ROADWINGS INTERNATIONAL vs HINDUSTAN COPPER LIMITED

ROADWINGS International, the appellant herein, carries on business of transport contractor. In course of its business, from time to time, it carried various consignments handed over to it by M/s. Hindustan Copper Limited. The dispute relates to the consignment sent by M/s. Hindustan Copper Limited on or about 11.1.1984. A consignment of 11.924 metric tones of copper rods was entrusted to the appellants at Talolja for delivery to the consignee at Calcutta. The goods were not delivered. According to the appellant, the driver of the truck disappeared with the goods and an F.I.R. was lodged and ultimately the truck was covered. However, the goods could not be traced even though the driver was arrested. There is no dispute that the appellant is a common carrier engaged in the business of transporting for hiring goods from place to place.

THE Hindustan Copper Limited had the goods insured before despatching them, to Calcutta. It claimed and obtained the compensation for the loss of the goods from the Oriental Insurance Company Limited. M/s. Oriental Insurance Company Limited in its turn claimed compensation from the appellant. THE appellant denied the claim of the Hindustan Copper Limited. However, the State Consumer Disputes Redressal Commission, Maharashtra, allowed the claim of the Insurance Company. It may be noticed that the plaint was made jointly by M/s. Hindustan Copper Limited and the Insurance Company. The preliminary point taken by the appellant before the State Commission was that there was no privacy of contract between the appellant and the Insurance Company or there was no deficiency of service so far as the Oriental Insurance Company was concerned.

We are of the view that the preliminary objection of the appellant which has also been raised before us is of no substance. In the first, place, the complainant No. 1 was M/s. Hindustan Copper Limited itself. The complainant, M/s. Hindustan Copper Limited, had received payment of its claim from the Insurance Company under the terms of the insurance policy, the Insurance Company stands subrogated to the rights and remedies which M/s. Hindustan Copper Limited had in respect of loss or damage to the goods. Under the terms of the insurance policy Hindustan Copper granted full power to the Insurance Company to receive the said loss/ damage and all the every debt from the appellant. The Insurance Company was also authorised to use the name of the Hindustan Copper Limited in any action or proceeding which they may bring in respect of these goods.

IT may incidentally be noted that although it has been stated by the appellant that the truck has since been recovered and the driver has been arrested, in the judgment under appeal, it has been recorded that neither the truck nor the driver nor the goods could be traced. The recovery of the truck and the arrest of the driver must have taken place after the judgment of the State Commission was delivered. Be that as it may, the main question is whether the carrier is liable for the loss suffered by the consignor. The defence taken by the carrier before us is that under the terms of the contract between the carrier and the consignor the goods were carried at the risk of the consignor. Moreover, the consignor was required to take an insurance policy which goes to show that any risk or loss was to be borne by the consignor.

THE Carriers Act, 1865 lays down by Section 3 that no common carrier shall be liable for the loss or damage to properties mentioned in the schedule to the Act. THEre is no dispute that the goods involved in this case do not fall within the Schedule. Section 6 provides that the liability of any common carrier for the loss or damage to any property delivered to him shall not be deemed to be limited or affected by any public notice. However, the carrier may limit his liability in respect of the goods handed over to him by a special contract signed by the owner of the goods. Section 8 of the Carriers Act lays down that "notwithstanding hereinbefore contained every common carrier shall be liable to the owner for loss 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...." Section 9 of the Act contains a rule of evidence that in any suit brought against the common carrier for loss, damage or non-delivery of the goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery took place due to the negligence or criminal act of the carrier, his servants or agents. The plea taken on behalf of the appellant that there was a specific contract to oust his liability as a common carrier is not acceptable in the facts of the case. The owner of goods did not enter into any specific contract in writing with the appellant as required in Section 6 of the Act. The contention of the appellant is that there is a printed Terms and Conditions of the carriage. These Terms and Conditions were binding on the owner of the goods. But, from what has been produced before us we do not find any signature of the owner in the document containing terms and conditions of the carriage of goods. It will be wrong to presume that the owner had consented to these terms and conditions before the delivery of the goods to the common carrier. Condition mentioned in a goods receipt issued by the carrier but not signed by the owner cannot constitute a special contract contemplated by Section 6 of the Act.

EVEN assuming that the Terms and Conditions mentioned in the receipt, are binding, it merely recited that the Company shall not be liable for any loss or damage, due to pilferage, thefts, strike, riot, disturbance, fire, explosion etc. It also recites that oils, ghee and all other liquids and semi liquids, class china clay, asbestos materials or fragile goods, fresh fruits, vegetables no widely and bulky packages, machines and goods with unsound and defective packing shall be carried at owner''s risk. The carrier shall not be liable for breakage of the packages of the content thereof under any circumstances whatsoever.

THE combustible, fragile and perishable goods are carried at the owner''s risk. THE goods which were not properly packed are also carried at the owner''s risk. THE owner''s risk mentioned in the goods receipt in this context, is limited in combustible materials and perishable goods and bulky goods and machines which were not properly packed. "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 or his servants and agents the carrier is not absolved from his liability. If the argument advanced on behalf of the carrier is to be accepted, it will have to be held that even if the carrier himself disappears with the goods he will not be liable for loss or damage to the goods, because the goods were being carried at "owner''s risk".

This is a case where an employee or an agent of the common carrier who was lawfully entrusted with the goods disappeared with the same. The carrier under the provisions of the Carriers Act is clearly liable for the loss or damage suffered by the owner. The alleged special contract upon which reliance has been placed has not been signed by the owner and does not come to the assistance of the appellant in any way. We, therefore, dismiss the Miscellaneous Application as well as the Appeal. There is no order as to costs. Appeal dismissed.