National Consumer Disputes Redressal
Associated Road Carriers Ltd. vs Tridoss Laboratories Ltd. on 2 November, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 125 OF 1998 (From the order dated 01.08.1997 in CC No.167/1995 of State Consumer Disputes Redressal Commission Maharashtra) Associated Road Carriers Ltd. 215, Vyapar Bhawan, 49, P.D. Mello Road, Mumbai 400 009 Appellant Versus 1. Tridoss Laboratories Ltd. Poonam Chambers, Shivasagar Estate Dr. Annie Besant Road, Worli, Bombay 400 018 2. National Insurance Co. Ltd. Division Office No. 13, The international, 16, Queens Road, Churchgate Mumbai 400 020 Respondents BEFORE HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant Mr. Ajay Garg and Mr. B.J.Danieal, Advocates For the Respondent Mr. Kishore Rawat, Advocate PRONOUNCED ON 2nd NOVEMBER, 2011 JUDGEMENT
MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER This appeal arises out of judgment in Complaint Case No.167 of 1995 rendered by Maharashtra Sate Consumer Disputes Redressal Commission, Mumbai.
By the impugned judgment, the State Commission allowed complaint filed by the respondents. The appellant was directed to pay an amount of Rs.11,11,763/- with interest @ 18% p.a. w.e.f. 17.1.1995 till the date of payment and cost of Rs.30,000/- to the respondent.
2. The complaint was filed by both the respondents together. There is no dispute about the fact that respondent no.1 M/s. Tridoss Laboratories Ltd. hired services of the appellant on 8.1.1995 for transportation of a consignment comprising of 907 cartons of variety of medicines. The consignment was to be lifted from Waluj situated in the outskirts of the Aurangabad cityand was to be reached at Patna (Bihar). In all, 907 cartons valued at Rs.9.97.106.50 were entrusted to the appellant for the purpose of transportation. The lorry receipts were issued by the appellant. The consignment consisted of medicines meant for human consumption.
3. According to the complainant (respondent), the consignment was delivered in damaged condition. The cartons of medicines were soaked with water and were found to have been totally lost. By letter dated 21.1.1995, intimation was given to the appellant by the consignor i.e. respondent no. 1.
A surveyor was appointed to assess the loss. The survey report indicated loss of the total value of the consignment. The consignment was duly insured with the respondent no.2 National Insurance Company Ltd. The consignor urged the insurer to indemnify for the loss. The insurer paid Rs.11,11,763/- to the consignor. The insurer obtained a letter of subrogation and Special Power of Attorney from the consignor and thereafter filed the joint complaint.
4. The appellant resisted the claim on the ground that several issues of the facts and law were involved in the matter and, therefore, the dispute ought to be referred to the Civil Court. It was further contended that the consignment was being transported for commercial purpose and, therefore, Consumer Commission cannot take cognizance of the dispute. Another plea of the appellant was that the consignment was being transported in truck vehicle no. MP-09-D-5205, which met with an accident on the road and as such, the consignment was damaged. It was further alleged that the owner of the truck driver was a necessary party and as such, the complaint was bad and untenable for non-joinder of the said party. The appellant asserted that by letter dated 21.1.1995, copy of the FIR with the Police Station at Mehsi (Bihar) along with photographs of ill-fated truck vehicle had been furnished to the respondent no.1 on 21.1.1995. It was the case of the appellant that there was no negligence in the transportation of the consignment. According to the appellant, the consignment was booked and carried at the Owners risk on the terms and conditions of the Carriage contract. The appellant alleged that there was another valid and enforceable insurance policy and further that there was no subrogation duly stamped in favour of the Insurance Company. The appellant contended that the provisions of the Carriers Act, 1865 did not apply to the case be cause it was the contract between the parties which would prevail.
5. The State Commission held that the loss of consignment was due to negligence committed during transportation of the consignment. The State Commission held that the obligation of the appellant as a public carrier was absolute under the common law as well as under the Carriers Act, 1865. The complaint was, therefore, allowed in terms of the impugned order as indicated earlier.
6. We have heard learned Counsel for the parties. The learned Counsel for the appellant submits that in view of Section 10 of the Carriers Act, 1865, service of demand notice was mandatory and in absence of such notice, the consumer dispute was not maintainable. He seeks to rely on certain observations in Arvind Mills Vs. Associated Roadways 2004 (11) SCC 545. The Supreme Court held that merely because the procedure under the Consumer Protection Act is summary in nature, it does not in any way warrant the abrogation of the requirement to serve notice under Section 10 of the Carriers Act, 1865. The learned Counsel for the appellant further argued that the subrogation letter was not produced and copy of the insurance policy was also not made available by the respondent and as such, the claim was not maintainable. It is argued that the invoice value of the consignment was only Rs.9,97,000/- and, therefore, the appellant could not be directed to pay the amount more than that of the actual loss. Per contra, learned Counsel for the respondent no. 2 supports the impugned judgment.
7. We have perused the relevant record and the case law cited by the parties. It may be noted that previously, FA No.125 of 1998 i.e. the present appeal was allowed by this Commission vide order dated 22.11.2006 on the ground that the insurer could not be treated as consumer qua the appellant in view of the Oberai Forwarding Agency Vs. New India Assurance Co. Ltd. (2000) (2) SCC 407. The issue was decided by the larger Bench of the Supreme Court and by allowing Civil Appeal No.1712 of 2007 in view of judgment in M/s. Economic Transport Organisation Vs. M/s. Charan Spinning Mills (P) Ltd. & Anr. In Civil Appeal No.5611 of 1999, the said order was reversed.
The matter was remanded to this Commission for afresh consideration and disposal in accordance with the law. It is in the backdrop such intervening development that this appeal is being decided afresh on merits.
8. We do not find any substance in the argument of the appellant that the loss of consignment was due to the negligent driving of the truck vehicle in which the consignment was being transported and therefore the complaint was not maintainable. The liability of the common carrier is well settled in view of Section 8 read together with Section 9 of the Carriers Act, 1865. It is amply clear that there is legal presumption available against the common carrier and the carrier is required to prove that the loss had resulted in spite of due diligence on his part and on account of reasons beyond his control. The carrier cannot disown the liability only by saying that he did not cause the loss.
In other words, the burden to prove absence of negligence is on the common carrier. The appellant in the present case failed to discharge the burden. Mere statement in the written version that the goods were entrusted to another transporter will not absolve the appellant to indemnify the consignor.
9. So far as the notice under Section 10 of the Carriers Act, 1865 is concerned, we find that no such objection was raised before the State Commission. The complaint categorically showed that the required notice was issued. The appellant did not offer specific denial to such pleadings. In any case, when there was no specific objection raised in the written statement of the appellant, it will have to be said that such a procedural shortcoming was waived. The appellant is, therefore, estopped from raising such objection in the present appeal. It also may be stated that no such plea is specifically taken in the memo of appeal. In this view of the matter, the reliance placed on observations in Arvind Mills Vs. Associated Roadways (Supra) is of no much assistance to the appellant.
10. The present dispute is a consumer dispute in view of the judgment of the Supreme Court in M/s. Economic Transport Organisation Vs. M/s. Charan Spinning Mills (P) Ltd. & Anr. (Supra). Obviously, it is not necessary to refer the matter to the Civil Court. Moreover, the loss of the consignment was not a disputed question of fact before the State Commission. The value of the consignment shown under the invoices was within the knowledge of the appellant. The non-production of insurance policy before the State Commission is also of not much importance inasmuch as it was an admitted fact before the State Commission that the consignment was insured by the respondent no.2. The appellant did not call for the production of insurance policy because there was no dispute raised on that score. The surveyors report cannot be lightly brushed aside. The surveyor is an independent person. The assessment made by the surveyor will have to be accepted unless otherwise is proved. The appellant did not challenge the surveyors report in specific terms.
The appellant did not call the surveyor to undergo cross-examination. Therefore, at the appellate stage, the appellant cannot be allowed to challenge the assessment made bay the surveyor.
11. In Nath Bros. Exim International Ltd.
Vs. Best Roadways Ltd. I (2000) CPJ 25 (SC), the Supreme Court held that the printed condition in the consignment contract with the transportation of the consignment will be at the Owners Risk does not mean the Carrier would be exempted if loss did occur due to negligence of himself, his servants or agents.
12. The learned Counsel for the appellant further submitted that the quantum of compensation awarded is on higher side because the loss was only of Rs.9,97,000/-.
What appears from the record is that the State Commission considered the charges paid to the surveyor and other incidental charges while computing the total amount of the compensation. There is hardly any substantial error committed by the State Commission while awarding the compensation as quantified by the State Commission. Needless to say, we do not find any substance in the appeal.
13. In the result, the appeal is dismissed with cost of Rs.5,000/-.
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(V.R. KINGAONKAR J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER k