State Consumer Disputes Redressal Commission
M/S. Kalpaka Transport Company ... vs M/S. Auchtel Products Ltd.,Mumbai- 400 ... on 26 November, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I F.A.NO.335/2007 (Against order in O.P.NO.119/2003 on the file of the DCDRF, Coimbatore) DATED THIS THE 26th DAY OF NOVEMBER 2010 M/s. Kalpaka Transport Company Ltd., Registered Office at No.6/683 Y.M.C.A. Road, Calcutta- 673 001 Branch at No.1090, Trichy Road Coimbatore- 641 045 Appellant / 1st Opposite party Vs. 1.
M/s. Auchtel Products Ltd., Registered Office No.142/C Victor House, N.M. Joshi Marg Lower Parel (W) Mumbai- 400 013 Branch at No.86, Dr.Radhakrishnan Road Chennai- 600 004 Respondent / Complainant
2. M/s. SIV Industries Ltd., Sirumugai, Mettupalayam 2nd Respondent/ 2nd Opposite party The 1st Respondent as complainants filed a complaint before the District Forum against the Appellant / 1st opposite party and 2nd Respondent/ 2nd Opposite party, praying for the direction to the opposite party to pay Rs.1,89,792/- alongwith 24% interest and compensation of Rs.50000/- 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.12.06.2007 in C.O.P.No.119/2003.
This appeal coming before us for hearing finally on 8.11.2010. Upon hearing the arguments of the counsels on either side, perusing the lower court records and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ 1st Opposite party : M/s. M.Vijayakumaran, Advocate Counsel for the 1st Respondent/ Complainant:
Mr. Sri Raman, Advocate 2nd Respondent/2nd opposite party: served absent M. THANIKACHALAM J, PRESIDENT
1. This appeal is targeted, against the order of the District Forum dt.12.6.2007, in OP.No.119/2003, wherein a direction has been given, to the opposite parties, to pay a sum of Rs.1,89,792/-, with interest thereon, in addition to a sum of Rs.10000/-, as compensation, for mental agony, alongwith cost of RS.3000/-, at the instance of the complainant/ respondent herein.
2. The complainant, entrusted a consignment of 28 drums DUOLITE-C 20H, to the opposite party, at Bhiwandi, Thane, on 24.3.2001, under LR No.50055177, for delivery, at Mettupalayam, for which an invoice was raised for Rs.1,89,792/-.
The consignee documents were sent to Bank of Baroda, Coimbatore, for collection. In view of the fact, the consignee viz. SIV Industries, failed to retire the documents, the original Lorry Receipt, and other documents, were returned to the complainant, by the Bank.
3. The complainant was shocked to learn, that the opposite party had delivered the consignment, to SIV Industries Ltd, without production of the original Lorry Receipt on 5.4.2001, which is gross deficiency in service, being unfair trade practice. In view of the fact, SIV Industries, has gone into financial difficulties, there is no possibility for the complainant to realize the value of the goods also. The opposite parties, inspite of repeated demands, failed to pay the amount, and thereby, they have caused mental agony also.
Thus alleging, leveling negligence as well as deficiency, a claim came to be lodged, before the District Forum, for the recovery of a sum of Rs.189792/-, with interest thereon, alongwith compensation of Rs.50000/-.
4. The 1st opposite party, admitting the entrustment of the consignment, and its transport form Bhiwandi to Mettupalayam, opposed the case, interalia contending, that the case is bad for non-joinder and mis-joinder of necessary parties, that the claim is barred by limitation, that no deficiency was committed by the 1st opposite party, and the fact being so, in collision, a false complaint has been filed, the complainant having knowledge about the removal of the goods, by the consignee on 5.4.2001, kept silent, and filed a case, when SIV Industries has gone into bad shape of financial position, in order to harass the opposite party, thereby praying for the dismissal of the complaint, questioning/ challenging the other averments also.
5. The District Forum, based upon the affidavits, and arguments heard on bothsides, came to the conclusion that there is deficiency in service on the part of the opposite parties, thus concluding, slapped an order to refund the value of the goods, alongwith compensation of Rs.10000/- and cost.
Aggrieved by the said order, this appeal is preferred by the 1st opposite party.
6. The undisputed facts are, the complainant had consigned 28 Drums DUOLITE-C 20H, through the 1st opposite party, at Bhiwandi, for delivery to the 2nd opposite party, who is the consignee, under LR No.50055177 dt.24.3.2001. It is also not in dispute, that the complainant had raised an invoice for Rs.189792/-, which is the further undisputed fact, that the original LR and other documents were sent to Bank of Baroda, Coimbatore, for collection.
7. Under the trade practice, not much in dispute, the consignee has to clear, or retire the documents, from the bank, upon intimation, by paying the amount, then by producing the said original, to the carrier, the consignee has to take delivery of the goods, thereby, safeguarding the interest of both, consignor and consignee. In this case, we would say admittedly, the consignee viz. 2nd opposite party, has not cleared the documents, or retired the documents, from the bank, paying the invoice value, thereby the value of the goods had not reached the consignor. But, admittedly, the consignor viz. 2nd opposite party had taken delivery of the goods, or the carrier viz. the 1st opposite party, delivered the goods to the 2nd opposite party, on 5.4.2001, without the original lorry receipts. The complainant, unable to realize the amount, from the consignee, after quiet a long time, felt or realized, that the carrier had committed deficiency in delivering the goods consigned, to the consignee, without documents, for that, they should pay the amount. In this view, when demands were made, not conceded by the 1st opposite party, and unable to realize the amount, from the 2nd opposite party also, since they are under financial constrain, this complaint came to be filed, belatedly. Despite the stiff resistance, raising various legal issues, the District Forum has not only directed the opposite parties to pay the value of the consignment, with interest, but also granted compensation, which is not generally permissible. Thus aggrieve, the 1st opposite party is before us.
8. The learned counsel for the appellant/ 1st opposite party, urged before us, that the complaint filed without issuing a notice, as contemplated under Sec.10 of the Carriers Act, is not maintainable, that the complaint is barred by limitation, and that since the 1st opposite party had not committed any deficiency, since as per the existing practice, then available, goods were entrusted to the 2nd opposite party, and they are not liable to answer any of the claim of the complainant. Elaborating the above defense, a submission was made, as if the District Forum has committed error, seeking aid, from judicial precedence also.
9. As seen from the written version, we do not have any specific plea, regarding the maintainability of the case, for the non-issuance of the notice, under sec.10 of the Carriers Act. Since it is a question of law, which could be decided, even without plea, we have permitted the learned counsel, to urge this point also. In the complaint, it is not the case of the complainant, that as contemplated under Sec.10 of the Carriers Act, notice was issued. Except Ex.A3 and A4, letters addressed by the complainant, to the transport company, no other notice is available. Therefore, we have to see, whether these documents will satisfy the requirement of Sec.10 of Carriers Act, and before that, it is to be seen, whether a notice is mandatory, when a case is filed under the Consumer Protection Act.
10. The Apex Court, in Arvind Mills Ltd., Vs. Associated Roadways, reported in II (2007) CPJ 1 (SC), while considering the applicability of Sec.10 of Carriers Act, in the consumer court proceedings, has held, if at all delivery of goods effected without obtaining, original lorry receipt, from consignee, in the absence of notice under Sec.10, complaint is not maintainable, and on facts, this dictum is squarely applicable, to our case also.
This is not a case of non-delivery or loss of consignment, where it appears the Apex Court, has held Sec.10 may not be necessary, as ruled in Transport Corporation of India Ltd., Vs. Veljan Hydrair Ltd., reported in II (2007) CPJ 35 (SC). In this judgement itself, the decision of Arvind Mills case was considered, and in a way affirmed, taking different view on facts.
Therefore, based upon that judgement, it is to be held, that in order to initiate the proceeding under Consumer Protection Act also, notice under Sec.10 of Carriers Act is mandatory, which is followed by the State Commission of Uthranja, at Dehradun, as seen from the case reported in Baidyanath Ayurved Bhawan Ltd., Vs. Vishal Goods Transort Co. & Ors., reported in II (2007) CPJ 372. On the other hand, a decision of the Kerala High Court in Kerala Transport Company Vs. Apollo Cables Pvt. Ltd., reported in 1 (1986) ACC 29, was relied on by the complainant, and in view of the above said Apex Court decision, we are bound to follow the same, not the Kerala High Court judgement. Thus concluding, notice under Sec.10 of the Carriers Act is necessary, now it is to be seen, whether Ex.A4, or Ex.A3, satisfy the requirement of Sec.10, of Carriers Act.
11. As mandated under Sec.10 of the Carriers Act, no suit shall be instituted against a common carrier, unless a notice in writing of the loss, or injury has been given to him, before the institution of the suit, within 6 months of the time, when the loss or injury first came to the knowledge of the plaintiff. Since no pea has been taken, about the issuance of the notice under Sec.10, with reference to this section, we are unable to see the date of knowledge. But there are materials in the complaint, to show when the complainant had knowledge about the loss, in the sense, delivery of the goods, without the original lorry receipt, to the consignee. As rightly pointed out, by the learned counsel for the appellant, in paragraph 5 of the complaint, it is said, . it was shocked to learn that the opposite party had delivered the consignment to SIV Industries Ltd., without production of the original LR on 5.4.2001, thereby unequivocally informing, that the complainant had learned or had knowledge, about the delivery of the consignment to the 2nd opposite party, on 5.4.2001. Therefore, within 6 months, from the said date, i.e., on or before 5.10.2001, notice should have been issued. Admittedly, no such notice has been issued, in this case, and therefore it should be held, the complaint is not maintainable, for the recovery of the loss of consignment, though it is otherwise maintainable for deficiency.
12. The learned counsel for the complainant, urged that the requirement of Sec.10, is satisfied by Ex.A4. By going through the averments in the notice, as well as the averments extracted above, available in the complaint, we are unable to satisfy ourselves, that Ex.A4 satisfies the requirement. Ex.A3 is dt.13.9.2002, Ex.A4 dt.29.9.2002, i.e., after more than 6 months, from the knowledge exposed, exhibited in the complaint. Therefore, the subsequent notice, cleverly drafted, as if they wanted to rebook the consignment, as if they had knowledge about the delivery, at the time of Ex.A4, cannot be believed. It is not the case of the complainant, that they were not aware of the delivery of the consignment, whereas it is the specific case of the complainant, that they were shocked to learn that the opposite party had delivered the consignment, to SIV Industries, without original Lorry Receipt, on 5.4.2001.
It is also not the case of the, complainant that this fact came to their knowledge, at later point of time.
Admittedly, the original Lorry Receipts, were returned to the complainant, since the consignor has not paid and taken the goods. Therefore, the complainant should have stated, at what point of time, he had received the original Lorry Receipt, and that should be the knowledge of non-delivery, or mis-delivery, as the case may be. In the absence of such plea, taking into account, the knowledge expressed in paragraph 5, we are constrained to hold, that the complainant had knowledge on 5.4.2001, from which date alone, within 6 months, notice should have been issued, which is not the case in Ex.A4. So the submission of the learned counsel for the complainant, Ex.A4 satisfies the requirement of Sec.10 is not acceptable to us.
13. Though limitation point was raised, on behalf of the appellant, we find no substance. The date of cause of action must be, delivery of the consignment to the 2nd opposite party, i.e., 5.4.2001. From the said date, within two years, i.e., on 3.4.2003, case has been filed, at the last stage, thereby filing the case, within the time. Hence, on the ground of limitation, case is not liable to be dismissed.
14. It is the duty and responsibility of the carrier/1st opposite party, to deliver the consignment, only on the production or original receipts, not under challenge. But in this case, for the reasons best known to the 1st opposite party, they have delivered the goods, to the 2nd opposite party, without original lorry receipt, and the 2nd opposite party also, utilized the materials, without payment. This act of the 1st opposite party, should be construed as deficiency in service, since he has contravened the service conditions, undertaken by him.
Therefore, for the deficiency, considering the value of the consignment also, to some extent, and the loss sustained by the complainant also, having regard to the facts and circumstances of the case, we are inclined to award compensation of Rs.40000/-, for the deficiency in service alone. So far as the value of the goods is concerned, for the reasons stated above, the consumer forum cannot decide that point, and in this view, we are inclined to disallow that claim. To the above said extent, the appeal is to be allowed, order of the District Forum is to be modified.
15. In the result, the appeal is allowed in part, modifying the order of the District Forum in COP.119/2003dt.12.6.2007, directing the 1st opposite party to pay a sum of Rs.40000/- (Rupees forty thousad only) towards compensation, for deficiency in service, within two months, from this date, failing which, this amount shall carry interest @9% p.a., from the date of default, with cost of Rs.2000/-. The order of the District Forum, with regard to the value of the consignment, is set aside. There will be no order as to cost in this appeal.
VASUGI RAMANAN M. THANIKACHALAM MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/Carrier