FAR EASTERN CARRIERS vs RIKAB DASS JAIN And SONS

M/s. Rikab Dass Jain & Sons, hereinafter referred to as the complainant, booked a consignment of hosiery goods through the opposite party on 7.12.1990 for being transported from Delhi to Ranchi. The invoice value of the goods was Rs. 14,107.68 and the goods were to be delivered to M/s. Raj Stores, Shahid Chowk, Ranchi on presentation of goods receipt which had been sent through Bank. The aforesaid consignee did not retire the documents. The GR was, therefore, received back by the complainant. The opposite party was requested to re-book the goods and it transpired that the goods had been delivered to Raj Stores, Ranchi without presenting the GR. The complainant had already received Rs. 3,000/- from the said store leaving a balance of Rs. 11,107.68. The complainant, having failed to receive the said amount, filed a complaint before District Forum-I claiming the amount together with interest against the trans- port company.

IN reply, the plea put forward by the opp. party was that the goods had been delivered to the consignee under oral instructions of the complainant. On a consideration of the matter, the District Forum rejected the plea of the opp. party and directed them to pay Rs. 11,107.68 along with interest @ 18% p.a. w.e.f. 11.5.1991 till date of payment besides Rs. 250/- as costs of proceedings. Aggrieved by the order, the opp. party has preferred this appeal. In the grounds of appeal, the order of the District Forum has been assailed firstly on the ground that consignee was necessary party in order to establish that the goods had been delivered under oral instructions of the complainant. The complaint related to alleged deficiency in service on the part of the opp. party. The definite case pleaded was that contrary to the written instructions that goods were to be delivered only on presentation of GR, which had been sent through Bank and could be collected on payment of invoice amount, the goods had been delivered to the consignee. In the context of alleged deficiency in service, the consignee was not a necessary party and the said objection was untenable.

The next ground taken is that in order to prove that the goods had been delivered under oral instructions of the complainant, the appellant had filed affidavit of Mr. Vinod Arora, proprietor of the appellant company and the only evidence led by the complainant was the affidavit of Mr. Pawan Kumar Jain. Together with the above was the admitted fact that the complainant had received part payment of price of the consignment which was consistent with delivery of the goods under oral instructions of the complainant. We find no merit in this ground. The burden of proof for delivery under oral instructions was on the Opposite Party and the only evidence produced was affidavit of Vinod Arora, proprietor of the transport company. With regard to the circumstances of payment of Rs. 3,000/- by the consignee, it is sufficient to point out that the said payment does not necessarily show that delivery had been made under oral instructions of the complainant. Part payment appears to have been made because, in fact, the consignee had been delivered goods though without retiring the documents through the Bank.

THE last ground is that the complaint was barred by limitation. THE goods were consigned on 12.7.90 and the complaint was filed on 26.10.93. THE question is whether the period of limitation is to be taken as two years as laid down in Section 24A of the Consumer Protection Act which was inserted by the ammending Act of 1993 w.e.f. 18.6.93. In several cases, this question has been examined and it has been consistently held by this Commission that where the cause of action accrued prior to the enactment of Section 24 A , the period of limitation which was available prior to the amendment would apply. THEre can be no dispute that prior to the insertion of Section 24A the normal period of limitation was taken to be three years. Reference in this connection may be made to New India Assurance Company v. Smt. Shanti Misra, AIR 1976 SC 237 in which the Apex Court laid down that general rule was that law of limitation in vogue on the date of commencement of action governs the same but there were certain exceptions to the above rule. THEse exceptions included (a) the new Law of Limitation providing longer period cannot revive the dead remedy; and (b) nor can it suddenly extinguish vested right by providing shorter period of limitation. For these reasons, we find no merit in the appeal, which is, accordingly, dismissed. A copy of the order be conveyed to the parties as well as District Forum-I. Appeal dismissed.