R.R.GUPTA vs ASHOK KUMAR JAISWAL

THIS is an appeal against the judgment and order dated 6.2.1993 passed by District Consumer Forum, Shahjahanpur in Complaint Case No. 191/1992.

THE facts of the case stated in brief are that the complainant despatched 320 bags of super phosphate powder to Baba Khad Store, Powayan on 10.5.1990 through the truck of Sri R.R. Gupta, proprietor of opposite party bearing No. UTU 7475. This consignment was not delivered at Baba Khad Store, Powayan and the fertilizer was miappropriated for which an FIR was lodged at Police Station, Gola. THE truck driver admitted before the police that he has sold the fertilizer for Rs. 15,200/- and he will pay the amount to the complainant. THE amount has not so far been paid and hence the complainant has prayed for the price of 320 bags of super phosphate powder alongwith 18% per annum interest and Rs. 10,000/- as cost. The opposite party in its written version admitted that the complainant has sent 320 bags of super phosphate powder belogning to the complainant in the truck in question. It is alleged that when the truck reached the destination on 11.5.1990, Baba Khad Store refused to take delivery of the consignment which fact was intimated to the complainant and the material was brought back. The driver of the opposite party/appellant unloaded the consignment in the Gola godown and informed the complainant. The complainant did not collect the consignment inspite of assurance to lift the same. Thereafter, the driver took the consignment to Kanpur. A notice was sent on 26.12.1990 to the complainant to lift the consignment after paying rental of Rs. 8,700/-. The complainant has not lifted the material so far.

The parties led evidence before the learned District Consumer Forum, who after perusing the evidence on record directed the opposite party to pay a sum of Rs. 15,200/- after deducting the cost of transportation from the place of despatch to Powayan and back alongwith 10% per annum interest from the date of the order of the learned District Forum till the date of payment. A sum of Rs. 500/- was also awarded as cost.

AGGRIEVED against the order of the learned District Consumer Forum, the opposite party has come in appeal and has challenged the correctness of the order passed by the Forum. We have heard the learned Counsels for the parties. Learned Counsel for the appellant has argued that as the consignee has refused to take the consignment, therefore, it was brought back and the complainant was informed to take back the consignment, but the complainant did not do so. There is no evidence on record to prove this fact. If the consignment was not accepted by Baba Khad Store, then the driver should have taken in writing from him that the consignment is not being accepted by the consignee. In this case the complainant lodged an FIR and druing investigation the driver had admitted that he has sold the consignment for a sum of Rs. 15,200/- which is clear from the copy of the statement of truck driver given to the police, Gola Gokaran, Distt. Kheri. Thus the evidence on record goes to show that the consignment was sold off by the driver. The driver was acting on behalf of the appellant and he was his employee and as such the appellant is vicariously liable for the acts of his employees. Thus we find that there is no force in the appeal and the same is liable to be dismissed. ORDER The appeal is dismissed and the judgment and order of the learned District Forum are confirmed. The appellant shall pay a sum of Rs. 2,000/- to the respondent/appellant. Compliance of the order be made within two months from the date of this order. Let copy as per rules be made available to the parties. Appeal dismissed.