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2011(4) CPR 111
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
M.V. Viswanathan, Judicial Member
St. Mary’s Oil Mills —Complainant
versus
Shree Jain Roadways Lake
View-3 —Opposite Party
O.P. No. 81 of 2001
Decided on 30.11.2010
Counsel for the Parties:
For the Complainant:Sri. Johnson P. John, Advocate.
IMPORTANT POINT
Rate of punitive interest can be higher in commercial transactions.
Headnote:(i) Consumer Protection Act, 1986—Sections 2(1)(g), 2(1)(o) and 17—Transport—Opposite party/transport operator delivered goods to drawee of bills without consignee copy and other documents—Such action of opposite party in delivering goods to drawee of bill without production of consignee copy of lorry receipt is an unauthorized act and it will amount to deficiency of service on part of opposite party—Complainant being consignor can very well proceed against opposite party/transport carrier for realization of damages— Complainant also suffered financial loss and inconvenience on account of deficiency of service on part of opposite party/transport operator—Opposite party/transport operator made liable to pay a sum of Rs. 5,93,670 to complainant with cost of Rs.2,000. (Paras 9 , 10 , 13 and 17)
(ii) Consumer Protection Act, 1986—Sections 2(1)(d)(ii)—Consumer—Complainant as consignor of consignment availed service of opposite party/transport operator prior to amendment of Consumer Protection Act by amending Act 62/02—Prior to the amendment, a person who avails or hires service for commercial purpose was also included under definition ‘consumer’ as defined under Section 2(1)d(ii)—Complainant can be considered as a consumer as defined under Section 2(1)d(ii). (Para 11)
(iii) Consumer Protection Act, 1986—Sections 2(1)(g), 2(1)(o) and 17—Deficiency in service by Transporter—Award of interest—Transaction was a commercial transaction—Complainant can very well claim interest at rate of 18% per annum on value of consignment and other incidental charges incurred by complainant—Claim for interest at the rate of 18% can be treated as reasonable. (Para 15)
M.V. Viswanathan, Judidical Member—Complaint filed under Sections 12 and 18 of the Consumer Protection Act, 1986.
2. The case of the complainant is as follows:
The complainant is a proprietorship concern doing the business in Copra, coconut oil and allied products at Aroor. The complainant is represented by its sole proprietor, P.V. Alaxander. The opposite party is a road carrier operator approved by the Indian Bank Association having its Head Office at Jaipur and Branch Office at Ernakulam. Complainant dispatched one consignment of coconut oil from Aroor to M/s Span Projects Private Ltd, Bommasandra Industrial Area, Bangalore as per lorry receipt No.10899. The consignment was dispatched on 6.10.99 having the invoice value of Rs.6.15.764 having 96 quintals of coconut oil. The invoice and demand draft along with consignee copy of the lorry receipt were sent to the State Bank of India, main branch, Bangalore through the State Bank of India branch at Alappuzha. The State Bank of India discounted the bills for the complainant. The documents were presented to the drawee of the bills, but they were dishonoured by non-payment and they were returned to the State Bank of India, Alappuzha by the collecting bank viz. State Bank of India, Bangalore. State Bank of India issued notice to the complainant and the bank debited Rs.46,503 in the account of the complainant. The complainant addressed the opposite party requesting to settle the liability in consultation with the consignee, M/s Span Projects Private Limited, Bangalore. It is informed that the bank also issued a legal notice dated 17.3.2000 to the opposite party. Thereupon the opposite party collected a sum of Rs.1,50,000 from the consignee and the same was handed over to the bank by DD. Further the opposite party paid Rs.49,850 on 4.5.2000 and Rs.10,000 on 20.10.2000 in partial discharge of the above said liability. The opposite party sent the cheque dated15.11.2000 for a sum of Rs.4,15,914 drawn by the consignee on the Vysya Bank Ltd., Bangalore. The said cheque on presentation returned unpaid for insufficiency of funds. The cheque was returned with dishonour memos. The complainant also requested the State Bank of India, Alappuzha to pursue appropriate legal recourse against the consignee and the opposite party. Since the bills were dishonoured, the complainant had to pay Rs.6,15,764 towards the value of bills less the amount paid which the complainant discounted from the bank with interest and commission and obtained the documents returned. As per the terms of the lorry receipt the transport operator shall not give delivery of the goods without production of consignee copy of the lorry receipt. The opposite party/transport operator delivered the goods to the drawee of bills without the consignee copy and other documents. The aforesaid action of the opposite party in delivering the goods to the drawee of the bill without production of the consignee copy of the lorry receipt is an unauthorized Act and it will amount to deficiency of service on the part of the opposite party. The goods were delivered without drawee effecting payment and getting the consignment notes and other documents related to the consignment. Due to the deficiency of service, the complainant suffered financial loss of Rs. 5,93,670. The complainant is also entitled to get cost and damages of Rs. 50,000 from the opposite party. Thus, the complainant prayed for a total of Rs. 6,43,670 as compensation for deficiency of service on the part of the opposite party/Shree Jain Roadways.
3. The opposite party entered appearance and filed written version contending as follows:
The complaint is not maintainable either in law or on facts. The complaint is filed without the mandatory notice under Section 10 of the Carriers Act. The complaint is bad for non- joinder of necessary party. M/s Span Projects Private Limited, Bangalore, the consignee in the transaction is a necessary party. The complainant is not a consu
