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Judgment
THIS appeal is directed against the order dated 27th August, 1997 in O.P. No. 58/ 1996 on the file of the District Consumer Disputes Redressal Forum, Chennai (North).
ESSENTIAL and requisite facts may in brevity be related for understanding the crux of the question arising for consideration in this action. The appellant is the second opposite party while the respondent is the complainant. At the time of filing this appeal, the first opposite party had been impleaded as second respondent. However, the second respondent/first opposite party had been given up as no relief had been granted against the first opposite party by the Forum below.
THE organization going by the name Sharp Sales Services, Komala Foundry, Suguna Industries, Ramesh Engineering, Anasa Cosmetics of Coimbatore entrusted certain consignments belonging to them to the complainant for transportation from Coimbatore to Madras. After the receipt of the consignments from them, the complainant, in turn, availed of the services of the second opposite party, a carrier, for consideration through the medium of the first opposite party, a transport broker. The second opposite party carrier got the consignments loaded in their lorry bearing Registration No. TMI -9275 on 18.11.1995. The consignments were unloaded at the complainants office, Madras on 20.11.1995.
THE consignments consisted of 38 boxes and the value of the consignments is Rs. 58,310/ -. While unloading the consignments at the office of the complainant, Madras, there was short delivery of 13 boxes, the value of which is 22,922/ - (Rs. 13,800/ -, Rs. 2,435/ -, Rs. 14,469/ - and Rs. 4,684/ -, all totalling to Rs. 35,388/ -). The short delivery so effected, the complainant would say, is deficiency in service on the part of the second opposite party. Alleging the factors as above, the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint.
THE first opposite party, transport broker, in pith and substance contended that they cannot at all be held liable for the act of the second opposite party and they as a broker simply made available the lorry belonging to the second opposite party carrier for the purpose of transport of goods by the complainant. As such, the complaint as against the first opposite party is liable to be dismissed.
THE second opposite party in pith and substance would contend that they cannot at all be held liable for the short delivery of the goods unless and until the complainant was able to prove negligence on their part for such short delivery. 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 second opposite party and ultimately directed them to pay a sum of Rs. 58,310/ - towards the loss of consignment with interest at the rate of 12% per annum from the date of the complaint till payment with compensation of Rs. 10,000/ - and with cost of Rs. 500/ - within two months from the date of its order, failing which the complainant will be at liberty to invoke the provisions of Section 27 of the Consumer Protection Act, 1986 (for short, ''the Act'').
AGGRIEVED by the order as above, the second opposite party resorted to the present action by engaging a Counsel of their choice, namely learned Counsel Mr. P.M. Duraiswamy.
ON service of process, the respondent/ complainant entered appearance through a Counsel of his choice, namely learned Counsel Mr. V. Nandakumar. We heard the arguments of learned Counsel Mr. P.M. Duraiswamy appearing for the appellant/second opposite party and learned Counsel Ms. Rajalakshmi representing learned Counsel Mr. V. Nandakumar appearing for the respondent/complainant.
FROM the pith and submission of learned Counsel appearing for the parties, the points as below arise for consideration : (1) Whether it is incumbent on the part of the complainant to prove negligence on the part of the second opposite party, transport -carrier, before ever liability for short delivery of goods is mulcted upon them ? (2) To what relief the complainant is entitled to on the facts and in the circumstances of the case ?
POINT No. 1 : There is no pale of controversy that the complainant entrusted consignments consisting of 38 boxes to the second opposite party carrier at Coimbatore for the purpose of transport to Madras and effect delivery at the office of the complainant. Yet another fact about which there cannot be any dispute is that the value of the consignments consisting of 38 boxes is Rs. 58,310/ -. It is the case of the complainant that the value of the goods short delivered is to the tune of Rs. 58,310/ -. This, the complainant had stated in paragraph 7 of the complaint as below : Sl. No. Date of Despatch Date of Arrival Description of Missing Goods Value Rs. P. 1. 18.11.1995 20.11.1995 Monobloc Motors(3Nos.) 13,800.00 2. -do - -do - Electric Motor(1 No.) 2,435.00 3. -do - -do - Jet Pumps(5 Nos.) 14,469.00 4. -do - -do - Talcum Powder(25 Boxes) 22,922.00 5. -do - -do - Electric Motors(4Nos.) 4,684.00 Total 58,310.00
THIS sort of an averment as made by the complainant, of course, is not at all denied in the version filed by the second opposite party carrier. The fact that the second opposite party carrier did not at all dispute this sort of an averment does not mean that the value of the lost consignments is to the tune of Rs. 58,310/ - inasmuch as the document Ex. A4 filed by the complainant would indicate in no uncertain terms that the value of the lost consignments cannot at all be Rs. 58,310/ - and if at all the value would be only Rs. 35,388/ -. A perusal of Ex. A4 would indicate that items enumerated in SI. Nos. 1 to 3 and 5 in the relevant portion of paragraph 7 as indicated above were alone short delivered and their value is Rs. 35,388/ - (Rs. 13,800/ - + Rs. 2,435/ - + Rs. 14,469/ - + Rs. 4,684/ - totalling to Rs. 35,388/ -).
THE Forum below wrongly came to the conclusion the value Of the short delivery of the goods effected was to the tune of Rs. 58,310/ - and this resulted as a consequence of not sifting or scanning in a proper fashion of the materials placed on record by the Forum below. If the Forum below took into consideration the contents of Ex. A4, Goods Delivery Order (Goods Arrival Report) in sifting the case of the complainant, such a factual mistake as respects the value of the lost consignments could not have been crept into the order of the Forum below. By way of reiteration, we may state that the value of the lost consignments is only to the tune of Rs. 35,388/ - and not Rs. 58,310/ - as found by the Forum below. The finding of the Forum below on this aspect of the matter is, therefore, set aside and we conclude by stating that the value of the lost consignments is only to the tune of Rs. 35,388/ -. The moot question that arises for consideration at this juncture is as to whether liability could be mulcted for such short delivery upon the shoulders of the second opposite party carrier even in the absence of proof of negligence on the part of the second opposite party carrier by the complainant. It is not as if this sort of a question did arise for consideration for the first time and the sordid fact is that such a question arose for consideration before the Apex Court of this country in the case of Patel Roadways Limited v. Birla Yamaha Limited, I (2000) CPJ 42 (SC)=III =2000 CTJ 241 (Supreme Court) (CP). The views of the Apex Court are getting expressed in paragraph 46 at page 249 of the said decision and it reads as under : ''46. From the conspectus of views taken in the decisions of different High Courts noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in Section 9 in which it is specifically laid down that in case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortuous liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time and have been crystallised into accepted position of law. No good reason has been brought to our notice to persuable us to make a departure from the accepted position. Therefore, we reiterate the position of law noticed above. The consequential position that follows is that the contention of Mr. Ashok Desai, learned Senior Counsel, that the respondents herein having failed to establish negligence on the part of the appellant their claim for damages should be rejected, cannot be accepted.''
THE observation of the Apex Court as extracted above is applicable in all fours to the facts of the instant case.
IN this view of the matter, there is no need at all for the complainant to prove negligence on the part of the second opposite party carrier before ever they are mulcted with liability for the short delivery of the goods effected by them. This point is answered accordingly. Point No. 2 : We have noticed in Point No. 1 that value of the lost consignment is to the tune of Rs. 35,388/ -. The second opposite party carrier has to naturally bear the brunt of the burden of paying the value of the lost consignments to the tune of Rs. 35,388/ - to the complainant and not Rs. 58,310/ - as had been held by the Forum below.
THE Forum below awarded interest on the value of the lost consignments @ 12% per annum from the date of the complaint till date of payment, in addition to the payment of compensation Rs. 10,000/ -. Payment of interest besides payment of compensation is not at all permissible. Either one of the things alone is grantable. The Forum below having granted both interest at the rate of 12% per annum on the value of the lost consignments and also compensation of Rs. 10,000/ -, one of them must have to be necessarily deleted. We feel on the facts and in the circumstances of the case, the award as relatable to compensation quantified in a sum of Rs. 10,000/ - can be deleted and we accordingly order so, retaining the payment of 12% interest which is reasonable on the value of the lost consignments, namely Rs. 35,388/ - from the date of the complaint till date of payment. The Forum below also awarded costs in a sum of Rs. 500/ - which we rather feel is reasonable on the facts and in the circumstances of the case not calling for interference.
THE order of the Forum below is modified to the extent as indicated above. We, however, make no order as to costs on the facts and in the circumstances of the case. The appeal is thus disposed of. The modified order of our is to be complied with by the second opposite party/ appellant within a period of one month from the date of receipt of our order or otherwise the complainant will be at liberty to invoke the provisions of Section 27 of the Act. Order modified.