SHIMONI MARKETING vs JB TRANSPORT COMPANY

THE appellant herein happens to be original complainant and the respondent herein happens to be the original opponent in Complaint No. / 455/1993 which was filed before the Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad for following brief facts.

THE complainant carried on business in washing powder and detergent cakes. THE opposite party has been carrying on business of transportation. THE complainant handed over 20 bags of washing powder and 25 cartons of detergent cakes, and 1 bag extra in all 46 bags at opponent''s head office situated in Ahmedabad as per invoice No. 360 dated 17.9.1992. THE goods in question were required to be transported and consigned to M/s. Sarvesh Sales Service, Udaipur. THE opponent issued transport receipt No. 4112 dated 19.9.1992. All the documents including the said transport receipt were sent through Punjab National Bank, Paldi Branch, Ahmedabad. THE consignee failed to retire the documents. Punjab National Bank, therefore, returned the documents to the complainant. By letter dated 17.11.1992, the complainant called upon the opponent to send back the goods (consignment) to Ahmedabad as the same was not retired by the consignee. THE opponent was asked to pay value of the goods amounting to Rs. 12,760/- and Rs. 510/- as interest as opponent failed to deliver the goods as aforesaid. Notice was served under Section 10 of the Carriers Act on 22.2.1993 accordingly, either to deliver the goods or to return the aforesaid sum with interest and freight charges. It was the case of the complainant that goods were not be be delivered to the consignee without documents and receipts. If the goods were delivered, it would amount to deficiency in service on the part of the opponent having violated the accepted and settled practice and contractual obligation of delivering goods to the concerned party against delivery of transport receipt and other documents of title to the goods. The opponent contested the complaint inter alia on the ground that the consignee failed to take delivery of the goods and, therefore, opponent informed the complainant on telephone and the complainant instructed the opponent to deliver the goods without receipt and accordingly the opponent delivered the goods to the consignee. The complainant resisted this stand by filing affidavit in rejoinder.

Upon scrutiny of the material placed by the parties on record, the learned Forum came to the conclusion that the complainant sent the documents to Punjab National Bank but the consignee did not retire them by making necessary payment and the documents were returned by the bank. The learned Forum, however, proceeded on the footing that there was nothing on the record to show that the opponent was informed not to deliver the goods to the consignee. The learned Forum has also focussed its attention on the invoice dated 17/19.9.1992 in the name of consignee M/s. Sarvesh Sales Service. It has also proceeded to observe that the complainant did not produce any evidence to show that opponent was informed not to deliver the goods unless the receipt for payment was produced before the opponent. Upon consideration of the decisions placed before the Forum, and on the aforesaid reasoning, the Forum has dismissed the complaint per impugned order dated 13.5.1996 which has been the subject matter of this appeal before this Commission.

WE have heard learned Advocates for the parties. It would clearly appear even from the impugned order that the complainant sent the documents through Punjab National Bank for being retired by the consignee upon payment. If that was so, consignee was under a contractual obligation to make payment while retiring the documents from the bank. Once again insistence upon retiring the documents would obviously be for the purpose of getting delivery of the goods from the opponent road transport company as otherwise the opponent cannot deliver the goods to the consignee. The learned Forum clearly appears to have misdirected itself of not examining the stand of the opponent that the complainant telephonically informed the opponent to deliver the goods to the consignee inspite of the fact that the documents were returned to the complainant. Obviously the burden of proof with regard to such a stand in answer to the complaint would be on the opponent. The opponent has not filed affidavit of any person of its Udaipur office or even of its Ahmedabad office having received'' such a telephonic communication. It has not produced any documentary evidence about making note of such communication. On the contrary the written communication and the notice correspondence clearly indicate contrary facts namely the complainant called upon the opponent to return the goods to the consignor i.e. the complainant at Ahmedabad or else pay the value of the goods. As against that no original receipt of the consignee has been placed on record. The opposite party has not placed on record receipt of the consignee having received the delivery of the goods. Even that basic fact has not been established by the opposite party. Had the Forum viewed the matter from this correct perspective, probably, it could have come to the conclusion that the goods in question were either lost by the opponent or misdelivered in collusion with consignee or some other person. In any event there is clearly deficiency in transport service which was agreed to be provided to the complainant as per the transport receipt issued by the opponent. It is settled position of law that burden of proof with regard to loss or misdelivery of goods is on the transporter as per the relevant provisions of the Carriers Act. This is made further clear by the decision of the Honourable Supreme Court in the case of Patel Roadways Limited v. Birla Yamaha Limited, I (2000) CPJ 42 (SC)=III (2000) SLT 554=II (2000) CLT 83 (SC)=AIR 2000 SC 1461. The Apex Court has held that loss or damage to goods at the hands of the carrier will amount to deficiency in service and the claim in that respect can be entertained by the Consumer Forum. It is for the transporter to prove that there was no negligence in respect of loss of goods or misdelivery of goods. Consignor need not prove negligence on the part of the carrier. As soon as the complainant shows loss of goods in any form as aforesaid, the burden shifts on the transporter. The question is as to the amount to which the opponent would be liable to the complainant. It is not in dispute that the complainant called upon the opponent to rebook the goods and call back the consignment from Udaipur to Ahmedabad. It is a fact that the transport receipt was in the (sic.) complainant with endorsement of ''self''. The aforesaid consignee is ultimately the second consignee in whose name bill/invoice was issued. Therefore, the consignee could not retire the documents from bank. It was for the complainant to make arrangements for retirement of the bank documents at Udaipur and get released the goods. It, therefore, follows that when complainant sought further services of the opponent for getting back the goods, it would have to pay the freight and the demurrage/godown charges. Both the parties have jointly acknowledged the said amount to be Rs. 4,576/-. Obviously, therefore, that amount will have to be deducted from the value of the goods namely Rs. 12,760/-. Thus, the complainant would be entitled to Rs. 8,184/- by way of net value of the goods with running interest @ 12% from 1.2.1992 in so far as opponent is concerned. In so far as the cost is concerned, bearing in mind the peculiar facts and circumstances of the case as noted hereinabove, we do not propose to order cost either of complaint or of this appeal. Following order is, therefore, passed.

THE appeal is allowed. THE impugned order dated 13.5.1996 rendered by the Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad dismissing Complaint No. 455/1993 is hereby set aside. THE opponent is directed to pay to the complainant Rs. 8,184/- with running interest @ 12% p.a. from 1.12.1992 till payment. No order as to costs throughout. Payment as aforesaid shall be made within 8 weeks from the date on which copy of this order is received by the opponent [respondent herein]. Appeal allowed.