VINAYAK UDYOG (P) LTD. vs NEW CARRYING CORPORATION

COMPLAINANT-M/s. Vinayak Udyog (P) Ltd. of Panipat through its Director Shri Anil Kumar Garg imported 200 bags of Gambier Extract weighing 10 Mts. by way of purchase from the seller namely Ratan Singh & Company (P) Ltd., Singapore vide invoice dated 18th June, 1993 from Singapore to Madras Port. According to the complainant, the value of the goods was Rs. 5,08,976.37/- in Indian currency. The consignment reached Madras Port on 27th June, 1993 and was cleared by the clearing agent M/s. S.M. Kesaveraman and Company of Madras. It has further alleged that the complainant paid Rs. 4,32,629.60 as Customs duty and Rs. 19,169/- as clearing charges and thus the total expenditure incurred was Rs. 9,60,775/-. Thereafter on 8th July, 1993 the consignment was entrusted to the transporter namely New Carrying Corporation for sending the same from Madras to Panipat. The goods were transported in truck bearing registration number HNG-4965, but the consignment never reached Panipat.

THEREAFTER the complainant approached the opposite party at Madras personally, by writing letters and telephone calls etc. number of times, but no clue could be found out about the whereabouts of the consignment. However the Branch Manager of the New Carrying Corporation having its office at Delhi informed t he complainant on 25th August, 1993 that since the consignment was booked from Madras, the matter was being directly dealt with by the Madras Office. THEREAFTER the complainant personally went to Madras and contacted the opposite party there and when nothing was done, had filed the present complaint claiming Rs. 9,60,775/- as compensation being the total value of the consignment along with Rs. 3 lacs as compensation for pain and suffering, financial loss and mental agony etc. with interest @ 24% from the date of entrustment of the consignment. In their written reply, the opposite party pleaded at the outset, that Haryana State Commission at Chandigarh has no territorial jurisdiction to entertain the complaint because the contract of carriage goods (Gambier Extracts) was made at Madras between the New Carrying Corporation and M/s. Kesavaraman and Company for transportation of the goods from Madras. Therefore, the right to sue, which arose out of the breach of contract, accrued only between the parties to the contract. Since the contract of carriage of goods did not disclose any privity between the complainant and the opposite party No. 1 the complaint was not maintainable against them. It is further pleaded that as contract of carriage of goods was concluded at Madras and the lorry receipt was issued in Madras from where onwards the goods were stolen in transit before they reached the destination, no part of the cause of action arose within the State of Haryana, hence the Haryana State Commission could not assume jurisdiction. The opposite party while denying that the complainant had entrusted the goods to them for carriage, further pleaded as under: "The respondent states that M/s. S.M. Kesavaraman & Co., delivered the goods at Madras to it on 8.7.1993 for being carried at owner''s risk and being delivered at Panipat to the complainant on payment of the freight charges of Rs. 15.500/- at Panipat. The said goods were in turn entrusted by the respondent to M/s. Haryana Delhi Roadways, No. 62, Swami Pillai Street, Choolai, Madras-600112, on 8.7.1993 with the consent of M/s. S.M. Kesavaraman & Co., and in the presence of the latter, for being carried from Madras to Panipat in truck bearing registration No. HNG-4965. On receipt of the letter dated 27.7.1993 from M/s. S.M. Kesavaraman & Co., stating that the goods had not arrived at the destination station, the respondent lodged a complaint with the Commissioner of Police, Madras-8 on 27.7.199.3 itself. The police have reported that the goods were undetectable after making the necessary investigation on the above complaint and pursuant to .the complaints in M.P. Nos. 551 & 564 of 1993 made by the respondent and Ali Hussain of Haryana Delhi Roadways, respectively, to the XIV Metropolitan Magistrate, Madras-8, under Sections 406 & 420 of IPC who by his order dated 2.8.1993 forwarded the complaints to the Assistant Commissioner of Police, Madras-8 under Section 156(3), Cr. P.C. for investigation and report. From the complaints of the respondent and Haryana Delhi Roadways to the XIV Metropolitan Magistrate, Madras-8, it could be seen that the goods were entrusted by Haryana Delhi Roadways to Balvinder Singh, driver of lorry bearing regn. No. HNG-4965 on 8.7.1993 for transport, the vehicle being owned by S. Surjeet Singh, and that both had taken away the goods and sold them in the market for their wrongful gain, thereby committing the offence of criminal breach of trust and cheating". Finally, it was also pleaded that "the claimant was not entitled for any relief since the goods were not insured. As per the G.C. Note issued by the respondent on 8.7.1993 to M/s. S.M. Kesavaraman & Co., the consignor, (Reverse of G.C. Note), all the consignments which are booked and carried will be under owner''s risk and therefore consignor should take necessary insurance on their account. Since the goods were not insured by the consignor, and also as the goods were carried at owner''s risk, the respondent is not liable for the theft of the goods".

Thereafter the complainant - Anil Kumar Garg filed his affidavit dated 13th January, 1996 by way of evidence in which the factual position of the complaint was reiterated and also produced the invoice of the goods, bill of entry, consignee''s receipt, weight certificate and the correspondence exchanged between the parties. After the evidence was closed by the complainant, the opposite party filed affidavit of Mr. Ramesh Kumar Khemka, their partner at Madras, by way of proof, in which it was averred that the goods were transported and got loaded from Madras by the consignor himself in truck No. HNG-4965 of M/s. Haryana Delhi Roadways of No. 62, Swami Pillai Street, Choolai, Madras and it was owned by one Sardar Surjeet Singh and driven by Balvinder Singh. It is further stated that on coming to know from consignor vide letter dated 27th July, 1993 that the goods had not reached the destination, they on the same day addressed a communication to the Commissioner of Police, Madras. On the following day i.e. 28th July, 1993 the complaint was filed before XIV Metropolitan Magistrate, Madras as M P No. 551 of 1993 against Surjeet Singh and Balvinder Singh. This complaint was referred to the Assistant Commissioner of Police, Central Crime Branch, Egmore, Madras 8 for investigation. After investigation, it was reported by the police on 20th December, 1994 that the owner and driver of the truck had not been detected and the goods were untraceable. Along with the affidavit copies of the complaint made to the police authorities and the Metropolitan Magistrate and the investigation report of the police submitting untraceable report were also enclosed as Exs. R3 to R6. Thereafter the complainant appeared as CW-1 as his own witness to substantiate the averments made in the complaint and in the affidavit. Similarly Mr. Ramesh Kumar Khemka also appeared as witness of the opposite party to reiterate their stand in the reply as well as in the affidavit.

AFTER hearing the learned Counsel for the parties and having gone through the record, we are of the considered view that this Commission at Chandigarh does not have territorial jurisdiction to entertain the complaint as cause of action to the complainant arose at Madras where the contract for transportation of the goods was executed and the entrustment thereof had taken place. According to Section 11(2) of the Consumer Protection Act, 1986, "A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction- (a) The opposite party or each of the Opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain; or (b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a branch office) or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be, acquiesce in such institution; or (c) The cause of action, wholly or in part, arises". In the present case, it stands fully established from the record, that no part of the cause of action has arisen within the State of Haryana as all the transactions were made at Madras itself e.g. the privity of contract between the parties including the agent M/ s. Kesavaraman & Company (who has not been impleaded) came into existence at Madras itself with the clearing of goods imported from Singapore, execution of the invoices/bills, lorry receipt, payment of the price of goods and other charges, as also with the alleged entrustment of goods. Since the goods were transported from Madras in the truck of Haryana-Delhi Roadways and the goods never reached their destination having lost in transit, the destination of Panipat in Haryana will not give rise to any cause of action. Whether the consignment was meant for the consignor or for the consignee shall not make any difference as the objection to the maintainability of the complaint is not that the consignee cannot file the complaint/even though he is a beneficiary, but the challenge is on the ground of lack of territorial jurisdiction. In arriving at this conclusion, we are fortified by number of decisions, some of which are as under: (i) II (1992) CPJ 621 (Raj.) M/s. Uttam Bharat Electricals v. M/s. Jaipur Golden Transport Co. Ltd. & Another; (ii) III (1992) CPJ 291 (Hyd.) Chander Kanta Bansal & Another v. K.L.M. Royal Dutch Airlines, New Delhi and Others, and (iii) III (1993) CPJ 1458 (Hyd.) Dr. Lakhi Ram v. M/s. Chatterjee Brothers. Therefore, we have no hesitation in holding that this Commission does not have territorial jurisdiction to entertain the present complaint, which is being returned to the complainant. In the circumstances of the case, there shall be no order as to costs. Complaint disposed of.