SUBH LAXMI TRANSPORT SERVICE vs PARTH TRADERS

-THIS appeal arises from order dated 13th February, 1997 rendered by the learned Ahmedabad City Consumer Disputes Redressal Forum in Complaint No. 730/1995.

THE complainant made grievance with regard to alleged non-delivery of the goods covered under Lorry Receipt No. 0043456 dated 8th November, 1993. According to the complainant the goods ought to have been delivered to the consignee M/s. Anu Fashions of Vadodara on the next day i.e. 9th November, 1993 or at least within 15 days from the date on which the goods were handed over to the opponent Transport Company. THE value of the goods is stated to be Rs. 3,159.50 p. It was the complainant''s case that the complainant came to know about non-delivery of the goods when the complainant did not receive payment of the goods from the consignee. THE complainant, therefore, communicated with the opponent Transport Company and issued notice dated 10th March, 1995. THE opponent Transport Company received notice on 24th March, 1995 but did not give any reply to the said notice. It was, therefore, alleged that there was deficiency in service on the part of the opponent Transport Company. THE complainant, therefore, prayed for Rs. 3,559.50 p. being the value of the goods, Rs. 1,700/- being loss of interest, Rs. 5,000/- being compensation on account of loss of business and reputation, and Rs. 1,500/- being the amount of notice charges and cost, in all Rs. 11,759.50, and such complaint was filed on 8th November, 1995. Now the complaint had been filed by the partnership firm in the name and style of M/s. Parth Traders and its partner Hemang Hansrajbhai Soni (described in ink in the title of the complaint) who had signed the verification. In the background of such facts flowing from the complaint itself the reply given by the opponent to the learned Forum was required to be taken into consideration by the learned Forum. However, the learned Forum discarded the same on the ground that there was no affidavit in support of such reply.

The opponent Transport Company inter alia contended that the consignment in question which was booked on 8th November, 1993 was sent for its onward transportation on the same day and it was received by the consignee M/s. Anu Fashion on 9.11.1993. The learned Forum, however, came to the conclusion that since there was no affidavit in support of the said reply the complainant would be entitled to the value of the goods in the sum of Rs. 3,159.50 p. with interest @ 18% p.a. from 1.2.1992 and cost of Rs. 500/-. The opponent Transport Company has challenged the said order.

WE have heard the learned Advocate appearing for the opponent Transport Company (appellant herein). The original complainant has been served with the notice of this appeal. Mr. Gaurang A. Oza appeared on behalf of the original complainant (being the respondent herein). Then, both the parties expressed to submit their written arguments as per order dated 25th January, 1999. The appellant submitted written submissions in February, 1999. Final intimation that the matter was to be heard today was also sent on 17th July, 2001. When the matter came up for hearing today accordingly, no one has remained present for the respondent being the original complainant. WE are, therefore, required to consider the facts and circumstances of the case as appearing in the original record. On going through the original proceedings we find that there was no averment with regard to the date on which the complainant made inquiry from the consignee with regard to payment for the value of the goods and the date on which the consignee informed the complainants that the goods were not received. There is no written communication placed on record to show that the consignee did not receive the goods. The consignee has not filed any affidavit in support of the complaint. It is true that the complainant''s partner has filed affidavit but the fact with regard to non-delivery and communication of the said facts ought to have been placed on record. In the absence of either communication from the consignee about non-delivery of the goods or statement on oath with regard to non-delivery of the goods from the consignee, it cannot be said that the complainant proved the complainant''s case of non-delivery. Reference in this connection may be made to Section 13 of the Consumer Protection Act, 1986 (Act for short) which provides for procedure in respect of the complaint filed by the consumers. Obviously, the complainant''s case was based on alleged deficiency in service (transport service in this case) on the part of the opponent Transport Company, resulting into alleged non-delivery of the goods. Section 13(2) of the Act, reads as under : "(2) The District Forum shall, if the complaint received by it under Section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,- (a) xxx xxx xxx (b) where the opposite party, on receipt of a copy of the complaint, referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,- (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint; or (ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum."

IT may be noted from the aforesaid provision that when the opponent denies the claim the District Forum is required to settle the consumer dispute on the basis of the evidence brought to its notice by the complainant and the opponent as the case may be. Where the opponent fails to take any action or represent his case within the time given by the Forum, the Forum is required to settle the dispute on the basis of evidence brought to its notice by the complainant. In the present case apart from the fact that no particulars of time when the complainant came to know about alleged non-delivery of goods have been set out in the complaint, no evidence of consignee or even of entries from complainant''s books of account has been produced. As ruled in Patel Roadways Ltd. v. Birla Yamaha Ltd., I (2000) CPJ 42 (SC)=AIR 2000 SC 1675, initial burden of non-delivery/short delivery/damage regarding consignment is on the complainant. In the present case the complainant has failed to discharge such burden. Thus the learned Forum clearly appears to have proceeded on the basis of a vague allegation about presumed non-delivery of the goods. That is precisely not permissible under the aforesaid provision of the Act. It has been submitted on behalf of the opponent Transport Company that there is non-compliance of Section 10 of Carriers Act, 1865 which reads as under : "10. Notice of loss or injury to be given within six months-No suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff."

In the present case admittedly the notice had been sent after considerably a long period of the expiry of the six months from the date of expected delivery of the goods to the consignee. In that view of the matter the complaint could not have been entertained by the learned Forum by virtue of the aforesaid provision of the Carriers Act.

IN above view of the matter this appeal is required to be allowed as under : Impugned order dated 13th February, 1997 rendered by the learned Ahmedabad City Consumer Disputes Redressal Forum in Complaint No. 730/1995 is hereby set aside. The original complaint is dismissed. This aspect is accordingly allowed, with no order as to cost throughout. Appeal allowed.