started before filing this complaint, the original documents in respect to the goods rebooked with the opponents were sent back to the opponents' Rajkot office. Those documents consist of copies of invoices of original consignee copies. The said documents were sent by RPAD and a reminder was also sent on 29/04/2000. A copy of the acknowledgement was also received ADIT cc-93-2000 Page 10 of 14 bearing the signature of the opponent's employee. The copy of the acknowledgement is also part of Annexure D.
18. Opponents' affidavit of the deposition is produced at Annexure 28, page number 325. In Para 4, the opponents have raised the grievance that, complainant has failed to produce evidence of handing over original consignment notes to the opponent company. On non-delivery of the goods, the complainant submitted its claim before the opponents by Claim number 17/2000 for the various invoice numbers, the copies of the claim bills are produced at page number 49 to 55. At page number 55, in the bottom there is note where it is stated that "all above 12 original copy (LRs) already handed over to you."
The complainant has made it clear to the opponents that the original LRs were already handed over to the opponents. The complainant had given notice dated 20/04/2004 for rebooking of the consignments which is produced at, page number 217, where it is mentioned that "we are enclosing here with all above original consignee of way bill, kindly deliver the above mentioned consignments to us before 28/4/2000". At page number 218, communication by complainant dated 13/04/2000 regarding re- booking of consignments has been produced It is mentioned that "we are enclosing the following original way bill and would request you to kindly rebook the relevant consignments to us immediately."
19. The opponent has filed interrogatories for cross examination at exhibit 26, page number 306. The complainant replied to the said interrogatory at page 314. Certain questions are required to be referred.
Q.13 , when bank returned all the consignee copies with a letter of non-releasing consignment notes of goods by consignee? Ans: The original document which we have submitted to complainant for rebooking the material which was on 3rd week of April 2000, within two-three days of receipt of the documents from the bank.
Q.15 who written a letter of rebooking goods from your Rajkot office? Under what authority do you went to produce such a letter? When?
Ans: the manager of Rajkot office, Mr V. Ramakrishnan. - Dates are given with the documents at Annexure D. Q.16: when and who send original consignee copies for rebooking? Ans: the manager of Rajkot office, Mr V. Ramakrishnan - dates are given with the documents at Annexure D. Q.23: letter with complaint at serial number 34 to 38. Does not contain any receipt of those consignee copies and invoices original ADIT cc-93-2000 Page 11 of 14 when you will produce original bill and consignment notes listed at serial number 34 to 38?
Ans: there is not a single original copy of consignee copies with the complainant company. They are sent to opponents for rebooking of goods with serial number 34 to 38.( see sr. no. 35) It is not possible to produce original bill and consignment notes. Q.24: Letter with complaint at serial number 39 dated 29/o4/ 2000 does not show any signature of receipts of original consignment notes and invoices, why?
Ans: because original documents are sent to the opponent along with serial number 34 to 38.
19.1 From the above, it can be seen that the complainant is not able to produce original documents because those documents were sent to the opponents at the time of rebooking. The Rajkot branch of the opponent has written forwarding letter to the gandhidham branch about rebooking. Therefore it can be said that the opponents are aware of the fact that the original documents are in possession of the opponents.
20. In the written statement filed at page number 181 Exhibit 14, in Para 11. It is stated by the opponents that the delivery of goods were given against the lorry receipt as per the clause no. 24 and hence no damage is caused due to negligency or deficiency in service of the opponents, otherwise, the complainant might have asked for a non-delivery certificate as per clause 13 and 14. In Para 13 of the reply it is submitted that as due to oral instruction of consignor goods where delivered and consignee had taken delivery and thereafter consignee copies are never produced at delivery destination for delivery or never handed over for claim of rebooking and original documents are never shown or handed over to the opponents. There is a contradiction in submission made in Para11 and Para 13. In Para 11, it is submitted that the delivery was given against the lorry receipts and in Para 13 it is submitted that the goods are delivered on oral instruction. If the contention in Para 11 can be believed, the opponents must be in possession of the original lorry receipts procured by the consignee from the bank. If the submission of Para 13 would be believed, the opponents have violated the terms and conditions of the agreement, particularly condition No.24, which says that the contractor is agreed to effect delivery to the consignee only against their lorry bills. It is also the violation of clause no. 6, which says that under no circumstances will the contractor deliver the product to the customer or their authorized representative without producing the lorry receipts.
ADIT cc-93-2000 Page 12 of 1421. The interrogatory for cross-examination of authorized person of opponents is produced at Exhibit 31, page 359, certain questions are required to be referred here.
Q.24: What is the commercial practice while delivering the goods sent in the name of 'self'?
Ans.: To delivery to goods to consignee who produced consignee. No such consignee copies are produce by consignee or consignor in this case, which are required lengthy evidence in civil case. Q.27: Can you say that to whom the said goods were delivered? Ans: Goods can be delivered only to the person who produces consignee copies.
Q.28:Then how the said goods were delivered?
Ans: Irrelevant in reply of question number 27 Q.29 Weather the lorry receipts issued to the complainant company were produced by the party to whom your company given delivery of the said goods?
Ans: It is not correct Q.32: Do you agree that you have handed over those invoices, along with goods to party to whom you have given delivery of goods? Ans: No Q.33: Do you agree that the party which took delivery of goods has not produced lorry receipt issued in favour of the complainant company by your company?
Ans: No question of lengthy civil record in civil suit. Q.36: Do you agree that all original consignee copies were handed over to your company, which were mentioned in the claim bill dated 24/04/2000 produce at AnnexureD, page 34 to 38? Ans: No question of regular evidence in civil suit. 21.1 From the above discussion, it can be concluded that if the opponents have delivered the goods to the consignee upon receipt of the lorry receipts, then in that case, copy of the lorry receipts would be with the opponents. If the goods were delivered to the consignee without procuring the lorry receipts, then it is in violation of the terms and conditions of the agreement, and for that, the opponents are liable to pay the claim amount raised by the complainant, i.e., Rupees 6,39,233, along with the interest at the rate of 9% per annum from the date of filing of the complaint. In this case, the complainant has discharged its burden of proof, and it was for the opponents to show that there was no requirement of lorry receipt or Bilti in case of rebooking. However, the opponents have miserably failed to produce any evidence. The conditions of agreement are clear, and it was the bounden duty of the opponents to get lorry receipts before delivering the goods in question. In this case, only ADIT cc-93-2000 Page 13 of 14 defence taken by the opponents is regarding non production of original documents. However, this is not civil court, and this is summary proceedings, as already discussed above. Even Hon'ble National Commission has at the time of remanding the matter, taken into consideration of agreement between the parties. Further, in reply the opponent has admitted that they have handed over the goods without getting any lorry receipts. It was for the opponents to show that it was not required and not mandatory for them to get lorry receipts before delivering the goods in question. The complainant has suffered huge loss due to non payment against delivery of goods. Thus, accordingly, as per the discussion in foregoing paragraphs, the issue no. 1 and no. 2 are decided in affirmative and issue no. 3 decided in negative.
22. As per the discussion of evidence as stated above, we are of the opinion that the complaint is required to be partly allowed and the complainant is entitled to the amount claimed in the complaint that is Rupees 6,39,233 , along with the interest at the rate of 9% as per annum from the date of filing of the complaint till its realization. Hence, in the interest of justice following order is passed.
ORDER A) The CC No.2000/93 is hereby partly allowed.
B) The opponents are directed to pay, to the complainant Rs. 6,39,233 along with the interest at the rate of 9% as per annum from the date of filing of the complaint till its realisation, jointly and severally.
C) The opponents are directed to pay, to the complainant Rs.10,000 towards cost of the litigation.
D) Registry is directed to send copy of this judgment to the parties by RPAD. Registry is further directed to send a copy this judgment to the District Commission Rajkot (additional through E-mail in PDF format for taking necessary action.
Pronounced in the open court on 28.12.2022.
[Ms. A. C. Raval] [Mr. Justice V. P. Patel]
Member President
ADIT cc-93-2000 Page 14 of 14