SENIOR ROADLINES vs GOA ACRYLICS

THIS is a Revision Petition against the Order of the Goa State Consumer Disputes Redressal Commission, Panaji, by which the order of the District Forum, Panaji, was set aside and it was ordered that the complainant (Respondent herein) was entitled to compensation for loss suffered by him as a result of non-delivery of the goods. The State Commission sent back the case to the District Forum to decide the quantum of compensation for payment to the complainant since it was of the view that in the exercise of appellate powers it was not possible for it to arrive at the quantum of loss suffered by him.

THE brief facts are that the present Respondent filed a complaint before the District Forum, Panaji, Goa, alleging that a consignment of goods against the G.C. Note No. 66740 dated 14-12-1989 was sent through the Transporter i.e. M/s. Senior Road Lines, Mapusa (now Petitioner) to deliver on door delivery basis to consignee M/s. Ganesh Plastic Works who refused to pay freight and octroi duty at the rate of 8 per cent instead of usual rate of 4%. The Transporter did not deliver the consignment and returned the documents to the complainant. Later on M/s. Ganesh Plastic Works agreed to accept the consignment on payment of the dues and they-approached the Transporter to take delivery of the consignment. The Transporter refused to deliver the consignment on the plea that the other parties had not paid the dues. The complainant also asked the Transporter to deliver the goods to the consignee, M/s. Ganesh Plastic Works, Bombay, on payment of dues, but, they sent a reply complaining about the non-payment of dues by the other consignees. Along with that letter a statement of dues was also sent. As the dues of the Transporter were not paid, they refused to deliver the consignment to M/s. Ganesh Plastic Works. Thereupon, the complainant filed the complaint praying for a direction to be issued to the Transporter to deliver the consignment to it free of cost in good condition and to compensate for the loss and also pay interest. The case was contested by the Transporter who in their counter pleased that, in fact, the complainant had dispatched 4 separate consignments to 4 different consignees vide G.C. Note Nos. 66740, 66741,66742 and 66743. The freight and the octroi duty in respect of those 4 consignments was to be paid by the respective consignee. At the octroi check post, the octroi duty in respect of each of the consignments was paid by the Transporter because, as a general rule, the Transporter pay the octroi on behalf of the consignee or consignor as this is the general practice whole over India to avoid inconvenience to them and subsequently collect the octroi duty along with the freight charges incurred from the consignee and this is only an honorary service rendered without charging a single farthing. All the above consignments were on door delivery basis. When the consignment under G.C. Note No. 66743 was delivered to the consignee the driver was requested to come the next day to collect the freight and octroi as his boss was not available. The next day when the representative of the Transporter went to collect the dues, the consignee refused to pay anything and told him to collect the freight and octroi from the consignor. The consignee of G.C. No. 66741 paid the freight and octroi charge in full and got delivery of the consignment. The consignee of G.C. No. 66742 paid full freight and half of the octroi charge. The Transporter did not deliver the consignment to M/s. Ganesh Plastic Works as the consignee refused to pay freight and octroi duty. Later on when the said consignee agreed to pay freight and octroi duty and take delivery of the consignment. It was not delivered to him as the Transporter had to recover Rs. 7,427/- from the consignor as per statement sent to him with the reply, it was further alleged that the octroi duty was charged as the goods were excisable goods and the consignor had not disclosed the excise gate pass nor forwarded the same along with other documents and therefore, Municipal Corporation, Bombay has charged the octroi duty according to Rules. If the goods are exempt from excise duty as claimed by the consignor, the consignee can ask for the refund.

THE District Forum vide order dated 27th June, 1990 held that the case involved a number of questions of law as to the liability of consignor and consignee vis-a-vis the carrier and only a Civil Court can decide the matter after elaborate evidence was recorded. Feeling aggrieved by that order the Complainant filed an appeal before the State Commission which accepted it and remanded the case to the District Forum for decision according to law.

AFTER remand the District Forum vide order dated 31st March, 1992 held that the Transporter was justified in not delivering the consignment since he had a lien over it as he had not been paid the full freight and octroi duty paid by him and thus there was no deficiency in the rendering of service by the Transporter. The complaint was accordingly dismissed. The complainant filed appeal before the State Commission which held that if the Transporter accepts to render the service to transport the goods to the destination and if he fails to do it under the pretext of non-payment of freight charges and octroi it will amount to deficiency in service and if the consignee or the consignor does not pay the Transporter his charges for freight and octroi duty as stipulated then he has remedy to approach the Civil Court for recovery of his payment by filing Civil Suit. Accordingly the appeal was accepted and the impugned order was passed.

THE Transporter has now come before this Commission by way of this Revision Petition. We are of the opinion that the order of the State Commission cannot be upheld. A ''consumer'' in relation to hiring of service has been defined as follows in the Consumer Protection Act, 1986 vide Section "hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the mentioned person."

In the present case the service of the Transporter was hired by the complainant to carry the consignments to Bombay for delivery to the consignees. The consignees were to pay the freight and the octroi charges. The Transporter, i.e. the present petitioner carried the consignments to the destination and in spite of not being reimbursed for octroi duties and freight charges he delivered the goods to three consignees. Only one of them paid the full freight and octroi charges. The 4th consignee who is M/s. Ganesh Plastic Works refused to pay any freight charges or octroi duty. The documents in respect of that consignment were returned by the Transporter to the complainant. In these circumstances, we fail to understand how it can be said that there has been negligence or deficiency in the rendering of service by the Transporter.

In the said Act in Clause (g) of Sub-section (1) of Section 2 ''deficiency'' has been defined as follows: " deficiency " means any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

There was no fault, imperfection, shortcoming or inadequacy in the quality, nature, manner of performance of the service by the Transporter. Had he not taken consignment to the various consignees, then of course, it could have been said that he was negligent in the performance of service undertaken by him. That is not the case. Now, the only dispute, is that the Transporter is not returning the 4th consignment to the consignor as he has not been paid the amount of Rs. 7,427/- which he has spent while carrying the consignments. We are of the opinion that the Transporter has not committed any ''deficiency'' in the rendering of service. The Transporter should be paid the dues which were promised to be paid. On payment of the dues the consignor can take back the goods. It would not be out of place to mention that the complainant has not come with clean hands. In the complaint he did not disclose about dispatching four consignment through the Transporter nor about the real controversy between the parties.

ACCORDINGLY we hold that there was no negligence or deficiency in the rendering of the service by the Transporter. Hence we accept the present revision petition, set aside the impugned order of the State Commission and restore that of the District Forum. The Petitioner will be entitled to the costs of the present proceedings from the Respondent which we assess at Rs. 2,000/-.