M/S. Vijaya Bank Shevapet Branch, Salem Rep. by Its Branch Manager Vs. M/S. Sun Shine Metal Corporation Rep. by R. Narayanan and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1109462
CourtTamil Nadu State Consumer Disputes Redressal Commission SCDRC Chennai
Decided OnMay-27-2011
Case NumberF.A.NO.535/2008 (Against order in CC.NO.49/2001 on the file of the DCDRF, Salem)
JudgeHONOURABLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT, THIRU J. JAYARAM, M.A., M.L., JUDICIAL MEMBER & THIRU S. SAMBANDAM, MEMBER II
AppellantM/S. Vijaya Bank Shevapet Branch, Salem Rep. by Its Branch Manager
RespondentM/S. Sun Shine Metal Corporation Rep. by R. Narayanan and Another
Excerpt:
the 1st respondent as complainant filed a complaint before the district forum against the opposite party praying for the direction to the opposite party to pay rs.61,597/- with rs.6160/- towards central sales tax alongwith 24% interest. the district forum allowed the complaint. against the said order, this appeal is preferred praying to set aside the order of the district forum dt.14.6.2007 in op.no.49/2001. this petition coming before us for hearing finally on 11.5.2011. upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the district forum, this commission made the following order: m. thanikachalam j, president 1. the 1st opposite party, unable to agree with the decision of the district forum, in op.no.49/2001, dt.14.6.2007, has questioned the same in this appeal. 2. the complainant/ 1st respondent, sought the help of the consumer forum, to recover a sum of rs.61,597/-, alongwith central sales tax of rs.6160/-, as well for the recovery of a sum of rs.25000/-, as compensation for mental agony, alleging that they have booked a consignment of vessels, through southern railway, on 28.4.2004, to be delivered at keva, that the waybill, invoice and hundi were handed over by them, to the 1st respondent, for collection, for which they have collected a sum of rs.779/-, as service charges, that after its return, once again they have represented the same to the 1st respondent, who promised to send the same to the 2nd respondent, for collection, but failed to send the waybill to the 2nd respondent, for collection, thereby, both of them have committed deficiency in service, causing monetary loss, mental agony, for which they are entitled to recover the above said amount. 3. the 1st opposite party, appellant admitting the entrustment of the way bill, and other connected documents for collection, which was returned on the ground of insufficient address, further admitting the 2nd entrustment also on 1.6.00, resisted the complaint, contending that they have sent the documents, relating to the consignment for collection to the 2nd opposite party, through post, which was delivered on 7.6.00, that as agreed since they have sent the bills, there is no deficiency on their part, and if the amounts were not collected by the 2nd opposite party, they cannot be held responsible, that the case is bad for non-joinder of agarwal tent house, as well as the postal department, thereby praying for the dismissal of the complaint. 4. the 2nd opposite party, admitting the receipt of the waybill and other documents, at the first instance, questioning the jurisdiction of the consumer forum, on the basis of territorial jurisdiction, resisted the complaint, contending, that there was no contract between themselves, and the complainant, that when the consignee was not traceable, they returned the bill prudently, promptly thereby committed no deficiency at all, that thereafter they have not received any bill, and in this way they prayed for the dismissal of the complaint. 5. the district forum, based upon the admitted facts, as well as on the basis of proof affidavit, has come to the conclusion, that the 1st opposite party alone had committed deficiency of service, whereas the 2nd opposite party has not committed any deficiency, as well they are out of its territorial jurisdiction. in this view, the 1st opposite party alone was directed to pay a sum of rs.67,577/-, in addition to a sum of rs.10000/- as compensation, with cost, as well interest till realization, as per order dt.14.6.2007, which is impugned by the 1st opposite party, as appellant. 6. the complainant/1st respondent, being the manufacturer of vessels, had sent a consignment of vessels to one agarwal tent house, chainpur post, caimur, through railway on 26.4.2000, and the consignment was valued at rs.67,757.50/-. as per the trade practice, the waybill, invoice, hundi were handed over by the complainant, to the 1st opposite party, where he is having account, for collection, for which admittedly, at the first time the 1st opposite party had collected a sum of rs.779/-, as service charges. the 1st opposite party inturn, sent the above documents, through registered post, to the 2nd opposite party for collection. it appears, the documents sent were unable to be delivered, to the addressee, by the 2nd opposite party, or because of insufficient address, unable to collect the amount from the consignee, or the consignee failed to retire the documents, by paying the amount, as per the invoice, in order to take delivery of the goods. therefore, the 2nd opposite party, returned the waybill on 30.5.2000 (ex.b1 and b2), which was informed to the complainant also, or the documents were handed over to the complainant. 7. it seems, the complainant after ascertaining the address of the consignee, or after negotiating with the consignee, viz. agarwal tent house, once again sent the documents for collection, through the 1st opposite party on 1.6.00, for which, though as seen from paragraph 5 of the complaint, amount was said to have been paid, no document has been produced, though document was produced for the collection of service charges, at the first instance. as per the case of the complainant, 1st opposite party has not sent the waybill to the 2nd opposite party, thereby amount was not realized by the complainant. it is also not known, since there is no materials, what had happened to the consignment, sent through railway, in view of the further fact, the consignee viz agarwal tent house, was not impleaded as party, or the railway was not impleaded as a party. thus, there is a mystery regarding the availability of the materials, consigned by the complainant, through railway, which we are not very much concerned, in this case, since neither railway, nor post office is a party to the proceedings. the complainant though waited for some time, requested the 1st opposite party, what happened to their waybills, there was no proper reply, resulting the consumer complaint, which ended in success, despite resistance, which is impugned. 8. as far as the entrustment of the waybill, invoice, hundi, with the 1st opposite party is concerned, whether it was for the first time, or second time, admitted. the waybills, and other documents, sent at the first instance, were returned is also an admitted fact, and similarly on 1.6.00, once again it was entrusted to the 1st opposite party, is also an admitted fact, as seen from the pleadings of the complainant, and the 1st opposite party. therefore, it is for the first opposite party, having agreed to send it for collection, to the 2nd opposite party, to prove that they had sent those documents, and those documents are returned once again, or whether it was received by the 2nd opposite party, or not. in this context, we have to see the case of the 1st opposite party, since the 2nd opposite party was relived by the district forum itself. 9. as seen from paragraph 6 of the counter, filed by the 1st opposite party, they have lodged a complaint with post office, shevapet, salem on 31.8.00, who had informed that the postal department had delivered the document on 7.6.2000. it is further pleaded, “the xerox copy of the postal cover received at their end, was sent to this opposite party”, which revealed different sender address in the place of my client bank address. but to support the above pleadings, no document has been filed, except ex.b1 to b3. ex.b1 is the letter from the 1st opposite party, to the 2nd opposite party i.e., with reference to the 1st opposite party letter dt.1.6.00, wherein it is said they have returned the subject bill on 24.5.2000 by vpp no.068, since address of the drawee was fake. the cover is available as ex.b2, where we find the same vpl no.068. this letter must be with reference to the sending of the waybill, at the first instance, since that alone was returned, even as per the case of the complainant, to them on 30.5.00. thus, it is seen the 2nd opposite party has not intimated to the 1st opposite party, about the return of the documents, for the 2nd time, and based upon ex.b1 and b2, the 1st opposite party cannot escape from his liability. in para 7 of the complaint, it is said, “it is learned that the 1st opposite party has not sent the way bill to the 2nd respondent for collection”, which appears to be correct. if really, the 1st opposite party had sent the documents, which was entrusted to them, on 1.6.00, as admitted, there should be correspondence between the opposite parties, after 1.6.00, for which we do not find any documents. though it is said, a complaint was lodged before the postal department on 31.8.00, who certified, on that basis documents were delivered on 7.6.00, those documents are not produced before the district forum, for perusal, thereby to come to the conclusion that the 1st opposite party performed their duty properly, for the service undertaken, to be performed for consideration, or for the payment of consideration in future, it can be deducted from the account of the complainant, since the complainant is having an account with the opposite party. therefore, on the basis that there was no consideration at the second time of entrustment of the documents, the 1st opposite party cannot escape from its liability. in view of the admitted fact, that the 1st opposite party received the waybill, hundi, invoice and other connected records from the complainant on 1.6.00, it is their duty to realize the amount, sending the documents to the 2nd opposite party, if not they ought to have returned the documents, to the complainant. if in the transit, misplaced by the postal department, or otherwise, it is for the 1st opposite party to prove the same, for which also admittedly no document has been filed. thus in the absence of the original way bill, invoice etc., the complainant is also unable to recover the goods consigned, and it is not known, what had happened to the goods also. by the negligent and deficient act of the 1st opposite party, the complainant was unable to realize the amount or even we would say, recover the consignment, for which the 1st opposite party should be held responsible. the deficiency complained in this case is only against the 1st opposite party, as accepted by the district forum also, and therefore neither the consignor, nor the post office is a necessary party to the proceedings, that too, in view of the admitted facts, there was no privity of contract between the complainant and the above said parties, as far as the service provided is concerned. the dismissal of the complaint, against the 2nd opposite party, on the ground of territorial jurisdiction, may not be correct, since part of cause of action had arisen at salem. be it as it may. the complainant himself has not challenged the dismissal of the case, as against the 2nd opposite party. for the above said reasons, we conclude, that the 1st opposite party had committed deficiency, thereby they have deprived the right or the complainant, causing monetary loss, mental agony, for which the complainant is entitled to the value of the goods, as well as compensation also, but not in addition, interest, as granted by the district forum. to this extent, the appeal is to be allowed, otherwise confirming the order of the district forum. 10. in the result, the appeal is allowed in part, modifying the order of the district forum in cop no.49/2001 dt.14.6.2007, setting aside the grant of interest at 9% p.a., alone, otherwise confirming the order, including compensation and cost.
Judgment:

The 1st Respondent as complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to pay Rs.61,597/- with Rs.6160/- towards Central Sales Tax alongwith 24% interest. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.14.6.2007 in OP.No.49/2001.

This petition coming before us for hearing finally on 11.5.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:

M. THANIKACHALAM J, PRESIDENT

1. The 1st opposite party, unable to agree with the decision of the District Forum, in OP.No.49/2001, dt.14.6.2007, has questioned the same in this appeal.

2. The complainant/ 1st respondent, sought the help of the consumer forum, to recover a sum of Rs.61,597/-, alongwith central sales tax of Rs.6160/-, as well for the recovery of a sum of RS.25000/-, as compensation for mental agony, alleging that they have booked a consignment of vessels, through southern railway, on 28.4.2004, to be delivered at Keva, that the waybill, invoice and hundi were handed over by them, to the 1st respondent, for collection, for which they have collected a sum of RS.779/-, as service charges, that after its return, once again they have represented the same to the 1st respondent, who promised to send the same to the 2nd respondent, for collection, but failed to send the waybill to the 2nd respondent, for collection, thereby, both of them have committed deficiency in service, causing monetary loss, mental agony, for which they are entitled to recover the above said amount.

3. The 1st opposite party, appellant admitting the entrustment of the way bill, and other connected documents for collection, which was returned on the ground of insufficient address, further admitting the 2nd entrustment also on 1.6.00, resisted the complaint, contending that they have sent the documents, relating to the consignment for collection to the 2nd opposite party, through post, which was delivered on 7.6.00, that as agreed since they have sent the bills, there is no deficiency on their part, and if the amounts were not collected by the 2nd opposite party, they cannot be held responsible, that the case is bad for non-joinder of Agarwal Tent House, as well as the postal department, thereby praying for the dismissal of the complaint.

4. The 2nd opposite party, admitting the receipt of the waybill and other documents, at the first instance, questioning the jurisdiction of the consumer forum, on the basis of territorial jurisdiction, resisted the complaint, contending, that there was no contract between themselves, and the complainant, that when the consignee was not traceable, they returned the bill prudently, promptly thereby committed no deficiency at all, that thereafter they have not received any bill, and in this way they prayed for the dismissal of the complaint.

5. The District Forum, based upon the admitted facts, as well as on the basis of proof affidavit, has come to the conclusion, that the 1st opposite party alone had committed deficiency of service, whereas the 2nd opposite party has not committed any deficiency, as well they are out of its territorial jurisdiction. In this view, the 1st opposite party alone was directed to pay a sum of Rs.67,577/-, in addition to a sum of RS.10000/- as compensation, with cost, as well interest till realization, as per order dt.14.6.2007, which is impugned by the 1st opposite party, as appellant.

6. The complainant/1st respondent, being the manufacturer of vessels, had sent a consignment of vessels to one Agarwal Tent House, Chainpur Post, Caimur, through Railway on 26.4.2000, and the consignment was valued at RS.67,757.50/-. As per the trade practice, the waybill, invoice, hundi were handed over by the complainant, to the 1st opposite party, where he is having account, for collection, for which admittedly, at the first time the 1st opposite party had collected a sum of Rs.779/-, as service charges. The 1st opposite party inturn, sent the above documents, through registered post, to the 2nd opposite party for collection. It appears, the documents sent were unable to be delivered, to the addressee, by the 2nd opposite party, or because of insufficient address, unable to collect the amount from the consignee, or the consignee failed to retire the documents, by paying the amount, as per the invoice, in order to take delivery of the goods. Therefore, the 2nd opposite party, returned the waybill on 30.5.2000 (Ex.B1 and B2), which was informed to the complainant also, or the documents were handed over to the complainant.

7. It seems, the complainant after ascertaining the address of the consignee, or after negotiating with the consignee, viz. Agarwal Tent House, once again sent the documents for collection, through the 1st opposite party on 1.6.00, for which, though as seen from paragraph 5 of the complaint, amount was said to have been paid, no document has been produced, though document was produced for the collection of service charges, at the first instance. As per the case of the complainant, 1st opposite party has not sent the waybill to the 2nd opposite party, thereby amount was not realized by the complainant. It is also not known, since there is no materials, what had happened to the consignment, sent through railway, in view of the further fact, the consignee viz Agarwal Tent House, was not impleaded as party, or the Railway was not impleaded as a party. Thus, there is a mystery regarding the availability of the materials, consigned by the complainant, through railway, which we are not very much concerned, in this case, since neither Railway, nor post office is a party to the proceedings. The complainant though waited for some time, requested the 1st opposite party, what happened to their waybills, there was no proper reply, resulting the consumer complaint, which ended in success, despite resistance, which is impugned.

8. As far as the entrustment of the waybill, invoice, hundi, with the 1st opposite party is concerned, whether it was for the first time, or second time, admitted. The waybills, and other documents, sent at the first instance, were returned is also an admitted fact, and similarly on 1.6.00, once again it was entrusted to the 1st opposite party, is also an admitted fact, as seen from the pleadings of the complainant, and the 1st opposite party. Therefore, it is for the first opposite party, having agreed to send it for collection, to the 2nd opposite party, to prove that they had sent those documents, and those documents are returned once again, or whether it was received by the 2nd opposite party, or not. In this context, we have to see the case of the 1st opposite party, since the 2nd opposite party was relived by the District Forum itself.

9. As seen from paragraph 6 of the counter, filed by the 1st opposite party, they have lodged a complaint with post office, Shevapet, Salem on 31.8.00, who had informed that the postal department had delivered the document on 7.6.2000. It is further pleaded, “the Xerox copy of the postal cover received at their end, was sent to this opposite party”, which revealed different sender address in the place of my client bank address. But to support the above pleadings, no document has been filed, except Ex.B1 to B3. Ex.B1 is the letter from the 1st opposite party, to the 2nd opposite party i.e., with reference to the 1st opposite party letter dt.1.6.00, wherein it is said they have returned the subject bill on 24.5.2000 by VPP No.068, since address of the drawee was fake. The cover is available as Ex.B2, where we find the same VPL No.068. This letter must be with reference to the sending of the waybill, at the first instance, since that alone was returned, even as per the case of the complainant, to them on 30.5.00. Thus, it is seen the 2nd opposite party has not intimated to the 1st opposite party, about the return of the documents, for the 2nd time, and based upon Ex.B1 and B2, the 1st opposite party cannot escape from his liability. In para 7 of the complaint, it is said, “it is learned that the 1st opposite party has not sent the way bill to the 2nd respondent for collection”, which appears to be correct. If really, the 1st opposite party had sent the documents, which was entrusted to them, on 1.6.00, as admitted, there should be correspondence between the opposite parties, after 1.6.00, for which we do not find any documents. Though it is said, a complaint was lodged before the postal department on 31.8.00, who certified, on that basis documents were delivered on 7.6.00, those documents are not produced before the District Forum, for perusal, thereby to come to the conclusion that the 1st opposite party performed their duty properly, for the service undertaken, to be performed for consideration, or for the payment of consideration in future, it can be deducted from the account of the complainant, since the complainant is having an account with the opposite party. Therefore, on the basis that there was no consideration at the second time of entrustment of the documents, the 1st opposite party cannot escape from its liability. In view of the admitted fact, that the 1st opposite party received the waybill, hundi, invoice and other connected records from the complainant on 1.6.00, it is their duty to realize the amount, sending the documents to the 2nd opposite party, if not they ought to have returned the documents, to the complainant. If in the transit, misplaced by the postal department, or otherwise, it is for the 1st opposite party to prove the same, for which also admittedly no document has been filed. Thus in the absence of the original way bill, invoice etc., the complainant is also unable to recover the goods consigned, and it is not known, what had happened to the goods also. By the negligent and deficient act of the 1st opposite party, the complainant was unable to realize the amount or even we would say, recover the consignment, for which the 1st opposite party should be held responsible. The deficiency complained in this case is only against the 1st opposite party, as accepted by the District Forum also, and therefore neither the consignor, nor the post office is a necessary party to the proceedings, that too, in view of the admitted facts, there was no privity of contract between the complainant and the above said parties, as far as the service provided is concerned. The dismissal of the complaint, against the 2nd opposite party, on the ground of territorial jurisdiction, may not be correct, since part of cause of action had arisen at Salem. Be it as it may. The complainant himself has not challenged the dismissal of the case, as against the 2nd opposite party. For the above said reasons, we conclude, that the 1st opposite party had committed deficiency, thereby they have deprived the right or the complainant, causing monetary loss, mental agony, for which the complainant is entitled to the value of the goods, as well as compensation also, but not in addition, interest, as granted by the District Forum. To this extent, the appeal is to be allowed, otherwise confirming the order of the District Forum.

10. In the result, the appeal is allowed in part, modifying the order of the District Forum in COP No.49/2001 dt.14.6.2007, setting aside the grant of interest at 9% p.a., alone, otherwise confirming the order, including compensation and cost.