SOUTH EASTERN CARRIERS LTD. vs B.Rajendra

THE above noted cross appeals, filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), arise out of an order dated 22.6.1998, passed by the District Forum-I in Complaint Case No. 953/1994 entitled Shri B. Rajendra v. M/s. South Eastern Carriers Ltd.

THE facts, relevant for the disposal of the present appeal, in brief, are that Shri B. Rajendra (hereinafter referred to as ''the respondent'') had filed a complaint before the District Forum, averring therein that the respondent had entrusted his household articles (old and used), to M/s. South Eastem Carriers Ltd. (hereinafter referred to as the appellant), in 19 packages on 7.5.1994 vide Goods Receipt No. 3403050 for being transported from Mysore to Noida (U.P.). THE respondent had also paid a sum of Rs. 13,025/- to the appellant as freight charges for a full truck load. Since the goods of the respondent did not reach the destination he made enquiries from the appellant, who informed the respondent that before the said goods could be delivered at Noida, the same were destroyed in a fire accident near Trilokpuri Police Station. It was alleged by the respondent in his complaint filed before the District Forum that despite repeated requests to the appellant, for settling the claim of the respondent for the loss of goods, the appellant had failed to compensate the respondent and, therefore, the latter had been constrained to file a complaint, before the District Forum, praying for the redressal of his grievances. The appellant, in its reply/written version filed before the District Forum, raised a number of preliminary objections including the objection that the District Forum had no territorial jurisdiction to entertain the complaint as well as the plea that the consignment was booked with the appellant without getting the same insured and was subject to ''owner''s risk'' and as such the appellant was not liable to pay any compensation to the respondent. On merits, it was stated that the loss of goods occurred on account of a fire accident and the same being an act of God, there was no deficiency in service on the part of appellant.

The learned District Forum, allowed the complaint of the respondent with the directions to the appellant to pay a sum of Rs. 70,000/- to the respondent as cost of the goods as well as refund the amount of Rs. 13,025/- charged as freight charges, together with the cost, quantified at Rs. 800/-.

AGGRIEVED by the above said order, both the parties have filed separate appeals. We have carefully gone through the documents/material placed on record as well as have heard the arguments advanced on behalf of the parties. One of the contentions raised by the appellant in the present appeal was that the District Forum had no territorial jurisdiction to entertain and adjudicate upon the dispute raised in the complaint in view of the fact that there was a specific clause in the terms and conditions of the Goods Receipt that all disputes would be subject to the jurisdiction of Gauhati Courts only. In this regard, the appellant had relied upon two decisions in cases entitled Globe Transport Corporation v. Triveni Engineering Works & Anr., reported as (1983) 4 SCC 707, and M/s. P.S. Promotors and Builders Private Limited v. Asha Tandon, reported as Volume III (1995) CPJ 7. The ratio of the case Globe Transport Corporation (supra), was reiterated in another decision of the Hon''ble Supreme Court in case entitled ABC Laminart Pvt. Limited & Anr. v. A.P. Agencies, Salem, reported as AIR (1989) SC 1239, wherein Their Lordships of the Hon''ble Supreme Court have exhaustively dealt with the question of validity and the effect of a clause ousting the jurisdiction of all other Courts except one. It has been held that in order that an ouster of jurisdiction clause be deemed to be valid and effective, it is of utmost importance that the said clause must form part of the agreement executed between the parties. In the facts of the given case, the Goods Receipt, on the face of it, nowhere mentions that the contents of the same are subject to the conditions printed overleaf. Furthermore, the terms and conditions of the contract of carriage printed at the back of the Goods Receipt are in such a small print, so as to be virtually illegible. Furthermore, it is not the case of the appellant that the same were brought to the notice of the respondent at the time of entering into the contract, for transportation of the goods of the respondent, by the appellant. As such, in the circumstances, it cannot be held that the clause/term ousting the jurisdiction of all other Courts except at Gauhati formed part of the concluded contract between the parties or that both the parties to the contract were ad-idem about conferring the jurisdiction of disputes relating to the contract in question to the Courts at Gauhati only. The Hon''ble National Commission in a decision in case entitled Bhandari Inter State Carriers & Anr. v. M/s. A.K. Synthetics, reported as III (1997) CPJ 42 (NC)=1986-99 Consumer 4328 (NS) while relying on the decision of the Hon''ble Supreme Court in the case of M/s. A.B.C. Laminart Pvt. Ltd. (supra), has held : "We have examined the point very carefully. The State Commission after perusing the relevant clause in the GR, came to the finding that there was nothing in the evidence to show that the attention of the complainant was drawn to the said condition at or before the delivery of the goods receipt. There was no proof that the condition relating to jurisdiction was the result of a negotiated contract. The complainant had not agreed to that condition. It was further found that the condition that "all disputes subject to Delhi jurisdiction" did not exclude the jurisdiction of the State Commission which otherwise it had under the law as a part of the cause of action had arisen within the jurisdiction of the State Commission. This finding was returned on the basis of the law laid down by the Apex Court reported as AIR 1989 SC 1239."

(Emphasis supplied)

THUS, in view of the above decisions of the Apex Court and that of the Apex Commission, we have no hesitation in holding that the jurisdiction of the learned District Forum, in entertaining and adjudicating upon the complaint of the respondent was not barred for want of territorial jurisdiction. Another contention raised by the appellant in the present appeal is that the amount of compensation awarded to the respondent vide impugned order was not justified in view of the fact that the respondent had not disclosed the value of the goods anywhere in the consignment note and as such the compensation should have been awarded to the respondent only in terms of Section 3 of The Carriers Act, 1865 which restricts the maximum compensation to be awarded in a case to Rs. 100/-, where the value of the goods have not been disclosed in the Goods Receipt. In order to appreciate the said limb of argument on behalf of the appellant, it would be pertinent to revert to Section 3 of the The Carriers Act, 1865, which reads as under : "3. Carriers not to be liable for loss of certain goods above one hundred rupees in value unless declared as such-No common carrier shall be liable for the loss of or damage to property deliverd to him to be carried exceeding in value one hundred rupees and of the description contained in the schedule to this Act, unless the person delivering such property to be carried, or some person duly authorized in that behalf, shall have expressly declared to such carrier or his agent the value and description thereof."

A bare perusal of the above provision makes it clear that the same is applicable only in cases where the goods consigned are as per the Schedule attached to the said Act. The goods consigned in the present case were household items which admittedly are not the items mentioned in the Schedule. As such, Section 3 of the Carriers Act, 1865 is not applicable to the facts and circumstances of the case. The appellant has in support of his submissions relied upon the decision of Bharati Knitting Company v. DHL Worldwide Express Courier Division of Airfreight Limited, reported as II (1996) CPJ 25 (SC). However, the facts of the said case are on an entirely different footing as it is an admitted fact of the said case that the term/condition limiting the liability was incorporated in the consignment note which was duly signed by the complainant, which is not the factual position in the instant case as it has neither been alleged nor the case that there was any such condition or term in the consignment note which limited the liability of the carrier in any way. Therefore, the aforesaid decision is not applicable to the facts of the present case.

THE appellant in the instant appeal, has also denied the deficiency in service, inasmuch as, it has been pleaded that the goods of the respondent were destroyed in a fire accident and as such the same being an act of God, the carrier was not responsible for the loss occasioned to the respondent. We are unable to agree with the above contention of the appellant that merely because the goods were destroyed in a fire, there was no deficiency in service on the part of the appellant. THE appellant has nowhere given the details as to how, and in what circumstances the consignment got burnt and was destroyed. Furthermore, the learned District Forum, has exhaustively dealt with this aspect of the matter, in the impugned order. Thus there is no merit in the appeal filed by the appellant.

AS regards Appeal No. 468(A) filed on behalf of the respondent, Shri B. Rajindra, is concerned, the same at the very outset is time-barred, as it has been preferred on 17.12.1998 beyond the period of 30 days as prescribed under the provisions of Section 15 of the Act. Though the same is accompanied by an application for condonation of delay, however, the said application does not disclose any "sufficient cause" in terms of the proviso to Section 15 of the Act as to entitle the appellant for condonation of delay in filing the instant appeal. The only reason assigned for the delay is that, initially the respondent had decided not to file an appeal so that the relief in terms of the impugned order could flow to him immediately but since the appellant had thereafter filed an appeal and on receipt of the notice of the said appeal, the respondent also decided to file a cross appeal. The said explanation for not filing an appeal in time cannot in any way be termed as "sufficient cause" so as to entitle the condonation of delay of about four and half months on the part of the respondent, in filing the present appeal. Furthermore, the appeal, filed by the appellant for enhancement of compensation is not only barred by limitation but also does not disclose any cogent ground for enhancement of compensation already awarded by the learned District Forum vide impugned order and is a mere retaliation to the appeal filed by the appellant. Therefore, the same being devoid of merit is liable to be dismissed. In view of the aforesaid discussion, we do not find any merit in both the appeals. As such the impugned order of the District Forum is upheld and consequently both the appeals are dismissed. The impugned order of the District Forum be complied with, within a period of 30 days from the date of the receipt of this order, failing which, the appellant will be liable to pay an interest, on the awarded amount as per impugned order, @ 12% per annum from the date of this order till realisation. Both the Appeal Nos. 468/98 and 468(A)/98 are disposed of in above terms. Appeals dismissed.