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Judgment
THE first opposite party M/s. Economic Transport Organisation against which an award has been passed is the appellant.
IT is common case that the complainant placed an order on 8.9.93 with the 2nd opposite party at Maharashtra for supply of "Ceramic Grinding Media Steatite Balls dia 8 mm & 40 mm" valued at Rs. 59,203.56. The goods were entrusted to the 1st opposite party for transport from Maharashtra to Tanjore. The way bill was sent through the banker M/s. State Bank of India, Tanjore branch. The complainant paid the entire value of the goods to the bank and received the documents but the goods did not reach Tanjore. The complainant corresponded with the 1st, 2nd opposite parties and the 3rd opposite party Insurance Company regarding this. The complainant was informed by the 1st opposite party by a letter Ex. A4, dated 16.4.93 that the lorry has been hijacked on the way and it is missing and the driver and the conductor also are not traced. In these circumstances the complainant wrote to the opposite parties 1 & 2 for payment of the value of the consignment. But the opposite parties 1 and 2 disowned their liability. On these grounds the complaint has been filed. The 1st opposite party as well as the 2nd opposite party both contended that they are not liable to pay the amount to the complainant. The 1st opposite party transport company also contended that a suit has been filed in Nasik, Maharashtra concerning the transaction in question against it by the 2nd opposite party, and that is pending.
As regards the 3rd opposite party Insurance Company, admittedly it was subsequently found that the goods have not been insured at all as contended by them.
THE District Forum on consideration of the pleadings and evidence came to the conclusion that there was deficiency in service on the part of the 1st opposite party Transport Company. It passed an order directing the 1st opposite party to pay the complainant a sum of Rs. 59,203.56 being the value of goods. It further ordered that if the 2nd opposite party is able to realise the amount from the 1st opposite party in execution of the decree that might be passed in the suit filed by it, then the 2nd opposite party must pay the amount to the complainant. It also ordered for payment of Rs. 5,000/-as compensation for expenditure incurred for correspondence. It further ordered payment of Rs. 1,000/-as costs. Now in the appeal filed by the 1st opposite party it is contended that the order of the District Forum is not sustainable in the circumstances of the case. On careful perusal of the papers we find there is much force in this contention. We find that it is the definite case of the 1st opposite party that the lorry in which the goods were being transported had been hijacked on the way and till today the lorry as well as the driver and the conductor of the same could not be traced. This contention of the 1st opposite party Transport Corporation is not disputed by any of the parties to the complaint including the complainant. It is not the case of the complainant that the alleged hijacking of the lorry is not true. Therefore as the matter stands now as a matter of fact the position is that the lorry was hijacked on the way and on what has happened the 1st opposite party transporter had no control at all. This being the case there is no question of any deficiency in service on the part of the 1st opposite party. Therefore the complaint cannot be maintained in a consumer forum since there is no cause of action for the same. The complainant may have remedy in a Civil Court or elsewhere but not in a consumer forum.
IN this view of the matter we allow the appeal; set aside the order of the District Forum and dismiss the complaint. There will be no order as to costs. Appeal allowed. ___________