GOUTAM DEBNATH vs BIBHAS RANJAN BHATTACHARJEE

Both the fora below have given the concurrent findings by partly allowing the complaint filed by Sh. Bibhas Ranjan Bhattacharjee against Transport Carrier- Sri Goutam Debnath, Proprietor of Home Packers and Moovers-OP. After his retirement, the complainant who was working as Associate Professor of Ishwar Chandra Vidyasagar College, Belonia decided to move to his residence from the State of Tripura to his house situated at Kolkata. OP was engaged for transporting of all his household goods from Belonia to Kolkata. List of articles were prepared and the complainant had to pay charges in the sum of Rs.52,576/- . The goods of the complainant consisted of 38 large packets. The goods were to reach Kolkata within 10-12 days. The goods were handed over to the OP on 06.04.2013. On 04.06.2013, the complainant sent a letter to the OP enquiring about the reason for delay in delivering the goods.

On 07.07.2013, the OP informed the complainant that the truck was hijacked from Guwahati, Assam and the case was registered with Baishisthapur Police Station. The goods did not reach the destination. The complainant sent a legal notice on 04.11.2013. In response to that, the OP made an attempt to avoid his liability by stating that since the complainant had not insured the goods at the time of booking, therefore, he was not responsible.

The District Forum allowed the complaint partly and granted Rs.1,69,110/- towards loss of consignment, Rs.52,576/- being the transportation charges, Rs.5,000/- for harassment/mental agony and Rs.1,000/- as litigation costs. Both the parties filed two separate appeals against this order. The State Commission confirmed the order rendered by the District Forum but dismissed the appeal for enhancement of the amount filed by the complainant.

We have heard the counsel for the petitioner at the time of admission of this case. She has invited our attention towards the various provisions of the Carriage by Road Act, 2007. She referred to Sections 8, 10 & 17. She vehemently argued that the OP cannot be saddled with any compensation or costs. Section 17 of the Act runs as follows:- "17. General responsibility of common carrier- Save as otherwise provided in this Act, a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage, arising from any cause except the following, namely:-

a. act of God;

b. act of war or public enemy;

c. riots and civil commotion;

d. arrest, restraint or seizure under legal process;

(e) order or restriction or prohibition imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorized by it in this behalf;

Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery of the consignment if the common carrier could have been avoided such loss, destruction, damage or deterioration or non-delivery had the common carrier exercised due diligence care in the carriage of the consignment."

We are of the considered view that the case of the petitioner is not covered within any of these provisions. Counsel for the petitioner has also invited our attention towards FIR. The FIR mentions that the loaded truck was stolen by some miscreants. Counsel for the petitioner has also invited our attention towards a document with the heading "National Socialist Council of Nagaland". The relevant paragraph runs as follows:- "The Nationalist Socialist Council of Nagaland (NSCN) is a Naga nationalist militant group operating in Northeast India The main aim of the organization is to establish a sovereign state, ''Nagalim unifying all the areas inhabited by the Naga people in Northeast India and Burma."

However, there is not even an iota of evidence to depict that the above said truck was robbed by Naga nationalist militant group. There is no evidence on the record which may go to show that the OP had made suggestion to the complainant that he should get his goods insured. The OP should not have budge the truck even an inch forward, if it was not furnished with Insurance

Policy. The fault, if any, lies at the doors of the Opposite Party. Moreover, the State Commission in its well written judgment has referred to the celebrated authority of Hon''ble Supreme Court reported in Patel Roadways Ltd. Appellant V. Birla Yamaha Ltd., Rspondent AIR 2000 Supreme Court 1461, wherein it was held that liability of a common carrier under the Carriers Act, 1865 is that of an insurer and 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 or loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. The complainant is not to prove the negligence on the part of the OP. It is inherent/inbuilt in the loss of goods themselves.

Now, we turn to the quantum of amount. The complainant has claimed Rs.5,07,330/- in his complaint. Counsel for the OP strenuously argued that the complainant has failed to produce the bills. She also stated that in the list furnished by him, he has not written any amount for commercial article. The declaration given by him is conspicuously silent about the price of the goods.

We are unable to locate any substance in these arguments. It must be borne in mind that at the relevant time, it is the transporter, who calls the shots. Generally, the customers are made to sign the document. It is surprising to note that for about 38 packets, the OP could not write their value. It reveals negligence, inaction and passivity on his part and a lame excuse for avoiding the liability. It is difficult to fathom how one can produce evidence of price of apparels. During the arguments we asked the counsel for the petitioner, how many dresses she has got? She replied, many. We asked, what is their price? Where are their bills? She could not answer. The order passed by both the Fora below are just, reasonable and legally tenable. The District Forum had its heart in right place while allowing the one-third of the demand made by the complainant.

The petitioner/OP has made a vain attempt to tilt at windmills. The Revision Petition is, therefore, dismissed. No costs.