Victory Transport Co P Ltd vs Mishra Furniture Mart

THIS is an appeal preferred by the opposite party against the order dated 16th August, 1993 by the State Consumer Disputes Redressal Commission (for short the State Commission), the Uttar Pradesh at Lucknow. By the impugned order the opposite party -appellant herein, was directed to pay Rs. 2,31,285.60 to the complainant -respondent herein. This amount was also ordered to be paid by 15th September, 1993 failing which the amount was to carry interest till the date of payment.

THE facts as gathered from the complaint are that the complainant firm is dealing in the business of furniture and other decorative items at Nadesar, Varanasi. In that connection the partners of the complainant firm used to go to Delhi for purchasing materials of furniture and other decorative items. On 14th October, 1991, the partners of the complainant firm purchased different items worth Rs. 2,31,285.60 Ps. from different firms at Delhi and entrusted them to the opposite party -appellant herein to be carried to the complainant''s firm at Nadesar, Varanasi. The goods were loaded in two trucks No. DEL 2202 and DIG 1970. The opposite party issued goods receipt Nos. 68928 and 18932 dated the 14th October, 1991 to the drivers of the said trucks. The opposite party agreed to carry the goods safely to the destination. The opposite party charged Rs. 3,808/ - as freight charges for each truck load. The goods did not reach the destination even after the expiry of one month though those should have reached there within a week. When the complainant firm did not receive any information about the goods, they served a notice on the opposite party on 18th November, 1991 for the payment of the amount of the consignment. The opposite party replied to that notice by controverting all the allegations of the complainant including booking of consignment. Thereupon the complainant filed the complaint before the State Commission. According to the complainant the opposite party has been negligent and prayed in the complaint for a direction to the opposite party to pay Rs. 2,31,285.60 Ps. with interest at Bank rate for its failure to deliver the goods at the destination. On being noticed the opposite party - appellant herein contested the complaint. In the counter all the allegations of the complainant were denied. It was denied that the items of furniture etc. were carried to Varanasi by the above Truck No. DEL 2202 and DIG 1970. Even the booking of the consignment was denied. The lorry receipts referred to by the complainant were alleged to be forged and fabricated documents.

AFTER perusal of the each memos, goods receipts and documents and various affidavits, the State Commission came to the conclusion that the complainant had booked the consignment worth Rs. 2,31,288.60 Ps. through the opposite party for carriages of the goods to themselves (i.e. complainant firm) at Varanasi and the goods never readied the destination. Accordingly, they passed the impugned order. As noticed above, the opposite party has come to this Commission by way of this appeal.

WE have heard the learned Counsel for the appellant and gone through the records. None has appeared for the complainant - respondent herein though they have filed a detailed reply to the grounds taken by the appellant in the Memorandum of appeal and various affidavits. Copies of the affidavits filed before the State Commission have also been filed before this Commission. Before we proceed further we may mention here that the State Commission remarked that at the arguments stage on three consecutive dates none appeared for the opposite party -appellant herein and that the arguments were heard ex -parte. The learned Counsel for the appellant argued that the Counsel for the opposite party had fallen ill and therefore, he could not attend the hearing before the State Commission. His plea was that sympathetic view may be taken and the case be remanded for fresh decision after hearing the opposite party. We are of opinion that there is no sufficient ground for remanding the case. No plea has been taken in the Memorandum of appeal that the Counsel for the opposite party had fallen ill and, therefore, could not appear before the State Commission. Otherwise also if the Counsel had fallen ill, he ought to have informed the State Commission about his illness. It is not believable that on all the three hearings i.e. 11.1.1993, 1.2.1993 and 1993 the Counsel remained ill. Otherwise also there was sufficient time for the opposite party to engage another Counsel before the State Commission in case the Counsel originally engaged had fallen ill. It may, however, be mentioned here that in the rejoinder dated 2nd November, 1993 filed by the appellant before this Commission another reason has been given for the absence of the Counsel. It is stated at page 12 of that rejoinder (which is at pages 87 to 100 of the second volume of the paper book), "...no such goods were ever booked with the appellant and the appellant has never given any instructions to the Counsel to make any type of statement and the said Counsel did not appear in the proceedings before the State Commission as a result thereof and the said case was decided ex parte and as such even if any statement was made, the statement was made by the Counsel without permission and authority of the appellant and it appears that it was won over by the respondent...". Said statement of the appellant''s Counsel will be discussed later on. 6. The learned Counsel for the appellant has argued that the goods were not handed over to the Appellant Company for transport from Delhi to Nadesar, Varanasi. This contention has been rejected by the State Commission which relied upon the two G.Rs. produced by the complainant before the State Commission. It would not be out of place to mention here that the driver of Truck No. DEL 2202 of Victory Transport Co. (P) Ltd. (i.e. the appellant herein) lodged a written report in Police Station, Cantt., Varanasi on 18th October, 1991 stating that on 14th October, 1991 he was carrying the furniture of Misra Furniture Mart, Nadesar, Varanasi from Delhi to Varanasi and reached Varanasi on 17th October, 1991 and while he was backing the truck for unloading the goods at the godown of the consignor, the upper portion of the body of the truck touched an electric wire fixed near the godown and sparks were generated and the truck caught fire and by the time the fire brigade arrived whole of the goods were gutted. This clearly shows that the Truck No. DEL 2202 was being operated under the name of Victory Transport Co. (P) Ltd.

THE appellant himself has filed a certificate from me Sales Tax Officer, Check Post, Mohan Nagar which shows that the truck Nos. 2202 and DIG 1970 crossed the Check Post on 15th October, 1991. There is also an affidavit of the complainant''s partner filed before the State Commission to the effect that the Truck No. DEL 2202 is registered in the name of Gian Kaur, w/o late Shri Harnam Singh and while Truck No. DIG 1970 is registered in the name of Surendra Pal Singh, s/o Late Shri Harnam Singh. It may be noted here that the present appeal has been filed by Surindra Pal Singh, s/o Late Shri Harnam Singh as the Managing Director of the Victory Transport Co. (P) Ltd. The State Commission had also relied upon the G.Rs. produced before it. Hence, it does not lie in the mouth of the appellant to say that the consignments in question were not handed over to them for carriage from Delhi to Nadesar, Varanasi.

THE next argument advanced was that at the Check Post, Mohan Nagar the value of the consignment was declared at Rs. 52,369/ - (vide certificate at page 33 of the paper book). On the other hand, the complainant''s case is that the value of the consignment was declared at Rs. 1,31,510.60 Ps. Vide Form No. 31 which is at page 22 of Volume -II of the paper book. According to the complainant that value only represents the value of the furniture as the declaration at the check post was to be given only with respect to the furniture while the consignment also contained cloth purchased from Delhi and no declaration about its value was required to be declared at the Check Post. The bills of purchase were produced before the State Commission and the State Commission, after examining those documents had found that the value of the goods was Rs. 2,31,285.60 Ps. which were purchased and handed over to Victory Transport Co. (P) Ltd., for transportation by the above referred two trucks. The facts given in the complaint are fully supported by the various affidavits filed by the complainant, copies of which have been produced on this file. It would not be out of place to mention here that before the State Commission the Counsel for the opposite party i.e. the appellant herein had made a statement admitting that the goods were received and when the trucks reached at Varanasi, those caught fire due to electric pole and an FIR was lodged with the police. However, the Counsel later on changed his statement and stated that he had made the above statement under some misunderstanding and the facts stated by him related to some other case. Of course, we cannot place much reliance upon that part of the statement of the opposite party''s Counsel. But, it requires mention that after that statement had been made by the opposite party''s Counsel he did not appear before the State Commission as admitted by the appellant and discussed in the earlier part of this order.

WE have considered the records of the case carefully and are of the opinion that the findings of the State Commission require to be upheld. Accordingly, we dismiss the present appeal with costs which we assess at Rs. 2,000/ -. Appeal dismissed.