State Consumer Disputes Redressal Commission
Nazimuddin vs Rupak Kumar Agrawal on 17 January, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.465/2010
Instituted on 26.07.10
Nazimuddin, S/o Shri Sharifuddin,
Pro. M/s Akola Goods Garage,
Situated at Grampanchayat Samiti,
Shop No.14, Murtijapur Highway No.6, Shivar,
AKOLA (Maharashtra) ... Appellant.
Vs.
Rupak Kumar Agrawal,
S/o Shri Goganram Agrawal,
Pro. M/s R. K. Bansal & Co.,
Radha Mohan Complex, Bhansthan Road,
Ramsagarpara Ward, Raipur,
Tah. & Dist. RAIPUR (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER COUNSEL FOR THE PARTIES: -
Shri Ramesh Bhatnagar with Shri Shyam Shrivastava, for appellant. Shri R. K. Bhawnani, for respondent.
ORAL ORDER
Dated: 17/01/2011
PER: - HON'BLE SMT. VEENA MISRA, MEMBER
This appeal is directed against order dated 30.06.2010 of District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short) in Complaint Case No.107/2010, whereby the complaint was allowed and the OP transporter was directed to pay a sum of Rs.6,13,760/- together with interest @ 6% p.a. and Rs.10,000/- towards mental harassment and Rs.1,000/- towards cost of litigation.
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2. Brief facts necessary for disposal of this appeal, are that the complainant had purchased 32 ton sugar worth Rs.6,13,760/- through M/s Tirupati Sugars, Akola, Maharashtra and said lot of sugar was to be transported from Pusad to Raipur by the OP. OP prepared the builty no. 947 for transportation of aforesaid 32 ton sugar vide truck bearing no. C.G. 04 / J.A.3287 dated 31.01.2009 from Pusad, Tah. Mahegaon, to Raipur. The transporter had assured that the goods will be delivered at Raipur within a period of 5 days. As the sugar did not reach the destination, the complainant enquired about the same and subsequently served legal notice on 25.04.2009 under Section 10 of Careers Act, 1865, which was delivered to the OP, still neither the delivery of sugar was given nor the amount paid towards price of the sugar. In stead, the OP sent false reply to the notice. It was alleged in the complaint that the lot of sugar was lost due to negligence of OP and his employees. Hence, the OP is liable to make good the loss suffered by the complainant.
3. In the written version, the OP raised objection regarding territorial jurisdiction. It was averred that no cause of action has arisen during territorial jurisdiction of the District Forum, nor the OP resides or carries on business at Raipur, but he is settled at Akola, Maharashtra and hence, the complaint was not maintainable. It was further averred in written version that the complainant has not // 3 // impleaded the truck owner and insurer as party and further that the truck owner and driver have been arrested and challan has been filed before the Court of Judicial Magistrate, First Class, Mahegaon, under Section 407, 477, 465, 471 / 34 of Indian Penal Code. It was further averred that the police has seized the property and the complainant is free to obtain the same on Supurdnama. It was averred in the written version that the builty was not prepared by the OP. The broker, Purusottam Sawarkar himself had got the goods transported. The complainant has preferred the complaint against the OP simply in order to harass him. Hence, it was prayed that the complaint be dismissed subject to compensatory cost of Rs.1,00,000/-.
4. In the impugned order, the District Forum found the OP liable and issued necessary directions.
5. Final arguments heard. Record perused. Appellant's counsel has also filed synopsis of arguments in writing.
6. Learned counsel for the appellant submitted that neither the appellant resides / carries on business at Raipur nor he has any branch office at Raipur, hence the complaint cannot be filed at Raipur. He further submitted that cause of action also did not arise within territorial jurisdiction of District Forum Raipur because the truck did not reach Raipur. He submitted that after the sugar was loaded in truck under // 4 // builty no. 947 from Pusad, Mahegaon for Raipur on 31.01.2009, the same was lost at Village Kanhan Dist. Nagpur. After intimation, the police came in to action and after investigation filed chalan in the matter against the owner and driver of the said truck. Criminal case is pending before the Court. Learned counsel submitted that the truck did not even enter the territory of the State of Chhattisgarh, hence the District Forum had no jurisdiction. Learned counsel further submitted that during pendency of criminal case before the competent court, the complaint before District Forum is not maintainable. In this regard he relied on Santosh Sharma & Ors. Vs. State Bank of India & Ors., II (1991) CPJ 262. Learned counsel further submitted that the complainant has failed to implead the truck owner / driver and insurer as OP in the complaint. Hence, the complaint was liable to be dismissed and as such the order passed by the District Forum is erroneous. In this regard, he relied on Mohd. Bax Vs. Chand Bi, MPWN (1995) 110. He also relied on Principal, Yuganthar Public School & Anr. Vs. Tulika Sharma & Anr., 2008 (3) C.G.L.J. 16 (CCC). Learned counsel further submitted that the complainant had served legal notice under Careers Act, 1865, hence ought to have filed Civil Suit. On the aforesaid pleas, learned counsel for the appellant submitted that the appeal be allowed setting aside the impugned order.
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7. Learned counsel for the respondent submitted that in view of the provisions of Consumer Protection Act, 1986, plea taken by learned counsel for the appellant is not tenable. He submitted that as per provisions of the Act, complaint can also be filed, where cause of action has wholly or partly arisen. Learned counsel submitted that the OP was to transport complainant's sugar to Raipur and had issued builty in that regard. Learned counsel submitted that by not delivering the same at Raipur, the OP has committed deficiency in service. Learned counsel submitted that it is provided in Section 8-9 of Careers Act, in very clear and unambiguous terms that common career is liable for loss or damage, caused by negligence or fraud of himself or his agent and there is a presumption in favour of the plaintiff and the plaintiff is not even required to prove negligence or criminal act of the transporter. He submitted that as the goods delivered to the transporter for being transported to Raipur, were not received, the complainant issued legal notice and thereafter filed complaint. He submitted that in view of Section 3 of the Consumer Protection Act, 1986, the complainant is entitled to file complaint before the District Forum as it provides additional remedy. He submitted that the District Forum has properly considered the matter and prayed for dismissing the appeal. Learned counsel for the respondent relied on Economic Transport Organization Vs. M/s Charan Spinning Mills (P) Ltd. & Anr. 2010 (2) CPR 181 (SC); Umesh Kumar & Anr. Vs. Shri Mohinder Singh & // 6 // Anr. 2010 (2) CPR 289 and Kaliswari Fire Works Vs. Kamal Enterprises & Ors. III (2010) CPJ 13 (NC).
8. On perusal of record, it is evident that besides filing builty no.947 issued by Akola Goods Garage, the complainant has filed various other documents from which it is abundantly clear that he had purchased 640 katta of sugar and the same was loaded in truck bearing No. C.G. 04 / J.A.3287, for being transported from Pusad to Raipur. There is no dispute that the sugar was loaded in the said truck. However, learned counsel for the appellant took the plea that it was complainant's own representative who got the truck loaded. Learned counsel for the appellant took the plea that neither the OP/ appellant had signed the builty nor booked the sugar as alleged by the complainant. Learned counsel for the appellant further submitted that Najimuddin has no concern with truck bearing No. C.G. 04 / J.A.3287, on which the material was loaded. On perusal of builty, it clearly appears that on the printed form phone number and mobile number of some persons are printed which include the number of appellant Najimuddin also. The appellant has not denied that he is proprietor of the appellant transport. The plea that he has not sign the builty, is of no avail. It is a document issued by Akola Goods Garage and it is clearly mentioned that 640 katta containing 32 ton material, was loaded in truck bearing No. C.G. 04 / J.A.3287 and Rs.24,000/-, was to // 7 // be paid as transportation fee. Hence, the plea of learned counsel for the appellant that complainant's representative himself had got the sugar loaded is not tenable and cannot absolve the transporter from liability.
9. Learned counsel for the appellant also took the plea regarding territorial jurisdiction and submitted that the truck containing the material did not even reach the limits of Chhattisgarh, hence, the District Forum, Raipur cannot have jurisdiction because no cause of action has arisen within its territorial jurisdictio0n. However, we are not convinced by the aforesaid arguments. It clearly appears from the builty that the goods were to be transported from Pusad to Raipur, hence the place, where the goods were to be delivered, but have not been delivered, will definitely have jurisdiction for the simple reason that non delivery of goods at its destination is the only grievance of the complainant. So we are of considered view that the main cause of action has arisen at Raipur only. In the circumstances, Principal, Yuganthar Public School & Anr. (Supra), relied by learned counsel for the appellant decided by this Commission would be of no help because the facts of the case are totally different. It was a matter relating to teaching institution, but the case under hand relates to a common career who undertakes to deliver the goods from one place to another. In case he fails to do so due negligence or fraud of himself or of his employees he would be liable under provisions of the Careers // 8 // Act, 1865. In the facts and circumstances of the case non-delivery of goods will provide cause of action for filing complaint at Raipur.
10. Learned counsel for the appellant had also taken the plea of non-impleadment of necessary parties but we do not find that in a proceeding against the transporter truck owner, driver or insurer is necessary party. The material was entrusted to the transporter for being sent to Raipur. It was for him to decide as to by which truck he will transport the goods. As a particular truck was chosen by the transporter to deliver the goods to its destination, hence it would obviously be the agent of the transporter. Even if the driver or any one else entrusted with the material / goods has committed any negligence or fraud, the transporter will be liable under provisions of the Carrier's Act. So we believe that it was not necessary to implead them in the proceedings against the transporter as common carrier.
11. So far as the plea of pendency of criminal case is concerned the law is very clear. In case the matter involves deficiency in service a complaint may be filed before Consumer Fora and pendency of criminal case would be no bar. In Santosh Sharma & Ors. Vs. State Bank of India & Ors.(Supra) relied by the appellant, facts of the case were that the employees of the Bank had allegedly assaulted the husband of the Complainant No.1 and the complaint was filed for recovery of sum of // 9 // Rs.17,48,000/- by way of compensation from the Bank for causing the death of her husband. Hence the facts of the aforesaid case were totally different from the one in hand, wherein the goods delivered for being transported, had not been delivered at the destination and such non- delivery obviously amounts to deficiency in service. In the aforesaid case itself, it is mentioned in the last Para that "Quite apart from what has been stated above, we are clearly of opinion that this is not a case where there has been any deficiency in service on part of the Bank so as to entitle the complainant to seek relief before the Consumer Disputes Redressal Forum, set up under the Act. We are accordingly constrained to reject this complaint petition on the aforesaid ground". Hence the case relied by learned counsel for the appellant will not provide any relief to the appellant.
12. In view of observations made hereinabove, we are of considered view that the appeal has no merits, hence the same is dismissed. Order of the District forum is affirmed. No order as to cost.
(Justice S.C. Vyas) (Smt. Veena Misra) (V.K. Patil)
President Member Member
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