Tripura

StateCommission

A/15/4

Shri Goutam Debnath - Complainant(s)

Versus

Shri Mithilesh kr. Sah - 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/15/04.

 

 

 

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

Shri Mithilesh Kr.Sah,

S/O. Late Prayag Sah,

Resident : Ambagan Mihijam,

(Near Navin Chhatrawash),

P.O-Mihijam, Dist-Jamtara, Jharkhand,

Pin-815354.

Present address :

C.I.S.F. Netaji Subhas Chandra Bose

International Airport( NSCBIA), P.O & P.S-NSCBI Airport,

Kolkata-700052.

                ….    ….    ….    ….    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 under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 03.01.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-27 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.38,333/- to the complainant as compensation towards the loss of his consignment and also to make refund of Rs.21,959/- to the complainant which was received by him as transportation charges with a further direction to pay Rs.5,000/- to the complainant for the mental agony and harassment together with Rs. 2,000/- as cost of litigation. It further appears that by the said judgment, the O.P.-appellant herein is further directed to pay the above mentioned 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 complainant-respondent had booked his household goods with the firm Safex (Home Packers and Moovers) to be carried from Agartala to Kolkata to be delivered at his residence in Kolkata and the respondent Paid Rs.21,959/- to the appellant towards transportation charges as per consignment note No.A079 X 19 dated 15.05.2013. It is also stated that although the household goods were to be delivered by the appellant within a stipulated time, it was never delivered and after a lapse of reasonable time, the appellant informed that the truck hired by him loaded with old and used household goods of the respondent and some others, in spite of proper care and caution, was hijacked from near a H.P.Petrol Pump, 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.27/14. It is also stated that the Ld. District Forum considering the pleadings of the parties, evidences of both the parties and also after hearing the argument passed the impugned judgment.  
3. That being aggrieved by and dissatisfied with the impugned judgment, the O.P. as appellant has preferred the instant appeal on the grounds that the Ld. Forum ought to have held that there was no negligence on the part of the appellant and also the matter of hijacking was not within his control, but the Ld. Forum wrongly and erroneously passed the impugned judgment which is not sustainable in law, that the Ld. Forum erred in assessing the value of the consignment booked by the respondent at Rs.38,333/- in lump sum being 1/3^rd of the amount of Rs.1,15,000/- claimed by the respondent without any cash memo, vouchers etc. in a speculative manner, that the Ld. Forum failed to consider that the value of the old and household goods of the respondent has been assessed by him whimsically unsupported by any document, that the Ld. Forum also did not consider properly as to what articles the respondent booked with the firm of the appellant for transportation, that the compensation awarded for the loss of the old and used household goods as assessed by the Ld. Forum merely on guess being on the higher side is unreasonable and as such, the compensation awarded by the impugned judgment is not sustainable in law and the judgment under challenge is liable to be set aside by allowing the appeal and hence the instant appeal has been preferred.                                                        

   

Points for consideration.

4.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment and award and (2) whether the judgment under challenge should 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 submitted that the facts of the case are almost admitted. She also submitted that the appellant has preferred the instant appeal on four counts.

          Firstly, the respondent at the time of booking his old and used household goods with the firm of the appellant for transportation from Agartala towards Kolkata did not prepare any list of articles with valuation thereof, but the Ld. Forum accepted the valuation of the said household goods of the respondent as put in para-6 of the complaint as a gospel truth.

          Secondly, the appellant hired a truck for carrying the old and used household goods of the respondent and the old and household goods of nine other consignors from Agartala towards Kolkata under proper care and caution, but the said truck loaded with household goods of the respondent and some others was hijacked from near a H.P.Petrol Pump, 11th Miles, Khanapara, Guwahati, Assam by some miscreants for which the appellant lodged the F.I.R. and the specific criminal case being Baishisthapur P.S. case No.384/13 under Section 379 of the I.P.C. was started and although, in the mean time the investigation has been completed and charge sheet has been submitted, but no recovery of any household articles of the respondent and some others was made as yet, the Ld. Forum did not consider that the said hijacking taken place was beyond the control of the appellant and there was no negligence and deficiency in service on the part of the appellant.

          Thirdly, admittedly, the consignment of the respondent was consisting of old and used household goods and such articles have a very nominal market value, but the Ld. Forum awarded compensation assessing that the present market value of the said old and used household goods of the respondent-complainant is at Rs.38,333/- in lump sum being 1/3^rd of the amount of Rs.1,15,000/- claimed by the respondent merely on guess which is unsupported by any cash memo, vouchers etc. and as such, it is not sustainable in the eye of law.

          Fourthly, the assessment of the market-value of the Old and used household goods merely on guess cannot be a reasonable and legally acceptable yard stick and the assessment of the present market-value so made by the Ld. District Forum is also on the higher side.

7. The learned counsel for the appellant assailed the judgment of the Ld. Forum only on these four counts and no other point has been agitated before us in this appeal. In course of submission as mentioned above, the learned counsel for the appellant argued that for the above mentioned grounds the judgment passed by the Ld. District Forum which is under challenge in this appeal is not sustainable in law and is liable to be set aside and the appeal should be allowed.
8. The learned counsel for the respondent-complainant submitted that as per consignment note (Ext.1) and money receipt (Ext.2) the appellant-O.P. undertook to make door delivery of the household goods of the respondent in his residential address in Kolkata. He also submitted that it was incumbent upon the appellant to prepare a list of articles in detail at the time of booking for as to what articles he undertook to make door delivery to the residential address of the respondent in Kolkata.
9. He also submitted that all the ten consignors including the present respondent-complainant for the loss of their respective household goods due to the alleged hijacking of the truck in question filed separate complaint under Section 12 of the C.P.Act, 1986 before the Ld. District Forum. He also submitted that out of those complaint cases in the Complaint Case being C.C.105/2013, the appellant as O.P. filed written objection alleging that the truck loaded with household articles of the ten consignors was proceeded from Agartala towards Kolkata on 17.05.13 and the alleged hijacking took place on 20.05.2013 and the driver-owner of the truck informed the appellant on 22.05.2013 and on getting such information he rushed to Guwahati and lodged the F.I.R. with Baishisthapur P.S.. He also submitted that in some written objections the appellant as O.P. narrated that the alleged hijacking took place on 22.05.2013. He also submitted that no evidence whatsoever has been adduced before the District Forum by the appellant-O.P. explaining these discrepancies and the delay in sending information to the appellant by the driver-owner of the truck and also as to what the driver-owner was doing at the time of alleged hijacking, although the driver-owner of the truck, Ramnobel Yadav has been examined in the District Forum.
10. The learned counsel for the respondent also submitted that all the matters mentioned above clearly established that the appellant through his agent driver-owner was not diligent and sincere and was negligent and deficient in service in not taking proper care and caution for protecting the household goods of the respondent and others at the relevant time. He also submitted that the Ld. District Forum considering the facts and circumstances of the case rightly held that the appellant-O.P. is vicariously liable for the loss of the household goods of the respondent by the impugned judgment.
11. He also submitted that admittedly, the respondent possesses no cash memo, vouchers etc. for proving the market-value of his household goods, but even the old and household goods also have got some sort of resale value. He also submitted that the household goods of the respondent was packed in 19 packets and the respondent paid Rs.21,959/- to the appellant as transportation charges including service tax. He also submitted that the respondent paid such an amount for carrying 19 packets consisting of his household goods. He also submitted that it is essential to think that the respondent paid such an amount for what quantum of valuable goods. He also submitted if the amount of transportation charges is considered, it would be apparent that the Ld. Forum rightly assessed the present market-value of the household goods of the respondent at Rs.38,333/- being 1/3rd of the total value of Rs.1,15,000/- claimed by the respondent. He also submitted that from this standpoint, it can be said that the quantum of present market-value of the household goods of the respondent as assessed by the Ld. Forum should be considered as justified and proper one and therefore, it cannot be said that the market value of the old and household goods of the respondent as assessed by the Ld. Forum is on the higher side. He then submitted that unfortunately, the respondent could not file any counter appeal for enhancing the amount of compensation as the respondent-complainant after the loss of his household goods had to purchase all the goods afresh required for daily enjoyment and living of his family members by incurring an expenditure more than the amount of Rs.1,15,000/- as mentioned in para-6 of the complaint and from that standpoint, it can be said that the market-value of the household goods of the respondent as assessed by the Ld. Forum is on the lower side.
12. The learned counsel for the respondent then submitted that however, the Ld. District Forum meticulously considered the entire facts and circumstances and arrived at the conclusion holding that the appellant-O.P. is liable for the loss of the old and used household goods of the respondent and awarded compensation by the impugned judgment which should be considered as proper, legal and justified and therefore, the impugned judgment should be upheld and the appeal should be dismissed.
13. Admittedly, the impression of rubber stump “Insurance by party” appearing on the consignment note and also on the money receipt practically bears no importance. In respect of this matter, the Ld. District Forum discussed it in para-13, 14 and 15 of the impugned judgment. Regarding this finding of the Ld. District Forum, the appellant pleaded nothing in the memo of appeal. It is also admitted fact that the old and used household goods of the respondent and the household goods of nine other consignors, in fact, were not insured at the time of booking for transportation from Agartala towards Kolkata. It appears from the complaint that the household goods of the respondent was loaded in the vehicle on 15.05.2013 and on the same date the said articles contained in 19 packets were also booked with the firm of the appellant and the consignment note was prepared and issued to the respondent who paid the transportation charges on same date for which a money receipt (Ext.2) was issued in favour of the respondent. So, there was no scope to insure the household goods by the respondent at that time and as such, we are also of the view that the impression “Insurance by party” so made on the consignment note and the money receipt carries no legal value in the eye of law.
14. From para-13 of the judgment passed by this Commission in connection with the appeal case No.F.A-21/14 arising out of Complaint Case No.C.C. 105/13 in between the present appellant-Goutam Debnath Vs. Birendra Kr. Sharma (another consignor of the same truck) it is evident that this appellant-Goutam Debnath filed his written objection in that case No.C.C.105/13 alleging that the alleged hijacking of the concerned truck containing household articles of the consignors took place on 20.05.2013 near a H.P.Petrol Pump, Khanapara, Guwahati, Assam, but the driver-owner of the said truck informed the appellant only on 22.05.2013 and on getting such information the appellant rushed to Guwahati and lodged the F.I.R. for the alleged incident with Baishisthapur P.S.. Appellant-Goutam Debnath confirmed the same in his examination-in-chief on affidavit,  but this appellant-Goutam Debnath as O.P. filed written objection in the complaint case stating that the alleged hijacking took place on 22.05.2013. No explanation has been offered to clarify the discrepancies due to the taking of different standpoints in respect of a particular incident as regards, the time of happening of the incident in question. Not only so, no explanation has also been offered narrating as to what was doing by the said driver-owner Ramnobel Yadav at the time of alleged incident of hijacking. No explanation is also offered as to why the driver informed the appellant almost after two days of the alleged incident of hijacking. From the record of the Ld. District Forum, we find that the In-charge, Jorabat out post addressing all the Officer-In-Charge of Assam and North East informed on 28.05.2013 mentioning therein that the alleged incident of hijacking took place on 20.05.2013 at around 8.30 p.m. from 11th Miles in front of a H.P.Petrol Pump. All the matters mentioned above make it clear that the appellant through his agent Ramnobel Yadav was not vigilant and sincere in protecting the household goods of ten consignors including the present respondent in course of transportation. That being the position, it can be said without any hesitation that the appellant-O.P. was negligent and deficient in service towards the respondent and therefore, the appellant is vicariously liable for the loss of household goods of the respondent-complainant due to negligent and deficient act of his agent, driver-owner-Ramnobel Yadav.           
15. 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 and the money receipt. So, it is found 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 consignor, 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.
16. It transpires from The Carriage 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 with effect from 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.
17. 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”.
18. 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”.
19. 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.” 
20. Section-11 of the said Act reads 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;”
21. 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”.
22. 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”.
23. 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”.

24. 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”.
25. 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. The appellant in the written objection submitted in the complaint case being No.C.C.105/2013 stating 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. During hearing of appeal it has come to our notice that the investigation of the Baishisthapur Police Station case has been completed, but the story of alleged 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 on the ground that he had no control over the incident which occurred in course of carriage of consignment on the way to Kolkata from Agartala. In view of the discussions made above and on the basis of the facts and circumstances of the case and the provisions of law, 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/Mithilesh Kr.Sah.
26. Going through the impugned judgment and the evidences, we find that the complainant-respondent in para-6 of the complaint has mentioned the value of the consigned goods at Rs.1,15,000/-. 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 has also been mentioned that the appellant did not prepare any list as to what were those household goods of the respondent he received as booking for transportation from Agartala to Kolkata. Going through the impugned judgment, we find that the Ld. Forum considering the resale value of the household goods of the complainant-respondent has assessed the market value of the same at Rs.38,333/- in lump sum being 1/3^rd of the amount of Rs.1,15,000/-. Admittedly, having no specific evidence regarding the prices of the household goods of the respondent, the Ld. Forum has assessed the present market value of those goods on guess.     
27. No doubt, even the old and used household goods have got resale value. It has come to our notice that the respondent booked his entire household goods with the firm of the appellant for transportation from Agartala to Kolkata on the occasion of his transfer from Agartala Airport to NSCBI Airport, Kolkata as CISF. It is also admitted position that the respondent paid Rs.21,959/- to the appellant-O.P. as transportation charges for carrying his entire household goods packed in 19 packets. The realization of such an amount as transportation charge 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 at Rs.38,333/- on guess which, according to us, cannot be said to be unreasonable and unacceptable one. Considering the facts and circumstances, we are of the view that the method of assessing the market-value of the old and used household goods of the respondent in the absence of specific evidence, on guess adopted by the Ld. District Forum is found reasonable and acceptable one. Going through the impugned judgment, we are of the 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.                              
28. In the result, the appeal fails. The impugned judgment dated 03.01.2015 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C-27/2014 is hereby affirmed. There is no order as to costs.

                 

                     MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura