DORAISAMY vs ARUNACHALAM

THE 2nd Opposite Party in O.P. No. 680/1994 on the file of the District Consumer Disputes Redressal Forum, Coimbatore, is the appellant herein. THE necessary facts for the disposal of the appeal are as follows : THE complainant sent a consignment of cloth through the lorry owned by the 2nd Opposite Party and driven by the 1st Opposite Party. THE entire consignment was not delivered at the destination. THEre was shortage of goods worth Rs. 76,335. THE complaint came to be filed for the said amount and compensation.

THE 1st Opposite Party driver remained absent and was set ex parte. The 2nd Opposite Party appellant contended that here was a theft at 2.30 a.m. on 9.10.1993 when the lorry was parked for checking; that there was no deficiency in service on the part of the 2nd Opposite Party in not delivering the consignment; and that the Insurance Company was a necessary party as also the consignor.

The District Forum allowed the complaint and passed an order directing payment of Rs.76,335 towards the value of the goods stolen together with Rs. 5,000 as compensation and Rs. 500 as costs. It is as against that the present appeal has been filed.

THE learned Counsel for the appellant contended that there was absolutely no negligence on the part of the appellant/2nd Opposite Party; that the goods had been stolen when the lorry was parked for checking purposes; that the 2nd Opposite Party could not have anticipated the theft and, therefore, the District Forum was in error in fastening liability on him. Further, the complainant ought to have insured the goods which he did not do. He could not, therefore, pass or shift the burden to the 2nd Opposite Party. Further, the complainant was not a consumer. THE learned Counsel further submitted that under Section 3 of the Carriers Act, the consignor had to declare the value and also the nature of the goods consigned. Though the consignor had described the nature of the goods he did not describe the value correctly and had given the value at Rs. 10,590 only for the 164 articles consigned. Hence, under Section 3 of the Carriers Act, the 2nd Opposite Party was not liable to pay the value of the goods lost. We have perused the materials on record and have gone through the order of the District Forum. In our view, no exception could be taken to the decision reached by the District Forum. The District Forum has analyzed the case threadbare and ultimately found that the Opposite Parties were answerable for the theft and that they were liable to make good the loss to the complainant. The 2nd Opposite Party was the owner of the vehicle. His employee was the 1st Opposite Party driver. The theft had taken place on 9.10.1993 at 2.30 a.m. The 1st opposite party ought to have taken proper care, and ensured that such thefts did not take place. He had not done that and the goods were stolen. He was answerable as also his employer the 2nd Opposite Party, though vicariously. As regards the submission that the complainant ought to have insured the goods, it does not lie in the mouth of the Opposite Parties to take such a stand. It is not open to them to contend that because insurance had not been taken they were not liable to answer the claim.

THE next point raised is that the consignor had not declared the value of the goods correctly. It is seen from Ex. A-5 series and Ex. A12 series which are Way Bills issued to the complainant''s customers who had then taken delivery of the goods after the letter regarding short delivery given to them. THE value of the goods in shortage is found to be Rs. 76,335. THE 1st opposite party also had made endorsement regarding the shortage, in the Way Bills in question. Though the theft had taken place on 9.10.1993, the complaint was taken on file and registered with Avinashi Police Station in Crime No. 880/93 only on 19.10.1993 on the report given by the 1st Opposite Party. It is well settled that it is the responsibility of the carrier to prove absence of negligence on his part. This has not been done by the Opposite Parties in the present case. We may also note that the Opposite Parties had not disputed the value of the goods stolen. We have little hesitation in confirming the order of the District Forum. Consequently, the appeal fails and the same is dismissed. However, there will be no order as to costs. Appeal dismissed.