1. THE complainant is Prosol Chemicals Pvt. Ltd., Secunderabad. One M/s. Mahe Chemicals & Oils Pvt. Ltd., New Delhi placed an order with the complainant to manufacture and supply 50,000 litres of Chemicals. THE said Mahe Chemicals had a contract to supply the said material to Defence Authorities in the Northern Frontier of India on or before 15.10.1993.
2. THE complainant approached the Opposite Party for transporting the said chemicals from Hyderabad to Pathankot. THE Transport Corporation of India i.e. Opposite Party agreed to transport and deliver the goods within a period of 5 days from 1.10.1993. as the Chemicals have to be delivered to Mahe Chemicals at Pathankot, by 5th October, 1993. Accordingly he booked the consignment on 1.10.1993 in four lorries as evidenced by the consignment notes issued by the Opposite Party. But contrary to the terms the Opposite Party loaded the goods at Hyderabad on 8.10.1993 by different trucks. Two trucks reached Pathankot on 12.10.1993 and the rest of two trucks reached on 15.10.1993 thereby caused abnormal delay in delivering the goods to the Army authorities.
It is the case of the complainant that on account of the delay in delivering the chemicals, the Army Authorities were dissatisfied with Mahe Chemicals, and incidentally the complainant lost future business with Mahe Chemicals. It is the case of the complainant, that on account of the deficiency in service committed by the Opposite Party is not loading the chemicals in the trucks specified in the consignment note on 1.10.1993, and also in carrying heavy machinery items of the 3rd parties in the trucks, that he suffered loss of business, reputation and also mental agony. The complainant therefore claimed a sum of Rs. 12,000/- said to have been spent by M/s. Mahe Chemicals at Pathankot awaiting consignment from 5.10.93 to 16.10.1993. He also claimed Rs. 6000/- spent by Mahe Chemicals on his personnel placed at various points enroute, and also Rs. 6000/- which was spent by Mahe Chemicals by paying the same to the lorry driver who demanded the payment. In addition to that the complainant also claimed a sum of Rs. 10 lakhs as damages for loss of business, mental agony. Thus in all the complainant claimed a sum of Rs. 10,24,000/-.
In the counter, the Opposite Party submitted that the dispute does not come within the purview of the Consumer Protection Act. That it was not aware of the contract to supply the chemicals to Defence authority in the Northern Frontier, India on or before 15.10.1993. They admitted that the goods were entrusted to them for transport on 1.10.1993 from Ex. Hyderabad to Pathankot. But they denied that there is specific undertaking given that the goods shall reach the destination on 5.10.1993. The employee of the Opposite Party has no such authority to bind the Corporation with the terms and conditions to transport the goods for delivery in five days. It was also pleaded that due to reasons beyond the control of the respondent, the goods were moved by different trucks as soon as they were available. There is no abnormal delay in delivering the goods to the consignee. Pathankot is a very sensitive place and is a gateway to Jammu and the trucks move only in the day time and halt after sunset due to fear of terrorist attack. Engaging of trucks to Pathankot involves hevy expenditure. That the consignments were booked on paid basis and a cheque was issued on 1.10.1993. But after 5 days the payment was stopped. A plea was also taken that the consignment was delivered to the consignee without consideration since the cheque was illegally stopped, therefore the complainant is not a consumer. The claim made by the complainant is a speculative and the respondent deserves his right to file additional counter.
3. IN the additional counter filed, it was stated that the Opposite Party filed a suit O.S. 485/94 on the file of I Addl. Judge, City/Civil Court, Hyderabad for recovery of Rs. 67,600/- being the freight charges payable and the matter is sub-judice and hence the subject matter of the dispute does not come within the purview of the Consumer Protection Act.
On behalf of the complainant Exs. A-1 to A-8 were marked. On behalf of the Opposite Party, no documents were marked. Both the parties did not adduce any oral evidence.
4. THE question that arises for consideration is whether there is any deficiency of service on the part of the Opposite Party and if so what is the compensation payable.
Ex.A-8 letter dated 20.9.93 shows that Mahe Chemicals and Oils Pvt. Ltd., wrote to the complainant placing an order for supply of 75,000 litres AUTOSAFE 50, according to the rules and specifications mentioned therein. Ex. A-1 date 1.10.1993 is the letter from the Opposite Party to the complainant. In the said letter, it was mentioned that the Opposite Party agreed to transport the chemicals for a consideration of Rs. 16,900/- for each truck. It was specifically mentioned that the trucks would reach Pathankot within 5 days. Exs. A-2 to A-5 are four consignment notes dated 1.10.1993 but by mistake it was mentioned in Ex. A-2 as 1.9.1993. In those consignment notes the drums to be loaded and the number of the lorry to which they were to be loaded and the date to be loaded was mentioned as 1.10.1993. It was also clearly stated that the trucks must reach within 5 days, evidently 5 days from 1.10.1993. Thus it is evident that the Opposite Party agreed to load the material on 1.10.1993 with the lorries whose registration numbers were mentioned therein. Ex. A-6 is a receipt for Rs. 6000/- given by the driver of the Transport Corporation of India Limited. Ex. A-7 is a letter written by Mahe Chemicals on 10.11.1993, wherein it was clearly mentioned that two lorries arrived on 12.10.1993 and other two lorries on 15.10.1993. It was mentioned that as they are supposed to deliver the entire lot by 5th of October as the North Frontier Road would be closed for traffic on 15.10.1993. The delay in delivery has resulted in an enormous inconvenience to them and they have lost the chance of getting any further orders from Defence. It was further stated that they cannot quantify the loss suffered by them because of the delay in delivery. This letter also mentions with regard to other details of payment of Rs. 6000/- and other expenses incurred. It was also mentioned in that letter that the material have been unloaded in Hyderabad itself and the materials were moved by the Opposite Party on 7th only after hearing from the complainant. In the said letter, it is also mentioned that they have incurred expenses of Rs. 24,000/- and also suffered loss of Rs.10 lakhs on account of the loss of future business.
It is, therefore clear from the aforesaid documents that the consignment was booked on 1.10.1993 and the same was delivered to the Opposite Party. The consignment notes were issued on 1.10.1993 (Exs. A-2 to A-5) wherein it is clearly mentioned the number of barrels loaded and also the registration number of the lorries in which they were loaded or 1.10.1993. But it appears that these goods were subsequently unloaded at Hyderabad itself and it was only on 8.10.1993 that the goods were moved again from Hyderabad in different trucks. Exs. A-l to A-5 clearly mentions that the goods have to be delivered within 5 days. But the Opposite Party unloaded the goods from those trucks on 1.10.1993 and despatched the same again on 8.10.1993 i.e. after a period of 5 days stipulated in Exs. A-1 to A-5. In the counter except stating that for reasons beyond the control of the Opposite Party, the goods were moved by different trucks as soon as they are available; what are those reasons for which the material loaded in the trucks on 1.10.1993 was unloaded again on the same day and why they could send the same only on 8,10.1993 when the Opposite Party had agreed to transport the goods within 5 days to Pathankot as clearly stated in Exs. A-1 to A-5 were not mentioned. They failed even to despatch the goods from Hyderabad within 5 days from 1.10.1993. But they despatched only on 8.10.93. Thus it is a clear case where the Opposite Parties are deficient in rendering the service to the complainant who booked the goods.
5. IT is contended by the Opposite Party that the complainant is not a consumes as there was no consideration paid by the complainant. According to the Opposite Party, no doubt the cheque was issued by the complainant for Rs. 67600/- on 1.10.1993 itself to be presented for encashment on 6.10.93 i.e. after 5 days. But the complainant instructed the bank to stop the payment of the cheque and that, therefore, there is no consideration paid by the complainant and hence he is not a consumer under the Provisions of Consumer Protection Act.
6. WE are not inclined to agree with this contention. The consideration contemplated u/Sec. 2(1)(d)(ii) can be either consideration which has been paid or promised or partly paid and partly promised. In the instant case no doubt, the cheque was issued to be encashed after 5 days. But the complainant stopped the payment. Evidently because the Opposite Party did not move the goods on 1.10.1993. It, therefore, cannot be said that no consideration was paid to the Opposite Party; even otherwise this section takes in the cases where the complainant promised to pay consideration. It, therefore, cannot be said that there was no consideration for the services agreed to be rendered by the Opposite Party.
It is next submitted that the Opposite Party filed a suit O.S. 485/94 on the file of I Addl. Judge, City Civil Court, Hyderabad for recovery of Rs. 67,600/- being the freight charges payable by the complainant and that, therefore, the State Commission has no jurisdiction to try this case. But the relief claimed in the complaint does not relate to payment of freight charges of Rs. 67,600/-. The complainant claimed only the amount said to have been incurred by the Mahe Chemicals and also Rs. 10 lakhs towards loss of business and mental agony. It, therefore, cannot be said that the complaint is not maintainable because the Opposite Party filed a suit O.S. 485/94 for recovery of freight charges.
It is only the question of compensation that remains to be considered. There is no evidence adduced by the complainant with regard to the actual loss suffered by him on account of the failure of the Mahe Chemicals to place any future orders. But in the letter written by Mahe Chemicals (Ex. A7) it was clearly stated that the delay in delivering the goods has resulted enormous inconvenience and they have lost the chance of getting any further orders from the defence. On account of the delay in delivering the material by the Opposite Party. No doubt the complainant lost the chance of getting future orders from Mahe Chemicals and Oils Pvt. Ltd., as they themselves lost the chance of getting any further orders from Defence. But there is no material to show the actual loss suffered to enable us to quantify the same. sBut it cannot also be said that the complainant has not suffered any loss on account of the delay. In all probability he lost a very good chance of further orders from Mahe Chemicals and Oils Pvt. Ltd
7. HAVING regard to all the aforesaid circumstances and the loss of chance of complainant''s getting future orders we consider that the payment of a sum of Rs. 5,000/- to the complainant by way of compensation is equitable and just. The complainant is not entitled to any direction for payment of Rs. 24,000/- evidently as the said amount was not spent by the complainant and that there is no averment that the complainant paid the said sum of Rs. 24,000/- to Mahe Chemicals. We, therefore, held that the complainant is not entitled for a direction of payment of Rs. 24,000/-. In the result, the Opposite Party is directed to pay a sum of Rs. 5000/- to the complainant by way of compensation. There shall be no order as to costs. Complaint allowed.
