ELTEX RUDY LTD. vs ROSHAN FREIGHT CARRIERS

THIS is a complaint under Sec. 17 read with Sec. 12 of the Consumer Protection Act.

THE opposite parties 1 to 3 which is Roshan Freight Carriers is a Proprietory Concern and the Proprietor was one Vasudev Kalna. He died on 13.10.93 during the pendency of this complaint and the opposite parties 5 & 6 have been impleaded as his heirs and legal representatives. The complainant is engaged in the manufacture of Motor Pumpsets. It booked 10 consignments mentioned in the complaint through the first opposite party for transport to Delhi. They were booked for ''self-New Delhi'' and the documents are sent through bank. The buyer 4th opposite party did not negotiate the documents through the bank and take the delivery. The complainant thereupon asked the opposite parties 1-3 to re-book the consignments to Coimbatore. The opposite parties rebooked only 7 out of 10 consignments. At Coimbatore the complainant called for open delivery, which was refused by the Opp. Parties 1 to 3. The complainant took delivery of 3 consignments from the third opposite party and on opening the consignments they found that the goods found inside did not belong to them. There was deficiency of service on the part of the opposite parties and the complainant claimed compensation in the sum of Rs. 3,02,241-70.

The opposite parties 1 to 3 resisted the claim. It was contended that this Commission has no territorial jurisdiction. According to the opposite parties 1 to 3, the buyer the 4th opposite party did not take delivery. All the consignments were packed in 73 wooden containers. At the time of booking they were not checked. The opposite parties did not know the contents. It is denied that the opposite parties 1 to 3 received the complainant''s letter dated 2.2.90 for rebooking. They received letter dated 5.9.90 for rebooking. As the goods were lying in godown they were able to trace and rebook 7 consignments only. The remaining 3 consignments consisting of 27 wooden cases were found missing. The complainant took delivery of only 21 wooden cases covered by 3 Lorry Receipts. It is denied that the contents of the goods were different. When the complainant took delivery of these goods they were in tact. They declined to give open delivery, and there was no provision therefor. They were not therefore liable for the claim.

THE 4th opposite party remained absent and was set ex-parte. The opposite parties 5 & 6 filed a counter in the same terms as opposite parties 1 to 3.

EXHS. A1 to A14 and B1 to B6 are marked by consent. Proof affidavits are filed. No oral evidence has been let in. The points that arise for determination are: 1. Whether the complaint is not maintainable? 2. Whether the claim is maintainable against the 4th opposite party? 3. To what relief, if any, is the complainant entitled?

Point No. 1: The complainant has booked 10 consignments with the first opposite party from Coimbatore to be transported to New Delhi. Part of the cause of action has arisen at Coimbatore and hence this Commission has jurisdiction to entertain this claim. This point is found against the opposite parties.

POINT No. 2: The 4th opposite party is the proposed buyer of these 10 consignments. The consignments have been booked to Self and the documents were rooted through the bank. The 4th opposite party buyer did not negotiate the documents through the bank, get the lorry receipts and take delivery. There was serious default on its part but the claim against it is not maintainable under the Consumer Protection Act, because the complainant cannot claim to be a consumer so far as the 4th opposite party is concerned, as the relationship between them is only that of buyer and seller.

POINT No. 3: It is admitted that the complainant has booked 10 consignments mentioned in the complaint with the first opposite party to be transported to Delhi. All these consignments were reached Delhi but the buyer the 4th opposite party has failed to negotiate the documents through the bank and take delivery. Consequently the complainant asked the opposite parties 1 to 3 to rebook the consignments to Coimbatore. According to the complainant he wrote to the third opposite party to rebook the consignments on 2.2.90. Exh. B2 is the letter dated 5.9.90. The 3rd opposite party has rebooked only 7 items out of 10 items i.e. items 1, 3 to 5 and 8 to 10 in the complaint. Items 2,6 & 7 have been missing and they have not yet been traced. These 7 items which were rebooked reached at Coimbatore. But the complainant wanted open delivery to which the 1st opposite party was not amenable. These goods which are pumpsets have been packed in wooden boxes and admittedly the carrier did not know about the contents of the documents. Open delivery can be asked and must be complied with if there are damage to these consignments. It is not the case of the complainant that the boxes were damaged. Hence the request of the complainant for open delivery has rightly not been accepted by the carrier. The complainant has therefore taken delivery of 3 consignments consisting of 21 boxes and on inspection found that the goods were not sent by it. Excepting the averment in the complaint and in the affidavit that there is no independant evidence to substantiate the same. We are therefore unable to accept the contention of the complainant that these boxes have been tampered with and the goods have been replaced. The remaining 4 boxes are still lying in the office of the carrier and the complainant has not settled the claim of demurrage charges. According to the carrier, the three consignments were also taken delivery by the complainant without paying the demurrage charges and on the understanding that the matter will be settled later. But the payment of demurrage and freight charges do not come within the ambit of the Act. It is open to the carrier to file necessary action for recovery of the same. There is however the fact that the 3 consignments have not been rebooked from Delhi to Coimbatore and they are items 2,6 & 7 in the complaint. The value of each item is Rs. 29,743-20 totalling to Rs. 89,229-60. It is admitted in the counter statement that these 3 items are missing, the carrier is therefore liable for this loss to the complainant. It is also liable to pay damages from the date of booking till payment of this value. The complainant is not entitled to any other relief.

The complainant is entitled for payment of Rs. 89,229-60 with interest thereon at 18% p.a. from the date of booking namely 12.10.89 till payment.

IN the result, we order as follows: (1) The opposite parties 1 to 3 and 5 & 6 shall pay to the complainant the sum of Rs. 89,229-60 with interest thereon at 18% p.a. from the date of booking i.e. 12.10.89 till payment. (2) The opposite parties 1 to 3 and 5 & 6 shall also pay to the complainant Rs. 2,000/- towards costs. (3) IN other respects, the complaint fails and is dismissed, but without costs.

Complaint allowed with costs.