GODFREY PHILLIPS INDIA LTD. vs SOUTHERN HIGHWAY CARRIERS

THE facts alleged in the complaint are that the Complainant Company is a manufacturer of Cigarettes. The Opposite Party No. 1 is a Transport Company providing the services of transportation/ carriage of goods etc. by surface/road after taking charges for the said services. The Complainant company entered into a transport agreement dated 15th July, 1991 with Opposite Party No. 1 for the purpose of carrying and transporting the manufactured Cigarettes from the place of manufacture to various places of its destination. Under the said agreement the Complainant Company had entrusted a consignment of 450 Cartons of Red and While Flake Filter Cigarette 10s each containing 12,000 Cigarettes total worth Rs. 24,34,590/- to be transported from Hyderabad to U.P. Border adjoining Delhi to the Opposite Party No. 1 on 13th September, 1991. The aforesaid consignment was stipulated to reach its destination within 5 days. However, the aforesaid consignment was not delivered by Opposite Party No. 1 within the stipulated period or after the expiry of the said period. Under the agreement referred to above it was stipulated and agreed upon between the parties that unless the said goods have been delivered to the Complainant Company in safe and sound condition, it is the Transport Company which shall be solely responsible for any such loss or damage, total or partial to the said goods. When the consignment did not reach its destination, the Complainant made enquiries from Opposite Party No. 1 who gave evasive reply. Subsequently, the Complain-ant Company received an intimation that the truck of the Opposite Party No. 1 carrying the said consignment had met with an accident on 25th/26th September, 1991 and the entire consignment was destroyed since the truck caught fire. On previous occasions also Opposite Party No. 1 while transporting/carrying goods manufactured by the Complainant Company had reported similar kind of accidents in which the goods of the Complainant Company were completely lost/damaged or partially damaged or lost in similar situations as aforesaid. The case was handed over to the Crime Branch CID, Hyderabad. During the course of the interrogation the concerned Driver and the Cleaner had confessed that on the way they had unloaded some cartons from the aforesaid truck carrying the goods of the Complainant Company upon instructions from the owner of the truck. On receiving the aforesaid information that the Opposite Party No. 1 in conspiracy and collusion with other persons had intentionally and deliberately caused fire to the truck after removing the goods of the Complainant Company. The Complainant Company filed a claim with the Opposite Party No. 1 for an amount of Rs. 24,34,590/- due to the losses incurred by it on account of alleged fire. The Opposite Party No. 1 repudiated the claim of the Complainant Company by relying upon the false FIR lodged by its Driver and Cleaner and further advised the Complainant Company to file claim with the Insurance Company with which the Complainant Company had insured the goods i.e. Opposite Party No. 2. The Complainant Company thereupon filed a claim with the Opposite Party No. 2 which had also rejected the claim of the Complainant Company on suspected foul play in the aforestated circumstances. Inspite of letters, notices and reminders sent by the Complainant Company to the Opposite Party No. 1 the latter has deliberately failed to either deliver the consignment or to pay the cost of the consignment amounting to Rs. 24,34,590/- to the Complainant Company. Hence this complaint for issuing direction to Opposite Party No. 1 to pay Rs. 24,34,590/- with interest at 24% per annum till the date of payment or in the alternative to direct the Opposite Parties Nos. 1 and 2 to compensate the Complainant Company by the above amount alongwith interest at the above rate jointly and severally.

THE Opposite Party No. 1 filed the counter. The execution of the agreement with the Complainant Company was admitted. It is further admitted that Opposite Party No. 1 was providing transportation/carriage services by road after taking service charges. It was also not disputed that the consignment of 450 cartons of cigarettes was handed over for transportation from Hyderabad to U.P. Border. However, it was pleaded that the truck did not belong to Opposite Party No. 1 and it belong to one Mr. Dinesh Khanna. The Opposite Party No. 1 had entrusted the consignment to Dinesh Khanna under L.R. No. 4968 dated 23rd September, 1991. Aforesaid Khanna undertook to transport the consignment by his Lorry bearing registration No. APIOT1117. He was paid advance freight charges of Rs. 6,000/- and freight was fixed at Rs. 9,800/- vide challan No. 438 dated 23rd September, 1991 to transport the above consignment from the premises of the Complainant Company to U.P. Border. It was agreed upon between the Complainant and the Opposite Party No. 1 that the goods would be sent after only full insurance. At the time of signing of the agreement, it was told that it was only a mere formality and the answering Opposite Party had made it clear that the goods would be carried only after full insurance coverage. It was the answering Opposite Party who took up the matter with the Police and got the First Information Report registered against the driver and the cleaner. It was after persistent and thorough investigation done by Opposite Party No. 1 against the aforesaid Dinesh Khanna owner of the vehicle that the case was registered and the statement of the Cleaner was recorded which indicated that owner of the truck had conspirated with his Driver and other persons who cheated the Company and that the Company can recover the amount from the actual owner of the truck who was the bailee of the consignment. Opposite Party No. 2 i.e. National Insurance Co. Ltd. with whom the goods were insured has not filed any counter.

WE have heard the parties and gone through the record. The facts of the case are not in dispute. The Complainant Company entrusted the consignment of 450 cartons of Cigarettes worth Rs. 24,34,590/- to be transported from Hyderabad to U.P. Border through Opposite Party No. 1 i.e. Transporter under the agreement executed between the parties. The agreement is not disputed by Opposite Party No. 1 nor the entrustment of the consignment or its value is disputed.

OTHERWISE also the factum of entrustment as well as of the value is established by the document filed by the Opposite Party No. 1 itself. This is a letter written by it to Shri Dinesh Khanna to whom the truck belonged in which the goods were transported and which is said to have met with an accident. That letter is at page 62 of the paper book. In that letter Opposite Party No. 1 wrote to Shri Dinesh Khanna that it had entrusted the consignment of 450 cartons of cigarettes for transportation in the letter''s lorry bearing registration No. APIOT1117 under L.R. No. 4968 dated 13.9.1991. It is further mentioned in that letter, "thus you are liable to pay us or our principals M/s. Godfrey Phillips India Ltd., a sum of Rs. 24,34,519/- with expenses". (In the earlier part of the letter the value of the consignment is stated at Rs. 24,34,590/-. It appears that in the latter part of the letter there is a typographical mistake in the figure.) It is also not in dispute that the consignment was not delivered at the destination. Opposite Party No. 1 has filed a report of the Inspector of Police, AD Cell, CID, Hyderabad as well as a copy of the statement of the Cleaner of the truck recorded by the Judicial Magistrate. These documents clearly show that the truck did not meet with any accident and on the other hand after removal of the cartons of the cigarette at some other place it was intentionally set on fire. Thus the loss of the consignment is also not in dispute. The Complainant has also filed a copy of the agreement entered into between it and Opposite Party No. 1 who has been referred to as "transporter" in the agreement. Clause No. 1.3 of the said agreement reads as follows: "1.3 Responsibility for loss and damage etc. (a) Upon acceptance of the consignments) and issuance of receipt(s) thereof, as aforesaid, until the goods have been delivered to the consignee(s) in safe and sound condition, any loss or damage total and/or partial, whether by misadventure, pilferage, theft, short delivery, cross-delivery, rain, stores, negligent act of agent(s), servant(s) or employee(s) of the Transport Company, shall be to the account of the Transport Company and the cost of the same shall be recovered from the Transport Company''s Invoices or from the security deposit held by the Company, M/s. Godfrey Phillips India Ltd. (b) Upon acceptance of the consignments) and issue of Goods Receipt(s) thereof by the Transport Company or by any other Carrier(s) authorised on behalf of the Transport Company, the safety and safe custody of the goods will be the responsibility of the Transporter until the consignment/s has/have been duly delivered to the Consignee(s) and documents acknowledging receipt thereof is/are obtained from the consignee(s) stating that the consignment(s) has /have been received by the consignee(s) in good order and sound condition. ''Owner''s Risk''s Clause on G.R.'' s for this purpose will therefore, not be valid. (c) The company will not be responsible for any accident to any of the employee(s) and/or motor trucks of the Transport Company or to any third party during the execution of this contract."

AS noticed earlier Opposite Party No. 1 does not dispute this agreement. Hence Opposite Party No. 1 is clearly liable for the loss of consignment and for the act of Dinesh Khanna as he was the authorised agent of the Opposite Party No. 1 and it was he who has committed the mischief in question. The safe custody and carriage of the goods was the responsibility of Opposite Party No.l.

THE Counsel for the Opposite Party No. 1 has not been able to advance any meaningful argument to show that the transporter i.e. Opposite Party No. 1 in the present case is not liable for the loss of the consignment. As far as the Complainant is concerned it has entrusted the consignment to Opposite Party No. 1 who on its own responsibility had authorised Dinesh Khanna to transport the goods. The Complainant has no privity of contract with Dinesh Khanna. So far as the Complainant Company is concerned Opposite Party No. 1 is liable to make good the loss occasioned on account of mischief of the latter''s agent. Hence we allow the complaint and direct the Opposite Party No. 1 to pay Rs. 24,34,590/- to the Complainant Company within three months from the date of receipt of a copy of this order with interest at the rate of 15% from 23.9.1991 till date of payment. The Complainant will also be entitled to recover the cost of present proceedings from Opposite Party No. 1 which we assess at Rs. 5,000/-. No relief is granted against the Opposite Party No. 2.