SHEKHAWATI ROADWAYS vs CHOTHU RAM JAI KUMAR JAIN

THIS appeal under Section 15 of the C.P. Act, 1986 (the ''Act'') is directed against the order dated 16.8.1999 whereby the District Forum No. 1, Jaipur has decreed respondent''s claim for Rs. 5,145/- as cost of goods and Rs. 1,000/- as compensation against the appellant.

THE case of the respondent-complainant was that on 6.5.1995 he had delivered a consignment of four cartons of stoves to the appellant for transportation from Jaipur to Tara Nagar but the appellant fraudulently and dishonestly misappropriated the said goods and did not deliver the same to the respondent or his authorised person despite repeated requests and thus rendered deficient services to him. Appellant''s version of the case, however, was that since the buyer of the goods, M/s. Mayur Enterprises, Tara Nagar, had not retired the documents from respondent''s banker, Bank of Baroda, Tara Nagar, the said Bank returned the documents to the respondent, that the respondent discussed the matter with the said buyer and thereafter requested the appellant to deliver the goods to the buyer and collect the invoice-amount from him and that although through the good offices of M/s. S.K. Transport Co., Tara Nagar the appellant got the goods delivered to M/s. Mayur Enterprises, Tara Nagar but when the appellant tried to deliver the Demand Draft for Rs. 3,767/-, as sent by the said buyer to the appellant, the respondent declined to receive the same and dishonestly filed this frivolous and vexatious complaint against them. THE District Forum, however, accepted the version of the case as given by the respondent and held the appellant guilty of rendering deficient services to him and decreed his claim in the manner stated above. After having heard the learned Counsels for the parties and on examining the material on the record of the Forum we are of the opinion that the District Forum did not appreciate the material on its record in right perspective.

It is not in dispute in this case that the consignment in question had been delivered by the respondent to the appellant on 6.5.1995 for transportation from Jaipur to Tara Nagar, that the respondent himself was the consignor as well as the consignee of the said consignment, that the invoice for Rs. 5,145/- had been prepared in the name of M/s. Mayur Enterprises, Tara Nagar, that the original Invoice and the Goods Receipt (G.R.), issued to the respondent by the appellant, were sent by the respondent to its Banker, Bank of Baroda, Tara Nagar, that since the buyer, M/s. Mayur Enterprises, did not retire the documents, those were sent back by the Bank to the respondent. These facts are fully established by the photo stat copies of the GR dated 6.5.1995 (Ann. 1 and the copy produced by the appellant) and the Invoice (Ann. 2). The GR produced by the appellant bears the endorsement made by the Bank while returning it to the respondent.

NOW the pertinent question that arises for consideration in this case is as to whose version - either that of the respondent or that of the appellant - is more in accord with the normal conduct of a businessman. In so far as the main question relating to rendering deficient services by the appellant to the respondent is concerned it is not difficult to be answered in favour of the appellant. Respondent had no doubt hired the services of the appellant for transportation of the four cartons of stoves from Jaipur to Tara Nagar and the appellant had duly transported such goods. The goods had in fact reached Tara Nagar. But the delivery thereof was taken from the appellant or its agent neither by the respondent himself who was the consignee himself, nor by the Bank of Baroda or its endorsee, within the stipulated time. In this behalf some relevant conditions, as contained on the reverse of the GR are worth consideration. Condition No. 9 provided that the goods shall have to be lifted (by the consignee) from the godown of the transporter at the place of destination. Condition No. 16 provided that if the delivery of the goods was not taken (by the consignee) within three days of its arrival at the destination, it would attract demurrage @ Rs. 3/- per kg. or per item, as the case may be. Then Condition No. 17 stipulated that if the delivery of the goods was not taken within 30 days, the appellant would be entitled to sell the same by public auction. Note No. 3 appended at the foot of the GR declared that the transporter was under no obligation or responsibility to re-book the goods back to the consignor.

IN the presence of the above-mentioned conditions when we take note of the fact that the consignment was booked with the appellant company on 6.5.1995 but when the documents were not retired by the buyer till 3.8.1995, the Bank had to cancel the endorsement made by the respondent in its favour and return them to him. IN other words, the delivery of the goods was not taken either by the respondent , or by the buyer or by the Bank or its endorsee within the stipulated period of thirty days. On such established facts, the appellant cannot be said to have rendered deficient services to the respondent, particularly when it had not been paid the agreed freight and for that reason it could have legally refused to deliver the goods as provided in Condition No. 19. Proceeding further we have to consider as to how the original GR, which was issued to the respondent by the appellant, came to be possessed and produced by the appellant. Appellant''s version was that after having received the original Invoice and GR back from his Banker on 3.8.1995 or soon thereafter the respondent contacted M/s. Mayur Enterprises, Tara Nagar which agreed to take the delivery of the goods from the godwons of the apellant or its agent at Tara Nagar and in pursuance to such arrangement the respondent asked the appellant to direct its men at Tara Nagar to deliver the goods to M/s. Mayur Enterprises and collect the Invoice amount from the buyer. Further case of the appellant is that it directed its men at Tara Nagar accordingly and they forwarded the Demand Draft for Rs. 3,767/- as given by M/s. Mayur Enterprises to them after taking the delivery of the goods, through M/s. S.K. Transport Co., Tara Nagar. It has been explained by the appellant that in giving a draft for Rs. 3,767/- and not for Rs. 5,145/- M/s. Mayur Enterprises, Tara Nagar had deducted their old outstandings and other expenses due to them from the respondent. We find that these facts stand fully established by documentary evidence on record. It is not disputed that the consignment in question was meant for M/s. Mayur Enterprises, Tara Nagar as per Invoice (Ann. 2). This Mayur Enterprises appears to be an old customer of the products of the respondent as is gathered from respondent''s letter dated 17.12.1994 addressed to Mayur Enterprises, Tara Nagar. By this letter the respondent had requested Mayur Enterprises to take delivery of the goods and return the damaged goods through the transporter. By GR No. 7852 dated 23.12.1994 M/s. S.K. Transport Co. had re-booked the damaged goods weighing 20 kgs. against transportation charges at Rs. 164/- only.

THUS it is quite evident that the respondent had business dealings with M/s. Mayur Enterprises, the buyer, and M/s. S.K. Transport Co. the transporter, much before the transportation of the consignment under consideration. The details of the account given in a separate sheet by M/s. Mayur Enterprises to M/s. S.K. Transport Co. alongwith the Demand Draft for Rs. 3,767/- shows that it was after deducting an amount of Rs. 1,348/- on account of the price of 8 pieces of damaged stoves which were re-booked through S.K. Transport Co. vide GR dated 23.12.1994 in terms of respondent''s letter dated 17.12.1994 and further expenses incurred in connection with getting the Demand Draft prepared, M/s. Mayur Enterprises, Tara Nagar had remitted the balance amount to the respondent through M/s. S.K. Transport Co. but the appellant had declined to accept the said D.D. from the appellant. It may be observed that when in the course of arguments we enquired of the learned Counsel for the respondent as to whether copies of account in the books of M/s. Mayur Enterprises, Tara Nagar or vice versa have been filed or the buyer was ever thought of making a party to this litigation, the learned Counsel simply stated that it was not necessary for the respondent so to do in order to seek relief against the appellant.

IN the facts, as found by us above in this case, we are of the firm view that the respondent did not only suppress material facts but also filed totally a frivolous and vexatious complaint against the appellant. The appellant, which was having its registered office at Jaipur whereat the respondent was carrying on his own business, had no cause, occasion or necessity for getting a Demand Draft prepared in the name of the respondent from a bank at Tara Nagar. Thus, whereas the version of the appellant is found to be in accordance with the normal and natural conduct and behaviour of a prudent businessman and inspires confidence in us, that of the respondent appears to be a bundle of lies and falsehood, liable to be, and is hereby, rejected as such. IN the result, the impugned order is set aside and the appeal allowed. Consequently, the complaint of the respondent is dismissed with cost at Rs. 2,500/- to the appellant. Appeal allowed.