J. ASHOK KUMAR vs ELITE ROADWAYS (PVT) LTD.

THE 2nd opposite party is the appellant.

THE case of the complainant is follows: THE complainant is a registered transport contractor and fleet owner. THE 1st opposite party is the commission agent, whose services are utilised to supply vehicle to registered transport companies. THE 1st opposite party collects his commission for the services rendered both from the party for whom it engages the lorry and also from the lorry suppliers. THE 1st opposite party is arranging for lorry owned by other third parties after fixing freight charges. On 12.11.1999, the Hindustan Lever Ltd. intimated the complainant that 625 packages of Rin soap weighing 10 MT worth Rs. 4,64,212.50 were to be transported from Pondicherry to Hyderabad. THE complainant approached the 1st opposite party, who arranged a lorry for carrying the above mentioned goods. THE opposite party sent a lorry bearing No. PY 01 A 5195 which was owned by the 2nd opposite party and also fixed the freight charges that were payable. THE complainant paid an advance freight charge of Rs. 5,300/- to the 1st opposite party. THE balance freight amount of Rs. 990/- was to be paid on the goods reaching the destination and delivery of the consignee. THE said lorry driven by one Akbar Basha left Hyderabad on 12.11.1999 but not reached the destination even after the normal running time. THErefore, the complainant lodged a complaint with the Villianur PS on 28.11.1999. THE police arrested the cleaner of the lorry while attempting to dispose of the materials. THE police recovered 135 packages of goods worth about Rs. 1,00,170/-. since the goods were not delivered, the consignor of the goods deducted the value of the goods from the amount of the complainant and the complainant was forced to bear the entire loss of the goods. THE complainant was put to extreme hardship, agony and mental torture. THE complainant has incurred heavy loss due to the deficiency in service of the opposite parties and are vicariously liable for the theft committed by the driver of the 2nd opposite party. THE complainant is entitled to Rs. 5,000/- for compensation for mental agony and hardship. THErefore, the opposite parties may be directed to pay Rs. 3,74,342.50 as compensation. The case of the first opposite party is as follows: The first opposite party is only commission agent who supply vehicles to the Transport Company. The opposite party is not owner of the vehicle involved in this transaction. The 1st opposite party is not aware that on 12.11.1999 Hindustan Lever Ltd. intimated the complainant that 625 packages of Rin soap were to be transported from Pondicherry to Hyderabad. As per the request of the complainant, the lorry was sent by the 1st opposite party to the complainant. Subsequently, he came to know that there was theft of the alleged goods by the 2nd opposite party lorry driver. There is no deficiency in service on the part of this opposite party. As the criminal offence was committed by the 2nd opposite party lorry driver, this opposite party cannot be held responsible in any manner. This opposite party, therefore, is not liable to pay any compensation to the complainant.

The 2nd opposite party though served with notice did not appear and file reply version and he was set ex parte on 19.9.2000.

BEFORE the District Forum, no oral evidence was let in Exs. C1 to C8 were marked by the complainant. On consideration of the materials and documents, the District Forum has held that the complainant is a consumer entitled to file the complaint. But as regards the liability to pay compensation, the District Forum has held that the loss of goods was not caused by the 1st opposite party and the employee of the 2nd opposite party alone was responsible for loss of goods and, ultimately, the District Forum has directed the 2nd opposite party to pay a sum of Rs. 3,65,241/- with cost of Rs. 2,000/-. Aggrieved by the said order, the 2nd opposite party has come forward with this appeal. It is not in dispute that the complainant is a registered transport contractor and that the 2nd opposite party is the owner of the lorry bearing Regn. No. PY 01 A 5195 and that the 1st opposite party is commission agent. It is the case of the complainant that he hired the services of the 1st opposite party for securing a lorry for transporting the goods to Hyderabad and that he also paid the freight charges. Ex. C1 is the consignment note dated 12.11.1999 which would show that the complainant is the consignor of the goods. The number of the lorry and the name of the consignee are also mentioned in the document. Ex. C2 is the memo mentioning the number of the lorry on account of the complainant company. Ex. C3 is the challan dated 12.11.1999 which would show that a sum of Rs. 6,300/- was paid as freight. The name of the driver is entered as Akbar Basha and the 2nd opposite party is shown as the owner of the lorry. It is significant to note that the driver has signed as the authorised representative of the owner. It is the case of the complainant that the goods did not reach its destination and that he came to know that there was theft of the goods. Ex. C4 is the copy of the FIR filed by the complainant. It is the admitted case of the complainant that during investigation, the police recovered 135 packages of goods worth about Rs. 1,00,170/-. Ex. C6, the note sent by the Hindustan Lever Ltd., the consignor will show that a sum of Rs. 3,54,941/- has been deducted from the accounts of the complainant for the loss caused to 490 packages.

THE learned Counsel for the appellant contended that the complainant is not a consumer and that mere rendering of service cannot give rise to consumer dispute and that the dispute pertains to commercial transaction and, as such, the complaint is not maintainable. Ex. C8, the power of attorney issued by the complainant company will show that Manager, R.K. Sharma was given authorisation to represent the company to appear and represent the company before any Court and Tribunal and, as such, the Manager who has filed the complaint on behalf of the company has locus standi to file this complaint. THE District Forum has held that the complainant has hired the services of opposite party No. 2 through the help of 1st opposite party and that, therefore, the complainant would be a consumer. THE learned Counsel for the appellant relies upon a decision reported in 1994 (3) CPR 524, wherein it is held, thus: "Trader, merchant or manufacturer or renderer of service cannot come to Consumer Forum for recovery of amount." It is held in the above case that the complainant claims to be a co-owner of agency. THE facts of the above case will not apply to this case. On the other hand, it has been held in the decision reported in (III) 1999 CPR 164, as follows: "THE complainant who paid transporting charges and demurrages is a consumer, who are transporters." The learned Counsel for the appellant relies upon a decision reported in II (2003) CPJ 33 (NC)=2003 (1) CPR 282, wherein it is held that while the Consumer Forum permitted the authorised agent to appear before it but the authorised agent will not be one who has used it as a profession to earn his livelihood. In this case, the complaint is filed by the complainant''s Manager who has been given power of attorney. Therefore, the above decision will not apply to the facts of this case. It is well settled that if it is found that there is hiring of service for consideration and that loss has been caused to the complainant on account of negligence and deficiency in service, the aggrieved party is entitled to seek his remedy before this Forum. In a decision reported in I (2000) CPJ 42 (SC), the Apex Court has held that the liability of a common carrier under the Carries Act is that of a insurer and the position is made further clear by the provision of Section 9 of Carriers Act. In I (1999) CPJ 25 (NC)=1999 (1) CPR 17, the National Commission has held, that the complainant had availed the services of the opposite party by payment of handling charges and demurrages for safe custody and that, therefore, the complainant is a consumer. In this case, the complainant hired the services of 2nd opposite party for transporting of goods through the 1st opposite party and that he also paid the freight charges and demurrages. In the above circumstances, we hold that the complainant is a consumer entitled to file the complaint against the 2nd opposite party.

THE contention raised by the appellant that the dispute pertaining to commercial transaction will not loom large since the amendment came into force in the year 2003. THE present complaint was filed in the year 2000. THErefore, the contention raised by the appellant on this aspect has to be negatived.

IT is further contended on behalf of the appellant that Hindustan Lever Ltd. is not a party to these proceedings. The appellant cannot escape his liability by raising the above contention. IT is held that the goods belonged to Hindustan Lever Ltd. and that the said goods were transported through lorry owner by the 2nd opposite party and as such it cannot be contended that without impleading Hindustan Lever Ltd. the complaint is bad for non-joinder of necessary parties. The appellant inter alia contended that the District Forum has failed to verify whether the goods transported is covered under any insurance since such value of goods cannot be transported without insurance. The question whether the complainant made a claim against Insurance Company or not is a matter between the insurer and the insured. The learned Counsel for the appellant contended that the Insurance Company is not a beneficiary for the services hired. It is no doubt true that the insurer is entitled to exercise whatever rights they possess to recover the compensation and that it may do so in the name of the insurer. The learned Counsel for the appellant relies upon a decision reported in 2000 (2) CPR 20 SC. It is held in the above decision that by the reason of transfer and assignment of all the rights, the 2nd respondent retained more right for compensation for loss of the consignment. It is seen from the above facts of the case that letter of subrogation was executed by the insurer in favour of the Insurance Company. Relying upon that factual matrix, the Apex Court has held the Insurance Company is not a consumer. We fail to understand as to how the decision will lend support to the case of the appellant. As already stated, the Hindustan Lever Limited has deducted the amount of the complainant in its account and that the complaint actually sustained loss in transportation of goods. In the above circumstances, the contention raised by the appellant on this subject has no merits whatsoever.

The main contention of the appellant is that he was set ex parte and that he was not given sufficient opportunity to file his version and that he sold the vehicle in favour of Chandrasekharan on 22.10.1999, through his financier and that the purchaser agreed for any risk and that only thereafter the theft was committed by the driver of the said purchaser. It is further contended that the said purchaser has obtained the signature in the Vakalat and himself engaged Counsel and without filing any counter version, he allowed the Forum to set him ex parte and that he was misled by the purchaser and that in the above circumstances, the case may be remanded for fresh disposal. The order of the District Forum will show that the District Forum has considered all the materials and documents and passed the award. To substantiate the contention raised by the appellant, he relies upon the decision reported in III (2003) CPJ 26 (NC)=2003 (2) CPR 57. The National Commission has held that when dismissal of appeal was on account of mistaken noting of date by Advocate, the parties should not suffer for the fault of his lawyer. In 2003 (3) CPR 554, it is held that where opposite party was served but failed to appear, the opposite party was set ex parte within a week of service of notice, such ex parte order would not be sustained. It is seen from the facts of the above case that 2nd appellant was not served with any notice and that without serving notice on the second appellant, the ex parte order has been passed.

IN another decision reported in I (2003) CPJ 176=2003 (2) CPR 167, the State Commission, Mumbai has held that the Advocate engaged by the complainant was selected for judicial service and that he could not proceed in the matter and that in the above circumstance, the ex parte order was set aside. The above decision will not render any help to the appellant since it is noted by the District Forum that the Counsel for the 1st opposite party filed a reply version and that though the Advocate represented 2nd opposite party, he did not appear subsequently. Further, it is admitted by the appellant himself in the memorandum of appeal that the purchaser obtained his signature in the Vakalat and engaged Counsel and that he did not file any counter version. It is, thus, seen that the appellant was aware of the pendency of the case. Therefore, there was no impediment for the appellant to appear before this Forum and file his written version. If really the vehicle was already transferred to the alleged Chandrasekharan before the date of filing of the complaint, the appellant could have appeared before this Forum and filed written version. IN the above circumstances, the grievances of the appellant that the District Forum failed to afford adequate opportunity to him to file reply version cannot be entertained. The 2nd opposite party is the owner of the vehicle. The alleged Chandrasekharan is not made as a party to this dispute. IN the above circumstances, we are unable to accept the plea of the appellant that the alleged purchaser obtained his signature in the Vakalat and assured him that he would represent his case in the District Forum cannot be accepted. One of the main contentions raised in the appeal is that the appellant is not responsible to answer the claim of the complainant since the vehicle was already sold before the date of alleged theft. The learned Counsel for the complainant contended that the appellant failed to show that on the date of the alleged theft, the appellant was not the owner of the vehicle. The appellant mainly relies upon the delivery note dated 22.10.1999 executed by the alleged Chandrasekharan. It is stated in the delivery note that the said Chandrasekharan had taken delivery of the vehicle from the 2nd opposite party on 22.10.1999. But the document i.e., Form No. 47 will show that the 2nd opposite party is shown as the holder of the permit for the period 25.6.2000 to 24.6.2001. It is significant to note that in the rental agreement alleged to have been entered into between Chandrasekharan and 2nd opposite party, the alleged Chandrasekharan is shown as hirer. The above document was executed on 23.10.1999. It is recited therein that the said Chandrasekharan has agreed to take the vehicle on hire on monthly rental basis. If really the vehicle was sold on 22.10.1999 itself, we fail to understand as to why the rental agreement was executed on 23.10.1999. In the above circumstances, much importance cannot be attached to the above document as its genuineness is doubtful. It is no doubt true that there can be of transfer of title by payment of consideration and delivery of vehicle. Even admitting but not conceding that the delivery note produced by the appellant will establish change of ownership, he cannot wriggle out from his liability in answering the claim of the complainant. On this aspect, the learned Counsel for the complainant relies upon a decision reported in 2001 ACJ 2060 wherein it is held that the transferor of vehicle, remain liable to third parties as his name continued in the records of RTO as owner and that the transferor may adopt appropriate proceedings against the transferee. In view of the above decision, it has to be held that even if the appellant was misled and cheated by the alleged purchaser, his remedy is only to proceed against him. In any event, he cannot escape from his liability in answering the claim of the complainant. As already stated non-delivery of consignment by the transporter at its destination is deficiency in service. The appellant as the owner of the vehicle was under obligation to deliver the goods at its destination and in such case, it is not incumbent upon the complainant to prove the negligence. As the vehicle was owned by the 2nd opposite party, the 2nd opposite party is vicariously liable. Thus, looked from any angle we are unable to accept the plea of the 2nd opposite party. We hold that there is deficiency in service on the part of the appellant and, as such, we hold that the order of the District Forum does not merit any interference.

COMING to the grant of interest, the District Forum has awarded interest only from the date of the order if the amount is not paid within 30 days. The District Forum has not awarded any interest along with the amount of compensation from the date of complaint. Therefore, we hold that there is no need to modify the order of the District Forum. We hold that there is no merit in the appeal. In the result, the appeal is dismissed. No cost. Appeal dismissed.