A.PERUMAL-/ vs G.SHANTILAL

THIS appeal is directed against the order dated 31.1.1997 in O.P. 430/95 on the file of the District Consumer Disputes Redressal Forum, Madras (North).

THE appellant is the opposite party while the respondent is the complainant. The facts of the instant case may be stated in a crisp fashion to understand the crux of the issue arising for consideration.

The complainant availed of the services of the opposite party for consideration in transporting certain consignments from Bangalore to Madras. The hiring charges for such transport of consignment were to the tune of Rs. 2,800/-. Out of the said amount, Rs. 1,000/- had been paid as advance and the balance of the amount of Rs. 1,800/- was agreed to be paid on effecting delivery of the goods. The vehicle which carried the consignment, it appears, met with an accident on the way. Consequently, the goods were transferred to another vehicle for being carried to the destination, namely, Madras. In such process, certain goods were committed theft of by certain miscreants. Consequently, 5 parcels were short delivered. The value of the articles short delivered was to the tune of Rs. 49,897.11. In spite of repeated demands, the opposite party failed and neglected to make good the loss sustained by the complainant. This sort of an act on the part of the opposite party, the complainant would say, is deficiency in service on their part.

ALLEGING the factors as above, we knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint. The opposite party in pith and substance would contend that the loss of goods during transit by theft is beyond the control of the opposite party especially when the vehicle met with an accident. The opposite party is taking effort to search the stolen goods. The complaint filed as such is premature. There is no deficiency in service. The complaint, as such, is liable to be dismissed.

THE Forum below, after taking into consideration the materials placed on record, recorded a finding that the failure on the part of the opposite party to deliver the entirety of the consignment would tant amount to deficiency in service on their part. So holding, the Forum below directed the opposite party to pay to the complainant Rs. 49, 897.11 representing the value of the parcels short delivered with interest @ 18% p.a. from 26.7.1995 till payment along with the compensation of Rs. 10,000/- with cost of Rs. 500/- within two months from the date of its order failing which the complainant will be at liberty to invoke Section 27 of the Consumer Protection Act, 1986. Aggrieved by the order as above the opposite party/appellant resorted to the present action by engaging a Counsel of their choice, namely learned Counsel Mr. D. Palani. On service of process, the respondent/complainant entered appearance through a Counsel of their choice, namely learned Counsel Mr. A. Abdul Rahim.

WE heard the arguments of learned Counsel Mr. D. Palani, appearing for the opposite party/appellant and learned Counsel M/s. A.R. Sujatha, representing learned Counsel A. Abdul Rahim, appearing for the respondent/complainant.

THERE is no pale of controversy that the complainant hired the services of the opposite party for the transport of certain consignments from Bangalore to Madras for a consideration of Rs. 2,800/-. It is also not in dispute that the opposite party effected short delivery of parcels and the value of which is Rs. 49,897.11. The demand emerged from the complainant claiming the value of the parcels short delivered quantified in a sum of Rs. 49,897.11 was not at all consequently met with by the opposite party who took up the stand that since certain parcels were committed theft of by certain miscreants during transit when the vehicle met with an accident which is beyond their control and, therefore, it is they, are not liable to compensate the loss so caused. To this sort of a contention of the opposite party, we are unable to give our seal of approval on the face of the decision emerging from the Supreme Court in the case of Patel Roadways Ltd. v. Birla Yamaha Ltd., I (2000) CPJ 42 (SC)=III (2000) SLT 554=2000 AIR SC 1047. The Apex Court in the said decision happened to consider in a threadbare fashion the liability of a common carrier in the light of the provisions adumbrated in The Carriers Act, 1865 (for short, "the Act of 1865"). The paragraphs relevant for our consideration in the case on hand are 30, 31 and 47 and they reflect as under : "30. From the provisions of the Consumer Protection Act noted in the foregoing paragraph the position is clear that the consumer disputes redressal agencies, i.e., District Forums, State Commissions and the National Commission are vested with powers of adjudication of all types of consumer disputes. No exception is made in case of consumer disputes in which the allegations made in the complaint regarding deficiency of service causing damage to or loss of the goods are contested. Indeed finality is attached to the orders of the redressal agencies and provision is made for execution and implementation of the orders passed by them treating such orders as decree of the Court. It is relevant to state here that on perusal of the provisions of the Act it is clear that the scheme of the Statute is to provide hierarchy of redressal Forums for attending to the grievances of consumers regarding deficiency in service promptly and give finality to the orders passed by the agencies. THEREfore, it is difficult to accept the contention that the dispute redressal agencies provided in the Consumer Protection Act are not Forums which have jurisdiction to entertain the complaints in which claims for loss or damage to goods entrusted to a carrier for transportation is seriously disputed. The contention raised by Shri Desai in this regard is accordingly rejected."

"31. Coming to the question of liability of common carrier for loss or damage to goods, the position of law has to be taken as fairly well-settled that the liability of a carrier in India, as in England, is more extensive and the liability is that of an insurer. The absolute liability of the carrier is subject to two exceptions; and act of God and a special contract which the carrier may choose to enter with the customer."

"47. From the conspectus of views taken in the decisions of different High Courts noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in Section 9, in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time and have been crystalized into accepted position of law. No good reason has been brought to our notice to persuade us to make a departure from the accepted position. THEREfore, we reiterate the position of law noticed above. The consequential position that follows is that the contention of Shri Ashok Desai, learned Senior Counsel, that the respondents herein having failed to establish negligence on the part of the appellant, their claim for damages should be rejected, cannot be accepted..."

The decision of the Supreme Court in Patel Roadways Ltd. (supra), is applicable in all fours to the facts of the instant case. Admittedly, the value of the lost goods is Rs. 49,897.11. For such loss, the opposite party has to be mulcted with the liability as per the dictum of the Supreme Court in Patel Roadways Ltd. (supra). Therefore, the order of the Forum below mulcting liability on the opposite party to the tune of Rs. 49,897.11 cannot at all be stated to be not sustainable on the facts and in the circumstances of the case.

The Forum below awarded interest @ 18% p.a. from 26.7.1995 till payment besides ordering payment of compensation of Rs. 10,000/-. Ordering payment of interest @ 18% p.a., till realisation and also payment of compensation quantified in a sum of Rs. 10,000/- cannot co-exist together, on the facts and in the circumstances of the case. The Forum below committed serious error in awarding both payment of interest as well as compensation. Therefore, one of the two things as above must have to be deleted. We rather feel that on the facts and in the circumstances of the case, the direction for payment of interest @ 18% p.a. alone can be confirmed while the direction relatable to the payment of compensation quantified in a sum of Rs. 10,000/- can be deleted. We accordingly do so. The Forum below awarded cost in a sum of Rs. 500/- which we rather feel is reasonable on the facts and in the circumstances of the case and, therefore, such portion of the award is also confirmed.

THE appeal is thus allowed to the extent as indicated above. We however make no order as to costs on the facts and in the circumstances of the case. We shall however make it crystal clear that the order of the Forum below modified as above is required to be complied with by the opposite party within a month from the date of receipt of our order or otherwise the complainant will be at liberty to invoke the provisions of Section 27 of the Consumer Protection Act, 1986. Appeal partly allowed.