National Consumer Disputes Redressal
On-Dot Courier & Cargo Ltd. vs Himachal Pradesh State Electricity ... on 1 June, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 318 OF 2011 (Against the Order dated 23/09/2010 in Appeal No. 190/2009 of the State Commission Himachal Pradesh) 1. ON-DOT COURIER & CARGO LTD. 8/42, Kirti Nagar Industrial Area New Delhi - 110015 Delhi ...........Petitioner(s) Versus 1. HIMACHAL PRADESH STATE ELECTRICITY BOARD H.O. Totu Shimla Himachal Pradesh ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. M. SHREESHA, MEMBER For the Petitioner : Mr. Abhineet Gulati, Advocate with Mr. Rahul Garg, A/R For the Respondent : Naresh K. Sharma Dated : 01 Jun 2015 ORDER This Revision Petition, under Section 21 (b) of the Consumer Protection Act, 1986 (for short "the Act"), has been filed by the Opposite Party in CC No.14 of 2006, questioning the correctness of the order, dated 23.09.2010, passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (for short "the State -2- Commission") in First Appeal no.190 of 2009. By the impugned order, the State Commission, while affirming the finding recorded by the District Consumer Disputes Redressal Forum, Solan, Himachal Pradesh (for short "the District Forum") in its order dated 20.01.2009, in the said Complaint to the effect that the Petitioner was deficient in performance of its service, as a common carrier, has allowed the Appeal preferred by the Complainant, and has enhanced the compensation awarded by the District Forum from Rs.100/- to Rs.1,25,400/-. The State Commission has also awarded interest to the Complainant, @ 9% p.a. from the date of filing of the Complaint, i.e. 30.12.2005 till its payment/deposit, whichever is earlier, in addition to the litigation expenses of Rs.5,000/- awarded by the District Forum.
In short, the case of the Complainant before the District Forum was that its Assistant Engineer had booked with the Petitioner four numbers of Relays for being delivered to a party in Kerala, vide Airway Bill no.47397300/- dated 17.09.2004. However, the said consignment was not delivered at the destination of the addressee. Hence, alleging deficiency in service, in the Complaint filed against the Petitioner, the Complainant inter alia, prayed for indemnification of the cost of relays (Rs.1,25,400/-) along with damages etc. As noted above, the District Forum allowed the Complaint, holding that there was deficiency in -3- service on the part of the Petitioner and accordingly issued the aforestated directions to it.
Not being satisfied with the compensation awarded, the Complainant preferred Appeal before the State Commission for enhancement of compensation. However, the Petitioner did not challenge the said order, with the result that the finding of deficiency in performing service towards the Complainant attained finality. As noted above, the compensation having been enhanced by the State Commission, the Petitioner/Carrier is before us.
The main contention of learned Counsel for the Petitioner is that apart from the fact that the value of the goods transported was not declared, the Complainant was bound by the terms of the conditions printed on the back side of the courier receipt, whereunder, in the event of loss of goods booked, the liability of the Petitioner was limited to Rs.100/- only.
Having heard learned Counsel for the parties and perused the pleadings, we are of the opinion that there is no substance in the present Revision Petition.
In the written version filed on behalf of the Petitioner, the Complaint was contested on the grounds that:
-4-It involved disputed questions of fact, which could not be adjudicated by a Consumer Fora;
It at all, there was any negligence, it was by Petitioner's franchisee at Trivandrum, which had not been impleaded as a party; and, The value of the consignment, having not been declared in the Air-way bill, its value cannot be taken at Rs.1,25,400/-.
We are of the view that having accepted the order of the District Forum, which had found the Petitioner deficient in providing service to the Complainant, it is too late in the day for it to rake up the aforesaid question in a Revision Petition, wherein the scope of interference is limited only to correction of a Jurisdictional error in the orders of the Fora below. Furthermore, question of liability of a common Carrier under the Carriers Act, is no longer res integra. In Patel Roadways Ltd. vs. Birla Yamaha Ltd. (2000) 4 SCC 91, referring to a number of decisions on the point, the Hon'ble Supreme Court held as follows:
"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 -5- 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 an accepted position of law. No good reason has been brought to our notice to persuade 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 Shri 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."
Similarly, rejecting the stand of the Carrier regarding the Conduct of the Complainant that it had led the Carrier to believe that the goods entrusted were insured, the Supreme Court observed that since neither such plea was taken before this Commission nor any evidence in that behalf was adduced, the Carrier could not be permitted to raise the plea at a late stage. Even otherwise, the finding of deficiency having been affirmed, the State Commission was within its Jurisdiction to award compensation in terms of Section 3 of the Act.
-6-Therefore, insofar as the quantum of compensation, a paltry sum of Rs.1,25,400/-, is concerned, we do not find any Jurisdictional error in the impugned order, warranting our interference in Revisional Jurisdiction. However, having regard to the circumstances of the case, we feel that award of further interest on the compensation in favour of the Complainant is not justified. Accordingly, we set aside the direction regarding payment of interest.
Consequently, the Revision Petition is partly allowed to the extent indicated above. We direct that the balance amount, due in terms of the impugned order shall be paid by the Petitioner to the Complainant within six weeks from the date of receipt of copy of this order, failing which the said amount shall carry interest @ 12% p.a. from the date of the order of the State Commission till actual payment. No costs.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER