The burden of proof regarding loss or misdelivery of goods is on the transporter, and delivery of goods without necessary documents constitutes deficiency in service.

Mr. Justice M.S. Parikh, President—The appellant herein happens to be original complainant and the respondent herein happens to be the original opponent in Complaint No. / 455/1993 which was filed before the Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad for following brief facts.

2. The complainant carried on business in washing powder and detergent cakes. The opposite party has been carrying on business of transportation. The complainant handed over 20 bags of washing powder and 25 cartons of detergent cakes, and 1 bag extra in all 46 bags at opponent’s head office situated in Ahmedabad as per invoice No. 360 dated 17.9.1992. The goods in question were required to be transported and consigned to M/s. Sarvesh Sales Service, Udaipur. The opponent issued transport receipt No. 4112 dated 19.9.1992. All the documents including the said transport receipt were sent through Punjab National Bank, Paldi Branch, Ahmedabad. The consignee failed to retire the documents. Punjab National Bank, therefore, returned the documents to the complainant. By letter dated 17.11.1992, the complainant called upon the opponent to send back the goods (consignment) to Ahmedabad as the same was not retired by the consignee. The opponent was asked to pay value of the goods amounting to Rs. 12,760/- and Rs. 510/- as interest as opponent failed to deliver the goods as aforesaid. Notice was served under Section 10 of the Carriers Act on 22.2.1993 accordingly, either to deliver the goods or to return the aforesaid sum with interest and freight charges. It was the case of the complainant that goods were not be be delivered to the consignee without documents and receipts. If the goods were delivered, it would amount to deficiency in service on the part of the opponent having violated the accepted and settled practice and contractual obligation of delivering goods to the concerned party against delivery of transport receipt and other documents of title to the goods.

3. The opponent contested the complaint inter alia on the ground that the consignee failed to take delivery of the goods and, therefore, opponent informed the complainant on telephone and the complainant instructed the opponent to deliver the goods without receipt and accordingly the opponent delivered the goods to the consignee. The complainant resisted this stand by filing affidavit in rejoinder.

4. Upon scrutiny of the material placed by the parties on record, the learned Forum came to the conclusion that the complainant sent the documents to Punjab National Bank but the consignee did not retire them by making necessary payment and the documents were returned by the bank. The learned Forum, however, proceeded on the footing that there was nothing on the record to show that the opponent was informed not to deliver the goods to the consignee. The learned Forum has also focussed its attention on the invoice dated 17/19.9.1992 in the name of consignee M/s. Sarvesh Sales Service. It has also proceeded to observe that the complainant did not produce any evidence to show that opponent was informed not to deliver the goods unless the receipt for payment was produced before the opponent. Upon consideration of the decisions placed before the Forum, and on the aforesaid reasoning, the Forum has dismissed the complaint per impugned order dated 13.5.1996 which has been the subject matter of this appeal before this Commission.

5. We have heard learned Advocates for the parties. It would clearly appear even from the impugned order that the complainant sent the documents through Punjab National Bank for being retired by the consignee upon payment. If that was so, consignee was under a contractual obligation to make payment while retiring the documents from the bank. Once again insistence upon retiring the documents would obviously be for the purpose of getting delivery of the goods from the opponent road transport company as otherwise the opponent cannot deliver the goods to the consignee. The learn