JAI BHARAT TRANSPORT vs INDERLAL AGARWAL

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 3.10.2001 in Complaint No. 634/1996 by District Consumer Disputes Redressal Forum, Raipur, (hereinafter called ''District Forum'' for short) directing the appellant to pay to the complainant/appellant Rs. 1,17,196/- with interest at the rate of 12% per annum thereon.

THE averments in the complaint were that the complainant/appellant has a ''Daal'' Industry. THE complainant/respondent had booked a consignment of 47 bags of Gram Daal weighing 45 quintals, 59 kgs. worth Rs. 63,871.59 being delivered to the consignee M/s. Indermal Himtaji at Vishakhapatnam (A.P.). Another consignment of 97 bags of Gram Daal weighing 44 quintals 62 kgs. worth Rs. 62,572.62 was also booked by complainant/respondent with the appellant transporter on 20.8.1996 for being delivered to Jain & Sons, Vishakhapatnam. THE appellant/transporter acknowledged having received the consignments as above and handed over the receipt thereof. Both the said consignments were despatched by the appellant/transporter by truck No. A.P.-31-T 2597 under intimation to the complainant. However, the consignments as above, got wet on the way, therefore, the consignee did not accept the Gram Daal hence the same was returned by the opposite party appellant to the complainant/respondent on 26.8.1996. As the said Daal was rendered totally worthless, therefore, complainant/respondent initially refused to accept the same. However, since the appellant/transporter threatened that he would throw away the said Daal, therefore, complainant had to accept the same. THE complainant further averred that he sent notice dated 28.8.1996 in the above regard and requested appellant transporter to take back the damaged Daal otherwise the complainant will have to sell the same in the market. It was also averred by the complainant that the said damaged Dal was sold by him for Rs. 9,187.55/-. According to the averments of the complainant he had handed over the consignment of Daal worth Rs. 1,26,384.21 to the appellant/transporter, which was damaged as above due to the negligence of appellant/transporter and, therefore, the complainant was put to loss of Rs. 1,17,196.66 after adjustment of Rs. 9187.55 which were received by the complainant on selling the said damaged Daal. The complainant, therefore, prayed in his complaint that the above amount be directed to be paid by the transporter/appellant to him with interest.

The complaint was resisted by opposite party appellant. According to the appellant he was not the transporter of the consignment and that it was not received by him. It was averred by the opposite party that he is a Commission Agent and only arranged the vehicle in that capacity for the complainant''s consignment to be transported to Vishakhapatnam. He, therefore, denied that he was liable to repay the cost of damaged consignment to the complainant/respondent.

THE District Forum in the impugned order held that the appellant had received the consignment from the complainant for being transported to Vishakhapatnam. Since he has failed to do so he has committed deficiency in service. THE complaint was accordingly allowed, and the appellant was directed to pay the net value of the consignment with interest as has been mentioned above. The learned Counsel for the parties were heard and the record was perused. The main contentions of the learned Counsel for the appellant is that he is not the transporter and has acted only as a Commission Agent and the transporter was somebody else who is not impleaded in the complaint. It was submitted that the appellant could not be, therefore, made liable to pay compensation due to damage of consignment. The learned Counsel for the appellant also submitted that he was entitled to benefit of provision of Section 230 of the Contract Act. It was submitted that compensation could not have been granted to the respondent.

THE learned Counsel for the complainant/respondent, however, supported the impugned order. It was submitted that the appellant is a transporter and the complainant handed over the consignment of Gram Daal to the appellant in that capacity. It was submitted that as the common carrier or transporter it was the duty of the appellant to take care of the consignment and to safely transport and deliver the same to the consignee. Since the appellant has failed to do so, he was liable to pay the cost of the damaged consignment, as has been rightly and justifiably held by the District Forum. The main question that arises for consideration is: as to whether the appellant is the transporter or acted as a Commission Agent as has been urged on his behalf. It may be noticed that the complainant specifically averred that he had handed over the consignment of Gram Daal to the transporter appellant. He also supported his averments as above in his written version by his affidavit. The appellant has avoided specific denial of averments as above, by stating that appellant did not transport the consignment and that it was never handed over to him. He further averred that he had acted as Commission Agent in arranging truck No. A.P. -31-T-2597 for transportation of the complainant''s consignment. It is pertinent to note in the above context, that in the written version the appellant has nowhere stated as to who was the person, with whom he arranged the said truck A.P. -31-T-2597. Instead in the written version, only truck No. has been given with the evasive averments, that the appellant canvassed and arranged the above truck for purpose of transportation of complainant''s consignment. Certainly the appellant while arranging the truck for transportation of the consignment, must have contracted some person. However, the opposite party/appellant has not mentioned the name of the person, with whom he made such contact. Again challans for the transportation of the consignment has been issued by the appellant Jai Bharat transport as would be clear from the copies of the said challans, placed in the record of the District Forum. It would appear from the said challan that the goods were to be transported subject to the terms and conditions printed overleaf. The said challans are signed on behalf of appellant Jai Bharat Transport and it is clear that the appellant had undertaken to transport the consignment of the complainant consignor M/s. Bansal Daal Mill from Rajpur in Vishakhapatnam. It would thus be clear from the said challans that the consignment was handed over by complainant to the appellant/transporter M/s. Jai Bharat Transport.

IN the above circumstances, there appears to be doubt that the complainant had handed over the consignment for transportation to the appellant M/s. Jai Bharat for being taken from Rajpur to Vishakhapatnam. If that be so, the appellant might have arranged the truck of some other person for transporting the vehicle, but this would not prejudice the rights of the complainant/respondent as against the appellant. The appellant was under an obligation to transport and deliver the goods safely to the consignee. He, however, failed to do so. He is, therefore, liable to make good the loss caused to the complainant due to damage of consignment.

THE learned Counsel for the appellant submitted that the appellant is entitled to benefit of Section 230 of contract and has in this contest relied upon the decision of Supreme Court in Marine Container Services South Pvt. Ltd. v. Go Go Garments, AIR 1999 SC 80. It may be noticed that Section 230 of Indian Contract Act reads: "In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal nor is he personally bound by them. Such a contract shall be presumed to exist in the following cases- (1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2) Where the agent does not disclose the name of his principal; (3) Where the principal, though, disclosed, cannot be sued."

Thus it would appear from the above language of Section 230 of the Contract Act that unless there is a contract between the parties to that effect, an agent cannot personally enforce contracts entered into by him on behalf of the principal nor he is personally bound by them. However, as already noticed, in the instant case there is no material to hold that the appellant was acting as agent of some other principal. THErefore, aid of the said provision of Section 230 of the Contract Act cannot be successfully sought by the appellant. In our opinion, the decision in Marine Container Services South Pvt. Ltd. v. Go Go Garments (supra), relied upon by the learned Counsel for appellant does not in any way assist to the appellant''s case. It appears that the principal that has been laid down in the said cases is that provisions of the Contract Act would be applicable in the complaints filed under the Consumer Protection Act, and that it would be competent for a party thereto to invoke he provisions of the Section 230 of the Contract Act. However, the ratio as above would not be of any avail to the appellant as he was acting as agent of some principal.

It may be noticed that in Nath Bros Exim International Ltd. v. Best Roadways Ltd., I (2000) CPJ 25 (SC). It has been laid down that liability of the carrier to who the goods are entrusted for carrying is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his negligence or criminal act or that of his agents or servants. Again, the Supreme Court in Patel Roadways Ltd. v. Birla Yamaha Ltd., I (2000) CPJ 42 (SC), has laid down that the liability of the common carrier under the Carriers Act is that of an insurer and in a case of claim of damage for loss to or deterioration of goods intrusted to a carrier, it is not necessary for the plaintiff to establish negligence.

IN the instant case, it is clear that the appellant transporter was liable as he has failed to carry and deliver the goods safely as the goods were undisputably got wet and were damaged and was thus rendered virtually worthless. IN the circumstances, non-delivery of goods to the consignee and the goods safely and in good condition show his negligence. Thus the appellant/transporter was guilty of deficiency in service. The findings as above of the District Forum are unimpeachable and are affirmed. There is no substance in this appeal. It is accordingly dismissed. The appellant shall bear its own cost and pay that of respondent which is quantified at Rs. 2,000/- (Rupees two thousand) only. Appeal dismissed.