Birla Yamaha Ltd vs Patel Roadways Ltd

THIS Original Petition by M/s. Birla Yahama Ltd. against M/s. Patel Roadways Ltd., a common carrier of goods, seeks the relief of Rs. 56,00,799/ - alongwith interest for the loss of goods entrusted to the opposite parties.

THE facts as stated in the complaint lie in a narrow compass and may be noticed. 237 consignments containing 257 numbers generator sets were entrusted to the opposite party by the complainant at U.P. Border (Ghaziabad) for carriage and delivery to different consignees at varied destination stations. It is pleaded that the complainants are consumers who have hired the services for consideration of the opposite parties and they received the charge for carrying the said consignments to destination stations in original condition. The opposite parties issued Lorry Receipts Nos. 211847 to 211907 and 830728 to 830800 dated 16/22.3.93 containing the particulars to the consignment, destination, consignee, freight etc. According to the complainant, 237 consignments when tendered for carriage at U.P. Border were perfectly in sound condition in token of which clean the lorry receipts were granted by opposite party No. 2 in favour of the complainant. The opposite parties neglected and failed to deliver the consignments at the destination stations. The opposite parties after verification issued non -delivery certificates confirming that the said consignments have not been delivered at the destination stations and have been lost in fire on 23.3.93. It was pleaded that the opposite parties have been grossly deficient in the performance of their service in terms of their contract of carriage of goods and delivery at the destination stations and are liable to compensate the complainant for the loss suffered by them. It is pleaded that on 15.9.93 the complainant issued notice to the opposite parties requesting them to pay a sum of Rs. 56,00,799/ - within 10 days from the receipt of the notice. The complainant sent alongwith the notice a statement of consignment containing generator sets together with the amount of the bills and the name of the consignee. The complainant claimed : (a) Cost of 267 generator sets Rs. 50,78,231.00 (b) Freight Charges Rs. 22,568.00 (c) General and special damages on account of harassment, undue loss of time (Typographical error Rs. 50.00 lakhs in the petition). Rs. 5,00,000.00 Total Rs. 56,00,799.00

On being noticed, the opposite parties have filed their version in the counter affidavit of Shri Vivek Singhal, Legal Executive of M/s. Patel Roadways Ltd. In the corresponding paragraphs of the written version, the entrustment for carriage, booking particulars, issue of lorry receipts are not denied. It is pleaded that the consignments were lost in fire which was an accident beyond the control of the opposite parties and therefore there is no deficiency in service and the complaint is not maintainable. It is pleaded that the loss was beyond the control of the opposite parties and therefore, they are not bound either by circumstances or by contract to make good the loss. It is reiterated that due to a mishap the goods burnt down in a fire on 23.3.93, the same cannot be treated to mean deficiency in service.

THE complainant had filed the affidavit of Shri D.C. Babel, Vice -President (Commercial) of M/s. Birla Yamaha and later filed copies of the lorry receipt Nos. 211847 to 211907 and 830728 to 830800. The original goods receipt were given to the opposite parties and these documents are not denied by the opposite parties. These are evidencing of receipt of goods by the opposite parties for carriage, the quantity of generator sets and the value of the consignments as determined by the opposite parties. Another set of documents is the open delivery certificates copies/non -deliverys certificates regarding the aforesaid goods receipt evidencing receipt of freight charges by the opposite parties and acknowledgements of non -delivery of goods to the complainant.

SECTION 9 of the Carriers Act, 1865 provides that in a suit against any carrier for the loss, damage or non -delivery of goods entrusted to him for carriage, it shall not be necessary by the plaintiff to prove that such loss, damage or non - delivery was owing to the negligence or criminal act of the carrier, servants or agents. Section 9 relieves the complainant from burden of showing that the loss or non delivery was owing to any negligence or criminal act. Loss to the goods sent is prima facie evidence of negligence. The burden of proving absence of negligence is on the carrier i.e. the opposite parties who have miserably failed. Occurrence of alleged fire without any explanation by opposite parties as to the origin or cause of it is evidence of negligence. Loss from unknown cause of alleged fire is presumptive proof of negligence. The opposite parties are deficient in tile performance of their service as a common carrier as to the goods entrusted have not been delivered in accordance with the contract of carriage for consideration evidenced by the goods receipts. The opposite parties are thus liable to compensate the complainants for the loss suffered. The actual cost of the consignments as per the details of bills shown in Annexure B to the complaint comes to Rs. 50,78,231/ -. The complainant deposes that the opposite parties were shown the bills and were requested to pay the cost of the goods and they admitted the costs of the goods and their liability. In rebuttal the opposite parties merely averred that the claim is exaggerated and denied. The complaint is not seriously contested by the opposite parties. No effort is made by the opposite parties to summon the complainants officials for cross -examination as to the value of the goods or the copies of the bills or books of accounts, giving an impression that the opposite parties are either colluding or grossly negligent in their defence. Be that as it may, the complainant had given the notice dated 15th September, 1993, in which it was mentioned that the amount due on account of non -delivery as per bill comes to Rs. 50,78,231 / -. The opposite parties were fully aware of the claim lodged with them in the notice dated 15th September, 1993 and subsequently the details have been annexed with the complaint filed by the complainant. There is no dispute that Rs. 22,568 / - were paid as freight charges.

THE complainant has claimed a sum of Rs. 5.00 lakhs as general and special damages on account of the alleged harassment, undue loss of time etc. as mentioned in para 12. Para 12 of the complaint does not give any details of the general and special damages. No proof has been brought on record except that this averment contained in paragraph 12 is true and correct to the knowledge of the said officer of the complainant. Para 12 only alleges that there is imperfection, shortcoming, inadequacy in the quality and manner of the performance of the obligations of the opposite parties and does not mention other details. As we are inclined to grant 18% interest, this will be sufficient compensation for any mental agony to the complainant.

WE , therefore, allow this complaint and grant to the complainant compensation of Rs. 50,78,231/ - towards the costs of 267 generator sets and Rs. 22,568 / - being the refund of freight charges, in all Rs. 51,00,799 / - together with interest at the rate of 1% per annum from 1st of April, 1993 till realisation. The complainant is also granted costs of Rs. 2,000 / - against the opposite parties. Complaint allowed.