NEW SUBHASH TRANSPORT CO. vs FIRM BANKELAL MOHANLAL

THIS appeal by the opposite party-M/s. New Subhash Transport Company is directed against the order dated 9.7.2001 passed by District Consumer Disputes Redressal Forum, Sagar in Case No. 234/2000 directing the appellant to pay to the respondent-complainant a sum of Rs. 1,47,112.21 with interest and cost.

IT is no more in dispute that 164 bags of sugar purchased by the respondent from the M.P. State Civil Supplies Corporation Limited, Sagar Branch, were entrusted to the appellant of transportation from Sagar to Baraeli. IT is also not disputed that the consignment did not reach to its destination nor delivered to the complainant-consignee. He, therefore, approached the Forum below complaining deficiency in service on the part of the appellant-Transporter and claiming compensation. The complaint was resisted by the appellant mainly on the ground that the appellant merely acted as a Commission Agent for arranging a truck for the transportation of goods. The truck in which the goods were loaded did not belong to the appellant and that the driver of the truck using fake number plate eloped with the truck and goods in transit. It was further averred that the goods were booked at the risk of the owner who also did not get them insured and as such no responsibility can be fastened on the appellant for lose of goods during transit.

The Forum below after taking evidence of the parties and on evaluation thereof concluded that the appellant-carrier was deficient in service in not taking the goods to its destination and not delivering the same to the complainant-consignee. The Forum below thus ordered for payment of price Rs. 1,47,112.21 of the goods to the respondent plus Rs. 3,000/- charged by the appellant towards freight charges, Rs. 1,000/- towards miscellaneous expenses and Rs. 1,000/- as cost of the complaint. The appellant is also ordered to pay interest on the aforesaid sum @ 12% p.a. from 25.5.2000 till payment.

WE have heard Mr. P.N. Sharma, learned Counsel for appellant and Mr. S.K. Menon and Mr. Naveen Agrawal, learned Counsel for the respondent. As already pointed out the facts of the case are more or less admitted and it was a clear case of non-delivery of goods entrusted to the appellant-carrier for being taken from Sagar to Baraeli and for delivery to the respondent-complainant. However, the appellant unsuccessfully tried to establish that he merely acted as an agent of the truck owner and driver and had only arranged the truck for transportation of the goods in question. This plea of the appellant had no foundation in the evidence on record and was rightly rejected by the Forum below. On the contrary the Bilti receipt dated 25.5.2000 admittedly issued by the appellant clearly goes to show that the appellant had undertaken to transport the consignment from Sagar to Baraeli on payment of freight charges Rs. 10,770/- after receiving an advance of Rs. 3,000/-. In this receipt, it is nowhere mentioned that the appellant was acting as a Commission Agent for the owner or driver of the truck. In fact this receipt on the face of it shows that the appellant is a goods transport company dealing in business of transportation of goods. The position of the appellant as envisaged under Section 9 of the Carriers Act, 1865 (for short the "Carriers Act") was that of a carrier and its responsibility in taking the goods to the desired destination and their delivery to the consignee was absolute. It also made no difference that the goods were booked at owner''s risk and that they were not insured by the consignor or the consignee. The legal position on the point is made luculent by the Supreme Court in three successive decisions in Nath Bros. U, I (2000) CPJ 25 (SC), M/s. Economic Transport Organisation, I (2000) CPJ 41 (SC); and Patel Roadways Ltd., I (2000) CPJ 42 (SC), and it is held that by virtue of Section 10 of the Carriers Act, common carriers are liable as insurers of the goods and they are responsible for any injury caused to the goods delivered to them, however caused, except only by the act of God or action of alien enemies. In any suit brought against a common carrier for loss, damage or non-delivery of the goods, it shall not be necessary for the plaintiff to prove negligence or criminal act of the carrier, his servants or agents.

DURING arguments before this Commission a new plea was raised by the appellant that the respondent-complainant was not a consumer inasmuch as the goods in question were booked not by the complainant but by the M.P. State Civil Supplies Corporation Ltd. as is evidenced by the Bilti receipt. The argument is wholly misconceived. A consumer in the context of hiring or availing of any service is not only a person who either himself hires or avails of such service but also includes any beneficiary of such service. In the instant case though the goods were booked by the vendor-Corporation but the same were purchased by the complainant who was the consignee to whom the goods were to be delivered. He was the direct beneficiary of the service hired. In fact it was the respondent-complainant who had paid the transportation charges to the appellant. The respondent was, therefore, "consumer" within the meaning of Clause (d) of Section 2(1) of the Consume Protection Act, 1986 (for short "Act of 1986") and was entitled to maintain the complaint. Yet another plea raised is under Section 10 of the Carriers Act and it was submitted that no prior notice as required by Section 10 of the Carriers Act was served on the appellant before filing complaint. Learned Counsel for appellant placed reliance on a decision of the National Commission in the case of Delhi Assam Roadways, I (2003) CPJ 280 (NC), wherein it is held that the bar contained under Section 10 of the Carriers Act applies to the proceedings initiated under the Act of 1986 like any other civil suit. However, in the instant case no such plea was taken by the appellant in their written statement. As against it the respondent-complainant has averred in its complaint as also in the affidavit filed in support thereof that a notice by registered post was sent and served on the appellant. There is no specific denial to this averment. The issue raised by the appellant before this Commission is a mixed issue of law and fact and ought to have been raised at the time of hearing of the case before the Forum below. Appellant cannot be permitted to raise such a plea for the first time in appeal before the Commission. Even otherwise, the plea is not available to the appellant on facts also. It will be thus seen that the appellant has been rightly held guilty of deficiency in service and, therefore, liable to make good to the loss caused to the complainant on account of non-delivery of the consignment. The price of the goods has been rightly calculated and the appellant is also liable to refund Rs. 3,000/- charged by it from the respondent towards advance of the freight charges. Miscellaneous expenses computed at Rs. 1,000/- cannot be also termed as excessive. Awardment of cost Rs. 1,000/- is also justified. However, the interest awarded @ 12% p.a. is on higher side and having regard to the prevailing rate of interest, awardment of interest @ 6% p.a. would be just and proper.

ACCORDINGLY, this appeal succeeds in part and to the extent indicated above. Rate of interest is reduced from 12% to 6% p.a. With this modification in the impugned order rest of the order is maintained. We further direct the appellant to pay Rs. 1,000/- to the respondent towards cost of this appeal. Appeal partly allowed.