GATI CORPORATION LTD. vs N. KANNAN

THE complainant''s case is that he booked cardamom worth Rs. 2.1 lakhs for transportation to New Delhi through the opposite parties. According to the docket slip (consignment note), the delivery is to be effected to ''SELF". THE delivery was not effected. THE complainant has not given any authorization to make delivery to his consignee. Despite several letters, the opposite parties have not chosen to inform as to what happened to the goods. THEre is deficiency of service. Hence, the complaint.

THE opposite parties contended that the consignment was handed over to Suresh Kumar and Amit Kumar, Delhi on 5.10.2001 as per the telephonic instructions of the complainant. THE complainant, after being fully aware of the same, with ulterior motive and in collusion with his agents, has filed this complaint as though the delivery has not been effected. This Court has no jurisdiction since the cause of action has arisen only in New Delhi. THE complaint does not relate to a consumer dispute. THE opposite parties requested that the complaint be dismissed with costs. The Lower Forum accepted the complaint and directed the opposite parties to pay a sum of Rs. 2,10,000/- with compensation of Rs. 10,000/-. Hence this appeal.

The consignment consisting of 7 bags of cardamom weighing 350 kgs. and with a declared value of Rs. 2,10,000/- was entrusted by the complainant for delivery at Delhi, the consignee being "SELF" Delhi. It is also stated that the delivery has to be made against the consignor copy only and the delivery was to be effected at the godown of the opposite party. According to the opposite party, on the telephone instructions received from the complainant, the delivery was effected to Suresh Kumar and Amit Kumar, Delhi and the complainant has now chosen to come forward with a false case as though delivery has not been effected. The delivery note which is called docket by the opposite party, mentions that a booking was made on 30.12.2000 and the time when delivery is to be effected is given as 5.1.2001 mentioning as "Assured DLY. Date before Noon: 5.1.2001". It is also seen from the docket that it is an "Express Service". If it is so, it is not known why the complainant should wait till 9th May to make a complaint about it. He knows fully well that the delivery has to be effected on or before 5.1.2001. The complainant has not chosen to take immediate action. It is also to be pointed out that the docket mentions it clearly that the delivery has to made against consignor copy only. If the complainant''s case is that delivery was made without his instructions, then, it would mean that delivery has been effected without the consignor copy. But it could not have been done without saying so of the complainant. Therefore, it is probabilised by the fact that delivery has been effected on the instructions of the complainant. Of course, before the Lower Forum, the complainant has not chosen to produce any document, but at the time of filing of the appeal, the appellant produced certain documents viz., delivery challan which is dated 6.1.2001 to show that about 365 kgs. packed in 7 bags were delivered to Suresh Kumar Amit Kumar, a Firm. Of course this document, the original of which is also produced before this Forum, was not produced before the Lower Forum for which we find no explanation. In the version the opposite parties have stated that the carrier acted upon the instructions given by the consignor through telephone and the goods were delivered to Suresh Kumar Amit Kumar, Delhi. The Lower Forum committed a mistake in stating that such case has not been set out in the version. Therefore, we see in this case that there is an assertion of non-delivery by the complainant and for their part the opposite party would say that the delivery has been effected. Thus, it is a matter where a question of fact arises for consideration as to whether delivery has been effected or not and, if so, whether it is contrary to the instructions. That being so, this matter has to be decided only in a Civil Court. It is further stated that the complainant phoned up the Delhi office and instructed them to deliver the goods without insisting upon the consignor copy. Thus, the case involves a question of fact to be considered. The case also involves the question of jurisdiction which is raised and which has to be decided. Therefore, in such circumstances, it cannot fall under a case arising within a "contract of service". For there is an assertion by one party of delivery and denial by the other side. Further the consignor''s note viz., Ex. A-1 states that only Secunderabad Courts shall have jurisdiction. Thus as the matter gives rise to both questions of fact and law which can be decided only after elaborate trial, we are of the view that it is a matter that can be only decided before the proper Civil Forum and the complaint under the Consumer Protection Act will not lie. Therefore, in that view of the matter, we have to hold that the order passed by the Lower Forum has to be set aside.

IN the result, this appeal is allowed, but in the circumstances without costs. The order passed by the Lower Forum is hereby set aside. The complaint will stand dismissed but without costs. Appeal allowed.