JITENDRA SINGH vs PATNA GAUHATI ROADWAYS

THE complainant has filed this case for compensation alleging negligence and deficiency in service against the opposite party in transportation of goods.

THE facts of the case as put in by the complainant may be briefly noticed. THE complainant is a dealer in steel products and is the proprietor of M/s. Singh Trading Company, Danapur. THE opposite party are transporter who render service for carrying and transportation of goods from one place to another. On 6.7.91 the complainant purchased 10.25 tonnes of Iron Rods of different sizes and description worth Rs. 1,15,892.50 paise from Perfect Steel Products, Ranchi Branch and on 26.7.91 he booked his goods with M/s. Patna Gauhati Roadways, Ranchi opposite party No. 1 of which opposite party No. 2 to 4 are proprietors, for carrying them from Ranchi to Danapur. THE opposite party agreed to receive the freight of Rs. 1800.00 at Danapur on delivery of the goods at Danapur. THE goods were received by the opposite party and loaded on truck No. BEF 4014 which started from Ranchi on 26.7.91. But the truck did not reach Danapur and therefore the complainant made inquiry several times from opposite party who assured him that he need not worry and the goods would be delivered to him. But these goods were not delivered to him and he has sustained loss of nearly two lakhs rupees. He also issued a notice through his advocate to the opposite party but in vain. THE complainant thereafter had no alternative but to file this case claiming compensation for the financial loss sustained by him and also compensation for the inconvenience and mental anguish caused to him due to deficiency in service on the part of the opposite party. On being noticed the opposite party appeared and filed joint written version. It is not disputed by the opposite party that opposite party No. 2 to 4 are the proprietors of Patna Guahati Roadways, Ranchi. But they have controverted the claim of the complainant denying the facts disclosed in the complaint petition. They have also challenged the maintainability of the case under the Consumer Protection Act (hereinafter called the Act) on the ground that the complainant is not a consumer within the Act and therefore the case filed by him can not be entertained. The opposite parties have asserted in their written version that they are simply commission agents and they did not maintain truck or drivers or khalasies and their duty is only to introduce a truck owner for transport of goods. They have also averred that the complainant has not produced any receipt or written agreement or paper to indicate that he had booked the goods in question with the opposite party No. 1 and that the goods have been handed over to the opposite party for transportation. They have denied the allegation made by the complainant that the goods were booked with opposite party No. 1 and that opposite party received these goods and loaded them on 26.7.91 on truck No. BEF 4014.

On these grounds the opposite party has sought the dismissal of their complaint.

A rejoinder has been filed by the complainant to this written version on behalf of the opposite party and the complainant has reiterated his case as put in by him in the complaint petition. The complainant has filed certain papers and affidavits of certain persons in support of his case. The opposite party also has produced certain affidavits in support of their assertion. The complainant has filed the affidavits of Ram Narayan Singh, Badri Jaiswal, Sunil Gupta, S. Ray, Sanjit Kumar and Shailesh Singh.

NOW admittedly written information was lodged regarding this incident to the Officer-in-charge, Giriyak P.S. District Nalanda and chargesheet has been submitted in that case. The complainant has filed the photostat copy of that written information filed by Shailesh Kumar, nephew of the complainant who was on the truck carrying the goods of the complainant. The opposite party has challenged the maintainability of this case under the Act also on the ground that on the basis of this written information police case was instituted and criminal case No. GR1305/91 in respect thereof is pending in the Court of the Chief Judicial Magistrate, Patna and thus the matter is subjudice and hence the case filed under the Act should not be entertained. We find substance in this objection. It appears from the photostat copy of the written information to the police that it is with regard to same subject-matter and involves identical issues. Under the circumstances it is not appropriate for this Commission to conduct a concurrent adjudication of those issues covering the subjectmatter of the instant case under a summary proceeding under the Act when they are already pending adjudication before a criminal Court. We are fortified in our view by the decision of the National Commission in Indian Medical Association Housing Society Limited v. Rustamji Developers, III (1994) CPJ 130 (NC)=(1994) 2 CTJ 130. Moreover, usually when services of any transport agency are hired and goods are booked receipt in respect thereof is given by the transport agency to the person who hired the services of the agency. But in the instant case no paper either an agreement or receipt, has been produced by the complainant to indicate that the goods had been booked by him or Sailesh Kumar and Santosh Kumar with the opposite party transport agency. The statement of the witnesses whose affidavits have been filed by the complainant is that the truck No. BEF 4014 had been arranged by the opposite party on being asked by Shailesh Kumar, nephew of the complainant who had been sent by the complainant to bring the goods from Ranchi to Danapur and the opposite party are not the owner of that truck and freight for carrying the goods was to be paid to the driver of that truck after reaching the goods at Danapur. The case as put in by the complainant through his witnesses is that the truck driver was introduced to Sailesh, the nephew of the complainant, and the opposite party assured about trustworthiness of that truck driver/owner. The statement of Ram Ranjan Singh (witness for the complainant) who happens to be brother of the complainant and resides at Ranchi, in his affidavit is that he went to the office of the opposite party No. 1 and talked with its proprietor who assured him about the trustworthiness of the Truck No. 4014 and assured that it would safely reach the goods at Danapur. Similar is the statement of Badri JaiswaL Sanjit Kumar and Shailesh Singh in their affidavits. Admittedly neither any freight nor any advance was paid by the complainant to the opposite party. Of course the complainant has filed photo stat copy of the carbon copy, a receipt said to have been given by the opposite party to the driver of the truck for taking delivery of the goods from Perfect Steel Products, Ranchi. The statement of Ram Ranjan Singh in his affidavit is that on 30.7.91 he came to know from his brother the complainant about the incident and thereafter he went to the office of the opposite party No. 1 and got the carbon copy of that receipt maintained in its office. But though the complainant filed this case much thereafter on 11.1.91 before the Commission he has not said so in his complaint petition. He has not mentioned at all about this carbon copy of the receipt said to have been given by the opposite party for taking delivery of the goods from the Perfect Steel Products. Moreover, the case of the complainant in his complaint petition is that he booked the goods with the opposite party, but his witnesses have stated in their affidavits that the complainant had sent his nephew Shailesh to take delivery of the goods from the Perfect Steel Products, Ranchi and to fetch those goods from Ranchi to Danapur and Shailesh approached the opposite party for the same who arranged BEF 4014 for carrying the goods from Ranchi to Danapur. On these evidences it is not established that the complainant booked the goods with the opposite party. The statements of these witnesses only indicate that the opposite party acted only as a connecting link between Shailesh, the nephew of the complainant and the owner/driver of the truck which took delivery of the goods from the Perfect Steel Products, Ranchi. On these materials it is not established that the complainant had hired the services of the opposite party. Hence the complainant is not a consumer under the Act and this case is not maintainable under the Act. We are fortified in our view by the principles laid down by the National Commission in the case of A.S. Pai v. Delux Roadlines, III (1995) CPJ 44 (NC)=(1995) 3 CTJ 788 (CP) (NCDRC).

LASTLY, the opposite party in their written statements have asserted that they are simply commission agents and they do not maintain truks or drivers, or Khalashi and their duty is simply to get the party introduced to a truck owner for transport of goods. The opposite party has completely denied the facts of the case as alleged by the complainant and stated by his witness in their affidavits. The opposite party have filed the affidavits of Nageshwar Singh, Lala Prasad, Raj Kumar Singh, Hemant Sharma and Shankar Prasad Gupta in support of their case that Shailesh Kumar had not come to the office of the opposite party on 26.7.91. On the basis of the statement of these witnesses in their affidavits it has been asserted by the opposite party that on 26.7.91 the opposite party Nos. 2,3 and 4 were busy in search of a second hand truck which they wanted to purchase and that on that date they came to the office of the opposite party No. 1 at 3 p.m. remained there for an hour and went away from thereafter closing the office and that Shailesh had not come to that office on that day. Thus there is dispute with regard to the foundational facts of the case which requires detailed and elaborate evidence for their adjudication which can not be done in a summary proceeding under the Act.

FOR these reasons we are constrained to dismiss this case. The complainant is directed to pay Rs. 500.00 as cost to the opposite party. Complaint dismissed with costs.