K.Sampath, President (Open Court) - (1.) THE complainant in C.O.P. No. 51/2000 on the file of the District Consumer Disputes Redressal Forum, Tirunelveli, is the appellant herein. His case was as follows: (a) He sold one Ambassador car on 10.8.1999 to one R. Muthuramalingam. All the documents relating to the car with a covering letter to Hindustan Motors Ltd., in Kolkata were sent on 2.11.1999. The cover contained the documents which the opposite party was expected to submit within a specified time. The cover containing the documents did not reach the destination. Many reminders were sent to the opposite party. There was no reply. Finally, the complainant sent registered letters on 21.3.2000 and 29.3.2000. There was no proof of delivery given by the opposite party and in the process, the complainant lost the refund of excise duty in a sum of Rs. 41,000. In these circumstances, the complaint came to be filed.
(2.) THE complaint was resisted by the opposite party in the following manner: On 2.11.1999 ,10 letters were sent from Tirunelveli to West Bengal. They reached West Bengal on 4.11.1999. Only the sender would know what the cover contained. He could get the P.O.D. by showing the receipt. As per the rules of the opposite party, the P.O.D. would be maintained for 90 days. Thereafter, it would be destroyed. The complainant sent a letter after a lapse of five months. On 23.3.2000, a letter was sent to the office of the opposite party in Kolkata to send the P.O.D. if any available. Another letter was sent on 25.4.2000. As per the reply, the P.O.D. was not available since the same was maintained only for three months. There was no record to show that the letter was not delivered to the addressee. There was no negligence on the part of the opposite party. In any event, the liability of the opposite party was only Rs. 100.
(3.) THE District Forum found that the complainant had not proved that the cover had not been delivered to the addressee. In that view of the matter, the District Forum dismissed the complaint. It is as against that the present appeal has been filed. To start with, in our view, the District Forum had cast the onus wrongly on the complainant. The complainant could not be asked to prove the negative. The District Forum ought to have called upon the opposite party to prove that the cover had been delivered to the consignee. It was not open to the opposite party to take a stand that they would keep records relating to P.O.D. only for a period of 90 days and that beyond 90 days, it would not be possible to keep those records. It is elementary that the onus was only on the opposite party to show that the cover had been delivered at the destination. This onus had not been discharged to our satisfaction by the opposite party. In that view of the matter, we are inclined to interfere with the order of the District Forum. However, with regard to the loss claimed in a sum of Rs. 41,000, there is no proof for the same. Though in Ex. A4 the complainant has stated that the loss on account of the non -delivery of the consignment to the addressee is Rs. 41,000, as already noted, there is absolutely no proof for the same. There is also no material produced on the side of the complainant to show that the consignment had not been delivered. They could very well have obtained a letter or sworn statement from the addressee to the effect that they had not received the consignment. However, this will, by itself, not absolve the opposite party of their obligation to establish that the consignment had been delivered to the addressee.;