B.L.SHARMA vs PRIVATE LIMITED DELHI ASSAM ROADWAYS CORPORATION

THE complainant, a Lieutenant Commander in Indian Navy was transferred from Bombay to Visakhapatnam in May, 1992. He hired the opposite party, a public carrier to transport his household articles from Bombay to Visakhapatnam on 20.5.1992. THE complainant paid the transport charges of Rs. 6,000/- and obtained a receipt after entrusting 38 packages for transport in their transport vehicle by road. Though the opposite party promised to deliver the articles at destination in about two days time, they did not reach Visakhapatnam till 27.5.1992. THE complainant spent anxious moments as to what has happened to the goods in transit. He also contacted local office at Visakhapatnam but they too did not help in ascertaining where the goods vehicle was held up. However on 27.5.1992 a lorry bearing No. MP 23/B-0739 has reached Visakhapatnam and while unloading the articles the complainant found that out of 38 packages 34 packages were received and two big suit-cases packed in gunny bags were missing and two bags were in open and empty condition with marks of cuts with a knife. THE complainant, therefore, took statements from the driver and the cleaner. He also contacted the opposite party office at Bombay and the clerk/employee informed the complainant that they will pursue the matter with the Manager of the opposite party. But there was no proper response from them. THErefore, the complainant gave a complaint before the Station House Officer, V Town Police Station, Visakhapatnam on 4.6.1992. Even then the missing articles were neither restored nor their value paid to him. Hence he filed the complaint claiming a sum of Rs. 1,20,680/- by way of compensation together with a sum of Rs. 10,000/- as damages for mental agony and trouble suffered by him.

IN the counter filed by the opposite party it is admitted that the complainant hired the services of their Transport Company and transported 38 packages but without disclosing the identity of the articles or their value thereof. As per the conditions of the consignment note goods are transported at owner''s risk from Bombay to Visakhapatnam on 20.5.1992. The complainant has not furnished the details of the articles or the value thereof to the opposite party. The contention of the complainant that the opposite party promised to deliver the goods in a couple of days is baseless as the minimum period of journey is about 5 days between Bombay and Visakhapatnam. IN fact the nominee of the complainant also accompanied the vehicle. If really all the articles are not delivered the complainant could have either contacted the local office of the opposite party Company immediately or seize the vehicle for the said deficiency. The signatures of the driver and cleaner are forged and even assuming without admitting they have really signed that could have been done under coercion or by misrepresenting the facts. Therefore, the opposite party has no responsibility to answer such a tall claim. The complainant examined himself as P.W. 1 and marked Exs. A-1 to A-9 while the opposite party examined their Manager as R.W. 1. No documents were marked on the side of the opposite party.

The points that arise for consideration are : (1) To what extent the opposite party is responsible for delivering the goods at the destination in the same condition in which they were transported in the face of Condition No. 1 incorporated on the reverse of the consignment note ? (2) Whether the complainant has established the loss of goods and their value as claimed in the comp-laint ? and (3) To what relief ?

IT is admitted that the complainant has hired the services of the opposite party to carry by road his household articles from Bombay to Visakhapatnam on 20.5.1992. He also paid the freight charges of Rs. 6,000/- and obtained Ex. A-1 consignment note which shows the number of packages as 38. No doubt there is a condition on the reverse of the same consignment note that goods are accepted for transport entirely at the risk of the owner. Condition No. 1 of consignment note reads as follows : "Unless otherwise agreed, all goods are accepted for carriage by Road and Rail entirely at the risk, and the responsibility of the owner and/or Consignee(s) and/or Consignor(s) thereof."

Now it has to be examined whether such a condition is valid.

OPPOSITE party is a common carrier. Under Section 8 of the Carriers Act, the common carrier is bound to make good where any loss or damage arises due to negligence of the carrier in respect of the goods entrusted to it. Further Section 9 of the Act makes it clear that negligence has to be presumed on the part of the carrier until the contrary is proved by satisfactory evidence and it is not for the Consignor to prove that such loss, damage or non-delivery was owing to negligence of the carrier. For the reasons recorded in the following paras we do not find any difficulty to hold that the opposite party failed to comply with its obligations under law and sought to take shelter under Condition No. 1 of the consignment note, we have to see how far the said defence is tenable. Contracting out of Statute is impermissible and hence the said stipulation cannot defeat the Statute. We may accordingly observe that the said condition is illegal in the teeth of Sections 8 and 9 of the Carriers Act. Apart from that it amounts to unfair trade practice. We have, therefore, no hesitation to issue directions under Clause (f) of Section 14 of the C.P. Act, 1986 to the opposite party to withdraw the said condition within 4 weeks from the date of receipt of this order else he shall be liable for appropriate action under the Act. The opposite party contends that although 38 packages were booked the complainant has neither disclosed the articles kept inside the packages nor the value thereof. Therefore, the claim of the complainant is untenable. No doubt the consignment note does not disclose the description of the articles contained in the packages or their value. But the fact remains that only 34 packages out of 38 were delivered at the place of destination by the opposite party. Ex. A-7 is the receipt issued by the complainant on 27.5.1992 when the goods are delivered to the complainant in which it is clearly mentioned that only 34 packages were received and two packages in empty condition and two full size suit-cases are missing. Both the driver and the cleaner have signed in token of raising the said dispute by the complainant. Ex. A-7(a) is the signature of the driver. Ex. A-9 is the statement made by the cleaner Mr. Raj Kumar Prasad which is to the same effect. He made a categorical statement that along with the goods booked by the complainant a machine was also loaded at Bombay. On reaching Visakhapatnam on 26.5.1992 articles were unloaded in the transport office at Gajuwaka and then they went to unload the machine. Again after unloading the machine at Gajuwaka they loaded the house-hold articles of the complainant on 27.5.1992 and arrived at the residence of the complainant to unload them. From this it is clear that the goods belonging to the complainant were kept in the transport office of the opposite party by unloading them on 26.5.1992 and again they were loaded on 27.5.1992. Therefore, at this time this pilferage must have happened. These statements cannot be disputed. In fact a feeble attempt is made by the opposite party to disown the signatures of their driver and cleaner stating that they are forged. But again it is stated even assuming that they are true they must be obtained by exercising undue coercion or misrepresenting the facts for which there is no proof. The complainant waited till 27.5.1992 at Visakhapatnam to receive the goods. As there was short delivery he contacted the local office where he could only get at the clerk/employee who promised that he would pursue the matter with the Manager. But nothing has happened. Therefore, he gave a complaint before the Station House Officer, V Town P.S. Visakhapatnam, a copy of which is marked as Ex. A-5. All the facts right from the day of booking the goods for transport till 4.6.1992 on which date the complaint was given were described. The fact that two empty boxes were delivered in open condition and two suit-cases were missing were narrated. Ex. A-3 is the acknowledgement of filing the complaint on 4.6.1992. Therefore, the complainant by his evidence as P.W. 1 as well as through overwhelming documentary evidence established that four packages were short delivered. The complainant has filed the list of articles which are packed in those four bags and their value along with the complaint. The opposite party could not show or dispute about the packing of their articles in those packages or their value. In the absence of any evidence on the part of the opposite party eroding the evidence of the complainant on the value as estimated by the complainant, we are of the opinion that the number of articles or their value as disclosed in the list appended to the complaint cannot be doubted. Under these circumstances we are of the opinion that the complainant has established deficiency in service on the part of the opposite party who failed to deliver all the goods agreed to be transported but failed to transport all of them. Therefore, the complaint has to be allowed accepting the value as estimated by the complainant in the absence of any other value suggested by the opposite party. In the result the complaint is allowed directing the opposite party to pay a sum of Rs. 1,20,680/- with interest at 12% per annum from 27.5.1992 till the date of payment. The claim of Rs. 10,000/- by way of damages for anxiety and mental agony also cannot be said to be unreasonable. This sum also shall be paid however without interest. Accordingly the complaint is allowed with costs of Rs. 5,000/-. Time for payment 6 weeks. Complaint allowed with costs.