Nath Bros. Exim International Ltd. vs Best Roadways Ltd.

THIS Original Petition has been filed by M/s. Nath Bros. Exim International Ltd., New Dehli against M/s. Best Roadways Ltd., New Delhi, alleging deficiency in service in transporting their goods from Delhi to Bombay.

THE petitioner is a Limited Company engaged in the business of export and it booked a consignment of 77 packages of mulberry natural silk garments through M/s. Best Roadways Ltd., the opposite party, to be transported from Noida to Bombay and to be delivered to M/s. Jeena & Company, Clearing Agents of the petitioner at Bombay. M/s. Jeena & Co. were also made the consignee of the goods. THE Consignment note No. 52330 dated 11.3.1994 was issued by the opposite party. At the time of booking the goods for transport, two copies of invoice No. NBI7493 dated 9.3.1994 were also handed over to the opposite party. THE allegation of the petitioner is that due to carelessness, negligence of and inadequate services by the opposite party, the consignment remained undelivered to the consignee at Bombay. After many reminders they were finally informed by the opposite party that their consignment which was stored by them at Bhiwandi got destroyed there, whilst in their custody, on 16.3.1994 by fire. THE petitioner has stated that the consignment was to be delivered to the consignee at Bombay and that there was no agreement or instruction for carriage of the goods to Bhiwandi or its storage there or at any other place. THE opposite party, according to the petitioner, was required to hand it over to the consignee, M/s. Jeena & Co., at Bombay only and nowhere else. In emphasising this argument, the petitioner has stated in his petition that the storing of the goods at Bhiwandi, instead of taking it directly to Bombay, speaks of deficient and inadequate services on the part of the opposite party, and, therefore, they are liable for the loss of the consignment while in their custody. Based on this argument, the petitioner has claimed a relief of Rs. 27,60,787/- under the following heads : In addition, the petitioner has also claimed a relief of Rs. 8,52,087/- on account of penalty, in case such a penalty is imposed by the Government of India on the petitioner on account of non export of the goods, since the raw material for them had been imported free of customs duty. The opposite party has contested these allegations of deficiency in service, and has stated that the goods were booked clearly and specifically, for transport and delivery to M/s. Jeena & Co., who were the clearing agents of the petitioner, at owner''s risk. In this regard they have relied on the Consignment Note No. 52330 dated 11.3.1994 which has been produced by the petitioner and not disputed by the opposite party. It has been stated by the opposite party that this consignment note has a very clear and bold heading about insurance mentioning three categories of insurance on the face of the note itself, viz., (1) Whether the customer has insured the consignment; or (2) he has not insured the consignment; or (3) it is being taken at owner''s risk. Even in the columns showing amount to pay or to be paid for the services rendered there is an item "risk charges". If no risk charges are paid, then, the consignment note shows that it is being taken at owner''s risk in the insurance column of the note. They have also stated that in the terms and conditions of carriage, printed on the back of the consignment note, the very first condition reads as follows : "The Company carries the goods at owner''s risk unless a special insurance of Rs. 0.80 for every hundred rupees of value declared by the sender having been charged and paid. Payment of such insurance charges, if made, should be mentioned on the G.C. Note at the space provided for the same".

The second condition reads : "When the goods insured as detailed above have been lost, destroyed, damaged or have deteriorated, the compensation payable by the Company (the transporter company) shall not exceed the value declared by the sender for the purpose of arriving at the insurance charges payable. Such compensation will only be paid to the consignee. Bank or to the consignee on his producing the consent of the Bank and or the consignor as the case may be, to such payment being made to him."

The contention of the Transport Company is that since these goods were taken at owner''s risk, which fact has been clearly mentioned in the consignment note and which had been brought to the notice of the consignor at the time of booking, when he was asked whether he would like to pay the risk charges, they are not responsible for the loss which was beyond their control and inspire of the precautions they could take and had taken. The fact that the goods were booked with them and that they were lost in the fire at Bhiwandi in their store, has not been denied by the Transport Company.

An argument has been advanced on behalf of the petitioner that the liability of the Transport Company is not governed so much by the terms and conditions of the consignment note, as by the provisions of the Carriers Act, 1865 which clearly enjoin upon the Transport Company the responsibility for any loss caused by their negligence.

IN this regard the relevant provisions in the Carriers Act, 1865, called Act hereafter, need to be considered to determine the liability, if any, and extent thereof, of the carrier in case of loss of goods etc., during the transit and before delivery to the consignee. Section 6 of this Act stipulates that the liability of any common carrier for the loss of or damage to any property delivered to him to be carried, not being of the description contained in the Schedule to the Act (and in this connection it may be stated that the goods in question with which we are concerned in this appeal are not of the type of goods described in the schedule) shall not be deemed to be limited or affected by any public notice. This section further provides that such carrier may, by special contract, signed by the owner of such property so delivered or by some person duly authorised in that behalf by such owner, limit his liability in respect of the same. Further, Section 8 of this Act provides, inter alia, that a common carrier shall be liable for loss and damage to any property, when such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants. Section 9 of the Act provides that in a suit brought against a common carrier for the loss, damage or non-delivery of goods, entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. This is so because loss to the goods sent itself is prima facie an evidence of negligence and, therefore, logically the burden of proving absence of negligence is on the carrier. In the present case, if we accept the proposition that the liability of the carrier is not absolved absolutely in case of loss or damage to the goods in view of Section 9 of the Carriers Act, even when the goods were being transported at owner''s risk, it is to be seen whether such loss was because of the negligence or criminal act of the carrier, his servants or agents. The argument of the petitioner is that the goods were to be delivered at Bombay and, therefore, their diversion to Bhiwandi and storage there was a decision taken by the carrier and, hence, entire responsibility for loss of goods at Bhiwandi is on the carrier, as the loss has occurred due to their decision taken unilaterally. The carrier has, however, pointed out that they had taken the consignment, as per the instructions of the petitioner, and informed the consignee that the goods were ready for delivery at Bombay, but the consignee directed them to unload the said consignment of 77 packages at Bhiwandi. The diversion of the consignment to Bhiwandi was thus made at the direction of the consignee himself. In this regard, the opposite party has produced a letter from M/s. Jeena & Co., dated 14th March, 1994 which reads as follows : "This has a reference to the inforthation given by you regarding arrival of 77 packages at Mulund Check Post of M/s. Nath Brothers, Exim International Ltd., New Delhi, booked by you under your G.C. No. 52330 dated 11.3.94 Ex. Delhi to Bombay. In this connection we hereby advise you to unload the said consignment of 77 packages of the above party at Bhiwandi as the shipment of the same will take place at CFS, Kalamboli (Nhava Sheva Port)."

THE argument of the opposite party, the carriers, is that on these specific instructions from the consignee and freight forwarder M/s. Jeena & Co., Bombay, the said consignment was unloaded and stored at Bhiwandi. That was done, according to them, since the consignment was to be shipped from Nhava Sheva Port and not from Bombay Port and, therefore, the consignee diverted the consignment from Mulund Check Post to Bhiwandi, which was nearer to Nhava Sheva Port, and at the same time also avoided the octroi duty which had to be paid, had the delivery been taken at Mulund Check Post when the consignment reached there. THE goods were stored at Bhiwandi in godown Nos. 5 & 6, Wadi Compound, Anjur Village, Anjurphate, outside the octroi limits of Greater Bombay along with other export consignments, the total value of which, according to the opposite party, was more than Rs. 2 crores and all of which were to be shipped from Nhava Sheva Port across the creek of the Greater Bombay. All those goods were destroyed around noon on 16.3.1994 because of a huge fire and explosion that occurred in the adjoining godown No. 7 belonging to Shri Rati Bhai where drums containing hazardous chemicals were stored. THE fire spread to the opposite party''s godown Nos. 5 and 6 as well as other adjoining godowns. Inspite of all efforts by the fire fighting engines, the fire could not be contained in time. This accidental fire was reported to the Police Station, Bhiwandi, and an FIR was also lodged on the 16th March, 1994 itself. THE Police prepared a Panchanama in front of independent witnesses and the fire brigades of Bhiwandi and Nizampur Nagar Prashad confirmed this accidental fire. This fire was also reported in the newspapers on 16th and 17th March, 1994. It is not the case of the petitioner that the carrier did not take adequate precautions or steps to save the goods from the loss by the fire. On the other hand, it has been successfully proved by the carrier that the consignment of the petitioner was diverted from Mulund Check Post to Bhiwandi on the specific instructions of the consignee and further that the loss was caused by fire which was beyond their control. It has been mentioned by them that they took due care, within their capacity and now they have lodged a claim on the owner of the adjoining godown from where the fire started. After hearing the Advocates for the petitioner and the opposite party we are convinced that the consignment of the petitioner was not destroyed because of any criminal act or negligence on the part of the carrier or his agents. So, even under the provisions of the Carriers Act, the claim of the petitioner cannot be sustained. In view of what has been stated earlier, we see no merit in this petition and hence dismiss it. There will be no order as to costs. Petition dismissed.