DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM

WEST TRIPURA : AGARTALA

 

 

CASE NO:  CC- 25   of   2014

 

 

Sri Arindam Roy,

S/o- Sri Banamali Roy,

Subash Palli, Bajapratappur,

Burdwan, West Bengal. ...........Complainant.

 

 

  VERSUS

 

 

M/S Safex (Home Packers and Movers),

Having its office at Malanchanagar,

Kunjaban, Near Sonali Guests House,

Agartala, West Tripura. ........Opposite party.

    

 

        __________PRESENT__________

 

 

 SRI S. C. SAHA

PRESIDENT,

  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. B. BHATTACHARYA,

MEMBER,

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SHR. B. BHATTACHARYA,

MEMBER,

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

 

 

For the Complainant    : Sri Arindam Lodh and 

  Sri Sumit Debnath,

Advocates. 

        

For the Opposite Party : Sri P. Rathor and 

  Miss Titu Rani Shil,

    Advocates.

 

 

 

JUDGMENT  DELIVERED  ON : -  05.01.15.

 

 

 

 

 

 

 

J U D G M E N T

 

This is an complaint U/S 12 of the Consumer Protection Act, 1986(herein after referred to as 'the Act') filed by the complainant, Sri Arindam Roy of Subash Palli, Bajapratappur, Burdwan, West Bengal presently posted as CISF at Netaji Subhash Chandra Bose International Airport, Kolkata against the O.P., namely M/S Safex (Home Packers and Movers), Kunjaban, Agartala, West Tripura over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.P. 

 

2. The case of the complainant as gathered from the record is that the complainant is a member of Central Industrial Security Force. At the relevant time he was posted at Agartala Airport. In the month of May, 2013, he had been transferred to N.S.B.I. Airport, Kolkata. So, he made contact with the O.P. for carrying his household goods from Agartala to Kolkata through the firm of the O.P., namely 'Home Packers and Movers' situated at Kunjaban, Agartala, West Tripura. On his request, the O.P. agreed to carry his household goods to his residential address at Kolkata and accordingly the transportation charges of the goods to be carried was determined at Rs.45,000/-. On 15.5.13 the O.P. and his workers along with packing materials and a truck reached to his house and packed all the household goods in 19 packages. On 16.5.13 the O.P. issued two consignment notes bearing nos- A077 x 18 and A083 x 1 in favour of the complainant and he paid Rs.19,485/- + Rs.6,908/- = 26,393/- being the transportation charges of the said consignments, on the promise of door delivery of the consignments on his residential address in Kolkata within 15 days. As per terms of contract, the O.P. failed to deliver the same within the promised time. Meanwhile, he was informed by the O.P. that the truck bearing registration no- HR 55 L 7518 carrying the goods had been hijacked from near a petrol pump at Khanapara, Guahati, Assam and on this issue a case had already registered with Baisisthapur P.S. Having passed anxious time for some days, he rushed to Guwahati and stayed there for 8 days to enquire about his missing consignments. It is alleged that the O.P. did not cooperate with him to trace out the missing consignments. According to the complainant, the conduct of the O.P. attracts negligence and deficiency in service. That being so, he is liable to be adequately compensated by the O.P.

 

3. The O.P., Sri Goutam Debnath, the Proprietor of 'Home Packers & Movers',  has resisted the claim of the complainant mainly on the ground that he booked the consignment of the complainant in a hired truck bearing no. HR-55 L–7518 for transporting his house hold goods from Agartala to Kolkata. The said truck loaded with consignment of different parties started from Agartala on 17.05.13. But unfortunately on 20.05.13 at about 8.30 pm the truck loaded with house hold goods had been hijacked from khanapara, Guwahati by some unknown miscreants. Upon receipt of the said information from the driver  cum owner of the vehicle on 22.05.13, he rushed to Guwahati and lodged an F.I.R. with Baishaisthapur Police Station. On his F.I.R. a case was registered bearing no. 384/2013  U/S 379 IPC. The said incident was beyond his control. He was never negligent and there was no deficiency in service on his part. Therefore, he is not liable to pay any compensation to the complainant as claimed.

 

4. In support of the case, the complainant has examined himself as P.W. 1 and has proved and exhibited the following documents:

Exhibit 1 Series- Two Consignment Notes dated 16.05.13,

Exhibit 2 Series- Two Money receipts dated 16.05.13,

 

5. On the other hand, Sri Goutam Debnath, the Proprietor of 'Home Packers and Movers', has examined himself as O.P.W. 1 and another Sri Ramnaval Yadav, the driver of the vehicle allegedly hijacked, as O.P.W. 2 and has proved and exhibited the copy of the chargesheet of Baisisthapur P.S. Case No. 384/2013 U/S 379 IPC as Exhibit – A.

 

F I N D I N G S:

 

6. We had already heard the arguments advanced by the learned counsel appearing for the parties. Also perused the pleadings, documents on record and the evidence adduced by the parties very carefully.

 

7. The points to be decided in this case are-

Whether the complainant booked two consignments with the O.P. on 15.05.13 for carriage of the same from Agartala to his residential address in Kolkata;

Whether the O.P. failed to reach consignments to the destination mentioned above till date;

Whether the truck carrying the goods had been hijacked by the miscreants at Khanapara, Guwahati on 20.05.13 as alleged and 

Whether the complainant is entitled to compensation for the total loss of his goods due to negligence and deficiency in service on the part of the O.P.

 

8. It is the case of the complainant that he booked a consignment of old household goods with the O.P. for carriage to Kolkata for being delivered to consignee. The complainant sent the said consignment through a truck. The consignment was booked through 2 consignment notes bearing nos. A077 x 18 and A083 x 1 dated 16.05.13 issued by the O.P., the common carrier. The complainant paid Rs.26,393/- being transportation charges of the two consignments. The truck which carried the consignment did not belong to the O.P. The O.P. hired the truck for carriage of the consignment of the various parties including the complainant. But the consignment did never reach the destination.

 

It is the plea of the O.P. that on way to Kolkata the truck bearing registration no. HR 55 L 7518 loaded with household goods of different consignees had been hijacked by unknown miscreants from Khanapara, Guwahati at about 8.30 P.M. Having received the said information from the driver on 22.05.13, he rushed to Guwahati on 23.05.13 and lodged an F.I.R. with Baishisthapur P.S., Kamrup. On his complaint, a case was registered bearing Baishisthapur P.S. Case No.384/13 U/S 379 IPC. According to the O.P., the incident occurred not due to his negligence and lapses and, therefore, he is not liable to pay any compensation for the loss of the consignments of the complainant.

 

10. It is not understandable to us as to why one M/S Safex has been named as party in the cause title page of the complaint when it is admitted by the proprietor of Home Packers and Movers that the consignments were booked with his firm by the complainant against the consignment notes dated 16.5.13(exhibit 2 series). In our opinion, M/S Safex has been unnecessarily named in the cause title page of the complaint. 

 

11. It is not disputed that the consignments did not reach the destination as the truck carrying consignments had been hijacked by the miscreants. As per the complainant, the value of the missing consignments would be  Rs.2,69,800/-.

 

12. It is contended by the O.P. that the total loss of the consignments took place as a result of hijacking of the truck by the miscreants. He had no role to play in the carriage of the consignment by the said truck.

 

13. While arguing the case, the learned counsel appearing for the O.P. has contended that the consignment notes (exhibit 2 series) clearly stipulate that 'Insurance by party'. The complainant did not insure the consignments despite repeated requests of the O.P.  So, it is amply clear that the complainant booked the consignment at 'owner's risk' and hence the carrier is not liable to pay any compensation for the loss of the consignments.

 

14. In this connection, it is advantageous here to refer to the decision of the Hon'ble Supreme Court reported in Nath Bros. Exim International Ltd. (Supra) in Civil Appeal No- 1/1997 which was decided on 27.03.2000, wherein it is held that ''Thus the expression 'at owner's risk' does not exempt a carrier from his own negligence or the negligence of his servants or agents.''

 

15. It is seen that the consignments were packed on 15.05.13 and the consignment notes (Exhibit-2 series) were issued by the O.P on 16.5.13. How the complainant could exercise his option on whether he would book his consignments with the O.P. without the coverage of insurance when the goods were taken into the custody of the O.P. on 15.5.13 before issuance of the consignment notes on 16.5.13 embodying the condition that 'Insurance by the party'. If insurance was the precondition for booking of consignments, the O.P. would not have accepted the goods of the complainant without the coverage of insurance. It means the O.P. accepted the liability to carry the goods of the complainant to the destination with safe and secure without the coverage of insurance. Now, the O.P. is estoped from taking the plea that he is not liable for the loss or damage of goods of the complainant. 

 

16. In the case of non-delivery of the consignments by the carrier, burden of proving the absence of negligence is on the carrier. But in the present case, the O.P. being the carrier has failed to discharge his burden. As per the settled law, in case of loss of goods or delivery to the wrong person or delay in delivery, presumption would be negligence on the part of the carrier. That being so, the O.P. is definitely liable to pay the compensation for the loss of the consignments of the complainant.

 

17. In a similarly situated case, the Division Bench of the Kerala High Court held that ''the common carrier is not a bailee of goods entrusted to him. He his the insurer of goods. He is answerable  for the loss of goods ever when such loss is not caused by negligence or want of care on his part.'' Under the mandatory provision of section 12(1) of The Carriage of Road Act, 2007, every common carrier shall be liable to the owner for loss or damage to any property which has arisen on account of any criminal act of the common carrier, or any of his servants or agents. 

 

18. In view of the settled position of law, we are of the considered opinion that the O.P. being a common carrier can not escape his liability on the ground that he had no control over the incident which occurred during carriage of consignments on way to destination.

 

19. Now, the question arises what should be the quantum of compensation.

  The complainant, in his complaint as well as deposition before the Forum, has stated that the value of the consignments is worth Rs. 2,69,800/-. In the consignment notes, the number of packages is stated to be 18 + 1 = 19. In Paragraph- 6 of the complaint, the complainant has given a list of articles booked for carriage. But there is no detailed description of articles contained in 3 boxes value of which is claimed to be Rs.1,75,000/- out of total claim of Rs.2,69,800/-. It also appears that the consignments also included one motor bike and a bi-cycle the value of which is claimed to be Rs.50,000/- and Rs.2800/- respectively. But no sale receipts of the motor bike and bi-cycle are produced to determine its ages so as to assess the actual value after deduction of depreciation cost. As there is no detailed description of goods contained in 3 boxes, it is very difficult on our part to assess its value. The complainant has not produced any documentary proof in support of the value of the goods booked for transportation. Admittedly, most of the goods booked for transportation were old household articles. We all know that after use of household goods for a certain period its utility is diminished and it has got little resale value. In absence of any cogent and clear evidence on record as to the value of the goods, we are to asses the value absolutely on guess.

 

20. Considering all the facts and surrounding circumstances of the case, we are of the view that it would meet the ends of justice if the value of consignments booked by the complainant is assessed at Rs.89,935/-  in lumpsum being 1/3 rd of the amount of Rs. 2,69,800/- claimed by him and accordingly we do so.

 

21. For all the foregoing reasons, we hold that  the complainant has succeeded in establishing that the O.P. was negligent and deficient in rendering service. That being so, he is entitled to compensation for the loss suffered by him.

 

22. Resultantly, the complaint U/S 12 of the Consumer Protection Act, 1986 filed by the complainant is allowed on contest. It is hereby directed that the O.P. will pay Rs.89,935 /-(Rupees Eighty Nine Thousand Nine Hundred Thirty Five) to the complainant as compensation towards the loss of his consignments. This apart, the O.P. will refund Rs.26,393 /-(Rupees Twenty Six Thousand Three Hundred Ninety Three) to the complainant which was received by him as transportation charges. The O.P. will also pay Rs.5000/- (Rupees Five Thousand) to the complainant for causing his mental agony and harassment together with Rs.2000/-(Rupees Two Thousand) as cost of litigation. The O.P. is to pay the above said compensation within a period of 6(six) weeks from the date of judgment, failing which the amount of compensation shall carry interest @ 9% P.A. till the payment is made.

 

23.      A N N O U N C E D

 

 

 

SRI S. C. SAHA

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA.

 

 

 

SMT. B. BHATTACHARYA,

MEMBER,

  DISTRICT CONSUMER DISPUTES 

REDRESSAL FORUM, 

  AGARTALA, WEST TRIPURA. SHRI. B. BHATTACHARYA,

MEMBER,

  DISTRICT CONSUMER DISPUTES 

REDRESSAL FORUM, 

  AGARTALA, WEST TRIPURA.