State Consumer Disputes Redressal Commission
M/S. Glaxo India Limited And Another vs M/S. Parasmani Roadlines P. Ltd., on 24 February, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/00/474
1. M/s. Glaxo India
Limited,
Having office at:-
Dr. Annie Beasant Road,
Mumbai 400 025.
2. The New India
Assurance Co. Ltd.,
Divisional Office
No.130300,
Commerce Centre, 1st
floor,
Tardeo, Mumbai 400
004.
...........Complainant(s)
Versus
M/s. Parasmani
Roadlines P. Ltd.,
Having its Head
office at:-
304/5/6, Popatlal
Chamber,
Clive Road, 04th Cross Lane,
Dana Bunder, Mumbai
400 009.
...........Opponent(s)
BEFORE:
HON'BLE
MRS. USHA S. THAKARE, PRESIDING JUDICIAL MEMBER
HONBLE
MR. NARENDRA KAWDE, MEMBER
PRESENT:
Adv. S. R. Singh for
the Complainants
Adv. Smt. Kalyani G.
Parmar for the Opponent
ORDER
Per Honble Mr. Narendra Kawde, Member This consumer complaint pertains to subrogation of the claim in favour of the Complainant No.2 as the amount claimed under the insurance policy has been settled in favour of the Complainant No.1 on account of loss of consignment in transit. This complaint is jointly filed by the Complainants Nos.1 and 2, alleging deficiency in service against the Opponent, a common carrier, for loss of goods in transit and claimed compensation of `19,83,028/- together with interest thereon @ 18% p.a. from 11/11/1998 besides costs quantified at `15,000/-.
[2] Opponent/Carrier contested the complaint by filing written version inter-alia contending that consignment was entrusted under a special contract on owners risk basis and, therefore, it was one of the terms of the contract that the Opponent shall not be held responsible for any loss due to road accident, theft or hijacking of the truck in transit. Further, it is contended that notice was not given as contemplated under Section-10 of the Carriers Act, 1865 by the Complainants. It is contended that said consignment was entrusted to the Opponent by M/s. Himalaya Enterprises, Bhiwandi on behalf of the Complainants to be delivered to C/F agents at Jaipur who are the owners of the goods.
The lorry carrying the consignment was hijacked at Wada on Western Express Highway on 11/11/1998 by unknown miscreants.
Said lorry was bearing RTO Registration No.RJ-20-G-1487. Later on, said lorry was traced and recovered on 17/11/1998 at Village Talwali near Kalyan and a detailed police panchanama was carried out.
According to the Opponent, hijacking of the truck could not be avoided inspite of best care taken by the truck driver and there was no act of misconduct and negligence on the part of the Opponent. On these main grounds and other grounds as set out in the written version, Opponent prayed for dismissal of complaint.
[3] Parties have filed their respective affidavits and relevant documents in support of their contentions. Parties have also filed their respective briefs of written arguments.
[4] We have heard Learned Adv. S. R. Singh on behalf of the Complainants and Learned Adv. Smt. Kalyani G. Parmar on behalf of the Opponent. With the help of both the learned counsel we have also gone through the voluminous documents placed on the record.
[5] Upon hearing both the learned counsels, and upon perusing the pleadings, evidence and documents placed on the record, the only question that arises for our consideration is as to whether the Opponent as a common carrier would be liable to make good the loss caused to the Complainants due to hijacking of consignment in transit? We answer the said point in the negative for the reasons to follow.
[6] Both the parties relied on several authorities of the Apex Court. The contention of the Opponent that the complaint is not validly signed and verified by an authorized person of the Complainants is not tenable as the Director (Finance) of the Complainant No.1, duly authorized by a Company Resolution, verified the complaint and also attested by the Complainant No.2.
[7] It is not a disputed fact, nay, Complainants have admitted that on 11/11/1998, the Complainant No.1 intended to transfer the certain medicines to its depot at Jaipur and hence, the medicines had been given to the Opponent, as a carrier, for being carried by a lorry to Jaipur. Consignment Voucher No.4465 dated 11/11/1998 issued by the Opponent bears the condition, which reads as follows:-
This Consignment is booked on Owners Risk basis. Company is not liable for leakages, Damages, Shortages, and any loss resulting insufficiency of Packing accident, water, Fire & theft. Company shall not be responsible for any loss if delivery is not taken within 3 days from the date of arrival.
[8] However, when the truck carrying the medicines was on way it was intercepted by some miscreants who hijacked the truck and committed dacoity in respect of medicines during the intervening night between 11/11/1998 and 12/11/1998. Thereafter, a report was lodged with Wada Police Station and consequently, Crime No.194/1998 under Sections 395, 397, 341 and 342 of the Indian Penal Code and under Section-25 of the Arms Act was registered. During the course of investigation, the truck containing medicines was found. Thereafter, some suspects were arrested in connection with commission of the crime.
Further, it also does appear from the record that seized stolen medicines were returned to the Complainant No.1.
[9] Their Lordships of the Honble Supreme Court in the matters of Nath Bros. Exim International Ltd. Vs. Best Roadways Ltd. ~ (2000)-4-SCC-553; held that the carrier can escape his liability only if it is established that the loss or damage was due to an act of God or enemies of the State. The truck carrying the consignment was intercepted by some miscreants who hijacked the truck and committed dacoity. Such miscreants are definitely the enemies of the State and for such heinous crime on their part certainly the Opponent cannot be blamed with negligence. Once it was proved that the lorry was hijacked on the way and what happened was beyond the control of the Opponent, as a carrier, there arises no question of any deficiency in service on the part of the Opponent, as a carrier.
Further, the documents on the record do show that the Opponent had taken an active part and had given full support to the police in recovering a major part of the consignment just within a period of six days from the incidence of hijacking of the truck.
Further, the Complainants have miserably failed to lead cogent documentary evidence to prove that either the Opponents, as a carrier or the owner and driver of the truck had any active involvement in the hijacking of the vehicle. Therefore, Complainants cannot take recourse to the provisions of Section-6 of the Carriers Act, 1865 which limits liability of carrier, since in this case goods were booked on owners risk basis. Thus, in these peculiar facts and circumstances, the Opponent cannot be fastened with any liability to make good the loss caused to the Complainants. Hence, the complaint fails. We hold accordingly and pass the following order:-
ORDER Complaint stands dismissed.
No order as to costs.
Pronounced on 24th February, 2014 [HON'ABLE MRS. USHA S. THAKARE] PRESIDING JUDICIAL MEMBER [HONABLE MR. NARENDRA KAWDE] MEMBER KVS