State Consumer Disputes Redressal Commission
Purshottam Singhania vs M/S Monu Roadways & Others on 15 July, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/167
Instituted on : 01.03.2013
Purshottam Singhania, S/o Shri Jamuna Singhania,
Proprietor : M/s Pawan Putra Udyog,
7- Sona Tower, Opposite Deshbandhu Press,
Shri Agrasen Chowk,
Raipur (C.G.) ... Appellant.
Vs.
1. M/s Monu Roadways,
Through : Proprietor,
Shop No.3, Manglam Market, Ring Road No.2,
Gondwara, Raipur (C.G.)
2. Shri Kamaljeet Singh Khanuja,
Main road,
Pithora, District Mahasamund (C.G.)
3. Shri Dilpreet Singh,
Through : Shri Kulwant Singh,
Shyam Nagar,
Raipur (C.G.) ... Respondents.
PRESENT: -
HON'BLE SMT. VEENA MISRA, PRESIDING MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Harshad Vyas, for appellant.
Respondent No.1 proceeded ex-parte.
Shri R.K. Mahobia, for respondent Nos.2 & 3.
ORDER
Dated : 15/07/2013 PER: - HON'BLE SHRI V.K. PATIL, MEMBER This appeal has been filed by the appellant having been aggrieved by the order dated 21.02.2013 of District Consumer Disputes Redressal //2 // Forum, Raipur (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.928/2011, whereby complaint of the complainant, alleging deficiency in service against OPs for not transporting his goods to it's destination with due care , was dismissed.
2. Facts of the case are that the complainant had booked 367 bags of Super Silica Grain Mixture powder/Chemical powder with OP-1 on 30.05.2011 for transporting the same to M/S Banke Bihari Ispat Ltd. at Raigarh on freight charges of Rs.7,707/- to be payable by the consignee. A bill no.4516 dated 30.05.2011 was issued by OP-1 whereby the material was to be transported through truck no.CG-04/JA-8704, owner of which was mentioned as OP-2, whereas according to registration papers, actual owner of the truck was OP-3. As per averment of the complainant, cost of the material was Rs.96,338/- and he alleged that OP-1 had transported the material without taking proper care as a result, it got moisturized & damaged and became useless because of rains, so the consignee refused to take delivery of the same and intimated him on 03.06.2011 about aforesaid fact. The consignee had also informed in the said letter that the goods were covered with a hard tarpaulin which was in worn out condition at places. He filed a report with Amanaka Police, Raipur but no action was taken. OP-2 had informed him on 07.06.2011 that the consignee had refused to take delivery of the goods so the same should be collected by him at own cost from OP-2's custody. Complainant alleged that OP-2 never informed him about carrying back the goods //3 // from Raigarh to Pithora. Complainant sent a Regd. Notice on 22.06.2011 to OPs through an advocate against which OP-2 replied denying all its liability. Complainant alleged that due to negligent act of OPs, he had to sustain financial loss thus prayed before learned District Forum seeking direction to OPs to pay him compensation of Rs.96,338/- for the loss and also to pay Rs.50,000/- towards loss caused to its reputation.
3. OP-1 remained ex-parte before the District Forum throughout proceedings despite notice having been served. OP-2 & 3 in its joint reply averred that they did not pursue transport business but they used to provide the truck no.CG-04/JA-8704 through OP-2 whereas he was not the owner of the truck. They have also averred that they had no direct connection with the customers and neither there was any contract with the complainant nor any amount was collected from him but they have been unnecessarily impleaded as parties in the case. OP-2 & OP-3 averred that the goods were taken to the destination of consignee who had kept the consignment in its custody for 5 days in an unauthorized way. The driver of the truck informed OP-2 that some blank papers were got signed by the consignee so a report was filed with Police Thana Punjipathra, Raigarh on 05.06.2011. Intimation about aforesaid complaints was given on mobile to the complainant and OP-1 also demanding charges for keeping the vehicle idle with goods but in order to avoid the burden of making payment, complainant filed false complaint. OP-2 & OP-3 alleged that there appeared some connivance //4 // between the complainant and the consignee since despite giving due information, no action was taken against the consignee and the complaint was filed against OP-2 & OP-3 without material ground. OP-2 & OP-3 prayed for dismissal of the complaint with cost of Rs.50,000/-.
4. Learned District forum having perused the documents produced before it and heard arguments of parties dismissed the complaint, hence this appeal.
5. We have perused the documents on record and heard arguments advanced by parties.
6. Undisputedly the questioned material was booked by the appellant/complainant with OP-1 on 30.05.2011 at Raipur, meant for its transportation to the Consignee M/S Banke Bihari Ispat Ltd. Raigarh. The question to be decided is whether respondents has committed deficiency as alleged by the appellant/complainant.
7. As per version of the complainant, questioned material had reached the place of destination Raigarh on 02.06.2011 after about 3 days of its booking i.e. 30.05.2011 and during transportation, allegedly the material got spoiled due to moisture caused by rains. There is no evidence on record to show if there was any such agreed terms that the booked material would reach its destination in so much time. The consignee M/S Shri Banke Bihari Ispat (P) Ltd. had informed the appellant/complainant vide its letter dated 03.06.2011 (document //5 // Annexure C-5 at page s.no.37) that it had received the material but it had not mentioned as to when did it receive exactly. Further the consignee had also mentioned in aforesaid letter that the material was not usable and well condition as it got too much damped since it was covered by tripaal (hard polythine) which was cracked in many places. Appellant/Complainant soon thereafter sent a notice dated 22.06.2011 through an advocate to the respondents in response to which respondent-2 sent a reply dated 30.06.2011 and in its para no.5 he has admitted that the vehicle was parked in the area of the consignee for 5 days and it was weather of rains so despite cover of tarpaulin some dampness might have caused to the material due to humid climate which could not be said to be deficiency in service. From the foregoing it is evident that there were rains during the intervening period of transportation and thereby the material was affected. Appellant/complainant in the second para on page-2 of his affidavit dated 9..09.2011 has also stated that the material got wet due to rains which fact has been denied by OP-2 in para no.7 of his affidavit dated 07.02.2012 but such version is obviously an afterthought action. In view of aforesaid, there was deficiency in service during transportation since respondents did not take proper care for safety of the material loaded on the vehicle. When the material was so much susceptible to moisture then appellant/complainant also should have brought on record some evidence to show as to what was the condition of the material at the time of booking and also to show whether he had cautioned the //6 // respondent No.1/transporter to take specific precautions to safeguard the material against moisture/water. On the booking receipt (document no.C-1 at page s.no. 33) it is mentioned in bold letters as "OWNER'S RISK" so in such situation the appellant/complainant was supposed to ensure the quality of material at the time of booking till the delivery at its destination and for that purpose he should have directed OP-1 to take specific precautions to prevent damages due to dampness but no such measures appear to have been taken. Appellant/ complainant has submitted affidavit dated 22.11.2012 of Shri Sujit Pramanik as an expert opinion but without going into its admissibility, we observe that he had not mentioned anything about the questioned material whether before or after its transporting stage. He has only expressed opinion that such material gets spoiled by moisture/dampness. Respodent-2 in Para no.9 of his affidavit dated 22.11.2011 has stated that the consignee had kept the loaded truck with material in its custody unauthorizedly and for that reason an intimation was given to police Thana Punjipathra (Raigarh) (copy of report dated 05.06.20110) whereby it was reported that the material had reached the destination on 01.06.2011 and since the consignee had informed about damage caused to the material due to dampness, the truck was detained till 05.06.2011 and thereafter it was let free.
8. Appellant/complainant has not brought on record as to what were the terms agreed with the consignee and how it had refused to take //7 // delivery of the material what was the remedy agreed in case of any complication. Respondent-2 states that the material is in his custody so it should be taken back by the appellant/complainant at his cost. When OPs had undertaken to transport the questioned material then it was obligatory on its part for its proper safety but it covered the material with tripaal having crack condition thereby causing damage to it, else the consignee would not have denied it delivery, as such there was deficiency on the part of OPs to that extent.
9. Next question remains about compensation. Since there is no evidence to show as to what was the condition of the material at the time of booking it and after it's reaching destination and whether entire material was destroyed or partly destroyed so assessment of loss cannot be decided. Appellant/complainant also did not take proper preventive measures to safeguard the material against moisture/rains by giving suitable directions to the respondents/transporter. In the facts of the case and foregoing discussion, we find that respondents had committed deficiency in service by not providing adequate care for safety of the material from rains, so compensation to that extent can be allowed.
10. In view of the observation made here-in-above and facts of the case the appeal of the appellant/complainant is partly allowed. It is directed that the respondents/transporter will pay compensation of Rs.15,000/- (Rupees Fifteen thousand only) to the appellant/complainant jointly & severally within 45 days of this order, //8 // failing which to pay interest @ 6% p.a. thereon. Cost of litigation quantified as Rs.3,000/- will also be payable.
(Smt.Veena Misra) (V.K.Patil) (Ms. Heena Thakkar)
Presiding Member Member Member
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