Lucky Forwarding Agency vs Binder Devi

THE opposite parties have come up in appeal under Section 15 of the Consumer Protection Act, 1986 (for short the ''Act'') against the order dated 19.11.1996 passed in Complaint Case No. 98/ 1995 by the District Consumer Disputes Redressal Forum, Rewa (for short the ''District Forum'').

FACTS giving rise to this appeal are thus : the complainant, consignee-Mirchumal since deceased, booked a consignment for transporting 120 bags of sugar to be transported from Mehamudabad, District Sitapur (U.P.) in truck No. UGB 432 on 14.2.1995 to be delivered to the consignee/consignor at Rewa. The complainant paid Rs. 2,580/- as part payment towards the transportation and commission charges. The truck was arranged by the opposite party No. 1 at Mehmudabad wherein 120 bags were loaded. As an abandon caution one Dinesh an employee of the deceased, Mirchumal also travelled alongwith the said goods. At Rai Bareli the truck went out of order. Therefore, the driver of the truck Raj Kumar told Dinesh for arranging another truck. On this, he came to Rewa and contacted opposite parties for arranging another truck. The truck No. URU 5981 on 19.2.1995 for carrying goods to their destination was arranged. When Dinesh reached with the truck to unload sugar bags from truck No. UGB 432 and to load the said bags in truck No. URG 5981, the driver of the truck No. UGB 432 with the loaded goods was not found. Of this, a report was lodged. The complainant claimed the amount of 120 bags of sugar from opposite party No. 1 of which the opposite party No. 2 is the proprietor. Having failed to get the amount of the 120 bags of sugar so consigned to be delivered at Rewa, the complainant filed a complaint under Section 12 of the Act, which was resisted on various grounds. The District Forum after appreciation of material on record held that due to negligence of the opposite party No. 1, its employees and agents, the consignment was lost as the truck driver with the truck disappeared and did not deliver the goods loaded in the said truck. Therefore, ordered for payment of the value of the goods amounting to Rs. 1,41,000/- with interest thereon at the rate of 6% per annum from 19.6.1995 till payment and costs of Rs. 480/-.

Mr. Mohan Chouksey, learned Counsel for the appellant contended that the opposite party No. 1 was simply a commission agent who arranged the truck. The lorry receipt was issued at owner''s risk by the opposite party No. 1. Besides, it was the sole responsibility of the owner of the goods and the driver of the criminal act. The intricated and complicated questions of fact and law involved in the complaint could not have been adjudicated in summary jurisdiction by the District Forum. The proper remedy for the complainant was to approach the Civil Court of competent jurisdiction. The territorial jurisdiction of the District Forum to entertain the complaint was also challenged as the goods were lost in transit at Rai Bareli.

MR. Deepesh Joshi, learned Counsel for the legal representatives of the deceased complainant submitted that appeal is incompetent as six legal representatives of the deceased were substituted. The appellants have filed the appeal impleading only legal representatives Nos. 1, 2 and 3, while Nos. 4, 5 and 6 have not been impleaded. On territorial jurisdiction of the District Forum learned Counsel submitted that the contract was entered into at Rewa and the goods consigned were also to be delivered at Rewa, therefore, the District Forum at Rewa had the territorial jurisdiction. The owner''s risk has no effect as the truck driver with the goods loaded in the truck has disappeared with the truck. It was negligence and criminal act of the carrier, for that opposite party No. 1 cannot escape its liability in the absence of the special contract. He referred to Section 6 of the Carriers Act, 1865 and placed reliance on a recent decision of National Commission in Roadwings International v. Hindustan Copper Ltd., II (1998) CPJ 37 (NC). The complaint did not involve intricated questions of fact or law as the complainant has not alleged any fraud, cheating or any allegation of misappropriation of the goods. The opposite party has tried to make the case of fraud, cheating or misappropriation by the truck driver. Moreover, when the facts are admitted, the question of adjudication of intricated and complicated questions of law does not arise, reliance was placed on a decision of the National Commission in case of Dr. Motilal Jain & Ors. v. Murudhar Services Pvt. Ltd. & Another, I (1996) CPJ 242 (NC). The contention that Rewa District Forum has no territorial jurisdiction is devoid of any merit. Admittedly, the contract was entered into at Rewa. The goods consigned from Village Mehamudabad were to be delivered at Rewa, therefore, the complaint was rightly entertained by the District Forum. In the circumstances, the contention that the goods were loaded at Mehamudabad village and the truck driver disappeared with the goods loaded in the truck at Rai Bareli, therefore, the District Forum at Rewa had no territorial jurisdiction, cannot be accepted.

THE contention that the appellant No. 1 was merely a commission agent cannot be accepted. From the lorry receipt it is clearly borne out that the appellant No. 1 collected the amount of Rs. 2,580/- as part of the transportation and commission charges. As the goods carrier was not available, he arranged the goods vehicle at his own. In the circumstances, in fact the appellant No. 1 was not acting merely as a commission agent but as a transporter or carrier of the goods. It is well settled that the carrier''s position is that of a bailee. Therefore, if a bailee fails to perform his obligations, he would be liable, whether such failure is on account of negligence or for other reasons. Section 8 of the Carriers Act lays down that notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of Section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants. The absolute liability of carrier is subject to only two exceptions i.e. special contract under Section 6 which the carrier may choose to enter with the customer and the other is act of God, which is not the case here.

THE contention that the goods were consigned at the "owner''s risk", therefore, the opposite party No. 1 could not have been made liable. Suffice it to say that the term at the owner''s risk used in the goods, which are lying with the Company if such loss or damage was not caused by any negligence or misconduct on the part of the carrier. See, Northern India Goods Transport Co. (Pvt.) Ltd. v. M/s. Guru Hosiery Factory, Ludhiana, AIR 1964 Punjab 318.

THE National Commission in a recent decision in Roadwings International (supra), considered the effect of "owner''s risk" with reference to Section 6 of the Carriers Act in a case where the driver of the truck disappeared with goods loaded in the truck and observed that "owner''s risk" does not mean that the owner will be liable for loss of or damage to the goods even when the goods are entrusted to the carrier under all circumstances. THE owner''s risk is limited only to the circumstances mentioned in the consignment note. Under the terms of carriage, the carrier is not liable for loss or damage to goods occasioned by extraneous factors like pilferage, theft, strike, riot, etc. In the instant case, the goods were in the custody of the carrier. If the goods are lost or damaged by the negligence of the carrier of his servants and agents the carrier is not absolved from his liability. In view of the above, we do not find any illegality in the order of the District Forum, hence, it is not necessary for us to deal with the objection raised by the respondents about the competency of the appeal.

In the result, the appeal fails and is dismissed with costs. Counsel fee Rs. 500/-. Appeal dismissed with costs.