TIRUPATI TEXTILES vs NORTH EASTERN CARRYING CORPORATION

-THIS complaint has been filed by M/s. Tirupati Textiles through its proprietor alleging deficiency in service on the part of the first opposite party M/s. North Eastern Carrying Corporation.

IT is the case of the complainant, that the complainant who is engaged in the business of making cloth, hired the services of the first opposite party for transportation of goods to Guwahati under 10 separate GRs. It is not in dispute that the six consignments were delivered as per the arrangement, the dispute is only with regard to the Goods Receipt Nos. 0565101-104. It is the case of the complainant that these consignments never reached Guwahati and no reason has been given for this, for which they gave notice on 20. 8. 1997 to the first opposite party but there was no reply. It is also important to mention that the goods of the complainant were covered by marine insurance cover obtained by Burhanpur Textile Association cumulatively for an amount of Rs. 75,55,00,000 and there is no disputing the fact that the complainant was a member of this Association by virtue of which to the benefits accruing from the Marine Policy issued by 3rd opposite party, New India Assurance Company Ltd. Since the goods were not delivered at Guwahati and since it was covered under the Marine Insurance Policy, the matter was also reported to the 3rd opposite party - Insurers. When the matter was not getting settled with the opposite parties, a complaint was filed making the following prayers- " (a) directing the opposite parties to compensate the complainant jointly and / or severally for Rs. 19,38,909 along with 24% interest per annum w. e. f. 15. 7. 1997 to the date of the actual payment being the value of the goods not delivered, (b) further directing the opposite parties to compensate the petitioner jointly and/or severally for Rs. 5 lakh towards the mental torture and agony, loss of reputation, etc. (c) award the costs of this case; (d) any other order/direction the Hon''ble Commission may deem fit and proper. "

Upon issue of notice, written version has been filed by both sets of opposite parties. The contention of the opposite party Nos. 1 and 2 is that the goods are still lying with them in Guwahati. The goods have not been released to any one, as no one has approached them to collect the goods, after paying the freight and other charges. It is clearly mentioned in the written version that the disputed consignments are in the custody of the answering OP Nos. 1 and 2. It was also alleged in written version that Notice under Section 10 of the Carriers Act, was not issued to them. The complainant has also filed a complaint in the Court of Chief Judicial Magistrate for recovery of amount. Briefly stated the case of the still opposite parties 1 and 2 is that they have still the consignment and it can be collected after making due payment. As far as the Insurance Company is concerned they have replied that since there is no loss of goods, the provisions of Marine Insurance Policy cannot be invoked.

AFFIDAVITS by way of evidence in support of respective contentions were also filed by all the opposite parties. We heard the learned Counsel of all the parties at some length and perused the material on record.

AS far as the notice under Section 10 of the Carriers Act is concerned, the learned Counsel for the complainant wishes to rely upon letter dated 8. 10. 1997 which was delivered to the first opposite party at Burhanpur. The OPs 1 and 2 denied the receipt of such a letter. Subsequently another legal notice was given in respect of the lost consignment. We have seen these notices. It is obvious that they do not contain any reference to provisions of Section 10 of Carrier Act, in view of the material on record and notices given, we refrain from making any observation in this regard, but in our view, requirement of would be deemed to have been sufficiently met. We have seen the complaint as well as the affidavit in evidence filed by the complainant. There is not a word to the effect that any one ''self'' or any authorised person from the complainant side went to collect the consignment from the carriers after offering to make due payment of the freight charges from Burhanpur to Guwahati and he was refused delivery, in the absence of which it cannot be accepted that the goods have been lost, more so when in the written version filed by first and second opposite parties they have clearly stated that the consignments are still in their possession and are lying in their godown. In the absence of any evidence to the contrary we are inclined to accept the contention of the 1 and 2 opposite parties that the goods are still in Guwahati, which is confirmed by the learned Counsel appearing for the OP Nos. 1 and 2 before us that the goods are still lying and can be made available to the complainant after payment of freight and other due charges. It is also supported by the affidavit filed by the OP Nos. 1 and 2 before us. In the aforementioned circumstances, we have no option but to dismiss this complaint for the simple reason that the goods are available at Guwahati which the complainant is free to retrieve upon payment of due charges as per practice. Since there is no loss of goods, no liability can be fastened on the part of the third OP, Insurance Company. In view of the above, this complaint stands dismissed. However, the Registry is directed to return the original documents / Lorry receipts after retaining the photo-copies of the same for record purposes. In the peculiar facts and circumstances of the case, no order as to costs. Complaint dismissed.