SHIVAY NATIONAL ROAD CARRIER vs HEERA BROTHERS

THIS appeal is directed against order dated 28.9.1995 in Complaint Case No. 74/94 passed by District Consumer Disputes Redressal Forum, Gwalior (hereafter referred to as District Forum, Gwalior) whereby they allowed the complaint and directed the opposite party (appellant in this case) to pay Rs. 27,845.48 and interest thereon @ 12% from 4.5.1993 till the date of payment and to pay Rs. 1,000/- as costs of proceedings.

THE facts of the case briefly stated are that respondent No. 5 Bansilal bought some cloth from respondent Nos. 1 to 4 and then tied them altogether in two big bundles. He then contacted the appellant (Transport Company) in order to send them to Nayak Vastra Bhandar, Tikamgarh. A regular invoice No. GR-6470 dated 4.5.1993 was issued. At the time of booking, respondent No. 5 mentioned the price of two big bundles of cloth being around Rs. 1.800/- and accordingly they were charged Rs. 60/- only and the price of cloth being Rs. 1.800/- insurance was not insisted. Appellant also asked for the receipt of the clothes booked but it was not produced by respondent No. 6. Truck No. MBH 1177 in which entire material was loaded for transport was totally burnt in the night of 6.5.1993 due to short circuiting of overhead electric wire, when the truck was fully loaded for journey. Inspite of attempts, the entire material in the truck and the truck was burnt to ashes. This fire incident was reported to police station on 6.5.1993 only. Appellant have averred in their appeal that the only affected party viz., Nayak Vastra Bhandar, Tikamgarh, who had a cause to complain, have not filed any complaint. Not only this, above firm has not authorised respondent No. 5 to file any complaint because no such authority has been produced. However, respondent Nos. 1 to 4 of this appeal filed a complaint in District Forum, Gwalior on 28.1.1994 and prayed for compensating them each with the price paid by them for the cloth which was sent together with interest @ 18% and compensation of Rs. 5,000/- together with proceeding cost of Rs. 4,000/-. Opposite party in the complaint case who are appellants in this case and shall be mentioned as appellants only hereafter in this order, filed a reply on 23.3.1994 in the form of affidavit in which they denied all the allegations of deficiency in service and further stated few facts: (a) Respondent No. 5 mentioned price of two bundles as around Rs. 1,800/- and, therefore, they were charged Rs. 78/- including labour charge, stationery charge, etc. (b) Respondent Nos. 1 to 4 have done no booking with appellant and hence their statement is baseless and appellant has nothing to do with them. (c) Respondent No. 6 mentioned the two bundles as his luggage and did not give any bill for the two bundles even when asked for. (d) Since the material booked by respondent No. 5 was not declared costly, no insurance of luggage was done. (e) Incident of fire and the consequent burning of entire material with truck was reported to police station on 6.5.1993. Similarly respondent No. 5, Nayak Vastra Bhandar, Tikamgarh were also informed. (f) They were ready to pay Rs. 1,800/- which was the reported cost of two bundles. Appellants have averred that the complaint was the result of conspiracy between respondent No. 5 and M/s. Nayak Vastra Bhandar, Tikamgarh. Since he had no dealings with respondent Nos. 1 to 4, they cannot claim any damage from appellants only respondent No. 5 could claim Rs. 1/800/-.

District Forum in the beginning of the proceedings on 8.3.1994 found appellant No. 1 absent inspite of notice and hence declared the proceedings ex-parte as far as appellant No. 1 was concerned. After lengthy proceedings over 2 years, the District Forum held the appellant guilty for the loss to the complainants and ordered them to pay Rs. 27,845.48 as value of material burnt and 12% interest thereon till payment. They were also directed to pay Rs. 1,000/- as cost of proceedings.

IN this appeal, the appellants have challenged the order of District Forum and have challenged the value of material as calculated by District Forum, they have also challenged the reasoning behind the decision to hold them responsible for damage. They have pointed out that value of material disclosed to them was Rs. 1,800/- and, therefore, they were charged only Rs. 60/- and insuring of material was not insisted upon. IN the invoise it was clearly mentioned that material was being transported at owner''s risk. It was also mentioned that appellants will not be responsible for damage by fire (accidental). We heard both the parties. Counsel for the appellants reiterated above points already narrated and relied on the judgment of Hon''ble National Commission in Nath Bros Exim International Ltd. v. Best Roadways Ltd., III (1996) CPJ 91 (NC)=1996 (3) CPR 207, in which the National Commission held that if loss was caused because of fire beyond control of the opposite party, consignment can not be said was destroyed due to any criminal act or negligence on part of carrier and hence no claim is sustainable against the opposite party.

AFTER hearing the arguments and perusing the record, we have given anxious thought to the case. We have come to the conclusion that we can not agree to the logic of the view taken by District Forum, we find no reason to disbelieve that material was loaded in the truck, which was burnt. The documents on the basis of which District Forum could not find evidence of loading also do not give rise to any suspicion of not loading. On the contrary, we have the affidavits of appellants in which they have informed police. Respondent No. 5 and M/s. Nayak Vastra Bhandar, Tikamgarh about fire. In our opinion, we find it very strange that District Forum believed respondent Nos. 1 to 5, out of whom respondent Nos. 1 to 4 had no dealing with appellant and respondent No. 5 is a person who gave value of material as about Rs. 1,800/- while booking the bundles and paid Rs. 60/- as freight and who now turns round and claims the value as above Rs. 25,000/-. In our opinion, respondent No. 5 is a person who has not approached Judicial Forum with clean hands and cannot and should not be relied upon at all. We would also like to express our surprise at the award of Rs. 27,845.48 against appellants. How can a bundle of cloth, whose value was declared around Rs. 1.800/- and which was burnt to ashes, be valued without scrutiny as Rs. 27,845.48 without verification. How can the bills not produced initially before appellants be accepted as true. We are, therefore, unable to accept the valuation arrived at by District Forum. This State Commission and the District Forum are primarily Social Cause Courts. Although we are expected to safeguard consumers interest, we feel it is also our duty to come heavily against people who do not approach us with clean hands and infact try misuse these Forums of justice to gain unlawfully. We have no intentions to allow such people to get away scot free. Judging the case as a whole we do not find the appellants guilty of any negligence or deficiency nor do we hold them responsible for loss beyond Rs. 1,800/-, the value mentioned by respondent No. 5 at the time of booking. This price the appellants were ready to pay initially also.

IN the context of discussion in the preceding paragraphs, the appeal succeeds and is allowed partially as mentioned in para 9 above. Order dated 28.9.1995 of District Forum, Gwalior is hereby set aside. Appellants are directed to pay to the respondents Rs. 1,800/- only. No interest is payable as the appellants were ready to pay this amount initially. IN the circumstances, we make no order as to costs. Appeal allowed. _____________