RALLIS INDIA LIMITED vs EASTERN TRANSPORT COMPANY

THE complainant is a Company incorporated under the Indian Companies Act, 1956 having its branches and District Offices/Depots all over the country. THE local office of the Company in Lucknow being handled by District Manager, deals with pharmaceutical, manufacture of high standard life saving drugs and medicines and used to supply on cash payment. One of its stockists and distributors is known as M/ s. Drugs and Drugs (Agencies), Circular Road, Moti Mahal, Kanpur who is opposite party. THE opposite party No. 1 is the Transport Company catering transport services.

THE complainant received on different dates orders for supply of different medicines from opposite party No. 1 in the months of March, 1997 to May, 1997. Accordingly, the complainant prepared consignments of medicines including 21 different invoices as detailed in the complaint and assigned those consignments alongwith invoices on different dates for transportation to Kanpur. THE opposite party No. 1-Transport Company issued different goods receipts, all in the name of "Self" which means in favour of the complainant-Ex-Lucknow to Kanpur. Details of all these goods receipts have also been enclosed. It was on the instruction of the opposite party No. 2 that goods were assigned to opposite party No. 1 at Lucknow. As per trade practice and policy of the Company, the distributor, opposite party No. 2 had to make the payment of the said invoices at first to the complainant and then to collect the goods receipts duly endorsed and only then they could receive delivery of goods from the transporter opposite party No. 1. The opposite party No. 2 Anspite of doing this did not make the payment and the complainant had to seek the rebooking of consignments vide letters containing details of G. Rs. for recall of goods from opposite party No. 1 at Lucknow between 13.6.1997 to 11.9.1997. The opposite party failed to return the consignment. It was known that there was pre-planned conspiracy of the two opposite parties to cheat and defraud M/s. Rallis India complainant by adopting unfair trade practice. The transporter-opposite party No. 1 was legally bound to have recalled and delivered back the goods (medicines) the complainant at Lucknow. First Information Report was also lodged against the parties under Sections 407/ 420/120-B, I.P.C. (Indian Penal Code). The enquiry made by the complainant revealed that two opposite parties have criminally misappropriated these medicines as the consignments have neither been returned nor claim settled. The complainant has thus suffered loss of medicines worth Rs. 4,92,058.52 and further loss of business and profit and interest at the rate of 18% from the date of recall of consignments amounting to Rs. 67,000/-. Thus, the prayer in the complaint case is that the opposite parties are jointly and severally liable'' to pay the cost of medicines Rs. 4,92,058.52 and Rs. 67,000/- interest @ 18% with effect from 15.9.1997 to 14.6.1998 and damages for inconvenience, loss of business and profits Rs. 50,000/- and litigation, cost of notice and Counsel''s fee Rs. 25,000/-.

Notices were issued to the parties for filing their written statement. Despite sufficient time made available, written statement was not filed. Hence, the case proceeded ex-parte against the opposite parties on 4.2.1999. On 26.2.1999 ex- parte evidence was filed. The ex-parte arguments were heard on 25.5.1999.

WE have gone through the evidence on record. The affidavit filed on 26.2.1999 by Prem Ahuja, the District Manager of the complainant has also been gone through which reiterates the allegations contained in the complaint. It was also stated in the affidavit that opposite party No. 2 wanted all the stocks of the ordered medicines at Kanpur but was not provided trading facilities by the complainant. The opposite party No. 2 with mala fide intention issued cheques of those invoices which were accepted by complainant in good faith. The cheques were dishonoured by the banker of the stockists with the remark "refer to drawer" and intimation had also been given to the opposite party No. 2 to make advance payment through the bank draft if he wanted to receive the above consignment. It seems that the consignments were delivered by opposite No. 1 to the opposite party No. 2 and the cheques were issued but advance payment which was necessary before the consignment delivered to opposite party No. 2 was deliberately not done. Annexures E-1, E-2 and E-3 are the copies of the orders placed by the opposite party No. 2 on the complaint for various drugs and medicines. These are dated 31.3.1997, 21.4.1997, 21.5.1997. In all the three orders the transporter indicated by opposite party No. 2 was Eastern Transport Company which is opposite party No. 2 and opposite party No. 2 had instructed the complainant to send the consignment through opposite party No. 1 and accordingly consignment was sent from time to time to ensure the execution of the order by the complainant as would be evident from Annexures A-4 to A-23. The consignment receipts E-24 to E-40 clearly show the name of consignment as Rallis India Limited. In the column of consignment''s name and address "Self" has been written, therefore, the consignor and the consignee is the same which is M/s. Rallis India Limited and, therefore, it was imperative on the part of opposite party No. 1 to have ensured the payment in advance in favour of the consignor. In Annexure E-40, the complainant has given the details of the despatched goods receipts and value of various consignments sent from time to time as Rs. 4,92,058.52. Annexure E-40B contains the details of dishonoured cheques amounting to Rs. 49,190.62 drawn on Punjab National Bank Kanpur, Naya Ganj, Kanpur. Further consignor''s payment was not received is, proved by Annexures E-41 to E-46.

NOTICE was also sent to both the opposite parties to settle the claims but without any result. 8.We have heard arguments of Mr. S.K. Sinha for complainant. In view of the above discussions it is clear that the transporter-opposite party No. 1 handed over the consignment to opposite party No. 2 and payment against them was not made and when the complainant asked for the rebook of the consignment the opposite party No. 1 failed to do the same. It appears that opposite party No. 2 who has to make the payment first and then to collect the goods receipt from the complainant with endorsement in his favour so that the delivery of the consignment could be taken by him deliberately failed to do so. . Therefore, there is no doubt that both the opposite parties adopted unfair trade practice. The Transport Company-opposite party No. 1 is also guilty of gross deficiency of service. 9. Under the circumstances, the complaint is liable to be allowed. The complainant is entitled to cost of medicine amounting to Rs. 4,92,058.52 and 18% interest with effect from 15.9.1997 till the payment in the form of damages for inconvenience, loss of business, profits and compensation. The complainant will also be entitled to cost of litigation amounting to Rs. 5,000/-. ORDER The complaint is allowed. The opposite party No. 1-M/s. Eastern Transport Company, Lucknow and opposite party No. 2-M/s. Drugs and Drugs, Circular Road, Kanpur shall pay to the complainant jointly and severally an amount of Rs. 4,92,058.52 as cost of medicines, 18% interest with effect from 15.9.1997 till the date of payment in the form of complainant''s loss of business and compensation and Rs. 5,000/- as cost of proceedings within a period of six weeks from the date of receipt of this order. Let the copy of this order be made available to the parties as per rule. Complaint allowed.