BOSCOM INTERNATIONAL vs BIKANIR ASSAM ROAD LINES INDIA LTD.

THIS is a complaint under Section 17 of the Consumer Protection Act, 1986. The complainant is one M/s. Boscom International having the office at 12 A, Netaji Subhas Road, Calcutta 700001 . The petitioner''s case in brief is as follows.

THE petitioner received an export order for supply of 2,00,000 CFT(two lakhs) Meghalaya Black Stone to the buyer in Bangladesh to Mahendra Ganj-Kamalpur Border. For this purpose an agreement was executed between the petitioner and the opposite party No. 1 (M/s. Bikaner Assam Road Lines India Ltd.). Bhola Mansion, Gauhati, 2nd floor, Hembarua Road, Fancy Bajar, Guwahati on 2.2.1995 under certain terms and conditions as per Annexure ''1A''. This agreement was followed by another agreement dated 2.2.1995 executed on 20.2.1995 between opposite party No. 1 and opposite party No. 2, M/s. Prabhat Transports Corporation, Charu Market 3rd floor, S.R.C.V. Road, Fancy Bajar, Guwahati. In this agreement details of the number of lorries to be supplied and the rate fixed for them were fixed and the opposite party No. 2 was to supply the lorries. It was followed by another agreement dated 20.4.1995 as per Annexure ''C'' to the complaint petition in which mode of payment and liabilities were enumerated. Again a fourth agreement between the petitioner and the opposite party No. 2 was executed on 18.5.1995 by which it was agreed that 15 lorries were to be supplied by 21.5.1995 positively at Singhi Bari. This agreement has been annexed as Annexure ''D''. The petitioner has alleged that as per terms of the agreement he has paid a total amount to Rs. 5,24,000/- (Rupees five lakhs twenty four thousand only) including cost of fuels and motor parts and repairing etc. But inspite of such payment the supply of lorries was stopped by the opposite party No. 2 w.e.f. the midnight of 12.6.1995 without any intimation to the petitioner. On account of this action of the opposite party No. 2, the petitioner has to face damages in terms of money and also reputation for violation of commitment as per letter of credit. As a matter of fact the time limit is fixed in the letter of credit for transport of black stone to Bangaladesh was affected for the non-corporation of the opposite party No. 2. As a result, the petitioner had to hire lorries from outside at an extra cost to meet his commitment but ultimately fail to honour the contract. The petitioner has accordingly claimed a total damage of Rs. 6,11,875/- (Rupees six lakhs eleven thousand eight hundred seventy five) including the principal amount paid by them, interest @ 18% and damages and compensation for mental pain and harassment etc.

The case is contested by both the opposite parties by filing two separate written objections. The opposite party No. 1 raises a preliminary objections regarding the territorial jurisdiction of the Commission to try the dispute as according to them the agreement was signed at Guwahati, Assam. Their main objection however, is that the responsibility for supplying the lorry was with opposite party No. 2 as per agreement signed between the parties in presence of the petitioner and that the opposite party No. 1 had no deficiency in service for the failure of the supply of the lorry on the part of the opposite party No. 2.

THE opposite party No. 2 in their written objection has challenged the maintainability of the case as the entire agreement was for conducting a commercial transaction. This opposite party has admitted the execution of the agreement mentioned in the petition of complaint but has disputed the amount of money paid to them by the petitioner. According to them a total amount of 4(four) lakhs was paid to him. As regard the non-supply of the lorries this opposite parties version is that although they undertook the supply twenty numbers of lorries to the opposite party No. 1 and the opposite party No. 1 had agreed to pay Rs. 15,000/- per lorry, the opposite party No. 2 subsequently expressed their inability to apply twenty number of lorries @ 15,000/- per lorry. THE opposite party No. 2 also raises an objection that this is a suit of civil nature and is not triable in a consumer Court. Lastly, the opposite party No. 2 had claimed that they are entitled to recover an amount of 2,36,000/- from the opposite party No. 1 and they are contemplating to file a civil suit against the said opposite party No. 1. The points for determination are : 1. If the complaint is maintainable. 2. If this Commission has territorial jurisdiction to try the dispute. 3. If the petitioner is entitled to recover the amount claimed. DECISION

REGARDING point No. 1: It has been stated that the complaint is not maintainable as the dispute involves commercial transaction. We do not see any force in this argument. The question of commercial transaction is attracted if any defect in any moveable goods is alleged. The presence dispute is over the non-performance of the service by the opposite parties 1 & 2 which was hired by the petitioner for consideration. Evidently the petitioner is consumer as defined in the Consumer Protection Act, 1986. Hence, in our opinion the presence dispute is a consumer dispute and the complaint is maintainable. This point is thus disposed of in favour of the petitioner. Regarding point No. 2 : It has been strenuously argued that the relevant agreement was signed at Guwahati and as such this Commission has no territorial jurisdiction to try the dispute. We find that no evidence has been adduced to prove that the agreements were signed at Guwahati. It is true that the addresses of the two opposite parties are of Guwahati. If however the agreement was negotiated in Calcutta and executed in Calcutta, the part of the cause of action arose at Calcutta. In the first agreement dated 2nd February, 1995 it appears that the agreement was signed by the representative of the petitioner as witness at Calcutta. Considering all these facts we hold that this Commission has territorial jurisdiction to adjudicate the dispute. Regarding point No. 3: The petitioner has alleged deficiency in service against the opposite parties who admittedly entered into two agreements to performance of the contracted job of the petitioner. The opposite party No. 2 in paragraph 7 of their written objection has admitted that they had expressed their inability to supply twenty numbers of lorries at an advanced rate of Rs. 15,000/- per lorry. This is a clear admission that there was deficiency in service on their part. Of course they have referred to an oral agreement to the effect that this rate was raised to 20% per lorry. No paper has been filed in this regard. Moreover, an alleged oral agreement to vary the terms of a written agreement is also not an admissible evidence. It is nobody''s case that the agreement was acted upon. So we have no hesitation in holding that the opposite parties miserably to perform their part of the service. Hence, they are liable to pay compensation for the deficiency in service.

AS regards the amount of compensation the petitioner has claimed a total amount of Rs. 61,11,876/-. He has demanded an amount of Rs. 4,16,465/- as the principal amount refundable by opposite party No. 2 and an interest of Rs. 1,12,446/- thereon. He has also claimed damages for payment of higher rate for local lorries and also compensation for mental pain and harassment to the tune of Rs. 30,000/-. AS regards the damages for payment of higher rate to lorries, there is no paper in support of the claim. AS regards the amount refundable by opposite party No. 2 the petitioner has demanded Rs. 4,16,465. No paper as however been filed showing that this amount was actually paid by the petitioner. The opposite party No. 2 in their written objection however admitted that they had received an amount of Rs. 4,00,000/-. AS the petitioner has not supported his claim by annexing necessary voucher or receipts we do not accept his claim of Rs. 4,16,465/-. AS there is as admission of receipt of Rs. 4,00,000/- we hold that this amount should be payable to the petitioner. The petitioner should also get an interest @ 18% p.a. from June, 1995 till payment. AS regards other damages the same are disallowed as they have not been proved by evidence.

THIS complaint is accordingly allowed in part for an amount of Rs. 4,00,000/- (Rupees four lakhs) with an interest @ 18% p.a. w.e.f. the month of June, 1995 till payment. The entire amount must be paid by the opposite parties within a month from the date of communication of this order. The case is thus disposed of. Complaint allowed in part.