National Consumer Disputes Redressal
- vs - on 14 February, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 261 OF 2020 (Against the Order dated 10/12/2019 in Appeal No. 1252/2019 of the State Commission Rajasthan) 1. - ...........Petitioner(s) Versus 1. - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Petitioner : Mr. Kamal Chamaria, Advocate For the Respondent :
Dated : 14 Feb 2020 ORDER
JUSTICE V. K. JAIN (ORAL)
1. The Complainant/Respondent sent consignment of waste papers weighing about 11780 kg. to M/s. Chamunda Papers Pvt. Ltd., Hapur, through the Petitioner-Firm on 25-04-2014. The said consignment, according to the Complainant had the value of Rs.1,73,755/-. The consignment having not been delivered to the consignee, a claim was lodged by the Complainant with the Petitioner, by way of a written Notice seeking cost of those goods along with compensation, etc.. The Notice having not been complied with, the Complainant approached the concerned District Forum by way of a Consumer Complaint.
2. The Complaint was resisted by the Petitioner which admitted the booking of the goods by the Complainant through it as well as non-delivery of the said goods. A preliminary objection was taken by the Petitioner that the Complainant was not a Consumer within the meaning of the Consumer Protection Act, 1986, since the goods were sent by the Complainant to Hapur for earning profit by sale of those goods and, therefore, the transaction between the parties was for a commercial purpose. It was also stated in the Written Version filed by the Petitioner that it was the driver of the truck in which the goods were sent who was responsible for non-delivery of the goods. Another plea taken by the Petitioner was that the goods were carried on owner's risk and the said term was clearly printed on the Goods Receipt issued by the Petitioner.
3. The District Forum having allowed the Consumer Complaint and having directed the Petitioner to pay a sum of Rs.1,73,755/- to the Complainant along with interest at the rate of 9% per annum, compensation quantified at Rs.25,000/- and costs of litigation quantified at Rs.14,000/-, the Petitioner approached the concerned State Commission by way of an Appeal. Vide impugned Order dated 10-12-2019, the State Commission dismissed the Appeal filed by the Petitioner. Being still dissatisfied, the Petitioner is before this Commission.
4. As far as the preliminary objection taken by the Petitioner is concerned, I find no merit in the said objection, since a contract between the consignor and the transporter being akin to contract of insurance. In Patel Roadways Ltd. Vs. Birla Yamaha Ltd., I (2000) CPJ 42 (SC), the Hon'ble Supreme Court inter alia held as under:
"30. Coming to the question of liability of common carrier for loss of or damage to goods, the position of law has to be taken as fairly well settled that the liability of a carrier in India, as in England, is more extensive and the liability is that of an insurer. The absolute liability of the carrier is subject to two exceptions; and act of God and a special contract which the carrier may choose to enter with the customer.
45. 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 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. 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."
In Nath Brothers Exim International Ltd. Vs. Best Roadways Ltd., 2000 (4) SCC 553, the Hon'ble Supreme Court inter alia held as under:
"22. From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insured and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor."
5. An Insurer, in case loss is suffered by the Insured, reimburses the Insured for the said loss, if it is covered under the Insurance Policy taken by him. It has been held by this Commission in Harsolia Motors Vs. National Insurance Co. Ltd., (1) (2005) CPJ 27 (NC), that an Insured is a Consumer vis-a-vis the Insurer and, therefore, a Consumer Complaint against the Insurer is maintainable. Applying the same principle of law, I have no hesitation in holding that a transaction between the consignor of the goods and the transporter, being akin to a contract of insurance, the consignor would be a Consumer of the transporter even if the consignment was sent as a part of the commercial activity of the consignor.
6. The Learned Counsel for the Petitioner has drawn my attention to the Goods Receipt which has a printed term to the effect that the goods were booked at owner's risk. Such a term came up for consideration of the Hon'ble Supreme Court in Nath Brothers Exim International Ltd. (Supra) in which it was held that this term would apply only to a case where there is no negligence on the part of the transporter. The following view was taken by the Apex Court in this regard:
"25. Section 6 enables the common carrier to limit his liability by a special contract. But the special contract will not absolve the carrier if the damage or loss to the goods, entrusted to him, has been caused by his own negligence or criminal act or that of his agents or servants. In that situation, the carrier would be liable for the damage to or loss or non-delivery of goods."
""Owner's 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 carrier's own negligence or the negligence of its servants and agents."
7. In the present case, the goods sent by the Complainant through the Petitioner were not delivered. Admittedly, the goods were not delivered at their destination. There is no explanation from the Petitioner for the non-delivery of the goods, except that the driver of the truck is responsible for not delivering the goods. The Petitioner is responsible for the acts of the driver who was driving the truck in which the goods were carried, the driver being an employee of the Petitioner or the truck owner whose truck the Petitioner had engaged for carrying the goods of the Complainant. Therefore, the Petitioner has failed to prove that the goods could not be delivered without there being any negligence on its part. The aforesaid Clause, therefore, would not come to the rescue of the Petitioner.
8. It is also pointed out by the Learned Counsel for the Petitioner that as per Clause 17 of the Terms & Conditions of the Goods Receipt, the goods were required to be insured and since they were not insured, the Petitioner is not responsible for the loss of the goods. A perusal of the Goods Receipt shows that even at the time of booking of the goods, the Petitioner was aware that they were not insured. The Petitioner, therefore, ought not to have accepted the goods if the insurance of the goods was a pre-requisite condition. Having accepted the goods for transportation to Hapur, the Petitioner, in my opinion, is estopped from pleading want of insurance and cannot escape its responsibility to reimburse the Complainant for the loss suffered by him, on account of the goods not being delivered at the destination.
9. For the reasons stated herein above, the concurrent view taken by the Fora below does not call for any interference by this Commission in exercise of its Revisional Jurisdiction.
10. The Revision Petition is, therefore, dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER