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Ac Services (Pvt.) Ltd., and Another Vs. S. Dinesh and Company Through Its Partner Pal JaIn and Others - Court Judgment

LegalCrystal Citation
CourtPunjab State Consumer Disputes Redressal Commission SCDRC Chandigarh
Decided On
Case NumberFirst Appeal Nos. 1707 & 1726 of 2010
Judge
AppellantAc Services (Pvt.) Ltd., and Another
RespondentS. Dinesh and Company Through Its Partner Pal JaIn and Others
Excerpt:
.....4,93,575/-. c) gr bearing no. 617440 dated 23.4.09 for rs. 2523/- as opposite party charges and value of consignment is rs. 21,345/-. d) gr bearing no. 617453 dated 23.4.2009 for rs. 11,288/- as opposite party charges and value of consignment is rs. 10,65,164/-.” 3. however, the complainant was surprised and stunned when the complainant started receiving calls from the consignees that they have not received their books even after 10 days. when contacted with op no. 1, op no. 1 firstly was putting of the matter on one pretext or the other but when op no. 1 did not give any satisfactory reply what happened to the consignments, a legal notice dated 15.6.2009 was issued to the ops, which was duly received by the ops. instead of apologizing sent the false and frivolous reply to make.....
Judgment:

Gurcharan Singh Saran, Presiding Judicial Member:

1. This judgment will dispose of two appeals i.e. (1) First Appeal No. 1707 of 2010(AC Services Pvt. Ltd. versus S. Dinesh and Company) and (2) First Appeal No. 1726 of 2010(S. Dinesh and Co. and another versus AC Services (Pvt.) Ltd.). Both the appeals are arising out of the same order dated 16.8.2010 passed by the District Consumer Disputes Redressal Forum, Jalandhar(in short the “District Forum”) vide which the complaint No. 547 dated 3.8.2009 filed by complainant was partly accepted and the direction was given to OP Nos. 1 and 2 to pay Rs. 9,79,408/- alongwith compensation of Rs. 15,000/- and Rs. 3,000/- as litigation expenses within the period of one month. In case the Ops have failed to pay the amount within the stipulated period then it will pay interest @ 9% till the date of payment.

2. The complaint was filed by the complainants under Section 12 of the Consumer Protection Act (in short the ‘Act) on the allegations that the complainant is carrying on the business of publication of educational books under the name and style of M/s S. Dinesh and Co. since 1981. Complainant No. 2 is the partner of complainant No. 1 and is running the business of complainant No. 1. It was further alleged that M/s Bokaro Students Friend Pvt. Ltd., Sector IV, Bokaro Steel City, Jharkhand vide invoice No. 344 dated 21.4.2009 for a sum of Rs. 1,46,156/- and vide invoice No. 373 dated 23.4.2009 for Rs. 66,768/-, M/s Durga Pustak Mandir, Khazanchi Road, Patna, Bihar vide invoice No. 352 dated 22.4.2009 for a sum of Rs. 21,344.70, M/s Nova (PandD), Laxmi Market, B.M. Dass Road, Patna, Bihar vide invoice No. 358 dated 22.4.2008 for a sum of Rs. 4,93,575/- and S. Dinesh and Co. Branch Office, Patna, Bihar vide invoice No. 4 dated 23.4.2009 for a sum of Rs. 10,65,164/- had purchased the goods. It has been further alleged that the complainant had to send consignment to the abovesaid consignee within the period of 7 days and contacted OP No. 1 for consignment, who assured that the consignment will reach the destination within time and issued the following bills/GRs as under:-

“a) GR Bearing No. 717452 dated 23.3.2009 for Rs. 1025/- as opposite party charges and consignment value is Rs. 66,768/-.

b) GR bearing No. 617441 dated 22.4.2009 for a sum of Rs. 5704/- as opposite party charges and consignment value is Rs. 4,93,575/-.

c) GR bearing No. 617440 dated 23.4.09 for Rs. 2523/- as opposite party charges and value of consignment is Rs. 21,345/-.

d) GR bearing No. 617453 dated 23.4.2009 for Rs. 11,288/- as opposite party charges and value of consignment is Rs. 10,65,164/-.”

3. However, the complainant was surprised and stunned when the complainant started receiving calls from the consignees that they have not received their books even after 10 days. When contacted with OP No. 1, OP No. 1 firstly was putting of the matter on one pretext or the other but when OP No. 1 did not give any satisfactory reply what happened to the consignments, a legal notice dated 15.6.2009 was issued to the Ops, which was duly received by the Ops. Instead of apologizing sent the false and frivolous reply to make the payment on the ground that the said truck was set on fire by the mob when met with an accident and took a plea that the goods were booked at owners risk, therefore, the Ops have indulged in unfair trade practice and is deficient in his services. In fact the opposite party was negligent in performing their duties, hence, the complaint with the direction to the opposite parties to make payment of actual total value of the consignment of books that Rs. 17,93,007/- and Rs. 21,080/- paid to the opposite party to hire their services alongwith interest @ 18%; compensation on account of harassment to the tune of Rs. 1,50,000/- and litigation expenses of Rs. 21,000/-.

4. The complaint was contested by OP Nos. 1 and 2, who filed written statement taking preliminary objections that the complaint is not maintainable; the complainant has no cause of action to file the present complaint; there is neither any negligence nor deficiency in services on the part of the Ops; complainant has not come to the Court/District Forum with clean hands and has concealed the material facts; the complainant is barred by his act, conduct, waiver and latches as the complainant himself failed to get his goods insured; the complaint is against the terms and conditions mentioned over the consignment note/Bilty/GR in which it has been clearly mentioned in Clause No. 4 “the company shall not be responsible for any loss, damages, shortage, pilferage, theft, weather conditions, strikes, riots, leakages, disturbances, fire, explosions or Accidents etc.; the complaint requires elaborate evidence, therefore, the matter be relegated to the Civil Court; the complainant has no locus-standi to file the present complaint nor he has been authorised by other partners to file the complaint; complaint is bad for non-joinder and mis-joinder of necessary parties; the complainant is not a consumer as per the provisions of Act and that the complainant had not deposited the required fee alongwith the complaint. On merits, it has been denied that the complainant No. 2 is partner of complainant firm or that he has been authorised by the other partners to file the complaint. It is correct that consignments were booked for delivery of goods to M/s Bokaro Students Ltd., M/s Sri Durga Pustak Mandi, M/s Nova (PandD) and M/s Dinesh and Co., however, the value of the goods has been denied. The goods were never shown to the OP. However, as per the copy of the bills annexed with the complaint, the value of the goods was only Rs. 3,09,364/- and not Rs. 10,65,164/-. It has been further stated that the goods were sent from Ludhiana to Patna through truck No. PB-10-BE-8371 but it was an ill luck and act of the God that the truck in question, which was carrying the goods on 3.5.2009 met with an accident near Alinagar P.S. Chandoli, Varanasi and after that the said truck was set to fire. The driver and cleaner of the truck were beaten mercilessly by the mob. FIR No. 155 dated 3.5.2009 under Sections 279, 304-A of IPC, was registered in P.S. Alinagar Chandoli. It has been denied that the complainant visited the office of the opposite party for several times or contacted on telephone or they put of the matter on one excuse or the other. In fact the information of the abovesaid occurrence was given on telephone and vide letter dated 8.5.2009. It has been denied that the loss has been caused to the complainant by the Ops on account of negligence of their driver or there was any deficiency in the services. In the end, it has been stated that there is no merit in the complaint and the same be dismissed.

5. The parties were allowed by the learned District Forum to lead their evidence.

6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-A, partnership deed Ex. C-1, bills and consignment booking receipts Ex. C-2 to Ex. C-12, letter regarding non receipt of books dated 12.5.09 Ex. C-13, legal notice Ex. C-14, postal receipts Ex. C-15, price list of books/catalogue Ex. C-16, intimation to police Ex. C-17, order of the Court Ex. C-18. On the other hand, the opposite party had tendered into evidence affidavit of Daulat Ram, Manager of OP Co. Ex. OP-A, consignment note Ex. OP-2, 3, 4, transfer invoice Ex. OP-5, FIR Ex. OP-6and7, newspaper cuttings Ex. OP-8 to OP-12, letter written to complainants Ex. OP-13, copy of bilty Ex. OP-14, reply to legal notice Ex. OP-15, letter to Police by Ops Ex. OP-16 and postal receipt Ex. Op-17.

7. After going through the allegations in the complaint, written statement, taking into consideration the evidence and documents brought on the record, the learned District Forum vide impugned order observed that the complainants had sent their consignment of the books with the Ops to:-

“M/s Bokaro Students Ltd., M/s Sri Durga Pustak Mandi, M/s Nova (PandD) and M/s Dinesh and Co. vide

a) GR Bearing No. 717452 dated 23.3.2009 for Rs. 1025/- as opposite party charges and consignment value is Rs. 66,768/-.

b) GR bearing No. 617441 dated 22.4.2009 for a sum of Rs. 5704/- as opposite party charges and consignment value is Rs. 4,93,575/-.

c) GR bearing No. 617440 dated 23.4.09 for Rs. 2523/- as opposite party charges and value of consignment is Rs. 21,345/-.

d) GR bearing No. 617453 dated 23.4.2009 for Rs. 11,288/- as opposite party charges and value of consignment is Rs. 10,65,164/-.”

However, the OP Company had contested the price of the consignments of the books to Rs. 10 lacs rather they have stated that their value was Rs. 3,09,364/-. Ops have further contended that their truck was set ablaze by irate mob or act of God. But it was due to rash and negligent driving of the driver of the OP, who had crushed three persons on the scooter by hitting his truck from behind, which prompted the mob to set on fire the truck and at that time reasonable care and precaution to ensure the safety of the books were not taken by the Ops. Ops Company was under legal obligation to deliver the consignment in a safe condition to the consignees and they cannot take the shelter of Clause 4 and after relying upon the judgment of Honble Supreme Court “M/s Economic Transport Organization versus Dharwad Distt. Khadi”, 2002(2) CLT 24 wherein it was observed that the fire did not take place on account of an Act of God but due to negligence of the Driver of the Carrier and ultimately, it was observed that the loss was due to negligence of the carrier Company and under Section 8 of the Carrier Act, it is the liability of the carrier to make good where any loss or damage arises due to negligence of the carrier and under Section 9 of the Act that negligence has to be presumed on the part of the Carrier until the contrary is proved by satisfactory evidence. The value of the goods was found to be Rs. 10,65,164/- vide EX. C-11 based upon Catalogue Ex. C-16 and not Rs. 3,09,364/- and ultimately, the complaint was partly allowed as stated above.

8. In the appeal filed by the Ops, it has been contended that the learned District Forum had no jurisdiction to decide the complaint as the complainant was not a consumer as defined under the CP Act. The learned District Forum also fell in error in holding that there was negligence or deficiency on the part of the appellant. In fact the truck was put to fire by the Mob near Alinagar, P.S. Chandoli, Varanasi, although, the fire brigade had immediately arrived at the spot but it failed to extinguish the fire, therefore, the loss was not on account of any negligence on the part of the Ops. The consignment in question was booked for transportation at owners risk, therefore, the appellants are not liable for the loss. Then according to Clause 4 of the terms and conditions of the GR, the company was not liable for any loss, damages, shortage, pilferage, theft, weather conditions, strikes, riots, leakages, disturbances, fire, explosions or Accidents etc.. In the present case, the loss has occurred due to fire caused by mob, therefore, it falls under Clause 4 of the terms and conditions of the policy and that the disputed questions of facts are involved, therefore, the matter should have been relegated to the Civil Court. The amount of compensation awarded by the learned District Forum is highly excessive and exaggerated and without any reasons.

9. Firstly taking the plea of the appellant whether the complainants comes under the definition of ‘consumer or not? It has been contended by the counsel for the appellant that as per the complaint, complainant No. 1 is Company and complainant No. 2 is the partner and is running the business of publications of educational books, therefore, it is a commercial transaction. However, the counsel for the respondent argued that it is not a case of sale or purchase of the books by the Company that it can be categorized for commercial purposes. In the present case, the transport services of the Company were availed to transport the books from one place to another, therefore, it will not be for commercial purposes. On this point, there is a judgment of the Honble National Commission “Swiss Air Cargo versus Century Silk Inc. and ors.”, 2012 (2) CLT 118. In that case, plea that the goods were being transported for commercial purposes - whereas the findings recorded by the Honble State Commission that the services of OP No. 3 were availed only for transportation of goods from Bangalore to Athens and it did not involve any sale, the question of commercial purpose did not arise upheld. Therefore, the contention of the appellant that the complainant does not fall within the definition of ‘consumer is not tenable.

10. The next proposition raised by the counsel for the appellant is that the case of the complainant falls within the exclusion clause as mentioned in the GR. Clause 4 reads as under:-

“4. The company shall not be responsible for any loss, damages, shortage, pilferage, theft, weather conditions, strikes, riots, leakages, disturbances, fire, explosions or Accidents etc.”

and that as is clear from the FIR, Ex. OP-6 and 7 when the truck of the Ops was passing near Alinagar P.S. Chandoli, three persons on the scooter came in front of the truck of the Ops as a result of which truck crushed those boys and they had died and the mob collected there and put the truck to fire, therefore, it has been stated by the counsel for the appellant that it is the act of the God and that the appellant is exempted under the warranty clause given in the GR. The Honble Supreme Court in “Patel Roadways Ltd. versus Birla Yamaha Ltd.”, 2000(2) CLT 250 has held that ‘under Section 9 of the Carrier Act, 1865 in case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. In case “Brigadier Dr. Shiv Darshan Dutta versus Pashupati Nath Road Carriers and Ors.”, I (2010) CPJ 224 wherein the Honble State Commission of Jammu and Kashmir held that OP No. 1 hired services of OP2 and OP3 – Truck driven by OP2 entangled with the over head low hanging electric wires – Fire ignited from wires engulfed the loaded goods – Allegedly, truck driven negligently by OP2 – Allegations denied – Contention, OP2 forced by complainant to take the truck towards his residence in spite of knowledge that the passage leading to his residence was narrow – Plea was rejected as low tension electric wire network on that road was having requisite ground clearance – Vehicle driven negligently and got entangled with wires – Total loss of the goods proved – OP1 was held liable to reimburse.” There is another judgment of the Honble National Commission “Unichem Laboratories Ltd. versus New India Assurance Co. Ltd. and Anr.”, III (2006) CPJ 359 (NC). In that case loss/damage of goods entrusted for carriage – It is the duty of the carrier to take due care, so long as goods are in its custody – Expression ‘at owners risk does not exempt carrier from his own negligence or criminal act or that of his servants or agents.

11. In the present case also the mob put the truck of the Ops to fire only after the driver of the Ops drove the truck in negligent manner and crushed three persons on the scooter, therefore, he had driven the truck negligently, which prompted the mob to agitate against the driver and in that process the truck was put to fire, therefore, it cannot be said that it is an act of the God. The truck was put to fire due to rash and negligent driving of the truck driver of the Ops. In case “Bhilai Golden Transport Co. versus Raipur Sales Agency”, III (2004) CPJ 487, the Honble Chhattisgarh State Commission, Raipur observed that ‘fire is not an Act of God and OP could not be absolved from liability and the complainant is entitled to compensation for loss of consignment.

12. So far as the expression ‘owners risk is concerned because it was not insured with the insurance company. There is a judgment “Patel Roadways Ltd. versus Birla Yamaha Ltd.”, 1(2000) CPJ 42 (SC) wherein Honble Supreme Court held that “the liability of a common carrier under Carriers Act is that of an insurer. It was observed therein that this position is made further clear by the provision in Section 9 in which it is specifically laid down that in case of claim of damages for loss or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. In another case “Nath Bros. Exim International Ltd. v. Best Roadways Ltd.”, I (2000) CPJ 25 the Honble Supreme Court held ‘after considering pronouncements of various High Courts observed that expression ‘at owners risk does not exempt a carrier from his own negligence or negligence of his servants or agents. It was further laid down in the said case:

‘From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods on account of his own negligence or criminal act or that of his agent and servants.

13. With regard to the proposition raised by the counsel for the appellant that the goods were not got insured by the complainant; since the value of the goods was more than Rs. 1,000/- to the knowledge of the Ops as in the written statement they admitted the value of the goods for more than Rs. 3 lacs then they were under obligation to ask the complainant to get the goods insured but did not press for the insurance of the goods by the complainant, now they cannot agitate that they were not liable for the claim as the goods were not got insured by the complainant.

14. It is contended that the amount of compensation awarded by the learned District Forum is highly excessive. However, it has not been stated that how the amount is exaggerated or highly excessive. A sum of Rs. 9,79,408/- has been awarded on account of value of the goods whereas just Rs. 15,000/- has been awarded on account of compensation and Rs. 3,000/- as costs of litigation, which is quite reasonable, therefore, it cannot be said that the amount of compensation is highly excessive or exaggerated.

15. No other point has been raised.

16. Accordingly, the order passed by the learned District Forum is correct and we do not find any infirmity in the order passed by the learned District Forum and the same are affirmed.

17. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.

18. The complainant in its Appeal No. 1726 of 2010 has contended that the learned District Forum erred in not determining the true value of the goods. As per invoice No. 4 only the amount of 8 items out of 17 has been stated as Rs. 3,09,364/- whereas the rates of certain books were not uploaded in the software, therefore, the rates of the special category of books was not mentioned whereas as per catalogue the amount comes to Rs. 10,65,164/-.

19. The cost of the books is not to be assessed on the basis of catalogue but on the basis of invoice/bills and on the basis of invoice the learned District Forum has calculated the amount of Rs. 9,79,408/-, therefore, we do not agree with the proposition that the cost of the books should be calculated on the basis of the price mentioned in the catalogue.

20. No other point has been argued.

21. As per the above observation, we do not find any merit in appeal No. 1726 of 2010 and the same is dismissed with no order as to costs.

22. The arguments in these appeals were heard on 8.10.2013 and the orders were reserved. Now the orders be communicated to the parties as per rules.

23. The appellant in F.A. 1707 of 2010 had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 2 lacs in compliance with the order dated 7.10.2010. These amounts with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant. Remaining amount shall be paid by the appellant to respondent No. 1 within 30 days from the receipt of the copy of the order.

24. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.

25. Copy of this order be placed on First Appeal No. 1726 of 2010 (S. Dinesh and Co. and another versus AC Services (Pvt.) Ltd.).


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