BHASKAR KHULBE vs Satwant Singh

BRIEFLY the facts are that the complainant was posted as District Magistrate, Jalpaiguri. He was transferred from Jalpaiguri to Delhi. After getting relieved from the post, he entrusted 62 packets of household goods at District Magistrate''s residence, Jalpaiguri on 10th May, 1992 to Shri Kripa Shankar Singh, Driver of Truck No. MKW 7853 sent by M/s. Vishwa Karma Road Carriers (hereinafter referred to as the Carriers) vide certificate issued by the District Magistrate, Jalpaiguri dated 10th May, 1992 for transportation to Delhi. It is alleged that no receipt in respect of that consignment was issued by the Carriers at that time and that it was prepared by them on llth May, 1992 and handed over to the complainant on 17th May, 1992.

IT is further pleaded, that at the representation of the carriers that there was risk of theft and dacoity on way, two armed constables C/154 Sonam Sonar and C/374 Manoj Kumar Sinha were detailed to accompany the truck from Jalpaiguri to New Delhi. The carriers also loaded on that truck at Siliguri goods belonging to Maj. S.K. Tarnach for transportation to Delhi. He also detailed L/NK Satbir Singh on the truck for ensuring safety of goods en-route. The goods cought fire near Rania within Akbarpur Police Station in Kanpur Rural District, U.P., while the truck was moving. On account of the fire the goods of the complainant were burnt. It is alleged that some packets were also found missing. It is also alleged that the complainant had not put any inflammable article in the consignment, and that due to the fire he suffered a loss of more than Rs. 2 lacs.

The truck belonged to M/s. Satish Transport Company (Respondent No. 2). Shri Satish Mutha and Shri L.C. Mutha (Respondent No. 3 & 4) are the partners of respondent No. 2. It is alleged that all the respondents are jointly liable to reimburse the complainant for the loss suffered by him. He has prayed that the respondents be directed to pay Rs. 2 lacs on account of the loss suffered, Rs. 2,900/- the freight paid in advance and Rs. 25,000/- as liquidated damages for mental agony etc. He has also claimed interest on the said amount till the date of payment of the same.

NOTICE of the complaint was given to the respondents. Respondent No. 1 was represented by Shri Ashok Kumar, Advocate and respondent Nos. 2, 3 & 4 were represented by Shri Rajan Bhatia, Advocate. At the request of the complainant a Commission was appointed to inspect the goods involved in the incident. He submitted his report dated 2.8.92 in which he pointed out the extent of damage caused to the goods by the fire. The complainant found that some of the goods were unable and he requested that he be allowed to take out those goods and use them. The Counsel for the respondents did not raise any objection to his request. Consequently a list was prepared of the goods by the parties and the complainant was allowed to take out those goods vide order dated 20.8.92. On 20th August, 1992 the Counsel for all the respondents were present in the Court and the case was adjourned to 9th September, 1992, at the request by the Counsel for the respondents for filing of the written statements. On 9th September, 1992 the written statement was filed on behalf of respondent Nos. 2, 3 & 4 but no written statement was filed on behalf of respondent No. 1. Shri Bhagat Ram, agent for respondent No. 1 requested for further adjournment. The case was adjourned to 18.9.1992 subject to payment of Rs. 200/- as costs. On that date Shri Bhagat Ram, agent for respondent No. 1 gave a copy of the written statement to the complainant but he did not file it in the Court. He undertook to file it on 1st October, 1992, the next date for which the case was adjourned. However, no written statement was filed on behalf of respondent No. 1 either on 1st October, 1992 or on any subsequent date. On 1st October, 92 the case was adjourned to 21st October, 1992. On that date no one appeared on behalf of respondent Nos. 2, 3 & 4 and consequently they were proceeded against ex-parte. Mr. Kapur, Advocate for Respondent No. 1 stated that he had no instructions from his clients. He, however, requested to grant further adjournment for his evidence which was granted subject to payment of Rs. 200/- as costs. The case was adjourned to 6th November, 1992. On that date Mr. Kapur also did not appear. Consequently respondent No. 1 too was proceeded against ex-parte. On 6th November, 1992 the Coram was not complete as two of the members of the Commission had since retired. Therefore, the case was adjounred to 20th November, 1992 for arguments. On 20th November, again it was adjourned to 4.1.93 for arguments for want of Corum.

THE written statement filed on behalf of respondent Nos. 2 to 4 bears the signatures of one Shri Ashok. It is not disclosed therein as to who is Shri Ashok and how he is connected with respondent Nos. 2 to 4. THE verification of the written statement is also made by the said Shri Ashok. In the circumstances the written statement is not authentic documents and therefore, cannot be relied upon. However, in order to avoid any legal objections at a later stage, it is proper to notice the pleas taken therein. In the written statement allegations of the complainant have been controverted by the respondents and they have further pleaded that the Commission at Delhi had no jurisdiction to entertain the complaint as the goods were booked at Jalpaiguri and that the truck was comprehensively insured with the Oriental Insurance Company. It is further stated that the goods had been booked at the owners risk and these were not got insured by the complainant. No evidence in support of the allegations made by them in the written statement has been produced by the respondents. No written statement on behalf of respondent No. 1 was filed before us, as already mentioned above and consequently it is not possible to reproduce the pleas taken by him. The complainant in order to support his case filed his affidavit affirming the allegations in the complaint and the rejoinder. The first question that arises for determination is whether the complaint is entertainable by the Commission at Delhi. It is not disputed that goods were to be transported from Jalpaiguri to Delhi. Therefore, a part of the cause of action arose at Delhi. Consequently, this Commission has got the jurisdiction to entertain, the complaint.

THE second question that arises for determination is, whether the complainant in view of the fact that the goods were being carried at the owners risk, is entitled to damages.

THE term ''Owners risk'' has not been defined in the Carriers Act. Normally, it means that the owner would be liable for loss or damage to the goods entrusted to a Carrier, if such loss or damage is not caused by any negligence or misconduct on the part of the Carrier. It does not absolve the Carrier absolutely in case of loss or damage to the goods. Section 9 of the Carriers Act piovides that in a Suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriages, it shall not be necessary for the plaintiff to prove that such loss, damage or non- delivery was owing to the negligence or Criminal Act of the carrier, his servants, or agents. A bare reading of the Section makes it clear, that if the goods entrusted to a carrier for carriage, are not delivered by him, it is not necessary for the owner to prove negligence of the carrier. THE negligence on his part will be procured, unless it is shown by the carrier that the loss was not caused because of any negligence on his part. In the present case the respondents not to speak of producing evidence have not even filed any proper written statement. THErefore, the respondents have failed to discharge the burden, placed on them by the legislature. The complainant in addition to his affidavit has placed on record the statement of Constables - C-154 Sonam Sonar and C-374 Manoj Sinha. It is stated by them that when the goods got fire they asked the driver to stop the truck, but he did not listen to them and continued driving the same. The place where the truck was stopped and the fire was extinguished lot of damage had been done to the goods. From the aforesaid statement also it is clear that the complainant suffered a huge loss on account of negligence of the Driver of the truck. The truck belongs to respondent No. 2, whereas the goods were booked by respondent No. 1. Respondent Nos. 3 & 4 are the partners of respondent No. 2. Thus, all the respondents are liable to reimburse the complainant, jointly and severally.

The third question that arises for determination is, if the goods were not insured by the complainant whether the respondents are liable to pay the amount. The Carriers Act does not enjoin any duty on the complainant to get the goods insured. The responsibility of the owner of the carrier does not originate from a contract between the parties but from the provisions of the Carriers Act and the fact that he carries on the business for reward. Section 8 of the Carriers Act deals with the liability of the Common Carrier for loss or damage caused by neglect of the carrier or his agents. It is not necessary to deal with the Section in detail. There- fore, even if the goods were not got insured, the respondent is liable to pay the damages to the complainant. However, Section 3 of the Carriers Act restricts the liability of the Carrier in the case of loss of goods which arc detailed in Schedule ''A'' and declaration regarding the price of which has not been given by the owner to the Carrier or his agent, to Rs. 100/-. While assessing the damages the provisions of this Section have been taken into consideration.

THE last question that arises for determination is what is the amount of damages suffered by the complainant. THE amount of damages suffered by him has been worked out in Annexure ''A'' attached with the judgment. THE total amount to which the complainant is entitled on this count comes to Rs. 73,585/-. He is further entitled to the refund of the freight amounting to Rs. 2,900./- paid by him. He is also entitled to damages on account of mental tension and the inconvenience suffered by him which we assess at Rs. 15,000/-.Thus in all he is entitled to Rs. 91,485./-. He is entitled to interest on that amount from 17.5.92 till the date of filing the complaint i.e. 1.6.92 @15% p.a. THE amount of interest comes to Rs. 570/-. THE total amount comes to Rs. 92,065/- say Rs. 92,000/-. Consequently we accept the complaint with costs and direct the respondents to pay the amount of Rs. 92,000/- with interest @ 15% p.a. from 1.6.92 till the date of payment within a period of two months from the date of the order, falling which action under Section 27 of the Consumer Protection Act will be taken against them. Costs Rs. 2,500/-. Complaint allowed with costs.