ZEN vs GATI CARGO MANAGEMENT SERVICE

THIS appeal has been preferred under Section 15 of the Consumer Protection Act, 1986 against the order dated 25.4.2000 passed in Case No. 317/1999 by the District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) whereby the complaint for deficiency in service by the opposite party was dismissed by the District Forum.

THE facts not presently in dispute are that the complainant/appellant had booked a consignment containing hosiery items with the opposite party respondent on 5.5.1999 and the said consignment was to be delivered to M/s. Simon Intenational Products, Mumbai. It is also not in dispute that the opposite party/respondent had issued Receipt No. BN 71784 and it is apparent from the said receipt that a sum of Rs. 212/- was charged and further that the committed date of delivery was 9.5.1999. According to the facts narrated in the complaint, the complainant/appellant had booked a consignment with the opposite party/respondent on 5.5.1999, containing hosiery items worth Rs. 10,770/- to be delivered to M/s. Simon International Products, 222/224, Zaveri Bazar, 3rd Floor, Mumbai. A sum of Rs. 212/- was charged by the opposite party/respondent for providing the service of transportation of the aforesaid consignment and Receipt No. BN 71784 was issued therefor. The said consignment was to be delivered to the consignee on or before 9.5.1999. It is further averred in the complaint that the said consignment did not reach its destination till the date of filing the complaint. The consignee had informed the consignor i.e., the complainant/appellant that the aforesaid consignment was not delivered to them though the consignee contacted the opposite party/respondent several times but the opposite party/respondent failed to give any definite reply. It was further averred that the said non-delivery of goods amounted to deficiency in service and had resulted in loss of Rs. 10,770/- (being the price of hosiery items contained in the said consignment) to the complainant/appellant. Besides the aforesaid sum of Rs. 10,770/- , the complainant/appellant had also claimed Rs. 212/- paid by him to the opposite party/respondent and a sum of Rs. 2,000/- towards damages and costs of proceedings.

The opposite party has not filed written version but had alleged in the affidavit of Sri Pramod Kumar Das that the consignment had reached Mumbai on the committed date of delivey but as Octroi Duty is charged on goods that are taken into the Municipal Area of the Mumbai Nagar Nigam and the opposite party/respondent had paid a sum of Rs. 215/- towards Octroi charges, the consignee was required to take delivery of the consignment after making payment of the aforesaid sum of Rs. 215/- but the consignee refused to pay the said charges to the opposite party/respondent and that was the only reason why the said consignment could not be handed over to the consignee though the same had reached Mumbai on the committed date of delivery. It is also averred that the opposite party/respondent also informed the complainant/appellant by means of 3 notices dated 24.5.1999, 5.6.1999 and 30.9.1999 but the complainant/appellant also failed to make payment to the opposite party/respondent. It was also averred that as the consignment was received neither by the consignor nor by the consignee, it was sent to Bangalore Depot resulting in expenses of Rs. 2,920/- on part of the opposite party/respondent and the opposite party/respondent is still ready and willing to hand over the consignment to the complainant in case he makes payment of the aforesaid sum of Rs. 2,920/-. It was also averred that the opposite party/respondent has not committed any deficiency in service.

THE learned District Forum has held that the opposite party/respondent had to pay Octroi Duty of Rs. 215/- and had rightly demanded the said amount from M/s. Simon International but the said consignee had refused to make such payment. As such the opposite party has not committed any deficiency in service by not handing over the consignment. It was further held that the opposite party had to incur further expenses in depositing the consignment with the Bangalore Depot. It was further held that the opposite party/respondent has not committed any deficiency in service by not delivering the said consignment because both the consignor and consignee have failed to take delivery of the said consignment despite three notices being given by the opposite party/respondent. THE complaint was dismissed with an observation that the complainant may take delivery of the impugned consignment by making payment of Rs. 2,920/- to the opposite party. None appeared for the respondent despite service of notice. The learned Counsel for the appellant assailed the impugned order and urged that the learned Forum has erred in dismissing the complaint. The opposite party/respondent had accepted a sum of Rs. 212/- for providing the service and hence was under an obligation to deliver the consignment to the consignee but has committed deficiency in service in not delivering the said consignment. The learned Counsel for the appellant further urged emphatically that the opposite party is an organization that delivers cargo on ''door to door'' and ''desk to desk'' basis and was fully aware or ought to have been aware that Octroi Duty is charged when any vehicle carrying goods enters the Municipal limits of Mumbai Municipal Corporation. It was further alleged that the learned Forum has erred in placing reliance on the documents and affidavit filed by the opposite party/respondent.

THE only question to be decided is as to whether the opposite party/respondent has committed deficiency in service in not delivering the consignment to M/s. Simon International, Mumbai? Undisputedly, the opposite party/respondent is a public carrier and was subject to the same rights and liabilities as are specified in Carrier of Goods Act, 1865. It is not in dispute that the complainant had given a consignment to the opposite party for being transported from Raipur to Mumbai and to deliver the same to the consignee at Mumbai. Undisputedly, the opposite party had charged a sum of Rs. 212/- from the complainant/appellant for transportation of the consignment booked by the latter. The said amount of Rs. 212/- included freight charges of Rs. 80/- FOV Rs. 22/-, Basic charges Rs. 100/- and Rs. 10/- towards Service Tax as would be clear from the receipt dated 5.5.1999 issued by the respondent/carrier, copy of which is on the record of the District Forum. No mention has been made in the said receipt that any amount in addition to the said charges would be payable by either the consignor or the consignee for transporation or delivery of the consignment. Thus, presumably, the respondent/carrier had agreed to transport the consignment and to deliver the same to the consignee, after recovery of the said charges of Rs. 212/- only. In view of the above, the respondent was obliged to deliver the goods as per directions of the consignor, without any demur or demand from the consignee. It may be mentioned in the above regard that the opposite party/respondent has filed a copy of the receipt issued by the Municipal Co-operative Bank, Mumbai for a sum of Rs. 215/-. It appears that the respondent had paid the Octroi Duty of the aforesaid sum of Rs. 215/- on 10.5.1999. It further appears that the stand of the respondent/consignor was that he demanded the amount of Octroi Duty as above from the consignee and as the consignee refused to pay the same, the consignment was not delivered to the consignee, consequently the consignment was sent by the respondent to its unclaimed goods depot at Bangalore. It may also be mentioned here that prior to sending the goods to Bangalore, the opposite party/respondent failed to raise any demand from the complainant regarding reimbursement of the amount paid towards Octroi Duty.

AS noticed above, it was the complainant who had booked the consignment with the respondent after payment of necessry charges. Hence, as there was no privity of contract between him and the consignee, the respondent was not supposed to demand any amount from the consignee that was paybale or paid by him towards the Octroi Duty. Since there was no agreement between the complainant and the opposite party for payment of any additional amount for transporation and delivery of the goods, the transporter was obliged to deliver the consignment to the consignee, notwithstanding that the amount of Octroi Duty was not paid by the consignee or for that matter, the consignor/appellant also. If the transporter was required to pay the Octroi Duty at Mumbai and wanted to recover the amount paid by him toward Octroi Duty, he ought to have intimated the consignor about it and should have demanded the amount of Octroi Duty from him instead of demanding the same from the consignee. It is apparent from record that the said consignment was sent by the transporter/respondent to its unclaimed goods depot at Bangalore and that too, without any notice to the complainant/appellant. The document filed by the respondent/opposite party as third and final notice dated 30.9.1999 has been addressed jointly to the consignor and the consignee but it was only after sending the consignment to unclaimed goods depot at Bangalore. Though it is mentioned in the aforesaid notice that first and second notices were issued on 21.5.1999 and 5.6.1999 respectively, but copies of said notices are not placed on record. One document mentioned as second notice is on record, but it has not been addressed to the consignor but to some third party together with the consignee, and is as such irrelevant. The complainant/appellant has filed copy of a letter from opposite party/respondent dated 29.11.1999 and by means of the same the complainant consignor was requested to accept the goods after making payment of Rs. 2,920/- to the respondent.

WE are of the opinion that in absence of any stipulations in that regard, the transporter could not detain the goods and send the same to its unclaimed goods depot at Bangalore instead of delivering it to the consignee. The action of the transporter/respondent as above was unjustified and non-delivery of goods to the consignee or the consignor would definitely amount to deficiency in service. Therefore, the learned District Forum was not justified in holding that there was no deficiency in service on the part of the respondent/transporter. Accordingly, the appeal deserves to be allowed. However, as the owner of the consignment i.e., the complainant was oblighed to pay the Octroi Duty and since the respondent was required to pay the same, it will be equitable to direct the appellant to pay the same to the respondent. Accordingly, the appeal is allowed. Impugned order is set aside. It is directed that the opposite party/respondent shall deliver the consignment to the complainant/appellant at Raipur within a period of one month from the date of receipt of copy of this order, on the appellant paying the respondent as sum of Rs. 215/- (paid by the opposite party/respondent towards Octroi Duty). In case of failure to do so, the transporter/respondent shall pay to the complainant/appellant a sum of Rs. 10,770/- being the value of the goods contained in the consignment. The opposite party/respondent shall also refund the sum of Rs. 212/- received as transport charges besides paying Rs. 2,000/- towards damages for deficiency in service. The respondent shall bear its own costs and shall pay that of the complainant/appellant throughout, which is quantified as Rs. 2,000/-. Appeal allowed.