M/s Lucky Transport & Company V/S The Manager, New India Assurance Co. ltd. - Consumer Court Case

Karnataka

Raichur

DCFR 74/07

The Manager, New India Assurance Co. ltd. - Complainant(s)

Versus

M/s Lucky Transport & Company - Opp.Party(s)

Smt. Marry Dainail

27 Mar 2008

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. DCFR 74/07

M/s. Bhawall Spinners Pvt. Ltd., The Manager, New India Assurance Co. ltd.						...........Appellant(s)
Vs.
M/s Lucky Transport & Company Sri. R. Narayana S/o Eraiah						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR. COMPLAINT NO. DCFR. 74/07. THIS THE 31st DAY OF MARCH 2008. P R E S E N T 1. Sri. N.H.Savalagi, B.A.LLB. (Spl) PRESIDENT. 2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER. 3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER. ***** COMPLAINANT :- 1. The Manager, New India Assurance Company Ltd., Raichur. 2. M/s. Bhawall Spinners Pvt. Ltd., Regd. Office at No. 14, Rajendra Gunj, Raichur. //VERSUS// RESPONDENTS :- 1. M/s. Lucky Transport & Company, Opposite Sath Kacheri, Raichur. 2. Sri. R.Narayana S/o. Eraiah Commission Agent Shop No. 17, Plot No-3, Rajendra Gunj, Raichur. CLAIM :- For total compensation of Rs. 2,00,000/- with interest penalty caused damages etc., Date of institution :- 13-09-06. Notice served :- 30-10-07. Date of disposal :- 31-03-08. Complainant represented by Smt. Marry Daniel, Advocate. Respondents 1 & 2 Ex-parte. ----- This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following. JUDGEMENT This is a complaint filed U/s. 12 of Consumer Protection Act by the complainants-Manager New India Assurance Company Ltd., Raichur (2) M/s. Bhawall Spinners Pvt., Ltd., Registered Office No-14, Rajendra Gunj Raichur against two Respondents-M/s. Lucky Transport Company Opposite Sath Kacheri Raichur (2) R.Narayana Commission Agent, Rajendra Gunj Raichur. The brief facts of the complaint are as under:- The relationship between the second complainant and the first Respondent is that of a consignee who entrusted the goods to the public carrier Respondent No-1. The Respondent NO-2 is the owner of lorry bearing No. KA-36/1654 used for transportation of the consigned goods. The complainant NO-2 had purchased loose cotton- 21 Docras from Sri Balaji Cotton Traders Makthalpet Raichur. After the purchase of the same had been to consign from Balaji Cotton Traders Raichur to the complainant NO-2 place of business vide L.R. No. 552 dt. 23-05-06 issued by Respondent No-1 for transport in lorry bearing NO. KA 36/1654. The said consignment was issued with the complainant NO-1 while the said lorry was on the Siya Talab at Raichur. The fire accident said to have been occurred by spark through the live wires which came into contact through wind and the sparks came into contact with the loose cotton which was not covered while carrying in the truck and negligence of Respondent NO-1 & 2. Except about 18-28 of cotton bags the entire consignment was burnt and damaged. The accident was reported to Sadar Bazar Police Station Raichur and the police authorities have reported to the Tahalisdar Raichur. The surveyor of the complainant No-1 has visited the spot and assessed the value along with cost VAT of 4% at Rs. 1,06,928/-. Complainant No-2 issued a notice to Respondent No-1 on 29-05-06 by RPAD calling upon to make the payment of said loss. The Respondent replied to the notice dis-owning his liability. The Respondent being public carrier had taken the responsibility for transporting the goods from the second complainant at Raichur to Chicksugur, the rights and liabilities of the parties are subject to the provisions of Carrier Act of 1865. As per section 6 & 8 of the Act that a common carrier is liable for loss and damages caused due to negligence or mis-conduct of its Agents or Servants and that liability cannot be limited by a Contract. The condition and his goods to be sent at owner risk and that no responsibility would have taken in-case of fire accident cannot protect a common carrier. As such the Respondent is liable to pay the damages due to the complainants. The Respondent has not made any efforts to settle the claim which shows negligence and deficiency of service in settling and giving the loss caused to the complainant No-2. The complainant No-2 executed subrogative letter in favour of first complainant for recovery at Rs. 1,06,928/- which came to be paid by the first complainant. The second complainant received Rs. 95,960/- in-respect of loss and damages caused to the goods of insurance company under policy No. 671801/21/05/04/00000110 and all the rights and remedies in consequences of damages caused to the goods were assigned in favour of the first complainant. The Respondent NO-1 being the transport carrier of the goods under consignment his responsible for the loss caused in transit for liable to make good the loss/damages caused to the goods. As such the Respondent is liable to pay the compensation to the total loss. Hence for all these reasons the complainants have claimed a total compensation of Rs. 2,00,000/- with interest penalty caused damages etc. 2. In-response to service of notice of the complaint issued by this Forum, The Respondent No-2 remained absent on 30-10-07 when called out, and Respondent NO-1 remained absent on 28-11-07 when called out, so both the Respondents have been placed Ex-parte. 3. During the course of enquiry the complainant the senior Assistant of complainant No-1 Insurance Company has filed sworn-affidavit by way of examination-in-chief reiterating the contents of complaint and have got marked (8) documents at Ex.P-1 to Ex.P-8. The Respondents No-1 & 2 are Ex-parte. 4. Heard the arguments of counsel for complainant and perused the records. The following points arise for our consideration and determination: 1.Whether the complainants prove deficiency in service by the Respondent, as alleged.? 2.Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1)In the affirmative. 2) As per final order for the following REASONS POINT NO.1:- 6. The complainants have produced (8) documents at Ex.P-1 to Ex.P-8. Ex.P-1 is the Xerox copy of Goods Consignment Note. Ex.P-2 is the postal acknowledgement. Ex.P-3 is the Xerox copy of letter/notice of complainant NO-2 addressed to Respondent NO-1 Lucky Transport Company. Ex.P-4 is the Reply letter of Respondent NO-2 addressed to complainant No-2. Ex.P-5 is the Xerox copy Report dt. 29-05-06 of District Fire Station Officer Raichur. Ex.P-6 is the Xerox copy Report submitted to the Tahasildar Raichur by Sadar Bazar Police Station Raichur. Ex.P-7 is the Xerox copy of letter of Subrogation. Ex.P-8 is the Xerox copy of RC Book. 7. Ex.P-4 is the Reply letter of Respondent NO-1 addressed to the complainant No-2 which is material for our purpose reads thus: LUCKY TRNAPORT CO NO: 3 OPP SATH KACHERI ROAD RAICHUR-584101. To, M/s. Bhawall Spinners Pvt Ltd., No. 14: 14, Rajendra Gunj RAICHUR. Dear Sir, We are receipt of your letter DT 29-05-06 regarding asking us to reimburse the loss of cotton lint docars involved in fire in lorry No. KA-36 1654 of Rs. 1,06,928/-. In this connection we bring to kind notice that the goods were transporting at owners risk further the fire was occurred due to accidental & beyond our control. Hence we are liable for this loss. Thanking you Yours faithfully For Lucky Transport Co. Sd/- Proprietor. From this letter it shows relationship between complainant NO-2 as consignor who entrusted the goods with Respondent NO-1 for transportation through lorry of Respondent No-2 and the loss of consignment in the fire accident. In this Reply letter at Ex.P-4 the Respondent No-1 Lucky Transport Company have stated that the goods were transporting at owners risk and further the fire was occurred due to accidental and beyond the control, and so they are not liable for the loss. Ex.P-5 is the Report of District Fire Station Officer Raichur and Ex.P-6 the Report submitted by Sadar Bazar Police Station Raichur to the Tahasildar Raichur, go to show that the fire accident took place while the consignment goods being transported in the lorry No. KA-36/1654 on Siya Talab Road Raichur and consigned goods 21 docars loose cotton was burnt and damaged. Ex.P-8 is the Xerox copy of R.C. Book and the lorry No. KA-36/1654 of Respondent No-2 in which the goods were transported by the Respondent NO-1. Ex.P-7 is the Xerox copy of letter of subrogation issued by complainant NO-2 in favour of the complainant No-1 New India Assurance Company Ltd., Branch Raichur. We shall discuss this at a later stage. 8. From perusal of the complaint and documents at Ex.P-1, Ex.P-3, Ex.P-4, as discussed above it discloses that the complainant No-2 had entrusted the goods with Respondent No-1 Transport Company for transportation through the lorry of Respondent NO-2 which met with fire accident. As discussed above, in the Reply letter at Ex.P-4 Respondent NO-1 Transport Company has stated that the goods were transported at owners risk and further the fire was occurred due to accidental & beyond their control and so they are not liable for the loss. Admittedly the Respondents No-1 & 2 have not appeared and contested the case. Of course in Ex.P-1 the Goods Consignment Note there is a Note That these goods are booked at owners risk, agreed for the terms and conditions mentioned orally. But as rightly argued by the L.C. for the complainants, this Note in Ex.P-1 cannot be taken as a special Contract/Agreement between the parties since it does not bear the signature of the consignor-complainant NO-2. The space meant for signature of the consignor or his Agent is kept blank. This shows that there is no agreement between the consignor and Carrier/Respondent No-1 regarding the Note of owners risk. This our view is supported by the decision of Kerala High Court reported in 1988 (2) Ker LT 619. Head Note which reads as under: The goods were consigned on the owners risk but even though the carrier was not able to draw any benefit from the owners excluding his liability unless the document containing those condition were consigned by the consignor or his Agent. The Bombay High Court in the decision reported in AIR 1981 Page 299 has interalia observed as under: In order that terms or conditions on the overlief of a consignment passed by common carrier be binding on the consignor or consignee and in-order that it should operate as a special Contract between the consignor and consignee on the one hand and the carrier is on the other hand, the consignment Note must be consigned by the consignor and consignee and constitute a contractual agreemtn or at least must be identified as an integral part of the contractual agreement. In-case of unsigned consignor Notes containing clauses limiting the liability of the carriers as well as excluding terms and conditions of certain courts and restricting it to specific court only, such clauses or terms or conditions must be brought to the notice of the consignor of the goods if such terms and conditions are not brought to the notice of the consignor specifically and adequately then the consignor or consignee would not be bound by those terms... 9. In the reply letter Ex.P-4 the Respondent No-1 has further stated that the fire was occurred due to accidental and beyond their control and thereby they are not liable for the loss. The L.C. for the complainant argued that since Carrier/Respondent admitted the loss of goods due to fire, so the complainant is not required to prove negligence or criminal act against common Carrier. The burden to prove that the accident was not due to his negligence and that it was the Act of God would be on the Respondents. In-support of her arguments the L.C. has relied on the decision of Karnataka High Court reported in AIR 2005 Page 369. As seen above in Reply letter at Ex.P-4 Respondent No-2 has stated that the fire occurred due to accidental and beyond their control. As per section 9 of the Carriers Act in any claim against Common Carrier for the loss, damage or non-delivery of goods, entrusted for carriage it shall not be necessary for the claimanant to prove that such loss, damage or non-delivery was owing to negligence or criminal act of the Carrier, his servants or agents it is upto the carrier to prove the same. Even though the Respondent Lucky Transport has replied to the complainant NO-2 that the fire was occurred due to accident and beyond their control etc., vide Ex.P-4 but has not established by contesting the case of the complainant and has remained absent in-spite of service of notice issued by this Forum. This in-turn shows that the Respondent No-1 Transport Company has no defence to rebut the case of the complainant. Hence as per section 9 of Act the complainant is not required to prove negligence or criminal act against common carrier as per the principles laid down in the decision of Karnataka High Court referred to above. 10. In the letter of Subrogation at Ex.P-7 interalia, it is stated that in-consideration of payment of Rs. 95,960/- in-full settlement of claim for Marine Transit under Policy No. 671801/21/05/04/00000110 of complainant No-2, transfer and abandon by way of letter of subrogation in-favour of the complainant NO-1. So the complainant No-2 had subrogated his claim against the Respondent No-1 in-favour of complainant No-1 by receiving Rs. 95,960/- from the complainant NO-1. The L.C. for the complainant argued that by virtue of the letter of subrogation executed by consignor-complainant No-2 the complainant No-1 is entitled to recover the loss of goods due to the consignor-complainant No-2 from the Transport company Respondent No-1. In-support of her argument the L.C. has relied on the decision of our Honble National Commission reported in III (2007) CPJ-101 (NC) Head Note which reads as under: Consumer Protection Act, 1986__ Section 21(b)__Transport Services__Short deliveryof goods__consignment of pesticides sent through OP__Found leaked at time of delivery__Open delivery taken__Short delivery certificates issued __Claim filed with Insurance Company__Complaint__Letters of subrogation executed in-favour of Insurance Company by complainant__Certain amounts awarded by District Forum__Appeal dismissed__Hence revision__Held, complaint filed against transport company jointly by consignor and insurance company valid__No illegality or jurisdictional error in order passed by For a below__Upheld AND (2) decision Kerala State Commission of reported in II (1999) CPJ Page 304 (i) Head Note which reads as under: Consumer Protection Act, 1986__ Section 2(1) (d)(ii)__Consumer __Section 2(1)(e)__Consumer Dispute__Section2(1)(o) Service__Transport__Insurance Company__Letter of Subrogation__Second__complainant sent consignment__Loss in accident__Claim settled by insurance company__Letter of subrogation issued in favour of Insurance Company__Complaint filed against Transport Company__It is a consumer dispute including service within the meaning of Act__Insurance Company joined with consignor is entitled to maintain complaint. 11. As discussed above the letter of subrogation executed by the consignor-complainant NO-2 in-favour of Insurance Company/complainant No-1 shows that in consideration of payment of Rs. 95,960/- in full settlement of claim for Marine transit under policy obtained the complainant NO-2, transfer and abandon by letter of subrogation in-favour of complainant NO-1 his claim against the Respondents regarding loss of consigned goods. So in-view of our discussion and conclusion holding the liability of Respondent No-1 Transport Company being Carrier to indemnify the loss of consigned goods to the consignor-complainant No-2, so the transport company Respondent NO-1 is liable to make good the loss to the consignor-complainant No-2. However having regard to the letter of subrogation executed by the consignor-complainant NO-2 in-favour of complainant No-1 New India Assurance Company Ltd., so the complainant No-1 is entitled to claim the loss of goods from the Respondents and so the claim of the complainant NO-1 is maintainable as observed by the Honble N.C. in the above referred ruling which is based on the decision of Honble Supreme Court reported in (i) (2000) CPJ Page-7 as observed vide Para-3 of the order. 12. The denial of the liability by Respondent NO-1 in his Reply letter at Ex.P-4 itself constitutes deficiency in service by the Respondents in not indemnifying the loss sustained by the complainant. Hence we hold that the complainants have proved deficiency in service by the Respondents. So Point No-1 is answered in the affirmative. POINT NO.2:- 13. The complainants have claimed Rs. 1,06,928/- with interest at 18% from the date of accident and thus they have claimed a total compensation of Rs. Two Lakh with interest penalty caused damage etc., As per subrogation letter at Ex.P-7 the consignor-complainant No-2 has received Rs. 95,960/- from the complainant No-1 New India Assurance Company in full settlement of his claim. So having regard to the amount received by the consignor-complainant No-2 as per subrogation letter at Ex.P-7 and taking into facts & circumstances of the case, we find it just and proper to award the said sum of Rs. 95,960/- to the complainant No-1 along with a global compensation of Rs. 10,000/- including cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainants is allowed in part. The Respondent NO-1 M/s. Lucky Transport Company shall pay Rs. 95,500/- being the loss of consigned goods to the complainant NO-1 by-virtue of subrogation letter executed by the consignor-complainant No-2. respondent No-1 shall also pay a global compensation of Rs. 10,000/- including cost of litigation. The Respondent shall comply this order within (6) weeks from the date of receipt of copy of this order. Office to furnish a copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 31-03-08) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath Member. Dist.Consumer Forum-Raichur. Sd/- Sri. Gururaj Member. Dist.Consumer Forum-Raichur.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR. COMPLAINT NO. DCFR. 74/07. THIS THE 31st DAY OF MARCH 2008. P R E S E N T 1. Sri. N.H.Savalagi, B.A.LLB. (Spl) PRESIDENT. 2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER. 3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER. ***** COMPLAINANT :- 1. The Manager, New India Assurance Company Ltd., Raichur. 2. M/s. Bhawall Spinners Pvt. Ltd., Regd. Office at No. 14, Rajendra Gunj, Raichur. //VERSUS// RESPONDENTS :- 1. M/s. Lucky Transport & Company, Opposite Sath Kacheri, Raichur. 2. Sri. R.Narayana S/o. Eraiah Commission Agent Shop No. 17, Plot No-3, Rajendra Gunj, Raichur. CLAIM :- For total compensation of Rs. 2,00,000/- with interest penalty caused damages etc., Date of institution :- 13-09-06. Notice served :- 30-10-07. Date of disposal :- 31-03-08. Complainant represented by Smt. Marry Daniel, Advocate. Respondents 1 & 2 Ex-parte. ----- This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following. JUDGEMENT This is a complaint filed U/s. 12 of Consumer Protection Act by the complainants-Manager New India Assurance Company Ltd., Raichur (2) M/s. Bhawall Spinners Pvt., Ltd., Registered Office No-14, Rajendra Gunj Raichur against two Respondents-M/s. Lucky Transport Company Opposite Sath Kacheri Raichur (2) R.Narayana Commission Agent, Rajendra Gunj Raichur. The brief facts of the complaint are as under:- The relationship between the second complainant and the first Respondent is that of a consignee who entrusted the goods to the public carrier Respondent No-1. The Respondent NO-2 is the owner of lorry bearing No. KA-36/1654 used for transportation of the consigned goods. The complainant NO-2 had purchased loose cotton- 21 Docras from Sri Balaji Cotton Traders Makthalpet Raichur. After the purchase of the same had been to consign from Balaji Cotton Traders Raichur to the complainant NO-2 place of business vide L.R. No. 552 dt. 23-05-06 issued by Respondent No-1 for transport in lorry bearing NO. KA 36/1654. The said consignment was issued with the complainant NO-1 while the said lorry was on the Siya Talab at Raichur. The fire accident said to have been occurred by spark through the live wires which came into contact through wind and the sparks came into contact with the loose cotton which was not covered while carrying in the truck and negligence of Respondent NO-1 & 2. Except about 18-28 of cotton bags the entire consignment was burnt and damaged. The accident was reported to Sadar Bazar Police Station Raichur and the police authorities have reported to the Tahalisdar Raichur. The surveyor of the complainant No-1 has visited the spot and assessed the value along with cost VAT of 4% at Rs. 1,06,928/-. Complainant No-2 issued a notice to Respondent No-1 on 29-05-06 by RPAD calling upon to make the payment of said loss. The Respondent replied to the notice dis-owning his liability. The Respondent being public carrier had taken the responsibility for transporting the goods from the second complainant at Raichur to Chicksugur, the rights and liabilities of the parties are subject to the provisions of Carrier Act of 1865. As per section 6 & 8 of the Act that a common carrier is liable for loss and damages caused due to negligence or mis-conduct of its Agents or Servants and that liability cannot be limited by a Contract. The condition and his goods to be sent at owner risk and that no responsibility would have taken in-case of fire accident cannot protect a common carrier. As such the Respondent is liable to pay the damages due to the complainants. The Respondent has not made any efforts to settle the claim which shows negligence and deficiency of service in settling and giving the loss caused to the complainant No-2. The complainant No-2 executed subrogative letter in favour of first complainant for recovery at Rs. 1,06,928/- which came to be paid by the first complainant. The second complainant received Rs. 95,960/- in-respect of loss and damages caused to the goods of insurance company under policy No. 671801/21/05/04/00000110 and all the rights and remedies in consequences of damages caused to the goods were assigned in favour of the first complainant. The Respondent NO-1 being the transport carrier of the goods under consignment his responsible for the loss caused in transit for liable to make good the loss/damages caused to the goods. As such the Respondent is liable to pay the compensation to the total loss. Hence for all these reasons the complainants have claimed a total compensation of Rs. 2,00,000/- with interest penalty caused damages etc. 2. In-response to service of notice of the complaint issued by this Forum, The Respondent No-2 remained absent on 30-10-07 when called out, and Respondent NO-1 remained absent on 28-11-07 when called out, so both the Respondents have been placed Ex-parte. 3. During the course of enquiry the complainant the senior Assistant of complainant No-1 Insurance Company has filed sworn-affidavit by way of examination-in-chief reiterating the contents of complaint and have got marked (8) documents at Ex.P-1 to Ex.P-8. The Respondents No-1 & 2 are Ex-parte. 4. Heard the arguments of counsel for complainant and perused the records. The following points arise for our consideration and determination: 1.Whether the complainants prove deficiency in service by the Respondent, as alleged.? 2.Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1)In the affirmative. 2) As per final order for the following REASONS POINT NO.1:- 6. The complainants have produced (8) documents at Ex.P-1 to Ex.P-8. Ex.P-1 is the Xerox copy of Goods Consignment Note. Ex.P-2 is the postal acknowledgement. Ex.P-3 is the Xerox copy of letter/notice of complainant NO-2 addressed to Respondent NO-1 Lucky Transport Company. Ex.P-4 is the Reply letter of Respondent NO-2 addressed to complainant No-2. Ex.P-5 is the Xerox copy Report dt. 29-05-06 of District Fire Station Officer Raichur. Ex.P-6 is the Xerox copy Report submitted to the Tahasildar Raichur by Sadar Bazar Police Station Raichur. Ex.P-7 is the Xerox copy of letter of Subrogation. Ex.P-8 is the Xerox copy of RC Book. 7. Ex.P-4 is the Reply letter of Respondent NO-1 addressed to the complainant No-2 which is material for our purpose reads thus: LUCKY TRNAPORT CO NO: 3 OPP SATH KACHERI ROAD RAICHUR-584101. To, M/s. Bhawall Spinners Pvt Ltd., No. 14: 14, Rajendra Gunj RAICHUR. Dear Sir, We are receipt of your letter DT 29-05-06 regarding asking us to reimburse the loss of cotton lint docars involved in fire in lorry No. KA-36 1654 of Rs. 1,06,928/-. In this connection we bring to kind notice that the goods were transporting at owners risk further the fire was occurred due to accidental & beyond our control. Hence we are liable for this loss. Thanking you Yours faithfully For Lucky Transport Co. Sd/- Proprietor. From this letter it shows relationship between complainant NO-2 as consignor who entrusted the goods with Respondent NO-1 for transportation through lorry of Respondent No-2 and the loss of consignment in the fire accident. In this Reply letter at Ex.P-4 the Respondent No-1 Lucky Transport Company have stated that the goods were transporting at owners risk and further the fire was occurred due to accidental and beyond the control, and so they are not liable for the loss. Ex.P-5 is the Report of District Fire Station Officer Raichur and Ex.P-6 the Report submitted by Sadar Bazar Police Station Raichur to the Tahasildar Raichur, go to show that the fire accident took place while the consignment goods being transported in the lorry No. KA-36/1654 on Siya Talab Road Raichur and consigned goods 21 docars loose cotton was burnt and damaged. Ex.P-8 is the Xerox copy of R.C. Book and the lorry No. KA-36/1654 of Respondent No-2 in which the goods were transported by the Respondent NO-1. Ex.P-7 is the Xerox copy of letter of subrogation issued by complainant NO-2 in favour of the complainant No-1 New India Assurance Company Ltd., Branch Raichur. We shall discuss this at a later stage. 8. From perusal of the complaint and documents at Ex.P-1, Ex.P-3, Ex.P-4, as discussed above it discloses that the complainant No-2 had entrusted the goods with Respondent No-1 Transport Company for transportation through the lorry of Respondent NO-2 which met with fire accident. As discussed above, in the Reply letter at Ex.P-4 Respondent NO-1 Transport Company has stated that the goods were transported at owners risk and further the fire was occurred due to accidental & beyond their control and so they are not liable for the loss. Admittedly the Respondents No-1 & 2 have not appeared and contested the case. Of course in Ex.P-1 the Goods Consignment Note there is a Note That these goods are booked at owners risk, agreed for the terms and conditions mentioned orally. But as rightly argued by the L.C. for the complainants, this Note in Ex.P-1 cannot be taken as a special Contract/Agreement between the parties since it does not bear the signature of the consignor-complainant NO-2. The space meant for signature of the consignor or his Agent is kept blank. This shows that there is no agreement between the consignor and Carrier/Respondent No-1 regarding the Note of owners risk. This our view is supported by the decision of Kerala High Court reported in 1988 (2) Ker LT 619. Head Note which reads as under: The goods were consigned on the owners risk but even though the carrier was not able to draw any benefit from the owners excluding his liability unless the document containing those condition were consigned by the consignor or his Agent. The Bombay High Court in the decision reported in AIR 1981 Page 299 has interalia observed as under: In order that terms or conditions on the overlief of a consignment passed by common carrier be binding on the consignor or consignee and in-order that it should operate as a special Contract between the consignor and consignee on the one hand and the carrier is on the other hand, the consignment Note must be consigned by the consignor and consignee and constitute a contractual agreemtn or at least must be identified as an integral part of the contractual agreement. In-case of unsigned consignor Notes containing clauses limiting the liability of the carriers as well as excluding terms and conditions of certain courts and restricting it to specific court only, such clauses or terms or conditions must be brought to the notice of the consignor of the goods if such terms and conditions are not brought to the notice of the consignor specifically and adequately then the consignor or consignee would not be bound by those terms... 9. In the reply letter Ex.P-4 the Respondent No-1 has further stated that the fire was occurred due to accidental and beyond their control and thereby they are not liable for the loss. The L.C. for the complainant argued that since Carrier/Respondent admitted the loss of goods due to fire, so the complainant is not required to prove negligence or criminal act against common Carrier. The burden to prove that the accident was not due to his negligence and that it was the Act of God would be on the Respondents. In-support of her arguments the L.C. has relied on the decision of Karnataka High Court reported in AIR 2005 Page 369. As seen above in Reply letter at Ex.P-4 Respondent No-2 has stated that the fire occurred due to accidental and beyond their control. As per section 9 of the Carriers Act in any claim against Common Carrier for the loss, damage or non-delivery of goods, entrusted for carriage it shall not be necessary for the claimanant to prove that such loss, damage or non-delivery was owing to negligence or criminal act of the Carrier, his servants or agents it is upto the carrier to prove the same. Even though the Respondent Lucky Transport has replied to the complainant NO-2 that the fire was occurred due to accident and beyond their control etc., vide Ex.P-4 but has not established by contesting the case of the complainant and has remained absent in-spite of service of notice issued by this Forum. This in-turn shows that the Respondent No-1 Transport Company has no defence to rebut the case of the complainant. Hence as per section 9 of Act the complainant is not required to prove negligence or criminal act against common carrier as per the principles laid down in the decision of Karnataka High Court referred to above. 10. In the letter of Subrogation at Ex.P-7 interalia, it is stated that in-consideration of payment of Rs. 95,960/- in-full settlement of claim for Marine Transit under Policy No. 671801/21/05/04/00000110 of complainant No-2, transfer and abandon by way of letter of subrogation in-favour of the complainant NO-1. So the complainant No-2 had subrogated his claim against the Respondent No-1 in-favour of complainant No-1 by receiving Rs. 95,960/- from the complainant NO-1. The L.C. for the complainant argued that by virtue of the letter of subrogation executed by consignor-complainant No-2 the complainant No-1 is entitled to recover the loss of goods due to the consignor-complainant No-2 from the Transport company Respondent No-1. In-support of her argument the L.C. has relied on the decision of our Honble National Commission reported in III (2007) CPJ-101 (NC) Head Note which reads as under: Consumer Protection Act, 1986__ Section 21(b)__Transport Services__Short deliveryof goods__consignment of pesticides sent through OP__Found leaked at time of delivery__Open delivery taken__Short delivery certificates issued __Claim filed with Insurance Company__Complaint__Letters of subrogation executed in-favour of Insurance Company by complainant__Certain amounts awarded by District Forum__Appeal dismissed__Hence revision__Held, complaint filed against transport company jointly by consignor and insurance company valid__No illegality or jurisdictional error in order passed by For a below__Upheld AND (2) decision Kerala State Commission of reported in II (1999) CPJ Page 304 (i) Head Note which reads as under: Consumer Protection Act, 1986__ Section 2(1) (d)(ii)__Consumer __Section 2(1)(e)__Consumer Dispute__Section2(1)(o) Service__Transport__Insurance Company__Letter of Subrogation__Second__complainant sent consignment__Loss in accident__Claim settled by insurance company__Letter of subrogation issued in favour of Insurance Company__Complaint filed against Transport Company__It is a consumer dispute including service within the meaning of Act__Insurance Company joined with consignor is entitled to maintain complaint. 11. As discussed above the letter of subrogation executed by the consignor-complainant NO-2 in-favour of Insurance Company/complainant No-1 shows that in consideration of payment of Rs. 95,960/- in full settlement of claim for Marine transit under policy obtained the complainant NO-2, transfer and abandon by letter of subrogation in-favour of complainant NO-1 his claim against the Respondents regarding loss of consigned goods. So in-view of our discussion and conclusion holding the liability of Respondent No-1 Transport Company being Carrier to indemnify the loss of consigned goods to the consignor-complainant No-2, so the transport company Respondent NO-1 is liable to make good the loss to the consignor-complainant No-2. However having regard to the letter of subrogation executed by the consignor-complainant NO-2 in-favour of complainant No-1 New India Assurance Company Ltd., so the complainant No-1 is entitled to claim the loss of goods from the Respondents and so the claim of the complainant NO-1 is maintainable as observed by the Honble N.C. in the above referred ruling which is based on the decision of Honble Supreme Court reported in (i) (2000) CPJ Page-7 as observed vide Para-3 of the order. 12. The denial of the liability by Respondent NO-1 in his Reply letter at Ex.P-4 itself constitutes deficiency in service by the Respondents in not indemnifying the loss sustained by the complainant. Hence we hold that the complainants have proved deficiency in service by the Respondents. So Point No-1 is answered in the affirmative. POINT NO.2:- 13. The complainants have claimed Rs. 1,06,928/- with interest at 18% from the date of accident and thus they have claimed a total compensation of Rs. Two Lakh with interest penalty caused damage etc., As per subrogation letter at Ex.P-7 the consignor-complainant No-2 has received Rs. 95,960/- from the complainant No-1 New India Assurance Company in full settlement of his claim. So having regard to the amount received by the consignor-complainant No-2 as per subrogation letter at Ex.P-7 and taking into facts & circumstances of the case, we find it just and proper to award the said sum of Rs. 95,960/- to the complainant No-1 along with a global compensation of Rs. 10,000/- including cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainants is allowed in part. The Respondent NO-1 M/s. Lucky Transport Company shall pay Rs. 95,500/- being the loss of consigned goods to the complainant NO-1 by-virtue of subrogation letter executed by the consignor-complainant No-2. respondent No-1 shall also pay a global compensation of Rs. 10,000/- including cost of litigation. The Respondent shall comply this order within (6) weeks from the date of receipt of copy of this order. Office to furnish a copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 31-03-08) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath Member. Dist.Consumer Forum-Raichur. Sd/- Sri. Gururaj Member. Dist.Consumer Forum-Raichur.