BAGAI GOLDEN TRANSPORT CO. PVT. LTD. vs EXPLORERS

THIS is an appeal against the order dated 31st July, 1999 passed in Case No. 955/92 by the District Consumer Disputes Redressal Forum, Indore (for short the ''District Forum'').

THE respondent/complainant booked a consignment of 6 boxes containing automobiles parts valuing Rs. 61,310/- as described in the bill vide GR No. 86478 dated 10.11.1989 in the name of ''self'' to be delivered at Bilaspur. THE goods sent were purchased by M/s. R.S. Enterprises on 9.11.1989 vide bill No. 019357 of the delivery note in the bill was given as 020658. THE consignment was to be delivered at Bilaspur on the production of the documents. THE complainant alleged that the delivery of the said consignment was refused by M/s. R.S. Enterprises who after opening one box found stones in it hence did not accept the consignment. THE complainant wrote a letter dated 21.12.1989 received by the opposite party on 23.12.1989 to re-book the goods at Indore and to deliver the same to the complainant, but, the goods were not delivered. THE respondent filed a complaint on 4.19.1992 which was resisted by the appellant, the District Forum after appreciation of evidence allowed the complaint having found deficiency in service in not delivering the consignment and ordered to pay the amount of Rs. 61,310/- with compensation of Rs. 35,000/- and Rs. 5,000/- as costs of the proceedings. Aggrieved of that order, the appellant preferred an Appeal No. 404/95 which was allowed vide order dated 31.5.1999 and the case was remitted to the District Forum for dedicing it afresh after affording an opportunity to parties to lead additional evidence. THE District Forum after appreciation of evidence having found deficiency in service in not delivering the consignment to the complainant ordered to make the payment of Rs. 61,310/- with interest thereon at the rate of 18 per cent per annum from 16.11.1989, the compensation of Rs. 1,000/- and Rs. 500/- as costs of the proceedings. We have heard Mr. Sunil Rai, learned Counsel for the appellant and Mr. V.K. Jain, learned Counsel for the respondent and perused the record.

The appeal is barred by time, an application to condone delay supported by affidavit has been filed. The respondent after notice did not file any reply or counter-affidavit and merely opposed the application during the course of hearing. Considering the circumstances stated in the application and the cause assigned which has to be construed liberally, we hold that the appellant was prevented by sufficient cause in not presenting the appeal within the period prescribed from the date of receipt of certified copy of the order of the District Forum, therefore, we condone the delay in filing the appeal.

IT is well settled that a common carrier is bound to deliver the goods to the right person. If the goods are not delivered to the proper person except on production of original documents, the common carrier would be liable to an action for misfeasance and will not be absolved from all liabilities for mis-delivery or wrong delivery. IT is the elementary duty of a carrier even if the document is produced by a person other than the consignee to enquire whenever a person presents a consignment note whether he is the proper person or its authorised agent or not. The carrier should take all steps to call upon person presenting the documents to identity that he is the proper person so as to take measures or device to prevent mis-delivery of wrong delivery. The National Commission in Branch Manager, Economic Transport Organisation & Ors. v. M/s. Synco Textiles Pvt. Ltd. & Ors., I (1992) CPJ 154 (NC), while considering the case of the delivery of the goods when the goods receipt was in favour of the Bank to be delivered to the Bank for further delivery on its instruction against the surrender of document, the carrier in contravention of the instructions delivered the goods to consignee held that it was a fault and shortcoming in the performance of service and thus a deficiency in service and that the provisions of Section 10 of the Carriers Act are not attracted. In the case in hand, the consignment note/goods receipt, the consignee''s name and address was given as self. Therefore, on production of copy of consignment note, the consignment was to be delivered by the opposite party No. 2 to the person producing the consignment. However, it is clear that the appellant without production of consignment note and documents by M/s. R.S. Enterprises, who did not make any payment delivered the consignment to M/s. R.S. Enterprises, which is evident and well established from the evidence adduced in the case. Therefore, it was a clear case of misfeasance and wrong delivery, hence, the respondent was entitled to value of the goods realised.

THE contention that the goods were worth Rs. 20,658/- and not of Rs. 61,310/- cannot be accepted. In the consignment note the value of the goods is not written but it is the delivery note No. 20658/6 and that delivery note number is given in the bill/invoice issued by the Explorers dated 8.11.1989 in the name of M/s. R.S. Enterprises which shows the total value of the goods sent in the consignment of Rs. 61,310/-. The contention that the award of interest at the rate of 18 per cent per annum in the circumsances of the case is excessive deserves consideration. The litigation is pending since 1992, the delay in disposal of the complaint, appeal, then its remand is not wholly attributable to the appellant. Considering the circumstances of the case and the proceedings, ends of justice would meet if the interest is awarded at the rate of 9 per cent per annum from the date of filing of the complaint. The question of award of compensation of Rs. 1,000/- does not arise as the inerest has been awarded in the shape of compensation. However, the award of costs of Rs. 500/- as ordered by the District Forum is maintained.

IN the result, the appeal is partly allowed. The order of the District Forum shall stand modified as indicated hereinabove. The appellant shall make the payment as ordered by us within a period of two months from the date of receipt of certified copy of this order, failing which the amount shall be payable at the rate of 12 per cent per annum. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case. Appeal partly allowed.