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Judgment
THIS appeal is directed against the order dated 28.10.1998 in O.P. No. 94/1997 on the file of the District Consumer Disputes Redressal Forum, Cuddalore.
THE appellant is the opposite party while the respondents are the complainants. Short facts may be related in order to understand the crux of the issue arising for consideration in this action.
The 1st complainant on 2.7.1997 travelled in the stage carriage bus belonging to the opposite party from Neyveli to Nagercoil. He carried along with him a bundle of teakwood saplings and another bundle of jasmine saplings. The bundle of teakwood saplings weighed 45 kilos and the bundle of jasmine saplings weighed 20 kgs. There were 3,200 teakwood saplings and 2,200 jasmine saplings in both those bundles. He took a ticket for himself costing Rs. 73/-. He also paid the charges for the luggage. The charges levied and collected from him for each of the bundle is to the tune of Rs. 18.50. Thus totally a sum of Rs. 37/- had been collected from his towards luggage charges. When he reached the destination point, he was unable to find the two bundles in the roof top of the bus and complained of the same to the conductor. He also lodged a complaint to the Managing Director of the opposite party Transport Corporation, Pondicherry. In the complaint so lodged, he had given the value of the saplings as Rs. 10,000/-. He also claimed Rs. 10,000/- for the loss of the two bundles of teakwood and jasmine saplings. According to him, the loss of the teakwood as well as jasmine saplings during transit is due to the negligence of the conductor of the bus in which he was travelling.
THE 1st complainant sought the assistance of the 2nd complainant viz., South Arcot District Consumer Protection Council for lodging a complaint against the opposite party. A complaint as a matter of fact was filed before the Forum below for certain reliefs as prayed for in the complaint.
THE opposite party in pith and substance would contend that there was no deficiency in service on the part of the opposite party. THE conductor of the bus refused to entertain the luggage of the complainant and further informed him that it was not safe to place the luggage on the top of the bus during night hours. On the basis of the assurance given by the complainant that he will take the risk, the conductor allowed the complainant to place the luggage on the top. THEre was no negligence on the part of the conductor of the bus. THE complainant is put to strict proof of the value of the saplings. THE complaint as such is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, recorded a finding that there was deficiency in service on the part of the opposite party and consequently directed the opposite party to pay to the complainant a sum of Rs. 10,000/- being the value of the teakwood and jasmine saplings and to pay a sum of Rs. 5,000/- towards mental agony and anguish said to have been suffered by the complainant. The Forum below however ordered no costs. Aggrieved by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice, namely learned Counsel Mr. J. James. The respondents/complainants entered appearance through a Counsel of their choice, namely learned Counsel M/s. S. Devika.
WE heard the arguments of learned Counsel M/s. J. James appearing for the appellant/opposite party and learned Counsel M/s. S. Devika appearing for the respondents/complainants.
FROM the pith and substance of the submissions of learned Counsel appearing for the respective parties, the one and only question that crops up for consideration is as to whether the order of the Forum below is sustainable in law on the facts and in the circumstances of the case. There is no denial of the fact that the 1st complainant travelled in the bus belonging to the opposite party from Neyveli to Nagercoil on the day in question after purchasing the ticket for such a travel under Ex. A5 for Rs. 73/-. Yet another fact about which there is no dispute is that he carried two bundles consisting of teakwood saplings and jasmine saplings and for the carriage of two bundles of such saplings from Neyveli to Nagercoil, he had paid the luggage charges of Rs. 18.50 for each of the bundles all totalling to Rs. 37/- under Ex. A3 and Ex. A4. It is equally true that when he reached the destination at Nagercoil, the two bundles of teakwood and jasmine saplings placed on the top of the bus were found missing and he also lodged a complaint to the Managing Director of the opposite party Transport Corporation, Pondicherry under Ex. A1 in which he claimed compensation quantified in a sum of Rs. 10,000/- for the loss of teakwood and jasmine saplings which were entrusted to the custody of the conductor of the opposite party Transport Corporation for safe carriage from Neyveli to Nagercoil. In proof of the value of the saplings to the tune of Rs. 10,000/-, the 1st complainant had also placed on record Ex. A6 receipt dated 1.7.1997 given by one G. Settu, suppliers of all types of nursery plants, South Street, Vengadampettai P.O., Panruti Taluk. A perusal of the receipt shows that 3,200 teakwood saplings and 2,200 jasmine saplings were purchased by the complainant for a sum of Rs. 10,000/-.
Learned Counsel M/s. J. James appearing for the appellant/opposite party in a flamboyant style would contend that the conductor of the opposite party bus was rather reluctant in entertaining the luggage in the bus and even went to the extent of refusing to allow the luggage to be carried in the bus. What is further contended by him was that since the complainant had undertaken the risk to himself, he allowed the luggage to be carried in the bus for the charges levied for carrying the same. Such being the case, he would say that the opposite party Transport Corporation cannot at all be mulcted with any liability whatever and, therefore, it is the order of the Forum below issuing a direction to the opposite party to pay the value of the saplings quantified in a sum of Rs. 10,000/- and to pay a sum of Rs. 5,000/- towards mental agony and anguish said to have been suffered by the complainant is liable to be set aside.
LEARNED Counsel M/s. S. Devika appearing for the respondents/complainants would submit that the argument of the said learned Counsel appearing for the appellant/opposite party lacks basis of solidified support by way of tangible material of any document filed for and behalf of the appellant/opposite party. This apart, no material worth the name had been placed on record in proof of the same and such being the case, the case of the appellant/opposite party has to be thrown lock, stock and barrel. This apart, what she would submit is that Rule 79(viii) of the Tamil Nadu Motor Vehicles Rules, 1989 (for short, Rules 1989) prescribes that the conductor of a stage carrier shall take all reasonable precautions to prevent luggage being miscarried or lost in the way. What is further submitted is that the two bundles of teakwood saplings and jasmine saplings put as a luggage on the top of the bus had been lost in transit due to the callous and cavalier negligence on the part of the conductor of the bus and that would definitely tantamount to deficiency in service. We shall now enter into the arena of discussion as respects the tenability or otherwise of the submissions of respective learned Counsel appearing for the parties in the light of the legal provisions as applicable to the factual matrix of the case on hand.
RULE 79(viii) of RULEs 1989 prescribes the mandate to the conductor to take all reasonable precautions to prevent luggage being miscarried or lost in the way. We will for the present need not go further and consider the effect of the said provision. We are of the view that the delivery of the luggage to the conductor for safe carriage from Neyveli Township to Nagercoil will tantamount to "bailment" under Section 148 of the Indian Contract Act, 1872 (for short, "Act, 1872"). According to the said section, a ''bailment'' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the "bailor". The person to whom they are delivered is called the "bailee". Section 151 of the Act, 1872 prescribes that "in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed". Section 152 thereto prescribes that "the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151". In other words, in the absence of a special contract bailee is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care as a man of ordinary prudence would take of his own goods. No material whatever had been placed on record by the opposite party to point out that the conductor of the bus had taken any sort of a care in safeguarding the luggage which was entrusted for safe carriage from Neyveli Township to Nagercoil. Such being the case, the opposite party Transport Corporation being the bailee of the goods not taking care as a man of ordinary prudence would take of his goods would be held liable for the loss of the luggage during transit.
SECTION 161 thereto prescribes that "if by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time".
AS such, it is crystal clear that this is a case governed by Sections 151 and 152 and consequently the loss or damage of goods entrusted to the bailee is prima facie evidence of negligence and the burden to prove absence of negligence lies on the bailee. The bailee in the case on hand, as already indicated, did not place any material whatever to indicate that there was absence of negligence on their part. Rule 79(viii) of Rules, 1989 also lend support to the salient provisions adumbrated under Sections 148, 151, 152 and 161 of Act, 1872. We are, therefore, of the view that the loss of the luggage during transit is due to the negligence on the part of the conductor of the opposite party Transport Corporation.
The value of the teakwood and jasmine saplings is to the tune of Rs. 10,000/- and this aspect of the matter had been amply proved by the 1st complainant by Ex. A6. Therefore, there is a duty cast upon the opposite party Transport Corporation to compensate the loss caused to the complainant which resulted due to the negligence on their part. Therefore, the award made by the Forum below issuing a direction to the opposite party to pay to the 1st complainant the value of the saplings quantified in a sum of Rs. 10,000/- cannot at all be stated to be not sustainable in law on the facts and in the circumstances of the case. The Forum below further directed the opposite party to pay to the 1st complainant a sum of Rs. 5,000/- towards mental agony and anguish said to have been sustained by him. The amount of the award so made, we rather feel, is not unreasonable calling for interference on the facts and in the circumstances of the case. We, therefore, confirm this part of the award.
IN fine, the appeal fails and the same is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. Appeal dismissed.