Bombay Golden Transport Pvt Ltd vs Shiv Hari Texo

PETITIONER has filed present revision petition challenging order dated 22.12.2010, passed by State Consumer Disputes Redressal Commission, Panchkula (for short ''State Commission''). Vide impugned order, appeal of the petitioner was dismissed.

BRIEF facts are that respondent No. 1/complainant is working under the name and style M/s. Shiv Hari Texo, Panchranga Bazar, Panipat and Shri Deepak Chaudhary is its proprietor. Petitioner/opposite party No. 1, is carrying on its business of transportation and is agent, dealer of the respondent Nos. 2 and 3/opposite party Nos. 2 and 3. Respondent No. 1, booked goods worth Rs. 45,220 for its delivery to the respondent No. 4/opposite party No. 4 through petitioner against four Bilties worth Rs. 8,770, Rs. 11,175, Rs. 13,650 and Rs. 11,625. However, neither the aforesaid goods were delivered by petitioner and respondent Nos. 1 and 2 at the destination nor the amount of goods has been returned. Thus, alleging it as deficiency in service and unfair trade practice, respondent No. 1, invoked the jurisdiction of District Consumer Forum by filing the present complaint.

UPON notice, respondent Nos. 2 and 3 did not contest the complaint and they were proceeded ex parte. Petitioner and respondent No. 4 appeared and contested the complaint.

IN its written reply, petitioner challenged the maintainability of the complaint and stated that respondent No. 1 could have filed a civil suit. It was further stated that the goods were delivered to respondent No. 4. It was further stated that no assurance was given to respondent No. 1 with respect to the payment of the goods from the respondent No. 4

RESPONDENT No. 4 in its written reply stated that it has purchased blankets vide bill dated 27.10.2001 worth Rs. 24,825 and had given advance of Rs. 4,800 and Rs. 25 less were done by respondent No. 1. It was further stated that Bilty Nos. 117010 and 227023 were received and payment of Rs. 22,425 was given to Ramesh Yadav, Manager of respondent No. 2. Thus, denying any kind of deficiency in service, respondent No. 4 prayed for dismissal of the complaint.

ON appraisal of the pleadings of the parties and evidence brought on record, District Consumer Forum accepted the complaint and issued the following directions: "........We direct the respondent Nos. 1 to 3 to pay an amount of Rs. 45,220 (as cost of the handloom goods) along with interest @ 12% per annum from 30.10.2002 till the date of realization of the whole amount, together with the sum of Rs. 5,000 as compensation for mental harassment and Rs. 1,100 as litigation expenses jointly and severally. However, no case is made out against the respondent No. 4. Hence, the complaint against the respondent No. 4 stands dismissed. Respondent Nos. 1 to 3 are hereby directed to make the compliance of this order jointly and severally, within a period of thirty days from the date of receipt of copy of this order."

AGGRIEVED by the order of District Forum, petitioner filed an appeal before State Commission. State Commission, vide impugned order dismissed the appeal being devoid of any merit.

IT is contended by learned Counsel for the petitioner that petitioner is an agent of respondent Nos. 2 and 3, therefore, in view of Section 230 of Indian Contract Act, 1872 (for short ''Contract Act''), petitioner cannot be held liable. In support, learned Counsel has relied upon decision of Supreme Court in Marine Container Services South Pvt. Ltd. v. Go Go Garments, (1998) 3 SCC 247 and Makers and Sellers Union v. Jet Air Pvt. Ltd., First Appeal No. 573 of 1996, decided on 19.10.2005 by this Commission.

IT is also contended that consignment note is issued by respondent Nos. 2 and 3 and the petitioner is only shown as an agent. The documents produced by petitioner show that respondent Nos. 2 and 3 had received the packet with the consignment notes. As far as petitioner is concerned, there is no negligence on his part.

IT is further contended that since payment has been made by respondent Nos. 2 and 3, it will not be a consumer dispute against the petitioner.

IN its written statement, petitioner has admitted that the goods in question were booked by respondent No. 1 through him and he (petitioner) is an agent of respondent Nos. 2 and 3 and the same has been delivered through respondent Nos. 2 and 3 to respondent No. 4. Thus, admittedly it is the petitioner who has booked the goods of the respondent No. 1 for onward transmission to respondent No. 4.

DISTRICT Forum, in its order has held: "7. After hearing both the sides at length and having gone through the case file very carefully, we are of the view that the present Bilties i.e. Ex. C2 to Ex. C5 are having description of the amount for which the goods were despatched. As such, the non-availability of the copy of the bill cannot hamper the interest of the petitioner. The delivery of the goods by the respondent No. 4 is admitted. The Bilties are of self and meaning thereby the respondent No. 1 were duty bound to get the amount against the receipt of handloom goods from the respondent No. 4. The respondent No. 4 has stated that he has paid the amount to the respondent No. 1 and as such the duty of respondent No. 4 was to pay the amount of value of the goods to the petitioner as soon as it was received by him from the respondent No. 4 but it has not been done so. Admittedly, the respondent No. 1 was paid consideration for availing the services by the petitioner and the respondent No. 1 is the agent of respondent Nos. 2 and 3 as such the liability of respondent No. 1 was jointly and severally to hand over the amount of cost of the handloom goods to the petitioner but it has not been done so by them. In such circumstances, respondent No. 1 are proved to be negligent in their services. The petitioner has been wrongly made to suffer mentally and financially and as such he was deprived to the amount for using it in his business. Hence, the petitioner is also entitled to some amount for mental harassment and litigation expenses and as also to the amount of Rs. 45,220, the cost of the handloom goods as is clear from the Bilties Ex. C2 to Ex. C5. For the reasons recorded above, we accept the present complaint and hold that the respondent Nos. 1 to 3 are negligent in their services."

STATE Commission, while dismissing the appeal of petitioner observed: "The complainant has produced in its evidence bilties Ex. C-2 to Ex. C-5 having description of the amount for which the goods were dispatched and the delivery of the aforesaid bilties to the opposite party No. 4 has been proved. From the record, it is established that the aforesaid bilties were of self. In other words, the opposite party No. 1 was duty bound to get the amount against the receipt of the handloom goods from the opposite party No. 4. It has also come on record that the opposite party No. 4 had paid the amount to the opposite party No. 1, who is the agent of the opposite party Nos. 2 and 3. Thus, the opposite party Nos. 1 to 3 have been proved negligent for not returning the payment of the aforesaid bilties to the complainant. Keeping in this view of the matter we hardly find any ground to interfere with the directions issued to the opposite parties Nos. 1 to 3. Hence, this appeal is dismissed being devoid of any merit."

IT is for the first time before this Commission, petitioner is taking shelter under Section 230 of the Contact Act. This Section read as under: "230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal-In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Presumption of contract to contrary-Such a contract shall be presumed to exist in the following cases: (1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident aborad; (2) Where the agent does not disclose the name of his principal; (3) Where the principal, though disclosed, cannot be sued."

IN Marine Container Services South Pvt. Ltd. v. Go Go Garments (supra), it was held, "that an agent can invoke Section 230 of the Contract Act whether in proceedings before the National Commission or otherwise and if facts found support him, his defence cannot be brushed aside".

APEX Court in M/s. Dilawari Exporters v. M/s. Alitalia Cargo and Ors., II (2010) CPJ 29 (SC)=III (2010) SLT 413=2010 (2) RCR (Civ.) 833, has observed: "11. Section 186 of the Indian Contract Act, 1872 (for short "the Contract Act") lays down that the authority of an agent may be expressed or implied. As per Section 187 of the Contract Act, an authority is said to be express when it is given by words spoken or written, and an authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, which may be accounted circumstances of the case. Section 188 of the Contract Act prescribes that an agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act. Section 237 of the Contract Act provides that when an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agent''s authority. There is no gainsaying that onus to show that the act done by an agent was within the scope of his authority or ostensible authority held or exercised by him is on the person claiming against the principal. This, of course, can be shown by practice as well as by a written instrument."

IN the present case, it is the petitioner who has booked the consignment of respondent No. 1 and he has received the goods on behalf of respondent Nos. 2 and 3, with undertaking to deliver the same to respondent No. 4. The goods were admittedly delivered to respondent No. 4 but on payment was received by respondent No. 1.

UNDER these circumstances, petitioner being an agent of respondent Nos. 2 and 3 cannot escape his liability, because it was the petitioner who had booked the goods and has received payment from respondent No. 1, for the safe delivery of goods to respondent No. 4. Moreover, the consignment receipts also bear the name of the petitioner and as such provision of Section 230 of the Contract Act are not applicable to the facts of the present case.

IN the case in hand, petitioner has not placed on record the agency agreement entered between him and his principal, that is, respondent Nos. 2 and 3.

SINCE, petitioner has booked the consignment of respondent No. 1 and as he (petitioner) has received the payment from respondent No. 1, the petitioner cannot escape his liability. The judgments cited by learned Counsel for petitioner are not applicable to the facts of the present case.

IT is well settled that under Section 21(b) of the Consumer Protection Act, 1986, scope of revisional jurisdiction is very limited.

HON''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=2011 (3) Scale 654, has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora."

ACCORDINGLY, in view of the concurrent findings given by two Fora below, we find no reason to disagree with their reasonings.

THUS, no jurisdictional or legal error has been shown to use to call for interference in the exercise of powers under Section 21(b) of the Act. Since, two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction.

ACCORDINGLY, present petition is hereby dismissed with costs of Rs. 10,000 (Rupees ten thousand only).

PETITIONER is directed to deposit the costs of Rs. 10,000 by way of cross cheque, in the name of "Consumer Legal Aid Account" of this Commission, within four weeks from today. In case, petitioner fails to deposit the said costs, within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 6.1.2012 for compliance. Revision Petition dismissed.