State Consumer Disputes Redressal Commission
The Branch Manager vs M/S Harinam Traders on 10 August, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/305/2011 (Arising out of Case No. 109/S/2010 of District Consumer Disputes Redressal Forum, Siliguri ) DATE OF FILING : 05.07.11 DATE OF ORDER: 10.08.2012 APPELLANTS : 1. The Branch Manager, Hindusthan Road Carriers, M.G. Road, Jaigaon, Jalpaiguri- 736182. 2. The Branch Manager, Hindusthan Road Carriers, 2nd Mile, Sevoke Road, Siligur- 734001. 3. Hindusthan Road Carriers, 21, Phears Lane, Kolkata- 700 073. RESPONDENTS : 1. M/s. Harinam Traders, Represented by its proprietor Shri Suresh Garg, H.M.D. Road, Jaigaon, Jalpaiguri- 736182. .. Respondent. 2. M/s. Shree Balaji Textiles, 157, Rabindra Sarani, 1st Floor, Opposite Bangur Building, Kolkata- 700 007. .. Pro-forma Respondent. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : H. Brahmachari, Tanusree Dhar., Advocates. FOR THE RESPONDENTS : Mr. S.K. Das., Advocate. Debasis Bhattacharya, Member.
Being aggrieved and dissatisfied with the judgment and order dated 30.05.11 passed by the Ld. District Forum, Siliguri in Case No. 109/S/2010, the principal O.P.s thereof have preferred this appeal.
The case of the Complainant/Respondent No.1 in the petition of complaint is that he is a general cloth merchant at Jaigaon. Proforma O.P. No. 4, Complainants principal, booked the following consignments of clothes on several dates for safe carrying and delivery in good condition to the consignee, i.e., the Complainant at Jaigaon on service/hire charges as mentioned in the consignment notes under Owners risk and freight payable on delivery of the consignment by the Complainant.
C. Note No. Date No. of Packages Value of goods Hire charges.
JAL/13178 16.3.2010 4 Rs.47618.00 Rs.625.00 JAL/13209 20.3.2010 2 Rs.33695.00 Rs.340.00 JAL/13223 23.3.2010 3 Rs.35428.00 Rs.560.00 JAL/11225 08.5.2010 5 Rs.63168.00 Rs.715.00 But, those consignments have not reached to their destination. The Complainant made enquires since the month of April, 2010 but all the times it was told that goods have not reached Jaigaon and the same would be delivered when arrived in Jaigaon. On approach by the consignor, i.e., proforma O.P. No. 4 to OP No. 3, it was told that the matter was being looked into. In the first part of June, 2010, on receipt of a message from Sri Banke Roy of O.P. No.1, the Complainant along with Sri Ganga Sharma and Sri Ashok Parik, who are engaged in transportation business, went to the office of O.P. No. 1 and inspected the consignment under consignment no. JAI/13178 in presence of said Sri Banke Roy and found that all the four bales/packages of clothes were fully and completely damaged and unusable and cannot be sold in open market. On query, said Sri Banke Roy told that the said bales were loaded in the vehicle by the side of acid and due to the acid leak, the said bales had been damaged. On enquiry about the other three consignments, said Sri Banke Roy told that those had not arrived and so delivery could not be made. Said Sri Banke Roy was asked by the Complainant in presence of Mr. Parik and Mr. Sharma to send a letter to the Complainant regarding the status and position of all the booked consignments. However, the Complainant received a letter dated 15.6.10 regarding Consignment Notes No. 13178 only intimating that the said consignment had been damaged during transportation as acid, hazardous item, was loaded in the vehicle by the side of the said consignment which damaged the clothes and the said damaged consignment had been sent to O.P. No.2 and advised to approach O.P.No. 3 for settlement of the claim. Thereafter, the Complainant visited O.P. No. 1 and demanded damage certificate for Consignment Note No. JAI/13178 and non-delivery certificate for the remaining consignments. But, said Sri Banke Roy refused it on the ground that he had no instructions from the head office. As per said letter dated 15.6.10, the representative of the proforma O.P. visited O.P. No.3 but it was replied that the matter would be settled with the Complainant consignee only. Accordingly, the proprietor of the ComplainantFirm, Sri Suresh Garg along with the representative of proforma O.P. visited O.P. No. 3s office on 9.7.10 and it was told that as the goods have been booked on owners risk, so the transporter was not liable and nothing was payable on account of non-delivery/damage/ loss of the four consignments in transit or otherwise. There is as such gross negligence, omission, carelessness, deficiency in service on the part of the O.P.s.
Accordingly, the Complainant made a demand notice dated 2.7.10 to the O.P. Nos. 1 & 2 which was duly received by them, but there was no response. So, the Complainant sent a legal notice dated 20.7.10 to the O.P.s demanding a sum of Rs. 1,79,909/- being the value of the said four consignments plus 15% interest from the date of booking within 10 days from the date of receipt, in default to institute a case along with compensation of Rs.1,00,000/-. The said legal notice was replied by the O.P. through Advocate on 16.8.10 stating that the three consignments, viz., JAI/13209, 13223 and 11225 had already been delivered on 24.3.10, 28.3.10 and 12.5.10 to the consignee and there is delivery document, which is totally false, baseless and unfounded in order to avoid liability of the O.P. Accordingly, this case.
The case of the O.P.s/Appellants in their W.V. is that the case is not maintainable in its present form and in law and barred by territorial jurisdiction of the Forum and that after taking delivery of all the four consignments, the disputed bales under CN No. JAI/13178 dated 16.3.10 was brought to its Jaigon store by the Complainant in June and demanded certificate of damages due to acid which was declined. So, the Complainants combined force intimated the O.P.s representative, Sri Banke Roy of dire consequences if such certificate is not granted. Accordingly, under threat of physical assault, said Sri Banke Roy had written down as dictated by the concerted force of the Complainant. Subsequently, when the matter came to the knowledge of the O.P, said Sri Banke Roy was advised to report the threat to the police but due to passage of time it was not possible to report the matter to the police. Thereafter also, the Complainants men visited Jaigon store and further demanded non-delivery certificate in respect of the remaining three consignments. So, it has been prayed to dismiss the case with costs, compensation and damages.
By the impugned judgment and order, the Ld. District Forum has allowed the case on contest in part against the O.P. Nos. 1 to 3 with cost of Rs.1,000/-along with direction to the O.P. Nos. 1 to 3 to pay the awarded sum and the compensation amount as ordered.
It is to be considered if such judgment and order suffers from any illegality so as to reverse the same in favour of the Appellants.
Decision with reasons Ld. Advocate for the Appellants has submitted that all the consignments were duly delivered to the representative of the Respondent No.1 who took the goods by signing on the documents and there was no claim of damage at the self-same moment of delivery and that it is a wrong prosecution by the Complainant and a bogus claim was made after three months and the case is an after thought one and based on blatant lie.
Ld. Advocate for the Respondent No.1 has submitted that the goods were booked in Kolkata for Jaigon and not from Siliguri to Jaigon and that there cannot be any delivery without the consignee copy given at the time of delivery and that out of four consignments, three were not received and the other was in a damaged condition.
Admittedly, four consignments were booked by the proforma O.P. as consigner in favour of the Complainant being the consignees vide nos. JAI/13178 dated 16.3.10, JAI/13209 dated 20.3.10 JAI 13223 dated 23.3.10 and JAI/11225 dated 8.5.10. Appellants filed destination copies which show delivery was made to one Birbahadur, but there is no date, designation and seal of the Complainant on them. It has been denied by the Complainant in reply to the questionnaires of the O.P.s that he has no staff named Birbahadur. Appellants have failed to prove by any document that Birbahadur was/is a staff of the Complainant. Nor said Birbahadur has been examined by the Appellants as proof of delivery of such goods. Further, there is no proof that the goods have been delivered on payment of freight or with an undertaking to pay such freight later on. There is also no demand on the part of the Appellants for payment of the freight by the Respondent No.1 for the delivery of the goods. Respondent No.1 has filed the consignee copies which indicate that the same are intended to be supplied by the consignee to the carrier for the purpose of getting the goods at the time of delivery. Accordingly, the Appellants have no proper and rightful case in the matter. The Complainant has very much substantiated the case by proper evidence and by citing the witnesses for the purpose. There is no explanation on the side of the Appellants as to the damaged condition of the goods cosigned under no. 13178 dated 16.3.10.
There is further no proof that the letter dated 15.6.10 was obtained by the Respondent No.1 coercing Sri Banke Roy of the Appellants. Such, document does not make out anything towards the same. No police complaint was lodged in the matter and in the W.V. it was stated that police could not be informed due to passage of time. No previous animosity was found between the Appellants and the Respondent No.1 before the instant incident. In this connection, the Ld. Advocate for the Respondent No.1 has relied upon a decision of the Honble Supreme Court reported in I (2000) CPJ 25 (SC), where it was held that Owners Risk does not exempt Carrier from his own negligence or his servants or agents. Owners Risk in the realm of commerce has a positive meaning. It is understood in the sense that the carrier would not be liable for damage or loss to the goods if it were not caused on account of carriers own negligence or the negligence of its servants and agents. He has also relied on another decision of the Honble Supreme Court reported in I (2000) CPJ 41 (SC), where it was held that liability of common carrier is that of insurer and it will be for the carrier to prove absence of negligence. He has further relied upon a decision of the Honble Supreme Court reported in I (2000) CPJ 42 (SC), in which it was held 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 a 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. Further more, he has relied upon a decision of the Maharashtra State Commission reported in IV (2010) CPJ 342 where the Honble Supreme Courts decision as reported in I (2000) CPJ 25 (SC), as referred to earlier, was quoted in deciding the case in favour of the consignee. Accordingly, the appeal has got no merit.
The Ld. District Forum, Siliguri has gone through the entire materials and decided the case in favour of the Complainant/Respondent No.1 analysing the facts. No anomaly is found therein in deciding the case for the Complainant/Respondent No.1 and in the matter of the awarded amounts and there is nothing to interfere in it.
In the result, the appeal fails.
Hence, Ordered that the appeal be and the same is dismissed on contest against the Respondent No.1 with a cost of Rs. 5,000/-. The impugned judgment and order is hereby affirmed.
Let a copy of this order along with the LCR be forwarded to the Ld. District Forum, Siliguri for information.
Jagannath Bag.
Debasis Bhattacharya (Member) (Member)