CITY TRANSPORT SERVICES vs SRIGANESH TRANSPORT CO.

NECESSARY and requisite facts as culled out from the materials placed on record, may in brevity, be related in order to understand the crux of the question arising for consideration in this action.

THE complainant is one M/s. Sri Ganesh Transport Co., located at 37, Sowrimuthu Street Mannady, Chennai. THE opposite party is one M/s. City Transport Services, 30, Linghy Chetty Street, Chennai. The opposite party M/s. City Transport Services, is the sister concern of M/s. South Cargo Movers Private Limited. The management of both the companies, it is said is the same. On 15.5.1996, the complainant, it is said, engaged the services of the opposite party for consideration to carry by road 186 bales of textile goods from Mumbai to Chennai to be delivered at the goods yard of the complainant. It so happened there were short delivery of 6 bales of textiles valued at Rs. 1,04,213/-. This aspect of the matter was intimated to the opposite party and the opposite party, in turn, deputed one of their staff members, namely Sudhakar for verification of the short delivery stated to have been effected. After verification, the opposite party undertook to make good the loss but they however failed to do so. The act of the opposite party in effecting short delivery of goods, the complainant would say, would tantamount to deficiency in service on their part.

Alleging the factors as above, the complainant 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 complaint is bad for misjoinder of M/s. South Cargo Movers Pvt. Ltd. THEre is no privity of contract between the complainant and the opposite party and the privity of contract is only between the complainant and M/s. South Cargo Movers Pvt. Ltd. Consequently, the complainant is not a consumer qua the opposite party. THE complaint, as such, is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, ultimately recorded a finding that there was deficiency in service on the part of the opposite party and consequently directed the opposite party to pay a sum of Rs. 1,04,213/- towards the value of the goods short delivered with interest @ 12% p.a. from the date of complaint till payment with cost of Rs. 1,000/- within 2 months from the date of its order failing which the complainant would be at liberty to invoke Section 27 of the Consumer Protection Act, 1986.

AGGRIEVED by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice, namely learned Counsel Mr. N.L. Raja and K.P. Kiran Rao. On service of process, the respondent/ complainant entered appearance through a Counsel of his choice, namely Mr. A. Abdul Rahim. We heard the arguments of learned Cdunsel Ms. R. Veena, representing learned Counsel Mr. N.L. Raja and K.P. Kiran Rao, appearing for the appellant and learned Counsel Mr. A. Abdul Rahim, representing the respondent/complainant.

THE vociferous contention as put forward by learned Counsel appearing for the appellant that the complainant can by no stretch of imagination be construed as a consumer qua the opposite parties cannot at all be acceded to, on the facts and in the circumstances of the case. Even in the version filed by the opposite party in paragraph 8, specific averments have been incorporated that both the concerns, namely South Cargo Movers Pvt. Ltd. and M/s. City Transport Services are sister concerns and the management of both the concerns is one and the same. This apart, there is ample proof in the shape of document Ex. A6 payment order pointing out the engagement of the services of the opposite party for carrying the goods from Mumbai to Madras. This apart, when short delivery was noticed, the opposite party was informed as respects the same and the opposite party in turn also deputed one of its staff members Mr. Sudakaran to verify and report the same to them. Such being the case, to say, as has been said by learned Counsel appearing for the appellant that the complainant cannot at all be construed as a consumer qua the opposite party cannot at all be acceded to. Once the complainant is construed as a consumer qua the opposite party, it goes without saying that if there is any short delivery of goods by the opposite party for whatever be the reason, it will tantamount to deficiency in service on their part on the face of the salient provisions adumbrated under Section 9 of the Carriers Act, 1865. Pertinent it is to refer to at this juncture, the decision emerging from the Apex Court of this country in the case of Patel Roadways Limited v. Birla Yamaha Limited, I (2000) CPJ 42 (SC)=III (2000) SLT 554=2000 CTJ 241 (Supreme Court) (CP). THE view of the Apex Court are getting expressed in paragraph 46 at Page 249 of the said decision and it reads as under : "46. 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 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 crystallised 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 Mr. 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 observations of the Apex Court as extracted above is applicable in all fours to the facts of the instant case.

THERE is no dispute at all that the value of the goods short delivered is Rs. 1,04,213/-. It is this amount which the Forum below directed the opposite party to pay to the complainant with interest thereon @ 12% p.a. from the date of complaint which event happened on 27.9.1996 as evidenced by the seal affixed on the complaint till realisation which we feel, on the facts and in the circumstances of the case, cannot at all be stated to be not sustainable in law. The Forum below also awarded cost in a sum of Rs. 1,000/- which we feel is rather reasonable, on the facts and in the circumstances of the case, not calling for interference. In fine, the appeal fails and the same is dismissed. we however make no order as to costs on the facts and in the circumstances of the case. Appeal dismissed.