Order No. 7 Date: 16-05-2018

Sri Shyamal Gupta, Member

Record is put up today for passing order in respect of the delay condonation petition of the Appellant.

It is the case of the Appellant that on 16-02-2017, its Ld. Advocate downloaded the impugned order from the website and emailed the same to the concerned official of the Appellant, who in turn forwarded the same to the Mumbai H.O. On 28-03-2017, Legal Department of the Appellant asked the concerned Ld. Advocate to prepare Memo of Appeal.  After obtaining certified copy of impugned order on 30-03-2017, the concerned Ld. Advocate on 10-04-2017 asked the Appellant to make a DD being the statutory deposit amount for the purpose of filing an Appeal.  Meanwhile, the Ld. Advocate prepared draft Memo of Appeal and sent the same to his senior for his approval, who returned the same on 18-05-2017.  After brief summer vacation at Calcutta High Court from 19-05-2017 to 04-06-2017, the Advocate on record incorporated necessary changes in the draft Memo of Appeal and thereafter, the revised draft was sent for approval to the concerned Officer of the Appellant Company, who then forwarded the same to the Legal Department in Mumbai on 12-06-2017.  After incorporating suggested changes as per the advice of the Legal Department, eventually the Appeal was filed on 03-07-2017.

Heard both sides in the matter and perused the documents on record.

It seems, there is a delay of 111 days in filing this Appeal, excluding the statutory period of limitation. Although the Appellant presented a detail account of various preparatory works that was undertaken to prepare the Memo of Appeal in its bid to justify its cause, a cursory eye view is suffice to discern that there was definite dearth of due diligence on the part of both the Appellant as well as its Ld. Advocate which resulted in such inordinate delay in filing this Appeal.  Take for example the following:

It appears that although the Ld. Advocate forwarded soft copy of the impugned order to the concerned official of the Appellant through email on 16-02-2017, he did not receive any feedback from him.  On 25-02-2017, when the Ld. Advocate made contact with the said official, he was informed that the concerned order had been sent to the H.O. in Mumbai and ultimately, the Legal Department of the Appellant gave its nod to move an Appeal on 28-03-2017.  It shows that the legal department took nearly a month to frame up its mind regarding filing of an Appeal which is quite unusual.

Though on 30-03-2017, the Ld. Advocate obtained certified copy of the impugned order, he informed the Appellant Company about the requirement of statutory deposit after sitting tight over the same for 10 days. 

The Ld. Advocate took 12 days (from 17-04-2017 to 29-04-2017) to prepare draft Memo of Appeal and stay application despite knowing that the statutory period for filing an Appeal got over long ago.

Considering such palpable manifestation of lack of sincerity on the part of the Appellant, we see no compelling reason to allow this petition.

Further, on due consideration of the merit of this Appeal, we find no substance in any of the grounds stated in the Memo of Appeal.  Undisputedly, thanks to mishandling of the consignment by the Appellant, the same got damaged.  Therefore, the Appellant, under any circumstances, cannot avoid its obligation to make good the loss suffered by the Respondent No. 1/Complainant. 

The plea of the Appellant that there was no privity of contract in between the Appellant and the Respondent No. 1 is a complete misnomer.  As a beneficiary, there can be no manner of doubt as to the status of the Respondent No. 1 as a bona fide ‘consumer’ and therefore, she was well within her right to agitate her grievance before the Ld. District Forum. 

Similarly, notwithstanding it is contended by the Appellant that since the goods were sent at owner’s risk, it could not be legally held liable for the damage to the consignment, let us empathically state that, since the Appellant faltered in ensuring safe delivery of the consignment, it was a clear act of gross deficiency in service on the part of the Appellant.  Therefore, the Ld. District Forum was fully within its right to fix the responsibility of the Appellant.  In this regard, it is worth mentioning the provision of Sec. 8 of the Carriers Act, 1865 which runs as under:

“8. Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent.-Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any  [property including container, pallet or similar article of transport used to consolidate goods) delivered] to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants”.

Thus, there is no escaping for the Appellant than to compensate the loss suffered by the Respondent No. 1. In fact, on going through the impugned order we do not come across any arbitrariness or jurisdictional error in fixing up the liability of the Appellant. Therefore, in our considered opinion, the Appeal would anyway be defeated irrespective of whether the present petition was favourably considered or not.

For all these reasons, we are inclined to reject the petition.  Consequent thereof, the Appeal stands dismissed being barred by limitation.