A K Fabrics vs Ajanta Transport Co

M /s. A.K. Fabrics, Madanganj - Kishangarh through its Proprietor Padamchand Bhonch has filed this complaint against (1) M/s. Ajanta Transport Co. (opposite party No. 1) (Transporter) and (2) The Oriental Insurance Co. (opposite party No. 2) (Insurer). Here it may be mentioned that in the original complaint M/s. Jai Bharat Transport Co. was also impleaded as opposite party No. 2. An application was submitted by the complainant and on its application the name of M/s. Jai Bharat Transport Co. was deleted vide order dt. 11.3.91. So now in this complaint we are concerned with the Transporter and the insurer as opposite parties.

THE complainant despatched 29 cases of synthetic cloth worth Rs. 2,23,531.10 from 28.12.88 to 10.1.89 through the transporter vide 28 luggage receipts on different dates. Anx. 1 is a statement showing bill No., date, L.R. No., dated cases, bill amount, description, name of transporter, return charges, Bank interest upto 31.3.90, total OBC No., date and name of party. It is as under : S. No. Bill No. Date L.R. No. Date Cases Bill No. amount 1. 1005 28.12.88 259862 29.12.88 1 9508.00 2. 1006 28.12.88 259863 29.12.88 1 7369.50 8.12.88 259864 29.12.88 1 7415.00

1008 28.12.88 259865 29.12.88 1 7382.50

1009 28.12.88 259866 29.12.88 1 7369.50 8.12.88 259867 29.12.88 1 6024.20

1019 28.12.88 259868 29.12.88 1 8069.00

1020 28.12.88 259869 29.12.88 1 8004.80 8.12.88 259870 29.12.88 1 8429.00

1022 28.12.88 259871 29.12.88 1 7493.00

1023 31.12.88 259872 29.12.88 1 8429.00 1.12.88 259873 29.12.88 1 8379.00

1034 31.12.88 259874 29.12.88 1 8385.00

1035 31.12.88 259875 29.12.88 1 8545.20 1.12.88 259876 29.12.88 1 8847.60

1037 31.12.88 259877 29.12.88 1 8154.60

1038 31.12.88 259878 29.12.88 1 7720.60 1.12.88 259879 29.12.88 1 7573.40

1040 31.12.88 259881 29.12.88 1 8015.40

1041 31.12.88 259882 29.12.88 1 8328.10 1.12.88 259887 29.12.88 1 8216.60

1050 31.12.88 259888 29.12.88 1 8875.60

1052 2.1.89 259889 2.1.89 1 7800.00 .1.89 259890 2.1.89 1 7797.00

1054 2.1.89 259891 2.1.89 1 6310.00

1058 9.1.89 259896 10.1.89 1 7799.00 0.1.89 259895 10.1.89 1 8443.00

1031 31.12.88 259880 31.12.88 1 7847.50 223531.10 3. THE complainant has alleged that these goods were booked with the transporter through its agency at Madanganj Kishangarh M/s. Yadav Transport Co. M/s. Yadav Transport Co. supplied LRs of M/s. Ajanta Transport Co. But the delivery office at Calcutta was mentioned on the LRs as M/s. Jai Bharat Transport Co. Calcutta (deleted.). THE complainant had presented the original LRs to M/s. Jai Bharat Transport Co. for delivery of the consigned goods but the goods were not delivered to the complainant inspite of repeated demands. THE LRs were than presented to the transporter who also did not deliver the goods to the complainant. On enquiry the complainant came to know that the consigned goods were not available with Jai Bharat Transport Co. On further enquiry from M/s. Jai Bharat Transport Co., the incharge Shri Shiv Kumar informed in writing to the complainant to his letter dt. 27.7.89 that they could not deliver the goods to the complainant as the goods had already been disposed in the market. According to the complainant they assured that the matter would be sorted out early with the parties. THE complainant repeatedly reminded the transporter and Jai Bharat Transport Co. for sorting the matter on telephonic talk and was always assured for early settlement. THE complainant has written letter on 9.10.89 to the transporter. In reply to that the opposite party No. 1 vide its letter dt. 18.10.89 assured the complainant that the matter is being taken up seriously and enquiries are being conducted from the agents. THE reminders of the complainant for the delivery of the goods were of no avail. THE complainant and his representative personally visited Calcutta and contacted the concerned opposite parties. THE complainant has alleged that the transporter (opposite party No. 1) has failed to deliver the consigned goods on their price and it has criminally misappropriated the goods without any authority and ''concern''. It was, therefore, submitted that the transporter and Jai Bharat Transport Co. are jointly and severally liable to make payment of Rs. 2,98,112.78 being the cost and value of the goods, Banks return charges and interest calculated upto 30.6.90 together further interest @ 21% from 1.7.90 till the actual date of payment to the complainant with all costs as detailed hereinabove. It has been alleged that on account of blockage of such huge amount for such a long time, the business of the complainant met a serious set back and as a result he was prevented from earning profits. Thus he has suffered a loss of profit a rounding to Rs. 40,000/ -. This amount was claimed as damages in addition to the aforesaid amount. THE complainant had got the goods insured as despatched through the LRs against the non -delivery and fire with opposite party No. 2 (insurer) under policy No. 24214/302/SO/88/590 dt. 30.12.88. According to the complainant, he had promptly issued the declaration forms in connection with the said LRs and forwarded the copies to the insurer. On these premises it was submitted that the insurer is liable to make payment of Rs. 2,98,112.78 being the value of the goods together with the bank returning charges and interest calculated upto 30.6.90 and Description Name of Transport Returned charges (Bank) InterestUpto31.3.90 Totalamount O.B.C. No. Date Name of Party T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2514.85 12052.85 432 30.12.88 Impex Enterprises T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 1951.00 9350.50 427 30.12.88 Impex Enterprises T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 1963.00 9408.00 427 30.12.88 Impex Enterprises T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 1954.40 9366.90 426 30.12.88 Impex Enterprises T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 1951.00 9350.50 420 30.12.88 Impex Enterprises T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 1596.40 7650.50 429 30.12.88 B.P. Traders T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2135.40 10234.40 429 30.12.88 B.P. Traders T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2119.50 10153.30 430 30.12.88 B.P. Traders T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2230.35 10689.35 428 30.12.88 B.P. Traders T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2283.50 9606.50 428 30.12.88 B.P. Traders T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2230.35 10689.35 431 30.12.88 B.P. Traders T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2207.30 10616.30 433 3.1.89 Sheria International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2209.00 10624.80 433 3.1.89 Sberia International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2251.00 10826.20 433 3.1.89 Sheria International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2330.00 11207.60 434 3.1.89 Sheria International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2148.50 10333.10 434 3.1.89 Sheria International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2034.00 9784.60 434 3.1.89 Sheria International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 1995.00 9598.40 440 3.1.89 Sheria International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2111.00 10156.40 440 3.1.89 Sheria International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2124.00 10552.10 440 3.1.89 Sheria International T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2427.00 11673.60 437 3.1.89 Jhanwar Synetics T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2337.00 11242.80 437 3.1.89 Jhanwar Synetics T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2046.00 9876.00 438 3.1.89 Jhanwar Synetics T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2045.00 9871.00 438 3.1.89 Jhanwar Synetics T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 1657.00 7998.00 438 3.1.89 Jhanwar Synetics T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2009.00 9838.00 451 11.1.89 Jhanwar Synetics T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2175.00 10648.00 452 11.1.89 Khatuka Textile T.C. Cloth Ajanta Trans. Co. P. Ltd. 30.00 2067.00 9944.50 539 3.1.89 Impex Enterprises 840.00 58871.45 283242.55 Add Interest upto 30.6.90 @ 21% p.a. on Rs. 283242.55 14870.23 298112.78 further interest w.e.f. 1.7.90 @ 21% p.a. till the date of actual payment to the complainant. In addition to this penalty of Rs. 1,00,000/ - may also be ''decreed'' was also prayed for. THE complaint was filed on 30.6.90. 4. On 14 -11.90 for opposite party No. 1 Mr. R.D. Sharma Regional Manager appeared before the State Commission. No version of the case was filed on behalf of opposite party No.1. As nobody was present on behalf of the transporter ex -parte proceedings were taken against it, It was incorporated in the order sheet dt, 11.3.91 that ex -parte proceedings are taken against opposite party No. 1 as after appearing on 14.11.90 nobody has appeared on its behalf on the subsequent dates of hearing. As stated above the name of Jai Bharat Transport Co. which was originally arrayed as opposite party No. 2 was deleted by order dt. 11.3.91. 5. THE complainant submitted photo stat copies of the correspondence, policy Anx. 2 and LRs. Version of the case was filed on behalf of the insurer -opposite party No. 2 traversing the allegations made in the complaint. Issuance of the policy in the name of M/s. A.K. Fabrics was admitted. It was submitted that the insurer is not liable jointly or severallly for the various sums claimed by the complainant. It was submitted that on 7.2.90 a claim form was submitted by the complainant with the insurer for claiming a sum of Rs. 1,38,037.60 only as damages for the alleged loss on account of non -delivery of the consignments consisting of 17 bales only and that the present claim for

BALES is wrong and an afterthought. No declaration forms for G.R. Nos. 259862 to 259872 were submitted. According to the insurer the statement of the returned LRs as given by the complainant with his claim form contains the details of only 17 bales. It was stated in the version of the case that on examining the claim of the complainant, it was felt by the insurer that a thorough investigation of the whole claim was essential and as such Shri Onkarlal Vyas retired Police Officer and Ex. CBI Officer of Bhilwara was appointed as investigator in the case. He examined the whole case and submitted his report. According to the insurer the net result of the investigation conducted by Shri Onkarlal Vyas was that the insured bales were delivered to M/s. Nand Kishore Deen Dayal by orders of the agent of the complainant in Calcutta by the transporter M/s. Jai Bharat Transport Co. on 28.2.90 after realising the costs of such bales by Shri Sumer Chabra, who happened to be the agent of the consignor (complainant). It was also stated that the insured consignments remained safely in the godown of M/s. Jai Bharat Transport Co. at Calcutta from 19.1.90 to 28.2.90. The consignments were safe during the subsistence of the insurance period and so the insurer is not liable. A plea was taken that the complainant on account of the fraud as found by the investigator deserves to be dismissed. It was submitted that the disputed and complicated issues of facts and law are involved in this case and as such the complaint cannot be decided by the State Commission in a summary enquiry. Photo stat copies of the investigators report and letters were submitted. Affidavit of Shri Onkarlal Vyas in support of the version of the case was filed by the insurer. 6. A rejoinder was filed by the complainant to the reply of the insurer. It was denied in the rejoinder that Shri Sumer Chabra is a broker having its business at Calcutta and is more related to the parties at Calcutta than the complainant in business matters. He was never an agent or representative of the complainant. The insured bales were delivered by the transporter to M/s. Nand Kishore Dindayal without production of GRs without any authority and thereby transporters service suffered from deficiency. It was denied that the complainant has sold the bales and has obtained its value. It was also submitted that Shri Sumer Chabra neither arranged delivery of the insured bales to M/s. Nand Kishore Dindayal nor he received any payment against these bales. The complainant submitted on 27.3.91 photo stat copy of the policy issued by the insurer in favour of the complainant. Affidavit sworn by Shri Padamchand Bhonch and affidavit of Sampat Kumar Dagra in support of his case were filed. Both the parties (complainant and insurer) submitted written arguments. 7. It may be stated here that opposite party No. 1 (transporter) had neither filed any version of the case controverting the allegations made in the complaint nor placed any evidence on record rebutting the facts brought on record by the complainant. It is clear from Anx.1 that the complainant booked 29 cases synthetic cloth Ex -Kishangarh to Calcutta through transporter in lieu of which LRs mentioned in Anx.1 were issued. The LRs were got issued bearing the name of SBBJ as consignee because the complainant had sent the LRs to the purchaser -party through bank with instructions to deliver the LRs only after receiving the full payment of the bills together with interest at 21% p.a. and bank charges. The consignees did not make the payment to the Bank. The LRs, Hundies etc. were returned unpaid to the complainant. The complainants representative Shri Sampat Kumar Dagra went to Calcutta on 25.7.89. He presented the original LRs before the transporter. The goods were despatched to Calcutta against an order received through Shri Sumer Chabra broker at Calcutta. He was not available at Calcutta. The transporter did not deliver the goods. It appears that Shri Ramesh Goyal Director of the transporter Co. told that he was trying to arrange delivery of the goods pertaining to the said LRs and that the complainant should wait for sometime. The Director of Jai Bharat Transport Co. informed that the goods were delivered to some other party and that he was trying to settle the matter early. Nothing has been brought on record to show that the goods were delivered either under the instructions of the consignee or the consignor as has been deposed by Mr. Dagra in his affidavit. The complainant Padamchand Bhonch has supported the complaint. The transporter was expected to deliver the goods after collecting the LRs which were sent by the complainant through the Bank. 8. The transporter failed to deliver the goods in terms of the order relating to the transporting of the goods. ''Deficiency'' has been defined in Sec. 2(1)(g) of the Act. Any fault, imperfection or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under the law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. It will be pertinent to extract the following endorsement from the LR : ''The consignment covered by this set of special lorry receipt form shall be stored at the destination under the control of the transport operator and shall be delivered to the order of the consignee Bank whose name is mentioned in the lorry receipt. It will under no circumstances be delivered to any one without the written authority from the consignee bank or its order endorsed on the consignee bank or on a separate letter of authority.'' 9. The transporter (opposite party No. 1) was to make the delivery of the goods to the bank or to the authorised person. The implication of the ''endorsed'' is that opposite party No. 1 is fully liable for delivery of the goods to the bank or to their authorised person and binds opposite party No. 1 not to deliver the goods to any one without authority under any circumstances. Conditions No. 1, 8 and 9 of the LRs are as follows : ''1. Where a Bank has agreed to accept this lorry receipt as a consignee/endorsee or holder thereof or an any other capacity for the purpose of giving advances to and/or collection or discounting bills of any of its consumers whether before or after the entrustment of the goods to the Transport Operator for carriage, the Transport Operator hereby agree, in consideration of the same to hold themselves liable at all material times directly to the bank concerned, as if the bank were a party to the contract herein contained with the right of recourse against the Transport Operator to the extent of the full value of the goods handed over to the Transport Operator for carriage, storage and delivery. 8. Consignee Banks accepting Lorry Receipts under Clause 1 above will not be liable for payment of any charges arising out of any lien of the Transport Operator against the consignor or the buyer. Where it becomes necessary for any bank to obtain delivery of the consignment from the Transport Operator in terms of the scheme (because buyer does not retire the documents or because of any other reason). The Transport Operator shall deliver the goods unconditionally to the bank on payment of the normal freight and storage charges only in connection with the consignment in question, without claiming any lien on the goods in respect of any monies due by the consignor or the consignee to the Transport Operator or any other account whatsoever. 9. Notwithstanding, any statement made in the Lorry Receipt or any circumstances surrounding the issue of this Lorry receipt, the Transport Operator shall at all times observe its obligation to the consignee bank named in the lorry receipt and shall be responsible for safe and due delivery and for any loss or damage to the goods or consignment, that arises as a result of negligence, default, failure to take reasonable precautions, malafide or criminal or fraudulent actions of the Transport Operator or any of its Managers, Agents Employees, Partners, Directors or business associates or branches etc.'' According to them the transporter was bound to deliver the goods or pay the value of the goods to the Bank or authorised person. He was also responsible for safe and due delivery of the goods. Opposite party No. 1 (transporter) was bound by the terms and conditions and the goods were to be delivered according to them. When it failed to deliver the goods in accordance with the terms of the lorry receipt and the contract which was entered into between the complainant and the transporter. Failure to do so is deficiency in service as has been held by the National Commission in Synco Textiles v. Economic Transport Co. reported in I (1991) CPJ 40 (NC)=1991 CSMR CAS 130. The transporter opposite No. 1 is thus liable to make the good the loss suffered by the complainant. 10. The complainant has given his affidavit stating that 28 cases of cloth sent by the complainant were of Rs. 2,23,531.10, return charges of the bank as mentioned which have not been controverted and which can easily be verified from the Bankare Rs. 840/ -. The complainant is, therefore, entitled to Rs. 2,23,531.10 plus Rs. 810/ -. The transporter ought to have delivered the goods ten days after the date of despatch which it failed to deliver and, therefore, the complainant is entitled to interest by way of compensation on the sum of Rs. 2,23,531.10 plus Rs. 840/ - @ 18% p.a. until the date of realisation. 11. The name of M/s. Jai Bharat Transport Co. has already been deleted. Now the question is whether the insurer can be made liable for this. According to the investigation conducted by the insurer as is evidenced by the report of Shri Onkarlal Vyas is that the bales were not lost but were delivered to M/s. Nand Kishore Dindayal, by orders of the agent of the complainant in Calcutta by the transporter M/s. Jai Bharat Transport Co. on 28.2.90 after reclising the costs of the bales by Shri Sumer Chabra, who happened to be the agent of the consignor. If the bales were not lost then the Insurance Co. is not liable. It has been found by Shri Onkarlal Vyas, retired Police officer and Ex. CBI officer that the insured consignments remained safely in the godown of M/s. Jai Bharat Transport Co. in Calcutta from 19.1.90 to 28.2.90. The insured consignments were safe during the subsistance of the insured period and thus the insurer is not liable. Apart from that the non - delivery certificates were not given by the transporter under the terms of the policy. It was necessary that the non -delivery certificates ought to have been delivered to the insurer which was not done. For all these reasons no liability can be fastened on the insurer, and the complaint against the insurer deserves to be dismissed. 12. From the foregoing discussion it follows that opposite party No. 1 M/s. Ajanta Transport Co. on whose behalf the LRs were issued by its agency at Madanganj -Kishangarh M/s. Yadav Transport Co. failed to deliver the goods to the consignee for which the payment was made to it. Thus the service rendered by opposite party No.1 suffered from deficiency as envisaged by Sec. 2(1)(g) of the Act and, therefore, it is liable to make good the loss of the complainant. As held above the cost of the goods as per bills was Rs. 2,23,531.10. Besides that as the complainant had to pay return bank charges amounting to Rs. 840/ - the complainant is also entitled to recover this amount. The complainant was deprived of the cost of the goods which ordinarily should have reached ten days after the consignments of the goods were delivered at Madanganj -Kishangarh on 29.12.88. The complainant is thus entitled to interest by way of compensation from 8.1.89 until the date of payment for the loss suffered by him. It is, therefore, ordered that M/s. Ajanta Transport Co. Calcutta (opposite party No. 1) shall pay Rs. 2,23,531.10 being the price of the goods plus Rs. 840/ - as return charges of bank total Rs. 2,24,371.10 together with interest @ 18% p.a. from 8.1.89 until payment to the complainant within one month from the date of the receipt of the order, having regard to the facts and circumstances of the case, we do not consider proper to award compensation as such separately. The complaint against Oriental Insurance Co. Ltd. Madanganj -Kishangarh which is after deletion of the name of M/s. Jai Bharat Transport Co. is opposite party No. 2 shall stand dismissed. Rest of the claim of the complainant is dismissed but without any order as to costs. 13. The complaint of the complainant succeeds to the extent indicated hereinabove. M/s. Ajanta Transport Co. Calcutta shall pay Rs. 1,000/ - as costs to the complainant. Complaint allowed with cost.