For the Complainant: Mr. Kailash Chandra Mishra, Advocate & Associate
For the Opposite Parties: None
DATE OF FILING: 19.6.2014
DATE OF DISPOSAL: 26.4. 2016
Dr. N. Tuna Sahu, Member:
Alleging deficiency in transport service the complainant has filed this consumer complaint against the Opposite Parties (for short O.P).
2. Briefly stated the case of the complainant is that he working in Indian Army and serving with Corps of E.M.E. of the force since 1996 and posted with AWD 24 Fd WKSP, Chandigarh Cantt.(HR) near Chandigarh from November 2013 to March 2014. The complainant was transferred and posted at A.D. Static workshop, Gopalpur, Berhampur, District Ganjam vide posting order No. 1751/251 dated 7.1.2014. The complainant reported at his new place of posting on 30.3.2014 and planned to move the family from Chandigarh Cantt. to Gopalpur, Berhampur on 14.4.2014. The family was shifted to new station to continue the education of the children in Kendriya Vidyalaya, Gopalpur Military Station. A deal was finalized with the Opposite Parties who assured to transport the household goods and delivering the goods within 10 days of booking and reassured that in 3 or 4 days, the luggage will be loaded on truck and contact number of particular driver and truck number will be intimated by the 1st party. The complainant was accordingly booked the goods at a total cost of Rs.33,700/- (Rupees thirty three thousand seven hundred) only vide consignment No.14126 dated 13.4.2014. The said consignment note dated 13.4.2014 clearly indicates the station from Chandigarh to Gopalpur and description of the goods. The consignment of the complainant includes goods amounting to Rs.3,00,000/- (Rupees three lakhs) of household goods of precious domestic items of clothing, army dresses, army used items, electrical equipments, personal documents, certificates, testimonials of children, motor cycle (Bajaj) Discover 100 CC (self start regd. No. CH01AK9688). After 5 days of booking, the complainant contacted the O.P.No.2 and asked about the particular truck number and driver’s contact number. The O.P. answered in negative to share the same and falsely assured to deliver the luggage very soon. The complainant repeatedly contacted on 20.4.2014, 21.4.2014, 22.4.2014, 29.4.2014 when the O.Ps gave false assurances of delivery of the goods within short time. In spite of repeated assurances, the O.Ps neither took any steps for delivery of the household belongs along with motor bike nor informed anything. This shows the unfair trade practice of O.Ps causing harassment and mental agony since it is beginning of the academic session of children and all books, study materials, school documents are with O.Ps for transportation. In spite of the fact that the belongings were booked on 13.4.2014, the O.Ps have taken no care to deliver the same till date. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay Rs.3,00,000/- towards the cost of the materials, refund Rs.33,700/-and to pay Rs.1,00,000/- towards compensation for harassment and mental agony along with to pay Rs.15,000/- towards cost of litigation in the best interest of justice.
3. Despite valid notice, the O.Ps failed to enter their appearance and as a result they were proceeded ex-parte on 2.12.2015.
4. On the date of hearing we heard arguments from the side of the learned counsel for complainant since O.Ps were set ex-parte due to non appearance before this Forum even after proper notice. We have gone through the complaint petition, written argument and documents available in the case record. The learned counsel for the complainant contented that he deposited a sum of Rs.33,700/- towards charges and received a money receipt bearing No.11104 dated 13.4.2014 from O.P. No.2 towards transport of the household goods. The consignment of the complainant includes household goods amounting to Rs.3,00,000/- of precious domestic items of clothing, army dresses, army used items, electrical equipments, certificates, testimonials of children, Motor cycle (Bajaj). After five days of booking, the complainant contacted the O.P.No.2 and asked about the particular truck number and drivers contact number, but the O.P. answered in negative and assured to deliver the luggage soon. The complainant repeatedly contacted on 20.4.2014, 21.4.2014, 22.4.2014 and 29.4.2014 but the O.Ps gave false assurance of delivery of the goods within short time and the complainant could not get back his belongings so far. Despite several persuasions the O.Ps did not give any heed to consider the grievance of the complainant and the good packaged for transportation till date not reached at the destination. This action of the O.Ps has attracted deficiency in service under consumer protection Act. To support his contentions, the learned counsel for the complainant also placed before us a citation of Hon’ble National Commission in the case of Goutam Debnath Vs. Bibhas Ranjan Bhattacharjee reported in 2015(2) CPR 689 (NC) where in was held that “transporter cannot avoid its liability towards consignment”.
5. We heard the arguments of the learned counsel for the complainant at length and perused the vital documents on record. We have also verified the consignment note, money receipt and the list of items of household and other goods of complainant packaged for transportation. From the copy of consignment note it is evident that the O.P. No.1 & 2 have received Rs.33,700/- towards transportation charges with proper acknowledgment and money receipt. The consignment note also discloses that the goods are packaged for transportation at owner’s risk and he has not insured the consignment and with some terms and conditions thereof. As per the terms and conditions of the consignment, the company does not take any responsibility for leakage, breakage, soilage, by sun rain or water and the delivery of goods will have to be taken within seven days after on arrival destination failing within the same will be liable to damage @Rs.10.00 per quintal per day. It is also stated in the conditions of the consignment that the company is not responsible for lose, damage to goods by breakage evaporation, theft road and weather conditions strikes, lockout, riots, civil and physical disturbances, explosion fire or accident to vehicle and the transporters shall not be responsible in the event if the consignment is transported in the truck not belonging to them and the owner shall not claim from the transporter any damage in the event but shall claim from the owner of the motor vehicle and with some other conditions.
6. From the above conditions of consignment note, it is clear that the transporter i.e. O.P.No.1&2 are not responsible for the damage or loss of the consignment since the terms and conditions of transport agency is binding on the complainant and as per the consignment note, the goods are transported at owner’s risk and due to non-insured of the items transported, the O.Ps are not responsible for the same. In the present facts of the case, whether the transporter is not liable for the loss of goods of complainant consigned for transported to the destination place?
To address the above issue in dispute, we would like to refer the Carriers Act, 1865 which provides rights and liability of the common carriers. Section-9 of the Carriers Act, 1865 provides that in a suit brought against common carrier for loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the consignor to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. In other words, if the goods entrusted to a carrier for transportation are not delivered, it is not necessary for the owner to prove negligence on part of the carrier. The negligence on his part would be presumed, in the absence of proof otherwise, by the carrier. In short, Section-9 of the Carriers Act 1865, in which it is specifically laid down that in case of claim of damages for loss or deterioration of goods entrusted to a carrier, it is not necessary for the complainant to establish the negligence.
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 as laid down by the Hon’ble Supreme Court in the case of Patel Road Ways Vs Birla Yamaha Ltd reported in 1 (2000) CPJ 42 (SC) 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, hence the loss if any happen to the goods is evidence of negligence. Similarly, in the case of Nath Bros. Exim International Ltd Vs Best Road Ways Ltd the Hon’ble Supreme Court after considering pronouncements of various High Courts observed that the expression ‘at owner’s risk’ does not exempt a carrier from his own negligence or negligence of his servants or agents. Further, in the case of Bhaskar Khulbe Vs Satwant Singh reported in 1(1993) CPJ 594 the Hon’ble Delhi State Commission held that the Carriers Act does not enjoin any duty on the complainant to get the goods insured. The responsibility of the owner of the carrier does not originate from the contract between the parties but it originates from the provisions of Carrier Act. It was laid therein that even if the goods were not insured; the O.P. carrier is liable to pay the damages to the complainant. 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 as 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. In our considered view, non-delivery of goods itself a presumptive proof of negligence on part of transporter and consignor is not obliged to prove it.
7. In view of the above discussion and decision, in our view the O.P. No.1 & 2 are negligent for non-delivery of the consignment of the complainant at his destination address. For this the O.P. No.1& 2 are liable to compensate the loss of the complainant jointly and severally. With regard to the quantum of loss, the learned counsel for the complainant invited our attention towards the list of packaged items that was consigned for transportation by the O.P. No.1. He has mentioned a list of items including clothing, shoe, bedding, curtains, kitchenware, toys & games of children, books and stationery, one Bajaj Discover motor cycle, one cycle, plastic drums and still boxes. The approximate values of the aforesaid items come to a sum Rs.3,01,800/- as per the self-calculation made by the complainant. However, it is surprising to note that the O.Ps have neither mentioned the ‘risk value’ of aforesaid goods in the consignment note nor acknowledged packaged goods for transportation by making a list but in the consignment note in the column for number of packages it has been mentioned 37, one bike and in the description column it is mention ‘old household goods not for sale’. From this, it is evident that the transporter is careless about the consignment goods of the complainant for transportation and it is very difficult for one to make a fair assessment of the price of goods consigned for transportation. It is also a fact that the complainant has not filed any evidence on affidavit to support his claim that the value of list of goods packaged for transportation by the O.P. No.1 costs around Rs.3,01,800/-. However, this is also not controverted by the O.Ps as they did not prefer to put their appearance in this Forum to contest this case and have also negligent in disclosing the risk value of consigned goods. In the absence of any disclosure of risk value of goods by O.Ps in their consignment note, we are constrained to accept the self-assessment value of goods made by the complainant. Accordingly, we would therefore, like to quantify the value of lost goods to the tune of Rs.3,00,000/- which is liable to be compensated by O.Ps jointly and severally. We are also agreed with the citation filed by the learned counsel for the complainant that the transporter cannot avoid its liability towards consignment. In the light of aforesaid discussion, decision and fact of the case, we allow the case of the complainant against O.Ps.
8. In the result, we direct the O.Ps who are jointly and severally liable to pay Rs.3,00,000/-(Rupees Three Lakhs) to the complainant towards value of the lost goods along with a litigation cost of Rs.2,000/- from the date of receipt of this order failing which the complainant is at liberty to recover the amount under Section 25/27 of the Consumer Protection Act 1986. The case is disposed of accordingly.
9. The order is pronounced in the Forum on this 26th day of April 2016 under the signature and seal of this Forum. The office is directed to furnish the copy of this order to the parties free of cost.
