Decided on November 30,2010

St Mary S Oil Mills Appellant
Jain Roadways, Lake View Respondents


- (1.) COMPLAINT filed under Sec.12 and 18 of the Consumer Protection Act, 1986.
(2.) THE case of the complainant is as follows: - The complainant is a proprietorship concern doing the business in Copra, coconut oil and allied products at Aroor. The complainant is represented by its sole proprietor, P.V.Alaxander. The opposite party is a road carrier operator approved by the Indian Bank Association having its Head Office at Jaipur and Branch Office at Ernakulam. Complainant dispatched one consignment of coconut oil from Aroor to M/s Span Projects Private Ltd, Bommasandra Industrial Area, Bangalore as per lorry receipt No.10899. The consignment was dispatched on 6/10/99 having the invoice value of Rs.6.15.764/ - having 96 quintals of coconut oil. The invoice and demand draft along with consignee copy of the lorry receipt were sent to the State Bank of India, main branch, Bangalore through the State Bank of India branch at Alappuzha. The State Bank of India discounted the bills for the complainant. The documents were presented to the drawee of the bills, but they were dishonoured by non payment and they were returned to the State Bank of India, Alappuzha by the collecting bank Viz, State Bank of India, Bangalore. State Bank of India issued notice to the complainant and the bank debited Rs.46,503/ - in the account of the complainant. The complainant addressed the opposite party requesting to settle the liability in consultation with the consignee, M/s Span Projects Private Limited, Bangalore. It is informed that the bank also issued a legal notice dated:17/3/2000 to the opposite party. Thereupon the opposite party collected a sum of Rs.1,50,000/ - from the consignee and the same was handed over to the bank by DD. Further the opposite party paid Rs.49,850/ - on 4/5/2000 and Rs.10,000/ - on 20/10/2000 in partial discharge of the above said liability. The opposite party sent the cheque dated:15/11/2000 for a sum of Rs.4,15,914/ - drawn by the consignee on the Vysya Bank Ltd, Bangalore. The said cheque on presentation returned unpaid for insufficiency of funds. The cheque was returned with dishonour memos. The complainant also requested the State Bank of India, Alappuzha to pursue appropriate legal recourse against the consignee and the opposite party. Since the bills were dishonoured, the complainant had to pay Rs.6,15,764/ - towards the value of bills less the amount paid which the complainant discounted from the bank with interest and commission and obtained the documents returned. As per the terms of the lorry receipt the transport operator shall not give delivery of the goods without production of consignee copy of the lorry receipt. The opposite party/transport operator delivered the goods to the drawee of bills without the consignee copy and other documents. The aforesaid action of the opposite party in delivering the goods to the drawee of the bill without production of the consignee copy of the lorry receipt is an unauthorized Act and it will amount to deficiency of service on the part of the opposite party. The goods were delivered without drawee effecting payment and getting the consignment notes and other documents related to the consignment. Due to the deficiency of service, the complainant suffered financial loss of Rs.5,93,670/ -. The complainant is also entitled to get cost and damages of Rs.50,000/ - from the opposite party. Thus, the complainant prayed for a total of Rs.6,43,670/ - as compensation for deficiency of service on the part of the opposite party/Shree Jain Roadways.
(3.) THE opposite party entered appearance and filed written version contending as follows: - The complaint is not maintainable either in law or on facts. The complaint is filed without the mandatory notice under Sec.10 of the Carriers Act. The complaint is bad for non joinder of necessary party. M/s Span Projects Private Limited, Bangalore, the consignee in the transaction is a necessary party. The complainant is not a consumer. The bank purchased/discounted for value of the lorry receipt and thereafter the complainant has no right to proceed against the consignee or the transport operator. The bank gained absolute right over the goods besides its custody and control. Nothing is reverted to the complainant to proceed against the opposite party. The complainant has misconceived his remedy. There was no deficiency of service on the part of the opposite party. The consignment was delivered to the consignee with the consent of the complainant. There was no space or facility to keep the consignment which was coconut oil contained in a tanker lorry. The said tanker lorry was taken on hire and the same could not be retained for a long time. The consignee copy of the lorry receipt and other documents did not reach the bank at Bangalore in time. The documents reached the State Bank of India, Bangalore only on 12/10/1999 and the consignee was informed on 14/10/1999. There was no fault or deficiency of service on the part of the opposite party in delivering the consignment to the consignee. At the instance of the opposite party demand drafts amounting to Rs.2,9,850/ - were delivered by the opposite party to the bank on various dates. As a matter of fact, the consignee made the payment on account of the pressure exerted upon them both by the bank and the opposite party. The opposite party had no obligation or responsibility to collect payment from the consignee. The opposite party did not admit the value of the consignment at Rs.6,15,764/ -. The opposite party is not bound to make good the loss to the complainant much less Rs.4,52,417/ -. The opposite party is not liable for the amount of Rs.46,503/ - debited in the account of the complainant by the bank. The interest claimed at the rate of 18% per annum is exorbitant and arbitrary. The opposite party is not liable to any amount by way of interest. The amount claimed by the complainant is also exorbitant and arbitrary. Thus, the opposite party prayed for dismissal of the complaint. The evidence in this case consists of the oral testimony of the complainant as PW1 and Exts.A1 to A6. No evidence was adduced from the side of the opposite party. After closure of the evidence, both parties were heard in detail. The learned counsel for the complainant and opposite party filed argument notes in support of their oral submissions.;

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