MOREPEN LABORATORIES LTD. v. THE BUSINESS ASSOCIATE, XPS CARGO SERVICES
2004-09-06
ONKAR CHAND THAKUR, PREM CHAUHAN, SURINDER SARUP
body2004
DigiLaw.ai
ORDER Mr. Surinder Sarup, J. (Retd.) President: It is alleged in the present complaint that the complainant-company had been having business transactions with the opposite parties which provides Cargo Carrier Services against consideration for the last many years. On 28.3.2001, M/s. Pradeep Medical Stores, Banka Bazar, Cuttack (Orissa) booked 160 boxes containing costly medicines of the Company for shipment to the complainant at its business address in Parwanoo, District Solan, through the opposite parties against consideration. It was on the morning of 22.4.2001, which happened to be a Sunday, that the opposite party No. 1, its. Business associates of XPS Cargo Services, Parwanoo, informed the Senior Manager of the complainant-Company on telephone that a theft had taken place in its Godown and the costly medicines which were stored there had been stolen. On getting this information, the officials of the complainant-Company reached the site and found two officials of the opposite parties already present there alongwith a police party. In their presence, the officials of both the parties worked out the details of losses due to this theft which worked out to the tune of Rs. 7,51,983/-. In consequence thereof, a F.I.R. was registered by the Station House Office, Police Station, Parwanoo. 2. On 24.4.2001, the authorized signatory of the complainant-Company wrote a letter to the opposite party for making good the loss suffered on account of negligence and deficiency in service by them, but no reply was received. Therefore, on 11.6.2001, the Legal Advisor of the complainant-Company also served a registered legal notice on them in this behalf. Ultimately by their letter dated 26.6.2001, the opposite party No. 2 i.e. XPS Cargo Services, Chandigarh, refused to make good the loss and informed the complainant-Company that since a report had already been lodged with the Police, the complainant Company should approach the Police or lodge their claim to the underwriter. Consequently, on being approached by the complainant-Company, the Police authorities at Parwanoo through their letter dated 24.9.2001 informed that a case of theft has been field as untraced and no recovery or break-through could be made. Hence, the complaint, claiming an amount of Rs. 7,51,983/- for the loss of goods suffered, being the actual cost of medicines, compensation of Rs. 1,00,000/- on account of harassment etc. as well cost of the complaint.
Hence, the complaint, claiming an amount of Rs. 7,51,983/- for the loss of goods suffered, being the actual cost of medicines, compensation of Rs. 1,00,000/- on account of harassment etc. as well cost of the complaint. The same is fully supported by the affidavit of Shri Pramod Chandra, Senior Manager of M/s. Morepen Laboratories Ltd., Parwanoo, the complainant of this case. 3. In the reply to the complaint, various preliminary objections have been taken. Insofar as the merits of the case are concerned, it is stated in para 4 of the reply on merits that the consignment in question reached Parwanoo within the stipulated period i.e. 5.4.2001 and immediately intimation of the same was given to the complainant for taking delivery but the complainant informed that they have no sufficient space to store the consignment in their factory and requested the opposite parties to store it in their Godown, the delivery of which would be taken as and when the necessity arises. Therefore, on the instructions of the complainant, the opposite parties stored the consignment in question in the hired Godown for Rs. 1,000/- per day as rent. The theft of the said consignment from the Godown of the opposite parties has been specifically admitted in para 4 of the reply. But the plea taken is that the same was beyond their control, the police was informed and F.I.R. was lodged. A flimsy version has been given regarding the circumstances as to how the theft took place by stating in the same para of the reply that the Chowkidar of the Godown even accosted the thieves but the situation went beyond his control as they locked him up in the room who was ultimately rescued by the police Beat party. Significantly the detailed reply of the opposite parties to the complaint bears only signatures of their learned Counsel. It is neither signed nor verified on behalf of both the opposite parties, although being a joint reply, by any authorized person or signatory. On the other hand, a detailed rejoinder to the said reply-cum-counter affidavit of the said Pramod Chandra has been by the complainant-Company which is duly signed and verified by the said person and also attested by the oath Commissioner. . 4.
On the other hand, a detailed rejoinder to the said reply-cum-counter affidavit of the said Pramod Chandra has been by the complainant-Company which is duly signed and verified by the said person and also attested by the oath Commissioner. . 4. Straightaway the question that arises is as to what is the legal value of the reply to the complainant filed by the opposite party in this given situation. The answer can only be that it is no reply in the eyes of law as the facts alleged therein are neither verified nor sworn as an affidavit, as per the legal requirement. Indeed, the reply is a meaningless document as it is not even signed by any competent person on behalf of the opposite party. • 5. Proceeding on the above legal premise, there is no option but to accept the facts stated in the complaint and narrated above. Assuming for argument sake, that the facts as alleged in the reply are to be taken into consideration, then even the basic question involved in this complainant, i.e. theft of goods stored in the Godown of the opposite parties against consideration stands admitted therein. It necessarily follows that deficiency in service on the part of the opposite parties is writ large on the face of the record. 6. Insofar as the evidence is concerned, the facts alleged in the complaint are all supported by documentary evidence, in the shape of Annexures-I to VIII appended alongwith the complaint. Additionally, alongwith the rejoinder cum-counter affidavit filed to the reply, the complainant-Company has supported its case by filing copy of the resolution Annexure-A authorizing the said Shri Pramod Chandra to file the instant complaint on behalf of the complainant-Company as also to take any other steps in pursuance thereof. 7. Just for the record, the opposite party has filed its evidence, affidavit of their Manager, but the same cannot be considered in the absence of any proper reply as per the law, inasmuch as it is well settled that no amount of evidence can be looked into which is contrary to the pleadings. Here, it is a case of no pleadings, whatsoever, legally speaking insofar as the reply of the opposite parties is concerned. Be it stated here that both the parties have placed on record Xerox copies of decisions in the shape of case law of various Consumer Courts etc.
Here, it is a case of no pleadings, whatsoever, legally speaking insofar as the reply of the opposite parties is concerned. Be it stated here that both the parties have placed on record Xerox copies of decisions in the shape of case law of various Consumer Courts etc. in support of their respective contentions but it is needless to discuss the same for the simple reason that the allegations in the complaint duly supported by the documentary evidence of the complainant-Company has gone un-rebutted by the opposite parties for the reasons as set out above. 8. In view of the above discussion, we hold that theft of goods stored in the Godown of the opposite parties at Parwanoo admittedly for consideration, amounts to deficiency in service on their part. I Therefore, they are directed to pay to the complainant-Company an amount of Rs. 7,51,983/- towards loss of goods suffered in .this connection, it being the actual cost of the stolen consignment of medicines. In the facts and circumstances of case, we do not deem it appropriate to award any compensation in this case but additionally we burden the opposite parties with costs of Rs. 5,000/-, being the cost of this complaint, also to be paid by them to the complainant in addition to the above amount. The present complaint is disposed of accordingly.