SUN POLY INDUSTRY vs BRANCH MANAGER, SHRI RAMADOSS MOTOR TRANSPORT LTD.

THE unsuccessful complainant in C. No. 129/97 before the District Consumer Disputes Redressal Forum, Pondicherry is the appellant herein.

HEARD Mr. K. Palaniappan, Counsel for the appellant and Mr. M.V. Vaithilingam, Counsel for the respondents 1 and 2. It is conceded that the consignment was entrusted to the respondents 1 and 2 and it was sent to the respondent No. 3 who had been impleaded subsequently. It is further conceded that the consignment reached the respondent No. 3. There is no dispute in that the consignment has reached the right consignee and intact. It is admitted that the respondents 1 and 2 - the carrier have delivered the goods to the very consignee but without collecting the lorry receipt or way bill but after obtaining an indemnity bond as it was represented that the lorry receipt was lost in transit. Thereafter a legal notice was issued by the complainant/appellant to the common carrier dated 5.5.1997 pointing out that the carrier had shown leniency to the consignee who had omitted to pay the value of the goods to the consignor and that failure to insist for production of way bill or lorry receipt is a deficiency in service on the part of the carrier. It is useful to extract the very notice sent by the appellant on 5.5.1997. "My client is dealing the business of Tubing Products (PVC Sheets). He has sent a consignment to his customer by name Data Coconut Products Akividu on 1.1.1997 vide lorry Receipt No. 2051739 through your Pondicherry Branch Transport Officer. My client states that you have delivered the said consignment containing the goods P.V.C. sheets to his said customer i.e., consignee without by accepting only Indemnity Bond in lieu of lorry receipt in order to favour him and the same is quite contrary to the terms and conditions of the lorry receipt furnished by you when my client entrusted the said consignment to your Pondicherry Office. My client states that till date his said customer has not yet settled the value of the said goods inspite of his repeated telephonic calls, telegrams and letter. Your ought not to have delivered the said consignment by accepting the Indemnity Bond. If you have insisted the said consignee as per the lorry receipt certainly he would have paid the amount and taken delivery of the goods. As you have shown leniency to the said consignor he has been evading my client. You are only held responsible for the payment of the value of the goods at Rs. 46,200.40 (Rupees forty-six thousands two hundred and paise forty only) to my client. Your said activity amounts to deficiency of service to your customer so far you have not taken any arrangements inspite of my client''s letter to pay the said amount to him. Even you have not chosen to send the alleged indemnity bond to my client.

Despite sending such a notice the complaint has been filed alleging that there is deficiency in the services rendered by the opposite parties as common carrier.

AS pointed out the consignment has to be delivered to the respondent No. 3 whose name finds place in the lorry receipt. It is not disputed that the title in the goods passes to the consignee on its being delivered to the common carrier. In terms of Section 23(2) and Section 39 of the Sale of Goods Act, on the delivery to common carrier the goods are at the risk of buyer and the carrier is the agent of buyer and he alone could sue for damages done to the goods or for failure to deliver goods, unless the seller had reserved the right of disposal. This is not the case of the appellant. It is not the case that the consignor was retained the title in the goods while entrusting the consignment to the common carrier. The consignor had not retained lien over the goods consigned. It is to be pointed out that the consignor and the consignee are not the same. It is a sale-F.O.R., Pondicherry. What has been undertaken by the common carrier is to deliver the goods to a consignee. The said undertaking has been accomplished by delivering the goods to the consignee.

IT is true that the consignee has failed to produce the lorry receipt. But there is no dispute that the consignment has been delivered to the right person and the consignment has been rightly delivered to the person who is entitled to the delivery. As such there is no deficiency in the services rendered by the common carrier. It is also to be pointed out that factually there was no instruction by the consignor to the common carrier with respect to the forwarding of the lorry receipt or way bill through a Bank for collection and no such instruction has been put forth nor such a plea has been set out in the complaint. But on the contrary the contents of legal notice dated 5.5.1997, which is the earliest in point of time, which show that neither the way bill was trusted to the Bank for collection nor the lorry receipt has been forwarded through a banker for collection with necessary arrangement to collect the price amount due to the consignor. No such case has even been set out in the said notice. The learned Counsel for the appellant placed reliance on the decision of the National Consumer Disputes Redressal Commission between Arya Central Transport Ltd. & Ors. v. Pondicherry Textile Corporation Ltd., First Appeal No. 41 of 1993, decided on 21.2.1995. In our considered view the said order of the National Consumer Disputes Redressal Commission, has no application to the facts of the present case. The said decision is distinguishable on facts, which are totally different. In that case at least there was a loss of portion of the consignment and for the same compensation was awarded for short delivery or non-delivery. It is not the case here. In this case full consignment has been delivered to the consignee which is admitted. In the absence of any specific instruction the common carrier viz., respondents 1 and 2 it cannot be held that there is deficiency in the services rendered by the common carrier.

THE Counsel for the respondents referred to a decision reported in Deepak Gupta v. M/s. Standard Transport, III (1992) C.P.J. 652, in C-115 of 1992 decided on 27.4.1992 where the State Consumer Disputes Redressal Commission, Delhi in identical circumstances held there is no deficiency in the services rendered by the common carrier like the respondents 1 and 2. It has been held therein that when the goods were delivered by the carrier to the consignee and when there was no complaint of the delay or shortage, no deficiency could be pointed out against the common carrier.

THE District Forum had rightly rejected the complaint as there is no deficiency in service on the part of the common carrier. No illegality or material irregularity has been made out to interfere with the order of the District Forum. THE appeal is dismissed but without costs. Appeal dismissed.