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Judgment
THIS case has chequered history. After remand of this case, this Commission is hearing this case for the second time. Krishna Spices Pvt. Ltd., the complainant sent seven consignments of red chillies to Maa Annapurna Transporter and through their functionaries, which were arrayed as OPs 1 to 4. The said consignments were to be delivered to M/s. Dayaprasad Gupta and M/s. Priya Traders, with instructions that consignments were to be delivered on submission of demand draft by the consignees/purchasers. The consignments were sent on 29.1.2002, 03.02.2002, 12.02.2002, 18.02.2002, 25.02.2002 & 01.03.2002. The purchasers did not come to take the delivery. The complainant sent letters dated 29.05.2002, 21.06.2002 and telegram on 11.07.2002 asking the OPs to send back the consignments. The complainant also issued legal notice on 20.09.2002. Ultimately, the complainant filed complaint before the District Forum claiming a sum of Rs. 15,02,327/ - towards the value of the consignments and Rs. 1,00,000/ - each towards compensation and damages for deficiency in service on the part of the OPs.
ACCORDING to the OPs the consignees did not turn up to receive the consignments. The complainant was apprised of this fact on phone. The District Forum partly allowed the complaint. It awarded compensation in the sum of Rs. 1,00,000/ - with interest @ 9% p.a. besides costs of Rs.5,000/ - and directed the complainant to approach the Civil Court for determination of the value of chillies in the back drop of possible deterioration of stock due to vagaries in transit and storage and consequent depreciation in quality as also of quantity.
THE complainant filed an appeal before the State Commission. The State Commission allowed the complaint. It observed that the complainant had already withdrawn an amount of Rs.1,25,184/ - from the amount of Rs. 15,02,327/ -, consequently, the balance amount payable by the OPs towards the value of the goods comes to Rs. 13,77,140/ -. The OPs were directed to pay a sum of Rs. 13,77,140/ -.
I have heard the counsel for the parties and gone through the certain documents referred by them. The complainant sent a letter dated 29.05.2002, wherein at the foot of the document, it was specifically mentioned: - "We request you to inform your Samastipur Branch to Rebook the above consignment to Guntur, we assure you that the expenses incurred for rebooking like loading, freight etc., will be paid to you at the time of taking delivery by us".
As there was no response, the complainant sent another letter dated 21.06.2002. Its relevant portion runs as follows: - "We are sorry to say that till today, we did not get any response from your side. Now we again requesting you to rebook the consignment from Samastipur to Guntur and we assure you that the expenses incurred for rebooking like loading freight etc., will be paid to you at the time of taking delivery by us.
If we would not get the delivery of consignment within 15 days at Guntur, we are going to take legal action against you, the responsibility and all expenses regarding above has to be borne by you.
Within keeping our previous business relations, we hope that you respond positively, by rebooking the consignments to Guntur".
THERE is another letter dated 11.07.2002 sent by the complainant to the OPs. In the end it was written: - "We are highly regretful to inform you that inspite of our several reminders we have neither received a single Rupee nor any response from your end.
In our last two letters we have requested yourself to rebook the above consignments but even after 45 days, the unresponsive attitude from your side forced us to take legal initiative.
Today we have also sent telegram which a copy to Erode and Samastipur branch. Hope the same is duly received by you. The final reminder is being sent herewith to take prompt action in Re -booking of the above consignment on our expenses within seven days otherwise Legal action will be taken against you".
IT is surprising to note that the OPs remained silent till 10 Aug. 2002. It must be borne in mind that silence on their part is pernicious. Vide reply dated 10.08.2002, they raised a demand. They demanded the freight charges in the sum of Rs. 1,42,185/ - and dammaraged charges in the sum of Rs. 2,34,229/ -. In the end, it was mentioned: - "This charged upto 31.8.2002, if you delay then day by day dammaraged will be chargeable as per our terms and conditions.
This is your kind information. Please do the needful.
Thanking you,
Samastipur10.8.2002
Yours sincerely,For Maa Annapurna TransportAgency Pvt. Ltd.
Sd/ -Manager"
The legal notice was sent on 20.09.2002.
THE OPs sent another letter dated 07.04.2003, wherein they demanded freight charges in the sum of Rs. 1,42,185/ - and damarraged charges in the sum of Rs. 6,48,682/ -.
BESIDES this, there is consignment note, which reveals that a sum of Rs. 17,600/ - was to be paid as freight charges. The petitioners/OPs have also produced the conditions of carriage. My attention was invited towards condition No. 7, which runs as follows: - "7. Wharf age will be charged Rs. 0.02 (two paise per kilogram per day) if the goods are not cleared within 15 days of arrival of the same at destination".
Learned counsel for the petitioners/OPs vehemently argued that they have given the notices and demanded the freight charges and dammaraged charges but the complainant failed to pay the same. He contended that no liability can be attributed on the part of the OPs. He admitted that the OPs had received the consignments from January 2002 to March 2002. Thereafter, they dumped the said consignments in June 2003, during the pendency of the case filed before the District Forum. Counsel for the petitioners submitted they did not send any notice to the complainant that it should pay the amount within a fixed period otherwise they would be constrained to dump the goods, which was causing damage to their other goods.
THIS logic trotted out by the counsel for the petitioners at this eleventh hour finds no mention in the record anywhere. It is also surprising to note that the goods were dumped in the month of June 2003. There is no inkling of dumping of the consignments in the reply dated 07.04.2003. It is also difficult to fathom why the goods were dumped. The red chillies do not decay even after expiry of one year and three months. Its life continues at least for 2 -3 years. The presumption is that the OPs must have sold those red chillies and would have kept its price. It is also difficult to fathom why did the OPs dumped the red chillies while the case was pending. They could have brought to the notice of the Fora that they were going to dump the red chillies and the complainant be directed to remove the same subject to payment of freight and dammaraged amount. This shows that the OPs are arrogant and have got no respect for the Law.
MY attention was invited towards the few authorities by the counsel for the petitioners. The counsel for the petitioners cited one authority reported in Saddler Shoes Pvt. Ltd. Versus Air India and Ors. : (2001) 8 SCC 390, wherein para No. 8, it was held: - "8. Apart from stating the law on the matter, it was noticed by the National Commission that the complainants merely instructed Air India to reship the goods, but they had not taken any steps to deposit the charges for re -transportation which had to be paid either in foreign currency or in rupee currency with the express approval and permission obtained from Reserve Bank of India. On the basis of these facts, the National Commission held that there was no deficiency of service by the respondents. Similarly, on the same basis, the National Commission reversed the findings recorded by the State Commission".
This authority was also followed in the case of "Delta Air Lines, Inc. Versus Haresh Babubhai Daruwalla", (2010) 14 Supreme Court Cases 775.
I am of the considered view that the facts of the above said authorities are wee bit different. The same do not dovetail with the facts of the instant case. Those cases were against airlines, where it is incumbent to deposit the charges for re -transportation before -hand and approval of the RBI is required. In the instant case, the freight charges were not paid earlier. These were to be paid subsequently. The re -transportation charges were to be paid subsequently otherwise it could have given valid reason to the OPs to file a case against the complainant. In its letters the complainant mentioned time and again that it will pay the amount regarding freight charges/re -transportation charges/dammrraged charges at the time of the delivery of consignments. The OP company has belied the trust of its clients.
SECONDLY , the OPs did not ask the complainant to pay the re -transportation charges immediately. The last consignment was sent in March 2002. The OPs did not reply to the letter dated 29.05.2002. They did not ask for re -transportation charges. The letter dated 21.06.2002 and 11.07.2002 also did not evoke any response from the OPs. They asked for the freight charges and damarraged charges only on 10.08.2002. If OPs had bonafide intentions, they should have sent the response towards the first letter dated 29.05.2002 and could have claimed the damarraged charges upto 29.05.2002. It is apparent that for ulterior motive the OPs went on to delay the demand for re -transportation etc. for the reasons best known to them. It is difficult to fathom as to why should the damarraged charges be paid from 29.05.2002 onwards. Had the consignments would have been re -transported with immediate effect, they could have claimed freight charges, transportation charges and re -transportation charges. However, it has to be borne in mind as to where the consignments have vanished. With the absence of the consignments, the claims made by the OPs end in smoke. The OPs are amenable for the said consignment. The State Commission has rightly refused to grant dammrraged charges. The State Commission observed: - "The opposite parties through their letter dated 7.4.2003 had claimed demurrage charges of Rs. 6,48,682/ - till 31.3.2003. The complainant had requested the opposite parties to send back the consignment and the opposite parties failed to respond to the request of the complaint made through letters, telegrams and the notice got issued through advocate of the complainant. The opposite parties'' claim for demurrage charges cannot be considered in the light of its failure to rebook the consignments despite several reminders sent by the complainant".
IT is thus clear that ingenuous Traders cannot thrive in India. Love of money is the root of all evils. In the light of above discussion, I am unable to take view different from the view taken by the State Commission in fastening the liability on the OPs. The Revision Petition is, therefore, dismissed.