S. GOVINDARAJULU vs Syed Basha

THE complainants in C.O.P. No. 47/2000 on the file of the District Consumer Disputes Redressal Forum, Coimbatore, are the appellants.

NO doubt, they got an order against the opposite parties 3 and 4 before the District Forum. Inasmuch as the opposite parties 1 and 2 were exonerated by the District Forum, the present appeal has been filed. The necessary facts are as follows : The complainants entrusted certain material to opposite parties 1 and 2 on 28.8.1998 for transportation from Coimbatore to Phursungi. They paid Rs. 7,800 along with Rs. 250 as commisison/brokerage to opposite party No. 2, opposite party No. 1 being the proprietor of opposite party No. 2. Opposite party No. 2 entrusted the consignment to opposite party No. 3 owner of the lorry and opposite party No. 4 was the driver. The consignment did not reach the destination. It was learnt that the cosignment was unloaded at Bangalore. The complainants had to move the police and after filing necessary petition before the Criminal Court for return of property got the consignment back and made their own arrangements for transport for delivery of the consignment. In the process, they had to spend a lot of money. Their goodwill also was spoiled due to delayed delivery. All the complications arose due to the deficiency and negligence on the part of the opposite parties.

Opposite parties 1 and 2 though admitted to the entrustment and the occurrence of the offence contended that they were only lorry brokers, fixing lorry and once lorries got fixed, their job would get over and they could not be held liable for loss or damage, that only the 3rd and 4th opposite parties were liable and further that the District Forum, Coimbatore, had no jurisdiction. The opposite parties 3 and 4 remained ex parte.

ON the side of the complainants, Exs. A1 to A14 were marked while on the side of the opposite parties 1 and 2 Ex. B1 was marked. The District Forum found that opposite parties 1 and 2 got brokerage from the complainant and entrusted the consignment to opposite parties 3 and 4 and from that stage, the job of opposite parties 1 and 2 got over, that opposite parties 3 and 4 alone were responsible for the loss. By order dated 8.2.2001, the District Forum dismissed the complaint as against opposite parties 1 and 2 and passed an award for Rs. 77,000 against opposite parties 3 and 4.

BEFORE us, the learned Counsel for the appellants/complainants submitted that so far as the award portion was concerned, they were satisfied and the quantum was not being challenged. But, however, inasmuch as the complaint had been dismissed against opposite parties 1 and 2, the District Forum was in error and that it ought to have allowed the complaint against opposite parties 1 and 2 as well. The learned Counsel submitted that even lorry brokers would be liable and complaint against them would lie. In support, he relied on the following decisions : (1) The Divisional Manager, New India Assurance Co. Ltd., Madurai-9 v. Murugan, Proprietor, Murugan Transports, Sivakasi, 1997 (1) CTC 654. (2) Kishan Roadways v. National Insurance Co. Ltd., III (1996) CPJ 51 (NC). (3) Express Goods Service v. Standard Textile Mills, I (1995) CPJ 205 (NC)=1986-96 National Commission & Supreme Court on Consumer Cases page 3228 (NS) and (4) The order passed by this Commission in O.P. Nos. 78 and 100/2000.

Per contra, Counsel for opposite parties 1 and 2 submitted as follows : The delay, on which the complaint is founded, stemmed from a criminal act, and not from any negligence or deficiency in service on the part of the opposite parties 1 and 2. Opposite parties 1 and 2 were not included in the FIR. The goods were delivered in full and admittedly there was no shortage. Opposite Parties 1 and 2 were as much innocent victims of the criminal act as opposite parties 3 and 4 as the appellants. Even transport companies operating with their own fleet of trucks have to accept such risks as part of the business with the drivers appointed by them. There could, therefore, be no grievance against the order of the Forum and the appeal was liable to be dismissed. The District Forum on the basis of the complainant''s statement in para 5 of the complaint to the effect that the 1st opposite party entrusted with the opposite parties 3 and 4 to transfer the said consignment and the 1st opposite party provided a lorry bearing No. KA 36A 2743 said to belong to the 3rd opposite party, and also on the basis of Ex. A1 Goods Haulage Contract of the complainants, the 3rd opposite party being shown as lorry owner and the 4th opposite party as driver and the 2nd opposite party as broker, held that opposite parties 1 and 2 were only brokers that they got their brokerage and entrusted the goods to opposite parties 3 and 4, that with that the job of opposite parties 1 and 2 was over and that for non-delivery or mis-delivery or any other mischief by opposite parties 3 and 4 thereafter opposite parties 1 and 2 could not be held responsible. It further held that the 3rd opposite party alone was common carrier as transporter of the consignment and opposite parties 3 and 4 were responsible for the same. The District Forum fixed the quantum at Rs. 75,000 and cost of Rs. 2,000.

IT has been held by the National Commission in Kishan Roadways (supra), wherein a similar objection was taken by one of the opposite parties to the effect that it was a mere broker and not a carrier it would still be liable. In that case also, the appellant before the National Commission was found to be a broker, issuing transit pass in the name of the owner of the tanker. Still, the National Commission accepted the finding of the State Commission that the mere fact that the appellant before the National Commission was mentioned as a broker, it was not enough to establish that it had entered into a contract for carriage of oil as broker or agent of some other person. ITs name was given as ''Kishan Roadways and in the view of the National Commission, the very name suggested that they were holding out as carriers. In the present case also, the description is Sapna Transports (Lorry Supply Office) and the District Forum was in error in holding that the broker could not be held liable. A hiring of service and consideration are two essential ingredients of the definition contained in Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Inasmuch as the complainants had hired the services of opposite parties 1 and 2 and had also paid consideration, the two essential ingredients were satisfied.

AGAIN in Express Goods Service mentioned (supra), it has been held that the expression ''service'' contained in Section 2(1)(o) of the Act, specifically includes within its code, the services of any other description which is made available to potential users and includes provision of facilities in connection with transport. It should also be mentioned that the complainant caused a notice to be issued under Ex. A12 to all the four opposite parties. Opposite parties 1 and 2 had received the notice, acknowledgements, have been marked as Exs. A13 and A14. But they chose not to send any reply. In O.P. Nos. 78 and 100/2000, similar stand was taken by one of the opposite parties that it was only a broker and not carrier and it was rejected.

In our view, the opposite parties 1 and 2 cannot escape liability. The conclusion reached by the District Forum with regard to opposite parties 1 and 2 cannot, therefore, be sustained. They cannot point their fingers at opposite parties 3 and 4 and escape liability. We are of the view that the award of compensation in a sum of Rs. 75,000 is on the high side for the alleged expenses incurred for retrieving the consignment. In fact absolutely no material has been produced justifying the quantum claimed in the complaint or even the amount awarded by the District Forum. Taking an overall picture and in the interest of justice, we fix the liability of opposite parties at Rs. 30,000.

IN view of the discussion above we allow the appeal partly and hold that opposite parties 1 and 2 are also liable to answer the claim and fix the liability of the opposite parties at Rs. 30,000 instead of Rs. 75,000. The order of the District Forum shall stand modified to the extent indicated above. However, there will be no order as to costs in the appeal. Appeal partly allowed.