National Consumer Disputes Redressal
Transport Corporation Of India Ltd. vs . Oriental Insurance Co. Ltd on 13 October, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 190 OF 2001 (From the order dated 26.02.1997 in Complaint No. 89/95 & 90/95 of Rajasthan State Consumer Disputes Redressal Commission, Jaipur) 1.Transport Corporation of India Ltd. Regd. Office 1-7-293, Mahatma Gandhi Road, Secundrbad (A.P.) 2. Transport Corporation of India Ltd. Bundi Road, Near Delhi Gate Chittorgarh Rajasathan. Appellants Versus 1. Oriental Insurance Co. Ltd. Through its Regional Manager, Anand Bhawan, Sansar Chandra Road Jaipur (Rajasthan) 2. Hindustan Zinc Ltd. Yashad Bhawan, Udaipur (Rajasthan) Through its Company Secretary Through Power of Attorney Holder Respondents & FIRST APPEAL NO. 191 OF 2001 (From the order dated 26.02.1997 in Complaint No. 89/95 & 90/95 of Rajasthan State Consumer Disputes Redressal Commission, Jaipur) 1.Transport Corporation of India Ltd. Regd. Office 1-7-293, Mahatma Gandhi Road, Secundrbad (A.P.) 2. Transport Corporation of India Ltd. Bundi Road, Near Delhi Gate Chittorgarh Rajasathan. Appellants Versus 1. Oriental Insurance Co. Ltd. Through its Regional Manager, Anand Bhawan, Sansar Chandra Road Jaipur (Rajasthan) 2. Hindustan Zinc Ltd. Yashad Bhawan, Udaipur (Rajasthan) Through its Company Secretary Through Power of Attorney Holder Respondents BEFORE HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellants Mr. G. Banerjee, Advocate For the Respondent Mr. Santosh Paul & Ms Mohita Bagati, Advocates PRONOUNCED ON 13th OCTOBER, 2011. ORDER
PER JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER By this common judgment, both the appeals are being disposed of together since they arise out of common judgment rendered by the Rajasthan Consumer Disputes Redressal Commission, Jaipur (in short the State Commission), in two complaint cases bearing CC Nos. 89/95 & 90/95. By the impugned common judgment, both the complaints filed by the original complainants were partly allowed. In Complaint Case No.89/95, the appellant was directed to indemnify the complainant for loss of Rs.6,74,974/- along with interest @ 15% per annum w.e.f. 1.4.94 till the date of payment.
In Complaint Case No.90/95, the appellant was directed to indemnify the complainant to the tune of Rs.7,08,441/- with interest @ 15% p.a. from 1.4.1994 till the date of payment. In each of the complaint case, the appellant was further directed to pay cost of Rs.5,000/- each to the complainants.
2. The appeal is filed after a considerable delay of 1595 days. The delay application is filed by the appellant in order to claim condonation on the ground stated in the application. We may advert to the delay condonation application at subsequent stage.
3. The appellant is admittedly Carrier of the goods, which were consigned by the original complainant, namely, M/s. Hindustan Zinc Ltd., Udaipur. The complainant, M/s. Hindustan Zinc Ltd. which is original complainant no. 2, had booked a consignment of 480 pieces of zinc weighing 12,710 mts. The value of the consignment was Rs.6,67,974/-. The consignment was to be loaded from Chanderiya (District Chittorgarh) and was to be reached at Thane (Maharashtra). The consignment was loaded in truck no. DL-1-G-1083 on 18.2.1994 vide goods receipt no. A-40945. The second consignment was booked to carry 520 pieces of zinc weighing 13,480 mts. valued at Rs.7,08,441/-. That consignment was loaded in truck no. D.I.G. 6811 vide goods receipt no. A-40944. Both the consignments were admittedly insured with Oriental Insurance Co. Ltd. i.e. original complainant no. 1.
4. There is no dispute about the fact that neither consignment reached the place of destination nor was delivered to the consignee. The consignor - M/s. Hindustan Zinc Ltd. had put up claims with the insurer. The insurer has made the payment of the claimed amounts to M/s. Hindustan Zinc Ltd. on obtaining appropriate document of subrogation of the claims with a right to recover the amounts paid to the consignor from the Carrier (appellant).
5. The case of the appellants was that the loss of goods, during the transit, was on account of criminal acts of the drivers of the respective truck vehicles. The appellants alleged that the truck drivers had absconded with the truck vehicles during the journey period. The appellants submitted that there was no negligence committed during carriage of the consignments. The appellants asserted that the loss of the goods was on account of the reasons, which were beyond their control because the misappropriation or theft of the vehicles could not be anticipated while handing over the consignment to the drivers of the concerned truck vehicles. The appellants, therefore, denied the liability to pay the amount of compensation claimed by the respondents. The appellants pointed out that FIR was lodged in respect of the loss of the goods. The appellants further contended that the goods were booked at risk of the owners and as such, there was no legal liability to indemnify the consignor and the Insurance Company. On these premises, the appellant sought dismissal of the complaint.
6. The State Commission held that the joint complaint of the consignor and the insurer was maintainable. The State Commission further held that the appellants were under legal obligation to verify credibility of the transporters. The State Commission held that the registration number and the number plate on the truck vehicle were found to have been fabricated. The State Commission came to the conclusion that the appellants were negligent because they failed to verify whether the drivers of the vehicles were having valid licences and the vehicles were duly registered. Considering the negligence on part of the appellant, the State Commission partly allowed the complaints as stated earlier.
7. We have heard learned Counsel for the parties on the question of limitation as well as on merits of the appeal.
Learned Counsel for the appellants submit that there was no intentional delay in filing of the appeals. He further argued that the non-delivery of the consignments was due to criminal acts of the drivers in connivance with other criminals. He argued that the appellants could not have verified the licences of the drivers when they were produced. He contended that the loss had occasioned due to reasons which were beyond the control of the appellants. He, therefore, urged to allow the appeals. Per contra, leaned Counsel for the respondents supported the impugned judgment.
8. Before we advert to the merits of delay condonation application and the appeals, it may be mentioned that previously, this Commission held that the complaints were not maintainable in view of Oberai Forwarding Agency Vs. New India Assurance Co. Ltd. [(2000) 2 SCC 407]. That order was challenged by the insurer in Civil Appeal No.212-213 of 2004. The Supreme Court allowed both the appeals in view of the larger bench judgment in the case of Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd. (2010) 4 SCC 114). The Supreme Court remitted the matters to this Commission to decide the same on merits. The Supreme Court made it clear that all questions of law and facts were kept opened.
9. Though, much period has elapsed in between the order of the State Commission and the present stage of disposal of the appeals, yet, the delay condonation application is required to be considered before touching on merits of the matter. We, however, also deem it proper to proceed to consider merits of the matter too in order to avoid further remand of the matter or spending of more time in the already prolonged litigation. We shall deal with the merits of the matter at subsequent stage, without prejudice to the decision on question of limitation.
10. Now, adverting to the question of limitation, what is stated by the appellants is that an application was submitted for certified copy of the order impugned, by Mr. M.K. Sharma, Advocate on 27.2.1997 vide application nos. 390-391. Though, he enquired about availability of the certified copy from time to time, yet, he was told that the file was not received by the Registry and, hence, copy was not given to him. The Advocate, therefore, informed the appellants that the certified copy would be sent by the Registry at the address given by them.
The further averment in the delay condonation application is that on 17.10.1997, the Contempt Applications were filed under Section 27 of the Consumer Protection Act and, therefore, notice was served on them as per order dated 12.5.1998. It was the case of the appellants that after receiving the notice, reply was filed on 14.7.1998.
The appellants alleged that grievance was made about non-furnishing of the certified copy of the impugned order. The appellants alleged that the State Commission adjourned the Contempt Application from time to time and ultimately decided the Contempt Application by directing the Zonal Manager of the appellant no. 2 to remain present on 4.7.2001. It was thereafter that the appellants submitted application for certified copies of all the relevant orders and the impugned orders. The certified copy was delivered on 10.7.2001 and thereafter the present appeals were filed. The respondents have denied all such allegations made in the delay condonation application.
11. The crucial question is whether the appellants have shown sufficient cause so as to justify the inordinate delay of 1595 days in filing of the present appeals. According to the appellants, the delay is virtually because in all 1595 days were required to obtain the certified copy of the impugned order. We find rather strange averments made in the application for the delay condonation. This Commission had called upon the State Commission to explain as to how the certified copy could not be supplied within the reasonable period. We have received the report of the State Commission in this behalf.
Perusal of the report of the State Commission shows that the concerned files were received by the copying section on 14.7.1997. The report further shows that possibly, the impugned orders were signed by the Honble Members of the State Commission at some later date, though, it was declared on 26.2.1997. The report of the Registrar of the State Commission reveals that copies of the impugned order dated 26.2.1997 were supplied free of cost to the appellants and the respondents under Rule 7 (12) of the Consumer Protection (Rajasthan) Rules, 1987 on 17.7.1997. The report further shows that the appellants submitted second application for issuance of copies of the order on payment basis by filing application dated 5.7.2001 and the same was supplied on 10.7.2001. The report shows that the copy was prepared on 16.7.1997 and supplied free of cost on 17.7.1997 as per application of Mr. M.K. Sharma, Advocate.
12. Learned Counsel for the appellants submits that the copy of the impugned order was not supplied as required under Rules by sending it through post. We may assume for sake of argument that there was no proper compliance of the Rules and the free copy was not delivered to the appellants on 17.7.1997. Even so, once the appellants gathered knowledge about the impugned order after receiving notice of the Execution Application Nos.18/97 and 19/97 and appeared before the State Commission by filing written version on 14.7.1998, there was absolutely no justification for not filing any application to get the certified copy immediately. The appellants could have applied on 14.7.1998 itself for obtaining of the copy. There is absolutely no reason as to why the appellants should have awaited till the end of the execution proceedings. The period spent by the appellants between 14.7.1998 till 4.7.2001 is, in fact, without any justifiable reason. We are of the opinion that the appellants attempted to protract the litigation and unnecessarily made issue of earlier technical defects. The appellants could have sought the certified copy by filing application on 14.7.1998 and after explaining the earlier delay, which could be justified due to the technical defects shown by the appellants, the present appeals could have been preferred. We are of the opinion that the time spent by the appellants in the execution proceedings before the State Commission could not be the justification for the alleged delay in filing of the present appeals. We find that the delay is enormous, without appropriate and reasonable cause and as such, cannot be condoned.
13. The learned Counsel for the respondents invited our attention to the view taken by the Supreme Court in Pundi Uk Jalam Patil (Dead) by Lrs. Vs. Executive Engineer, Jalgaon Medium Project and Anr. (2008) 17 SCC 448. The Supreme Court illustrated the connotation and meaning of the expression sufficient cause as contemplated under Section 5 of the Limitation Act. The Supreme Court held that the time spent in internal communication between the Government Department could not be a ground for condonation of delay of 1724 days caused in preferring the appeal because such delay was not duly explained. Similarly, in Lanka Venkateswarlu (Dead) By Lrs. Vs. State of Andhra Pradesh and Ors. (2011) 4 SCC 363, the Supreme Court held that liberal approach in considering sufficient cause for delay should not override substantial law of limitation specially when the court finds no justification for the delay. The term sufficient cause though is required to be construed liberally, yet, it has to be demonstrated that the conduct of the party concerned was fair and reasonable time was required for the purpose of filing of the appeal. The expression liberal approach does not push the need for establishing grounds for showing sufficient cause in terms of Section 5 of the Limitation Act. By applying such legal parameters, we are of the opinion that the appellants failed to prove existence of any sufficient cause at least to the extent of period between 14.7.1998 till 18.7.2001.
Needless to say, the application for delay condonation has to be dismissed. We accordingly dismiss the same.
14. Though, the appeals are not required to be decided on merits, yet, in order to obviate further protraction of the litigation, as stated earlier, we also would advert to the merits of the matter. The foremost and important question involved in the appeal is whether the appellants, as a Carrier of the goods can disown the liability to indemnify the consignor on the ground that criminal acts of the drivers of the truck vehicles were beyond their control. The fact that the goods were lost in transit is not in dispute. The fact that the truck vehicles were loaded with the goods by the consignor in those trucks is also not in dispute.
15. We find from the record that the appellants did not prove that the credentials of the transporters were duly verified before the consignments were entrusted to them. The appellants filed an FIR on 11.3.1994. It was alleged that in the night between 17-18/2/1994, the truck vehicles had disappeared. It is apparent on face of the record that the appellants failed to keep proper track of the movement of the vehicles in question. It was for such reasons that there was considerable delay in lodging of the FIR about loss of the goods and the truck vehicles.
16. Perusal of the copy of FIR reveals that the appellants alleged that there was only oral assurance given by M/s. U.P. Bengal Road Lines, Main Road, Chanderiya, Chittorgarh (Rajasthan) about identity of the owners. The FIR does now show that any authorized person of the appellants had verified the driving licences and other records of the truck vehicles in which the consignments were loaded. The FIR shows that it was only due to the trust upon Manager of the UP Bengal Road Lines, Main Road, Chanderiya, namely, Mr. Mohan Singh that the goods were entrusted to the truck drivers for the purpose of transportation. It is worthwhile to note that the appellants did not file on record any other reliable material to show that proper inquiry was made about credentials of the drivers and owners of the said truck vehicles. It further appears that the appellants did not place on record affidavit of Mr. Mohan Singh who was attached with the UP Bengal Road Lines as Manager and had given verbal assurance about his prior acquaintance with the owners of the said truck vehicles.
Obviously, there is no sufficient evidence placed on record to show that the appellants took necessary care prior to entrustment of the goods to the truck drivers of the two trucks in which the goods were loaded.
17. In Patel Roadways Ltd. Vs. Birla Yamaha Ltd. (2000) 4 SCC 91, the Supreme Court observed:
47. 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 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 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.
18. Similarly, in Nath Bros. Exim International Ltd. Vs. Best Roadways Ltd. (2000) 4 SCC 553, the Supreme Court considered provisions of Sections 6,8 and 9 of the Carriers Act, 1865. The Supreme Court held that liability of common carrier would be governed by the Carriers Act and Sections 151 and 152 of the Contract Act are not applicable. The Supreme Court held that the expression at owners risk as used in the goods receipt does not exempt the carrier from his own negligence or the negligence of its servants or agents.
It is observed:
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 insurer 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. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants.
19. Thus, it is amply clear that the appellants cannot abdict their liability on the ground that the transportation of the goods was at the risk of the owner. The combined reading of Sections 6 & 8 of the Carriers Act will go to show that onus to prove absence of negligence is on the common carrier. The consignor has only to establish that there was entrustment of the goods, the goods were lost due to the reasons, which cannot be attributed to the Act of God i.e. vis mjor and that loss was suffered by him. Faced with this difficulty, learned Counsel for the appellants invited our attention to para 54 of judgment in Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd. (Supra), the observations made are reproduced as below:
54. ..
Thus, where the consignor establishes loss or damage or non-delivery of goods, it is deemed that negligence on the part of the carrier is established. The carrier may avoid liability if it establishes that the loss, damage or non-delivery was due to an act of God or circumstances beyond its control. Section 14 (1) (d) of the Act does not operate to relieve the carrier against the presumption of negligence created under Section 9 of the Carriers Act.
20. Learned Counsel submits that the expression situation beyond its control has to be given due consideration in the context of the present case because the appellants had no prior knowledge about criminal misappropriation/theft or looting of the goods during the transit.
We are of the opinion that the argument of learned Counsel for the appellants is unacceptable inasmuch as the appellants failed to prove that the loss had occurred on account of circumstances, which were beyond their control. It need not be reiterated that the appellants failed to take proper care while making entrustment of the goods to the drivers of the truck vehicles because the appellants failed to personally verify the licences of the truck drivers, the RC book and other documents of the trucks in order to verify the ownership and liability of insurance coverage, etc.
21. Cumulative effect of the foregoing discussion is that the appellants have totally failed to establish the defence regarding absence of negligence. They have also failed to show that the appeals were filed after the delay which could be justified and further that they acted with bonafide intention. It follows, therefore, that the appeals are destitute of merits. Having regard that the appellants made endeavour to protract the litigation for long many years, we deem it proper to impose exemplary cost of Rs.50,000/- in each appeal on them.
22. In the result, the applications for the delay condonation and the appeals both are dismissed with cost of Rs.50,000/- each payable to each of the respondents by the appellants.
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(V.R. KINGAONKAR J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER k