Tripura

StateCommission

A/15/3

Shri Goutam Debnath - Complainant(s)

Versus

Shri Gopi Debnath - Opp.Party(s)

Mr. P.Rathor,Smt. D.Debnath,Smt. T.R Shil

02 Apr 2015

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A/15/3.

 

 

 

Sri Goutam Debnath,

Prop. Of Home Packers & Moovers,

Shyamali Bazar (Near Sonali Rest House),

Malanchanagar, Agartala,

P.S-New Capital Complex,

Agartala,West Tripura. PIN-799006,

And not M/S Safex(Home Packers and Moovers)

                   ….    ….    ….    ….    Appellant.

                   Vs

Sri Gopi Debnath,

S/O. Late Krishna Mohan Debnath,

Vill-Sangthamtilla, Ranagapahar,

Crossing,Dimap. Nagaland, PIN-797123.,

Present address :-

C.I.S.F.LGBAL, Airport, Guwahati,Assam.

                ….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

For the Appellant       :      Mr.P.Rathor,Adv, Mr.D.Debnath & Mrs.T.R.Shil,Adv

 For the respondent   :      Mr.A.Lodh,Adv. & Mr.S.Ghosh,Adv.

Date of Hearing         :     02.04.2015.

Date of delivery of Judgment  :

             

 

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 31.01.2015 by the appellant-Goutam Debnath, Prop. of Home Packers and Moovers, Shyamali Bazar under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 02.01.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-26 of 2014 whereby the Ld. District Forum allowed the complaint under Section 12 of the Consumer Protection Act, 1986 directing the present appellant-O.P. to pay a sum of Rs.47,000/- to the complainant as compensation towards the loss of his consignment with a further direction to refund Rs.32,474/- to the complainant which was paid by him to the present appellant as transportation charges and also a sum of Rs.5,000/- to the complainant for the mental agony and harassment together with Rs. 2,000/- as cost of litigation. It further transpires that by the said judgment the appellant-O.P. is directed to pay the aforesaid compensation within a period of six weeks from the date of judgment, failing which the amount of compensation shall carry interest @ 9% p.a. till the payment is made.      

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the present respondent who is the complainant in the complaint lodged under Section 12 of the C.P.Act, 1986, in brief, is that the respondent had booked his household goods with the firm Safex(Home Packers and Moovers) to be carried from Agartala to Guwahati to be delivered at his residence at Guwahati and for that the respondent paid Rs.32,474/- towards the transportation charges as per consignment note No.AO74X25 to the appellant. It is also stated that although the household goods were to be delivered by the appellant within a stipulated time, but it was never delivered and after lapse of reasonable time the appellant informed that although, the respondent’s old and used household goods were despatched in a hired truck after proper care and caution, the same were lost due to hijacking of the truck from near a Petrol Pump at Khanapara, Guwahati, Assam for which the appellant lodged a written complaint with the concerned P.S. and the matter was under investigation. It is also stated that the respondent not being satisfied with the reply of the appellant lodged a complaint before the Ld. District Forum which was registered as C.C.26/2014 and the Ld. District Forum after considering the pleadings of the parties, the evidences of both the parties and hearing argument passed the impugned judgment on 02.01.2015 .
3. That being aggrieved by and dissatisfied with the impugned judgment, the appellant has preferred the instant appeal on the grounds that the Ld. Forum erred in law as well as facts in arriving at an erroneous conclusion, that the Ld. Forum ought to have held that there was no negligence on the part of the appellant and the alleged incident was not within his control, but wrongly held the appellant liable to pay compensation which is not sustainable in law and is also liable to be set aside, that the Ld. Forum erred in assessing the value of the consignment at Rs.47,000/- which is nothing, but a speculative one unsupported by any cash memo, vouchers etc, that the Ld. Forum also erred in awarding the compensation assessing the same only on guess which is, not only an exorbitant one, but also based on from no legal standpoint and as such, the awarding of compensation by the impugned judgment not being sustainable in law is liable to be set aside and accordingly, the appellant has preferred the instant appeal.                                                     

 

 

Points for consideration.

4.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in awarding the compensation by the impugned judgment and (2) whether the judgment under challenge is liable to be set aside as prayed for.     

                         Decision with Reasons.

5.  Both the points are taken up together for the sake of convenience and brevity.
6. The learned counsel for the appellant in course of hearing argument submitted before us that the booking of a consignment consisting of old and household goods of the respondent-complainant with the O.P.-appellant for carriage from Agartala to Guwahati for being delivered to the consignor-respondent herein is an admitted fact. She also submitted that the said consignment was made through a hired truck bearing registration No.HR-55L-7518 vide consignment note No. A074 X 25 dated 20.05.2013 along with the consignment of some other consignors is also an admitted fact. She also submitted that the respondent-complainant paid Rs.32,474/- including service tax to the appellant-O.P. as transportation charges of the said consignment. She also submitted that the consignment did never reach to the destination is also an admitted fact.             
7. The learned counsel for the appellant submitted that on the way to Kolkata from Agartala the truck loaded with household goods of different consignors including the complainant had been hijacked by unknown miscreants from Khanapara, Guwahati at about 8.30 p.m. and on receipt of the said information from the driver on 22-05.2013 he rushed to Guwahati on 23.05.2013 and lodged an FIR with Baishisthapur P.S., Kamrup which was registered at Baishisthapur P.S. case No.384/2013 under Section 379 I.P.C. She also submitted that the said incident occurred was not due to his negligence and as such, he is not liable to pay any compensation for the loss of the consignment of the complainant. She also submitted that the complainant failed to produce any cash memo, vouchers etc. for proving the value of his goods, but the Ld. District Forum has assessed the value of old and used household goods of the complainant at Rs. 47,000/- in lump sum being 1/3^rd of the amount of Rs.1,41,000/- claimed by the complainant. She also submitted that the Ld. Forum on the basis of mere guess assessed that amount which is not only exorbitant one, but also unreasonable and as such, the awarding of compensation on the basis of the said guess-work is not sustainable in law and therefore, the impugned judgment is liable to be set aside. 
8. The learned counsel for the appellant further submitted that the Ld. District Forum practically failed to consider that the hijacking of the truck by the miscreants from the public thoroughfare was not within the control of the appellant and as such, the fixing the liability upon the appellant to pay compensation for the loss of the household articles of the respondent by the Ld. District Forum cannot be sustained in the eye of law.   
9. The learned counsel for the appellant also submitted that at the time of handing over the household goods of the respondent-complainant for transportation from Agartala to Guwahati, the respondent did not prepare any list of household goods with valuation thereof. She also submitted that without declaring the value of the consigned articles before handing over the goods for transportation, the Ld. District Forum cannot accept the value of the household articles as put by the respondent for the purpose of filing the complaint before the District Forum and also for assessing the present market value of the old and used household articles of the respondent-complainant. She also submitted that the present market value of the old and used household articles of the respondent as assessed by the Ld. District Forum merely on guess is on the higher side and as such, the assessment of loss in such unscientific way by the Ld. District Forum is not sustainable in law and the compensation awarded, accordingly, on such assessment by the impugned judgment is not tenable in law and therefore, the impugned judgment is liable to be set aside and the appeal should be allowed.               
10. The learned counsel for the respondent-complainant submitted that the appellant-O.P. at the time of receiving the old and used household goods of the respondent-complainant undertook to make door delivery to the address of the respondent and as such, it was the responsibility of the appellant as a carrier to make door delivery of the said articles to the address of the respondent in Guwahati. He also submitted that the appellant failed to adduce any cogent and reliable evidence for establishing that the appellant-carrier through his agent-driver of the hired truck was not negligent and careless in handling the household articles of the respondent in course of transportation. He also submitted that the carrier is also vicariously responsible for the negligence act of his agent, servant etc. if any loss is caused to the consigned goods in course of transportation from one place to its destination. He further submitted that the appellant-carrier cannot avoid his liability to make good on the plea that the incident of alleged hijacking taken place on public thoroughfare was beyond his control.                             
11. The learned counsel for the respondent then submitted that on account of non-delivery of the household articles of the respondent by the appellant-carrier, the respondent-complainant had to purchase all those articles for day to day enjoyment and living of his family members. He also submitted that the compensation awarded for the loss of consigned goods is on the lower side as the respondent-complainant has been compelled to purchase all those articles afresh from the market by incurring expenditure more than the value of the articles shown in the complaint.
12. He also submitted that the appellant as carrier undertook to make door delivery of the consigned goods, but the appellant as carrier also did not prepare any list of goods which he undertook to make door delivery to the place of destination as mentioned in the consignment note (Ext.1). He also submitted that the respondent-complainant paid an amount of Rs.32,474/- including service tax of Rs.974/- to the appellant towards transportation charges of his old and used household goods from Agartala to Guwahati. He also submitted that all the old and used household goods of the respondent were packed in 25 pkts. He also submitted that it is necessary to consider that the respondent paid such an amount to the carrier as transportation charges for how many valuable goods. He also submitted that from that standpoint, it is palpable that awarding a compensation of Rs.47,000/- by the Ld. Forum after assessing the present market value of the old and used household goods of the respondent is obviously on the lower side. He also submitted that it is unfortunate that the respondent could not file any counter appeal praying for enhancing the quantum of compensation considering the loss sustained by the respondent, but in that circumstances, the awarding of compensation so made by the impugned judgment even on the lower side can be accepted as proper and legal and accordingly, the impugned judgment should be upheld and the appeal should be dismissed.
13. Going through the cause-title of the complaint filed under Section 12 of the C.P.Act, 1986, we find that M/S Safex(Home Packers and Moovers) has been described as O.P.-appellant-Goutam Debnath, Prop. Of Home Packers and Moovers in written objection filed in the District Forum that the name of his firm is not M/S Safex(Home Packers and Moovers), but he is the sole proprietor of Home Packers and Moovers. In this regard, the Ld. District Forum in the impugned judgment opined that M/S Safex has been un-necessary named in the cause-title of the complaint. However, the learned counsel for the appellant submitted nothing in this regard before us. However, going through the evidences, we find that the present appellant received the goods of the respondent through one Shambu Nath, the staff of another firm, i.e. M/S Safex. The appellant as O.P.W.1 admitted in his cross-examination that he received the consignment and transportation charges for the consignment from M/S Safex, but he admitted that when the consignment was handed over to him by Safex, the complainant was present in person. Be that as it may, it is well established that the appellant-O.P. is actually the carrier and not the alleged M/S Safex(Home Packers and Moovers). Be that as it may, as the learned counsel for the appellant has not disputed and has submitted nothing adverse in this regard, we are of the view that the appellant has accepted the finding of the Ld. District Forum in this regard.
14. On perusal of the pleadings of the parties, the evidences both oral and documentary, the impugned judgment and the memo of appeal, we find certain admitted facts. Admittedly, the respondent booked his old and used household articles in 25 packets with the firm of the appellant named Home Packers and Moovers for transporting the same from Agartala to Guwahati for delivering the same at the place of destination mentioned in the consignment note. It is also admitted fact that the appellant received a sum of Rs.32,474/- including service tax of Rs.974/- from the respondent as transportation charges from the respondent on 20.05.2013. It is also admitted fact that at the time of packing and booking of the household articles of the respondent, no list of the articles with value thereof was prepared and exchanged by and between the parties. It is also admitted fact that the appellant undertook to make door delivery of the said articles of the respondent. It is also an admitted fact that a consignment note bearing No.A074 X 25 dated 20.05.2013 was also issued by the appellant in favour of the respondent-complainant. It is also admitted fact that the appellant sent the household articles of the respondent along with the household articles of nine other consignors towards Kolkata from Agartala by a truck bearing registration No.HR-55L- 7518.
15. It is the case of the present appellant that the said truck loaded with household articles of ten consignors including the respondent was hijacked from near a H.P.Petrol Pump at Khanapara, Guwahati, Assam by some miscreants. It is also admitted fact that over the alleged incident of hijacking, a criminal case being Baishisthapur P.S. case No.384 of 2013 under Section 379 of the I.P.C. was registered and at present, the police on completion of investigation submitted charge sheet, but no recovery of the household articles of the respondent-complainant and others has been made till now. But the point is on which date the truck in question started to proceed towards Kolkata and also on which date the alleged incident of hijacking took place. The appellant-O.P. in his written statement submitted in the complaint case No.C.C.26/2014 without mentioning the date on which the truck in question started to proceed towards Kolkata from Agartala and also the date on which the said truck was hijacked, but it is found that the appellant along with written statement filed a copy of the F.I.R., G.D.Entry, a letter and a wireless message dated 28.05.2013 before the Ld. Forum wherefrom, we find that the truck in question proceeded towards Kolkata from Agartala carrying the household articles on 17.05.2013 and on 22.05.2013 at about 8.25 a.m. the driver of the vehicle namely Ramnobel Yadab informed the appellant that the said truck vehicle has been stolen away along with loaded goods from Khanapara near H.P.Petrol Pump. It further appears that the appellant-O.P. lodged the F.I.R. with the Officer-In-Charge of Jorabat Police out post, Jorabat, Guwahati on 23.05.2013. It further appears that the Officer-In-Charge of that outpost forwarded the said F.I.R. to the officer-in-charge Baishisthapur P.S. and accordingly, the said F.I.R. was registered on the same date i.e. on 23.05.2013, but from the consignment note (Ext.1) and money receipt (Ext.2) it transpires that the household goods of the respondent was booked for consignment on 20.05.2013 for making door delivery from Agartala to Guwahati. The question arises when the household articles of the respondent was booked on 20.05.2014 for transportation, then how the truck in question started to proceed towards Kolkata from Agartala on 17.05.2013.
16. It transpires from a copy of the judgment passed by this Commission in F.A-21/2014 arising out of C.C.105/2013 pronounced on 13.03.2015 in between Goutam Debnath, Prop. Of Home Packers and Moovers(appellant) Vs Birendra Kr. Sharma(Respondent) that this respondent, Birendra Kr. Sharma was one of the ten consignors whose household articles were also consigned for transportation towards Kolkata from Agartala by the same truck. It further appears from the said judgment that the present appellant as O.P. submitted written objection in case No.C.C.105/2013 narrating that the truck bearing No.HR-55L-7518 loaded with household goods of the complainant and others for transportation from Agartala to Kolkata was hijacked on 20.05.2013 at about 8.30 p.m. from Khanapara, Guwahati by some un-known miscreants for which Baishisthapur P.S. case No.384 of 2013 dated 23.05.2013 under Section 379 of the I.P.C. was registered and initiated on the basis of the F.I.R. lodged by the present appellant on getting information from the driver-owner of the said truck on 22.05.2013 at 8.25 A.M. Carrier Goutam Debnath confirmed the same in his examination-in-chief on affidavit also. In that case, the question arises as to when the truck in question loaded with household articles was hijacked and whether it was on 20.05.2013 at about 8.30 p.m. or on 22.05.2013 at about 8.25 a.m.. It is needless to say that the alleged F.I.R. was lodged on 23.05.2013 by the appellant on reaching to Guwahati from Agartala after getting the information from the truck driver as narrated.
17. It is an admitted position that the appellant on receiving the household articles from the respondent for transportation also did not prepare any list of household articles which he undertook to make door delivery to the address of the consignor as undertaken by him. It transpires that the truck driver-owner, Ramnobel Yadav has been examined in the District Forum, but he did not explain as to how the alleged hijacking had taken place at Khanapara near H.P.Petrol Pump, Guwahati and as to what he was doing at the relevant point of time.
18. From the consignment note as well as money receipt, it transpires that there is a rubber stump “Insurance by party”. Admittedly, the household articles of the respondent-complainant were not insured with any Insurance Company, but going through the written objection filed by the appellant has made out no case regarding the alleged insuring of the household articles of the respondent with any Insurance Company. So, it is found that the putting of rubber stump “Insurance by party” on the consignment note as well as money receipt dated 20.05.2013 has got no value in the eye of law. Furthermore, the household articles of the respondent was booked for consignment on 20.05.2013 as per consignment note and as such, there was no scope to insure the household articles of the respondent in any way when it is the case of the appellant as per his F.I.R. that the truck in question loaded with the household articles of the respondent and nine other consignors proceeded towards Kolkata from Agartala on 17.05.2013. From the above, it is palpable that the appellant as the O.P. suppressed many material facts before the Consumer Fora.
19. The Hon’ble Apex Court in the decision reported in AIR 2000 Supreme Court 1461 between Patel Roadways Ltd.(appellant) Vs. Birla Yahama Ltd.(Respondent) has been pleased to hold that the liability of a common carrier under the Carriers Act, 1865 is that of an insurer and this position is made further clear by the provision contained in Section 9 of the said Act in which, it is specifically laid down that in case of claim of damage or loss to or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. It has also been held that even assuming that the general principles in cases of tortuous liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. It has also been held in the said reported case that Section 9 of the Carriers Act is applicable to the proceedings before the Consumer Fora as the term “suit” provided in Section 9 includes the proceedings pending before the Consumer Fora. Going through the impugned judgment, we are of the view that the Ld. District Forum rightly placed no importance at all on the rubber stamp “Insurance by party” impressed upon the consignment note as well as on the money receipt. So, it is palpable that the principle of law enunciated in the above cited case does not absolve the appellant-O.P/Carrier from his liability to pay compensation to the respondent-complainant, rather, the principle of law embodied therein has made the O.P.-carrier, the appellant herein responsible for not delivering the consigned articles to the complainant-respondent as undertaken by him.
20. Admittedly, the appellant-O.P. received the booking of the old and used household articles of the respondent-complainant for transportation from Agartala to Guwahati with an undertaking to make door delivery of the same in the address of the respondent and the appellant hired a truck bearing No-HR-55L-7518 for that purpose and the said truck loaded with household articles of the respondent and others consignors was being driven by the driver-owner of the truck named Ramnobel Yadav and in that circumstances,Ramnobel Yadav was acting as an agent of the appellant.
21. It transpires from The Carriers Act, 1865 which was enacted earlier covering carrying of goods by road, water and air, but the said Act, 1865 has been repealed with the enactment of The Carriage By Road Act, 2007 which has come into force w.e.f. first October, 2007. So, it is found that this carrying of household goods of the respondent comes within the purview of The Carriage By Road Act, 2007.
22. The definition of common carrier as provided under Section 2(a) of The Carriage By Road Act, 2007 is as follows :- “common carrier” means a person engaged in the business of collecting, storing, forwarding or distributing goods to be carried by goods carriages under a goods receipt or transporting for hire of goods from place to place by motorised transport on road, for all persons indiscriminatingly and includes a goods booking company, contractor, agent, broker and courier agency engaged in the door-to-door transportation of documents, goods or articles utilising the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles, but does not include the Government”.
23. Section 9 of The Carriage by Road Act, 2007 provides “9(1) A common carrier shall,- (a) in case where the goods are to be loaded by the consignor, on the completion of such loading ; or (b) in any other case, on the acceptance of th goods by him, issue a goods receipt in such form and manner as may be prescribed. (2) The goods receipt shall be issued in triplicate and the original shall be given to the consignor (3) The goods receipt shall be prima facie evidence of the weight or measure and other particulars of the goods and the number of packages stated therein. (4) The goods receipt shall include an undertaking by the common carrier about the liability under Section 10 of Section 11”.
24. The liability of the common carrier as provided under Section 10 of The Carriage By Road Act, 2007 reads as follows:- “(10). (1) The liability of the common carrier for loss of, or damage to any consignment, shall be limited to such amount as may be prescribed having regard to the value, freight and nature of goods, documents or articles of the consignment, unless the consignor or any person duly authorized in that behalf have expressly undertaken to pay higher risk rate fixed by the common carrier under Section 11.” 
25. Section-11 of the said Act read as follows :- “Every common carrier may require payment for the higher risk undertaken by him in carrying a particular consignment at such rate of charge as he may fix and correspondingly, his liability would be in accordance with the terms as may be agreed  upon with the consignor;”
26. Section 12(1) of The Carriage By Road Act, 2007 provides :- “Every common carrier shall be liable to the consignor for the loss or damage to any consignment in accordance with the goods forwarding note, where such loss or damage has arisen on account of any criminal act of the common carrier, or any of his servants or agents”.
27. Section 12(2) of the said Act provides :- “In any suit brought against the common carrier for the loss, damage or non-delivery of consignment, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the common carrier, or any of his servants or agents”.
28. Section 17 of The Carriage By Road Act, 2007 provides :- “ Save as otherwise provided in this Act, a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage, arising from any cause except the following, namely;- (a) act of God; (b) act of war or public enemy; (c) riots and civil commotion; (d) arrest, restraint or seizure under legal process; (e) order or restriction or prohibition imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorized by it in this behalf;

          Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery of the consignment if the common carrier could have avoided such loss, destruction, damage or deterioration or non-delivery had the common carrier exercised due diligence and care in the carriage of the consignment”.

29. Section 17 of The Carriage By Road Act has granted exemption to a common carrier for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage, arising from any cause except the following, namely :-  (a) act of God, (b) act of war or public enemy; (c) riots and civil commotion; (d) arrest, restraint or seizure under legal process; (e) order or restriction or prohibition imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorized by it in this behalf, but the proviso to Section 17 provides, if it is proved that the common carrier could have avoided such loss, destruction, damage or deterioration or non-delivery of the consigned goods, had the common carrier exercised due diligence and care in the carriage of the consignment. Similar provision has also been made under 2^nd proviso to Section 10(2) which provides as such : “provided further that the common carrier shall not be liable if such carrier proves that such loss of, or damage to, the consignment or delay in delivery thereof, had not taken place due to his fault or neglect or that of his servants or agents thereof”.
30. In the case on hand, we find that the alleged incident took place on 20.05.2013 at about 8.30 p.m. near H.P. petrol pump at Khanapara, Guwahati, Assam, but the driver-owner Ramnobel Yadav informed the appellant only on 22.05.2013. We also find it from the message of In-charge, Jorabat Out Post dated 28.05.2013 in connection with the Baishisthapur P.S. case No.384/2013 under Section 379 I.P.C.. It has already been mentioned that there is a controversy regarding the date and time of the happening of the alleged incident of hijacking. Be that as it may, it has already been mentioned that no cogent explanation has come out for such delay of two days in reporting of the alleged incident to the appellant by the driver himself. The driver also did not explain in his deposition as to what he was doing at the time of alleged hijacking.  There is also nothing to establish that the driver-owner Ramnobel Yadab as agent of the appellant-carrier exercised due diligence and care in the carriage of the consignment to avoid such loss etc.. So, it is found that the appellant as carrier cannot avoid his responsibility for the loss of the consigned goods of the respondent-complainant on the ground of negligence and careless conduct of his agent-Ramnobel Yadab. 
31. The exception clause of Section 17(b) of the Carriage by Road Act, 2007 i.e. public enemy may have some sort of bearing with the present case if it is proved that the truck in question loaded with household goods of the complainant and some others was allegedly hijacked by criminals actually. Although the charge sheet was submitted in the said Baishisthapur P.S. case, but neither the truck in question nor any household articles of the consignors was recovered. It has also been mentioned that the appellant as O.P. in the written objection submitted in the complaint case No.C.C.105/2013 alleging that the alleged incident of hijacking took place on 20.05.2013, but this appellant himself lodged G.D.E./F.I.R. narrating that the incident of hijacking took place on 22.05.2013. Although charge sheet has been submitted, but the alleged story of hijacking has not been proved as yet before any court of law. As per provision of the Carriage by Road Act, 2007, in case of non-delivery of the consignment by the carrier, the burden of proving the absence of negligence is on the carrier. But in the instant case, we find that the appellant-carrier could not discharge his burden of proof of absence of negligence in order to get rid of his liability as Carrier under the said Act, 2007. So, the appellant-O.P., being a Carrier cannot escape his liability taking a plea that he had no control over the alleged incident of hijacking which occurred in course of carriage of consignment on the way to Kolkata from Agartala. In view of the above and considering the legal provision of law and the factual matrix, we are of the view that the Ld. District Forum rightly held the appellant-O.P. responsible for the loss of the consigned goods of the respondent-complainant-Gopi Debnath.     
32. Going through the impugned judgment and the evidences, we find that the complainant-respondent has mentioned in para-6 of the complaint that the value of the consigned goods is at Rs.1,41,000/-. It has already been mentioned that at the time of booking of the said household goods there was no exchange of list of goods by and between the appellant and the respondent herein. It also appears that the appellant did not prepare any list as to what were those household goods of the respondent he received as booking for transportion from Agartala to Guwahati. On perusal of the impugned judgment, we find that the Ld. Forum considering the resale value of the household goods of the complainant has assessed market value of the same at Rs.47,000/- in lump sum being one third of the amount of Rs.1,41,000/-. It further appears that having no specific evidence regarding the prices of those household articles of the respondent, the Ld. Forum has assessed the present market value of those goods on guess.
33. It is needless to say that even the old and used household goods have some sort of resale value. It transpires that the household goods of the respondent-complainant were packed in 25 pkts for which the complainant paid Rs.32,474/- to the appellant towards transportation charges of the consigned goods including service tax for carrying the same from Agartala to Guwahati. In this connection, we should not be unmindful that the complainant paid such an amount as transportation charges for carrying his valuable household articles. It is also found that the complainant handed over his household articles to the appellant on his transfer from Tripura, but due to the negligence and deficiency in service on the part of the appellant, the respondent has been compelled to purchase all those articles afresh at the rate of present market value which is more costing than the prices mentioned in para-6 of the complaint. So, the realization of an amount of Rs.32,474/- as transportation charges for carrying the household goods of the respondent also suggests that the Ld. Forum has rightly assessed the present market value of those household goods of the respondent-complainant at Rs.47,000/- on guess being 1/3^rd of the total value of the household goods as appearing from para-6 of the complaint which, according to us, cannot be said to be an unreasonable and unacceptable one. So, it cannot be said that the assessing of the present market value of the household goods of the respondent at Rs.47,000/- as made out by the Ld. District Forum is on the higher side.  Therefore, considering the facts and circumstances of the case, we are of the view that the method of assessing the market value of the old and used household goods of the respondent on guess adopted by the Ld. District Forum is found reasonable and acceptable one. Going through the impugned judgment, we are of the considered view that the Ld. Forum meticulously considered all aspects of the case and passed the impugned judgment which being found proper, legal and justified, calls for no interference by this Commission and as such, the impugned judgment is liable to be affirmed and the appeal is also liable to be dismissed.            

 

34. In the result, the appeal fails. The impugned judgment dated 02.01.2015 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C-26/2014 is hereby affirmed. There is no order as to costs.

 

                      

 

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura