K.SATHYANARAYANA RAO vs JAI CHAND BAID

THE 1st opposite party in COP No. 65/99 on the file of the District Consumer Disputes Redressal Forum, Chennai (North) is the appellant herein. THE case of the complainant was as follows: THE complainant engaged the services of the 1st and the 3rd opposite parties for transporting a consignment consisting of snuff from Chennai to Calcutta. THE 3rd opposite party being the supplier of lorries for transport work on commission basis, fixed the lorry belonging to the 1st opposite party for the said transport work. THE complainant also paid a sum of Rs. 11,500 as advance towards hire charges, the balance payable was Rs. 5,720 and this was payable after the safe delivery of the goods at Calcutta. THE 1st opposite party issued a hire challan on 2.1.1999. THE complainant came to know that the 1st opposite party had delivered 29 cartons less. THE value of the 29 cartons not delivered by the 1st opposite party was Rs. 74,392.50 p. THE shortage was on account of the gross negligence of the 1st opposite party. THE shortage had occurred only when the consignment was in the custody of the 1st opposite party. THE complainant caused a notice to be issued to the opposite parties on 14.1.1999. THEre was no reply. THE complaint came to be filed in the circumstances stated above.

THE opposite parties filed a version disputing the various allegations and further stating that the complainant was not a consumer; that the complaint against the opposite party No. 3 was not maintainable as he was only a commission agent. THE 2nd opposite party being the driver and there being no consideration either directly or indirectly paid to the 2nd opposite party by the complainant, the complaint against him was not maintainable. After reaching Calcutta, the vehicle was kept at night at No. 5-A, Indian Mirror Street, Calcutta for unloading. THE consignment could not be unloaded in the night due to non-availability of labourers and security guards. THE 2nd opposite party was informed that it was not possible to do the unloading process and also informed to park the vehicle in front of the main gate of the complainant''s office. THE 2nd opposite party and the cleaner of the vehicle slept in the cabin of the vehicle. On 8.1.1999 at about 5 a.m. while the 2nd opposite party and the cleaner were sleeping, the security personnel knocked at the cabin and informed that the tarpaulin and the rope had been cut and some goods had been stolen. After the unloading process was over it was found that 29 cases of snuff were missing. THE 2nd opposite party went to the Police Station on 9.1.1999 and submitted a report in writing. But no action was taken. In view of the illegal detention of the vehicle by the complainant, they were forced to sustain loss of Rs. 7,000 towards the cost of tarpaulin and a sum of Rs. 18,000 towards the cost of rope. THEy also spent Rs. 6,000 for releasing their vehicle from the illegal custody of the complainant. THE alleged shortage of consignment had been noticed at Calcutta. THE present complaint was, therefore, liable to be dismissed. The District Forum framed the necessary points for determination and on the basis of the materials on record, directed the 1st and the 2nd opposite parties to pay Rs. 74,392.50 p with interest at 12% p.a. from 2.1.1999 till realiztion. It is as against that the 1st opposite party has preferred this appeal.

The learned Counsel for the appellant/1st opposite party submitted that the theft took place in front of the complainant''s office and that the 1st and the 2nd opposite parties could not be held responsible for the theft; that the District Forum ought to have found that the employees of the complainant had stolen the consignment; that the criminal case was pending and till any finding was given by the Criminal Court the present complaint was not maintainable; that in any event, it was an act of God and the 1st and the 2nd opposite parties ought not to have been held liable. Further, the non-availability of workmen in the consignee''s place was the main reason for the theft having taken place.

IT is now settled law that it is for the opposite party carrier to establish the absence of negligence for transporting goods from one place to another. IT has been held in several decisions that the liability of the carrier is that of an insurer and that it is the duty of the carrier to deliver the goods safely, undamaged and without any loss. In Roadwings International v. Hindustan Copper Ltd. and Another, II (1998) CPJ 37 (NC), it has been held that Section 9 of the Carriers Act relieves the plaintiff/complainant from the burden of showing that the loss or damage or non-delivery was owing to any negligence or criminal act of the carrier, his servants or agents. The burden of proving the absence of the negligence is on the carrier. This is so because the carrier is in the position of an insurer. IT is seen that the theft had taken place before the consignment was delivered to the consignee. Till the consignment was delivered to the consignee the responsibility was entirely that of the carrier. In the present case, the theft had taken place before the consignment was delivered to the consignee. Having regard to the established legal position, the order of the District Forum directing the opposite parties 1 and 2 to pay the amounts to the complainant in our view is correct and no interference is called for. The appeal fails and the same is dismissed. Appeal dismissed. -----------