VENSON TRANSPORT vs MAHALAKSHMI TRUST

SHORT facts leading to the filing of this appeal may be related in order to understand the crux of the issue arising for consideration.

M/s. Mahalakshmi Trust (complainant), it is said, is a dealer in textiles in Chennai. M/s. Venson Transport (opposite party), a partnership firm, is a public carrier. The complainant entrusted a consignment of Raymond suitings of different qualities and shades totalling 33 metres for transport and delivery at Bangalore to M/s. Sunil Textile Corporation, KG Circle, Bangalore. The booking was made with the opposite party on 22.4.1995 under Lorry Receipt No. 70423. The consignment was delivered to the consignee M/s. Sunil Textile Corporation on 21.6.1995. On opening the parcel on that day itself, the consignee found that the consignment was completely damaged due to rat bites. The consignee wrote to the opposite party complaining about the damage to the consignment on the very next day on 22.6.1995.

It was found that the original gunny bag used for packing by the consignor was removed and repacking was made at the godown of the opposite party. A claim was made to the opposite party towards the value of the consignment which was completely damaged. The value of the consignment is Rs. 47,751/-.

A Surveyor inspected the consignment in the opposite party''s branch office godown on 4.4.1996 and the Surveyor has stated that the consignment had been completely damaged. The opposite party rejected the claim of the complainant on the ground that the goods were transported at owner''s risk.

THE damage was due to the gross negligence on the part of the opposite party in not taking care to protect the welfare of the consignment from rat bites. THE opposite party, being a public carrier, is therefore, liable to make good the loss sustained by the complainant. In this backdrop and setting, the complainant knocked at the doors of the Forum below alleging deficiency in service on the part of the opposite party and for certain reliefs as prayed for in the complaint. The opposite party in pith and substance would contend that at the time of taking delivery of the consignment no complaint was made with regard to the condition of the package. The damage could have been caused only at their own end. The complaint as such is liable to be dismissed.

THE complainant filed proof affidavit besides marking documents, viz. A-1 to A-10. THE opposite party also filed proof affidavit without filing any documents on their side.

THE Forum below, after taking into consideration the materials placed on record, recorded a specific finding that it was only due to the gross negligence of the opposite party that the damage had been caused to the valuable textile goods entrusted to them for effecting delivery to the consignee at Bangalore. As a consequence of such a finding, the Forum below allowed the complaint and directed the opposite party to pay to the complainant the sum of Rs. 47,751/-, the value of the consignment and cost of Rs. 1,000/- within a month from the date of its order. Aggrieved by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice viz., learned Counsel Mr. P.V. Raghavan.

The complainant being a Trust represented by the Trustees three in number, they are impleaded as respondents 1 to 3 and on service of process, they entered appearance through a Counsel of their choice viz., Mr. K.S. Gurumurthy and Mr. K. Ramalingam.

WHEN the matter came up before us today for arguments, learned Counsel appearing for the respondents 1 to 3/complainants were called absent and no representation was made on their behalf. The fact that the said learned Counsel was absent does not mean that we cannot dispose of the appeal on merits, of course, after hearing the arguments of learned Counsel Mr. P.V. Raghavan, appearing for the appellant/opposite party and on perusal of the material placed on record. That is exactly what we have done in this action. Learned Counsel Mr. P.V. Raghavan appearing for the appellant/opposite party presented his series of points as below for consideration : (1) At the time of entrustment of the consignment to the opposite party carrier the complainant did not at all disclose the nature of contents of the consignment except disclosing that they were textile goods and their value as Rs. 28,000/- as reflected in the way bill marked as Ex. A-1. Such being the case he cannot have any claim far in excess of Rs. 28,000/-.

(2) The consignee did not at all demand open delivery at the time of delivery and, therefore, it is that the goods delivered must be taken for granted to be in good condition and, therefore, the Open Court cannot at all be mulcted with any liability for damage or loss if any caused to the goods.

THE projection of hues of views as aired by the said learned Counsel appearing for the appellant may bear a credible look of tenability at the first sight, however, a little probe, if made into the submissions in the process of giving a legal fitment to the factual matrix of the case in the light of the salient provisions adumbrated under the Carriers Act, 1865 [for short, the Act 1865], the utter untenability taking shelter thereunder would get pierced or exposed. THE Act 1865 is appended with a Schedule containing a list of goods. THE goods listed in the Schedule, if entrusted to a common carrier for effecting delivery to the consignee at a specified destination, the liability of the carrier is limited to Rs. 100 only unless the person delivery such property to be carried or some other person duly authorised in their behalf shall have expressly declared to such carrier or his agent the value of description as per Section 3 thereof. If declaration of such goods is made by the consignor, the carrier for carrying such property is entitled to fix the rates as per Section 4 thereof. If the consignor after declaration of the value of such goods entrusted such goods to the carrier for the purpose of carriage and pays the rate fixed by the carrier for carriage of such goods, then, in the case of loss or damage caused to such goods, the consignor is entitled to recover in respect of such loss or damage besides the money if any actually paid for such carriage from the carrier, as per Section 5 thereof. In respect of goods other than the goods specified in the Schedule attached to the Act 1865, if entrusted to the carrier, in the absence of a special contract entered into between the parties then, the loss or damage occurred to such goods, the consignor is entitled to recover from the carrier the entirety of the loss or damage sustained by him under Section 6. The liability of the carrier is dealt with under Section 8. According to Section 8, the carrier is liable for loss or damage caused by neglect or fraud by him or his agent.

SECTION 9 provides in no uncertain terms that in any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. Thus, a combined reading of SECTIONs 8 and 9 will make it crystal clear that the common carrier is liable for loss or damage caused to the goods entrusted to it even in the absence of proof forthcoming from the side of the complainant as respects the negligence on the part of the carrier which resulted in loss or damage being goods to the grounds entrusted to them.

IN the case on hand, the goods entrusted to the opposite party carrier are not of the description falling under Schedule A appended to the Act 1865. Such being the case, it goes without saying that there is no need at all for the complainant to declare the nature of the contents entrusted to the opposite party carrier for the purpose of carriage. There is also no need at all to mention the value of the goods entrusted to the carrier. There is no question of any rate to be fixed by the carrier for carrying such goods as per Section 4 of the Act 1865. The sections applicable to the case on hand are Sections 6, 8 and 9 of the Act, 1865. IN the case on hand, there is no special contract between the complainant and the opposite party carrier limiting the liability of the carrier to any extent whatsoever. The value of the goods entrusted to the opposite party carrier is admittedly Rs. 47,751/- as reflected by the invoice marked as Ex. A-1 although what the complainant had stated in the way bill is a misnomer. There is no necessity in this case for him to declare the value of the goods at the time of entrustment to the common carrier. The value of the goods so declared cannot at all be taken into account as the correct value of the goods. There being no denial of any sort whatsoever as respects the value of the goods as above stated in the invoice, we have to simply take it for granted the value of the goods as reflected in the invoice according to the commercial practice, is the correct one.

No doubt true it is, that no open delivery was given by the carrier to the consignee at the time of effecting delivery. It is also true that the consignee at the time of taking delivery did not whisper or murmur anything as respects the damaged condition of the goods taken delivery of from the carrier. Such matters by themselves will by no stretch of imagination relieve the liability of the opposite party carrier if we take into consideration the other materials of paramount importance placed on record for consideration.

THE complainant had filed a proof affidavit. What he has stated in paragraph 4 therein is relevant and it reads as under : "4. I submit that the opposite party had delivered the consignment at its branch, No. 33, Rajbavan Road, Bangalore-1 and the consignment was delivered to the consignee on 21.6.1995. I swear that the consignee on opening the parcel on 21.6.1995 itself found that the consignment was completely damaged due to rat bites and the consignee returned the consignment to the opposite party''s branch and the consignee complained in writing to the opposite party at Bangalore on 22.6.1995 that the consignment was completely damaged due to rat bites. THE original gunny bag used for packing the consignment was found removed and repacking has been done at the godown of the opposite party. We received the copy of the letter on 22.6.1995 and this is document No. 2."

No doubt, the opposite party filed a proof affidavit. But the pity is, the opposite party has not chosen to deny the specific submissions as extracted above in paragraph 4 of the affidavit filed by the complainant. Such being the case, it goes without saying that the damage to the consigned goods occurred only during the period the consigned goods were in the custody of the opposite party and in order to conceal the damage so caused to the goods, the opposite party carrier even went to the extent of re-packing the consignment to make it appear that the contents of the consignment are in good shape and condition. Such being the case, the argument of learned Counsel appearing for the appellant/opposite party transport carrier that in the absence of any murmur or whisper having been made even at the time of taking delivery by the consignee as respects the damage caused to the goods, is of no consequence.

PERTINENT it is at this juncture to refer to the decision emerging from the Apex Court of this country in the case of Patel Roadways Ltd. v. Birla Yamaha Ltd., AIR Supreme Court 1461. The Supreme Court said 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 or 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 tortious 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 crystallized into accepted position of law." The Supreme Court further said the principle regarding the liability of a carrier contained in Section 9 of the Carriers Act, viz., that the liability of a carrier is that of an insurer and that in a case of loss or damage to goods entrusted to the carrier the plaintiff need not prove negligence, are applicable in a proceeding before the Consumer Forum. It cannot be said that the term "suit" used in Section 9 of the Carriers Act does not extend to proceedings before Consumer Forum. The term "suit" has not been defined in Carriers Act nor it is provided in the said Act that the term "suit" will have the same meaning as in Civil Procedure Code. Therefore, the term "suit" has to be understood in its ordinary dictionary meaning. In that sense, the term "suit" is a generic term taking within its sweep all proceedings initiated by a party for valuation of a right vested in him under law. It is true that a proceeding before Consumer Forum is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised are too contentious to be decided in summary proceedings, it may refer parties to Civil Court. That, however, does not mean that the proceeding before the Consumer Forum is to be decided by ignoring the express statutory provisions of Carriers Act in a proceeding in which a claim is made against a common carrier. A proceeding before the Consumer Forum comes within the sweep of the term "suit". The dictum as above laid down by the Supreme Court is applicable in all fours to the facts of the instant case. In view of what has been stated above, it goes without saying that the appeal deserves to be dismissed.

IN fine, the appeal fails and the same is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. We make it crystal clear that the order of the Forum below as confirmed by us is required to be complied with by the opposite party within a 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 Consumer Protection Act, 1986. Appeal dismissed.