MAHAVIR TRANSPORT vs GADIYA TRADERS

THE following order of the Commission was delivered by Hon''ble Mr. Justice R.K. Varma, President: This is an appeal filed by the transporter Mahavir Transport, Alot against the order dated 16.1.95 passed by the District Forum, Ratlam in Complaint Case No. 11/94 whereby the appellant-opposite party No. 1 as well as opposite party No. 2 have been jointly and severally held liable to pay Rs. 1,07,702/- as compensation to the complainant-respondent together with interest thereon @ 12% p.a. from 27.12.93 till the date of payment and have been ordered to pay the said compensation within a period of one month from the date of order under appeal.

IT is not disputed that the complainant booked with the appellant-opposite party No. 1 Mahavir Transport 127 bags of Soyabean weighing 120.65 quintals of the value of Rs. 1,07,702.10 paise as per the then prevailing market price, for being transported from Alot to Messrs Prestige Foods Ltd., Dewas. It is also not disputed that the appellant-opposite party No. 1 issued a Receipt No. 269 dated 27.12.93 showing entrustment of the consignment of 127 bags of Soyabean by the complainant to the appellant. The said receipt is on record. The appellant-opposite party No. 1 arranged a truck through the agency of one Bharat Transport Company-opposite party No. 2 in which the complainant''s consignment of Soyabean bags were loaded for transport to the distination M/s. Prestige Foods Ltd. at Dewas. The said consignment never reached the consignee at Dewas, and despite efforts made on the part of the complainant neither the consigned goods reached the consignee nor was the price of goods paid to the complainant by the appellant.

The complainant, therefore, filed the instant complaint for compensation on account of the deficiency in service on the part of transporter resulting in total loss of consignment of Soyabean which the complainant had entrusted to the appellant-opposite party No. 1 for transporting the same to the destination at Dewas.

THE appellant-opposite party took the plea in defence that it had received the consignment for transporting the same through the agency of opposite party No. 2 on the basis of commission charged by it. It becomes clear from the perusal of the receipt of goods for transport issued by the appellant-opposite party No. 1 Mahavir Transport that the carriage charges were fixed at Rs. 1,800/- by the appellant-opposite party No. 1. THE bill No. 6 dated 27.12.93 for the amount of Rs. 1,07,702-10 paise issued by the complainant-supplier of Soyabean to the consignee M/s. Prestige Foods Ltd. have been filed on record and it discloses the name of the transporter as Mahavir Transport Company, Alot. A copy of the challan which appears to have been issued by the opposite party No. 2 Bharat Transport Company which is also placed on record, shows that the truck on which consignment of Soyabean in question was loaded belonged to one Sunil Sharma and the name of driver of the truck is Harjeet Singh Gurudayal. The truck, which was arranged by opposite party No. 2 for transporter opposite party No. 1, appears to be engaged in M.P. Delhi Roadlines, Loha Mandi, Indore.

THE District Forum on the appreciation of evidence adduced on record, has come to the conclusion that for non-delivery of the consignment to the consignee the appellant-opposite party No. 1 Mahavir Transport as well as opposite party No. 2 Bharat Transport Company were both jointly or severally liable to compensate the complainant for loss of goods consigned for delivery to the consignee at Dewas, where the truck carrying the Soyabean consignment never reached. The opposite parties No. 3 and 4, the owner of the truck and the M.P. Delhi Roadlines with whom the truck was apparently engaged, took the plea in substance, that there is no privity of contract between them and the complainant. The District Forum has accepted their stand and has accordingly not held them liable for deficiency in service and in our opinion rightly so. The opposite party No. 1 alone has come up in appeal before us. It has been submitted on behalf of the appellant-opposite party No. 1 that the appellant-opposite party No. 1-Mahavir Transport has acted as a Commission Agent in arranging transport of the consignment through the agency of opposite party No. 2-Bharat Transport Company who arranged the truck owned by the opposite party No. 3 and as such the appellant-opposite party No. 1 cannot be held guilty of deficiency in service on account of non-delivery of the goods to the consignee for failure on the part of the driver of the truck owned by the opposite party No. 3.

HAVING heard learned Counsel for the parties and having considered the documents on record and the order passed by the District Forum, we have come to the conclusion that the submission made by the learned Counsel for the appellant-opposite party No. 1 has no merit. The contract for transport of the complainant''s goods was made between the complainant and the appellant-opposite party No. 1. Accordingly, the consignment comprising 127 bags of Soyabean weighing 120.65 quintals was delivered by the complainant to the appellant-opposite party No. 1, as a common carrier and the amount of transport charges of Rs. 1,800/- was fixed by the appellant-opposite party No. 1 vide receipt No. 269 dated 27.12.93 issued by the appellant-opposite party No. 1. It is a different matter that the appellant-opposite party No. 1 instead of using its own truck for transport arranged another truck through the agency of opposite party No. 2 within the knowledge of the complainant but the fact remains that the contract for transport was made between the complainant and the appellant-opposite party No. 1 and as such the responsibility of safe carriage of the consignment to the consignee at the destination was of appellant-opposite party No. 1. The opposite party No. 2 who appears to have entered into contract with the appellant-opposite party No. 1 for carrying the consignment in question, can be held liable to the appellant-opposite party No. 1 for non-delivery of the consignment at the destination, but as far as the appellant-opposite party No. 1 is concerned, it is primarily liable to pay compensation to the complainant for non- delivery of the consignment which was entrusted to the appellant-opposite party No. 1 for safe carriage to the destination. Since the parties connected with the carriage of the consignment have been joined by the complainant in the array of opposite parties, the District Forum has apparently taken into account the responsibility of safe carriage of consignment undertaken by the opposite party No. 2 under the contract between the opposite party No. 1 and the opposite party No. 2 and hence, both the opposite parties have been held jointly and severally liable to pay compensation to the complainant for non-delivery of consignment.

LEARNED Counsel, appearing for the appellant has contended that the appellant was in the position of a bailee who was not responsible for loss of consignment since it has taken as much care of the goods entrusted to it as a man of ordinary prudence would have taken of his own goods. The contention seems to have no merit either on facts of this case or in law. The appellant-opposite party No. 1-Mahavir Transport was entrusted the goods for carriage to destination by the complainant but as the facts are, the opposite party No. 1-Mahavir Transport has not used any transport vehicle under its control for safe carriage of the goods and has instead assigned the job to another transporter. As such there has been deficiency of service on the part of the appellant-opposite party No. 1 in abdicating its responsibility of safe carriage of goods by transferring the responsibility to another transporter opposite party No. 2. The opposite parties fall in the category of common carriers, who must be held liable for loss of goods due to any cause other than Act of God, for which there is no pleading in the case. Negligence is also inferable in the circumstances on the part of the appellant-opposite party No. 1 in transferring the responsibility of safe carriage of goods in question to another transporter in respect of the goods which were entrusted to the appellant-opposite party No. 1 by the complainant for safe carriage to the destination. In view of the discussion, aforesaid, this appeal is liable to be rejected. Accordingly, we affirm the order passed by the District Forum and dismiss this appeal with costs. The appellant shall pay Rs. 500/- to the complainant- respondent as cost of this appeal. Appeal dismissed with costs.