STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

APPEAL CASE No.F.A-21/2014.

Sri Goutam Debnath,

Prop. Of Home Packers & Moovers,

Shyamali Bazar (Near Sonali Rest House),

Malanchnagar, Agartala,

P.S-East Agartala,

District-West Tripura.

                   ….    ….    ….    ….    Appellant.

                   Vs

Sri Birendra Kr. Sharma,

S/O. Late Mathura Mohan Sharma,

Of Indranagar, Agartala, West Tripura,

Presently residing at Flat No-B/102,

Kalpana Apartment, 2255, Gariya

Palace, Kolkata-84.

                ….    ….    ….    ….    Respondent.

PRESENT :

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

For the Appellant       :      Mr.P.Chakraborty,Adv & Mrs.K.Roy,Adv

 For the respondent   :      Mr.S.Datta,Adv.

Date of Hearing         :     28.02.2015.

Date of delivery of Judgment  : 13.03.2015.

J U D G M E N T

S.Baidya,J,

            This appeal filed on 22.08.2014 by the appellant-Goutam Debnath under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 11.07.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-105 of 2013 whereby the Ld. District Forum allowed the complaint under Section 12 of the Consumer Protection Act directing the present appellant-O.P. to pay a sum of Rs.1,22,000/- to the complainant as compensation towards the loss of his consignment with a further direction to return Rs.18,500/- 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. 1,000/- as cost of litigation to be paid to the complainant within a period of one month 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 for carrying his household goods from Agartala to Kolkata to his residential address through the firm of the O.P.-appellant under the named and styled Home Packers & Moovers requested the O.P.-appellant on 10.05.2013 and accordingly, the O.P.-appellant agreed to carry the household goods of the complainant who paid Rs.18,500/- in cash to the appellant as transportation charges of the goods and on the same day the O.P.-appellant sent his workers along with packing materials and a truck to the rented house of the complainant at Indranagar, Agartala and packed all the household goods in 12 large packets and thereafter, the same were carried in a truck to the godown of the appellant.                                                
3. It has also been alleged that the appellant issued a consignment note No.A097X12 dated 10.05.2013 in favour of the complainant-respondent on the promise of door delivery of the consignment at his residential address in Kolkata and after two weeks of receiving the goods the complainant contacted the appellant over telephone, when he was told that the truck carrying household articles had been hijacked from Jorabat, Guwahati and a case had been registered with Baishisthapur Police Station with the assurance that the truck along with goods would be recovered very soon.
4. It has also been alleged that the complainant-respondent waited for about 10 weeks, but all in vain and then the complainant finding no other alternative sent a letter to the O.P.-appellant on 30.08.2013 for door delivery of his household goods within a week, but the complainant did not receive any communication from the end of the appellant and as such, the complainant filed the complaint claiming compensation of Rs. 6,85,300/- against the O.P.-appellant for deficiency in service.
5. It has also been alleged that the O.P.-appellant contested the case by filing written objection stating inter alia that the truck bearing No.HR-55L-7518 loaded with household goods of the complainant and others for transporting from Agartala to Kolkata was hijacked on 20.05.2013 at about 8-30 p.m. from Khanapara, Guwahati by some un-known miscreants and on receipt of the said information from the driver-cum-owner of the said truck, the O.P.-appellant on 22.05.2013 rushed to Guwahati and lodged an FIR with Baishisthapur Police Station which was registered as case No.384/13 under Section 379 of I.P.C. and the said case is still under investigation. It has also been alleged that the said incident so taken place was beyond the control of the O.P.-appellant and as such, the appellant was not negligent and there was no deficiency on his part and as such the O.P.-appellant is not liable to pay any compensation to the complainant-respondent as claimed and also prayed for dismissal of the complaint, but the Ld. Forum considering the pleadings of the parties and the evidences passed the impugned judgment and thereby being aggrieved and dissatisfied with the impugned judgment dated 11.07.2014, the 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 O.P.-appellant which was not within his control, but very wrongly and erroneously held that the O.P.-appellant is liable to pay compensation which is not sustainable in law, that the Ld. Forum did not consider that the case registered with the Baishisthapur Police station was still under investigation and as such, the appellant could not be fastened with any liability, but the Ld. Forum without considering the said vital aspect most arbitrarily and whimsically came to the conclusion that the O.P.-appellant is liable to pay compensation to the complainant-respondent, though there was no such negligence on the part of the O.P.-appellant and as such, the impugned judgment passed by the Ld. Forum cannot stand good in the eye of law and is liable to be set aside, that the Ld. Forum assessed the value of the household articles at Rs.1,22,266/- in lump sum, but in the consignment note there was no value declared by the complainant in respect of his goods and as such, the liability of the carrier is very limited and without any declaration of the value, the assessment made by the Ld. Forum in lump sum is absolutely wrong and erroneous and is not sustainable in law, that the Ld. Forum assessed the value of the consigned household goods of the complainant merely on guess, but in spite of that, the Ld. Forum assessed the compensation of Rs.1,22,266/- which is exorbitant and a reasonable man can not arrive at and the guess-work done by the Ld. Forum has no nexus with the present case and as such, the compensation awarded by the impugned judgment is liable to be set aside and hence, the appellant has preferred the instant appeal              

Points for consideration.

6.       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 is liable to be set aside or otherwise.     

                         Decision with Reasons.

7.  Both the points are taken up together for the sake of convenience and brevity.
8. At the very outset of hearing of appeal, the learned counsel for the appellant-O.P. submitted that all facts are almost admitted. He referring to the paragraph-18 of the impugned judgment submitted that having no declared value of the household articles at the time of booking for transportation, the Ld. Forum has assessed the market value of the consigned old and used household articles of the complainant at Rs.1,22,266/- in lump sum merely on guess. He also submitted that the guess-work should be reasonable and justifiable one which a man of ordinary prudence does in a particular circumstance. He also submitted that the assessment of the value of the household goods of the complainant so arrived at on guess is exorbitant one and as such, it is not sustainable in the eye of law and on that score, the awarding of compensation by the impugned judgment having no reasonable basis is liable to be set aside and the appeal should be allowed.   
9. On the other hand, the learned counsel for the respondent-complainant submitted that although the household goods of the complainant were used and old, but those goods have got market value and keeping that view in mind, the Ld. Forum has assessed the present market value of the consigned goods of the complainant at Rs.1,22,266/- in lump sum being 1/3^rd of the amount of Rs.3,66,800/-. He also submitted that all the household goods of the complainant were packed in 12 large packets for transportation. He also submitted that at the time of booking, the appellant-O.P. also did not ask the complainant for declaring the value of those goods in writing. He also submitted that the complainant-respondent paid Rs.18,500/- to the appellant-O.P. as transportation charges of his household goods for carrying the same from Agartala to Kolkata. He also submitted that it was agreed upon by and between the parties that the consigned goods of the complainant would be door-delivery to the residential flat of the complainant in Kolkata. He also submitted that when the complainant paid Rs.18,500/- as transportation charges, in that case, question automatically arises, as to for how many valuable goods, the complainant paid such an amount as transportation charges. He also submitted that the Ld. Forum has assessed the value of the consigned goods of the complainant at Rs.1,22,266/- in lump sum and in that case, if the amount of transportation charge of Rs.18,500/- so received from the complainant by the appellant is considered, it can be said that the assessment of value of the household goods of the complainant made by the Ld. Forum is not an exorbitant and unreasonable one. He also submitted that Ld. Forum assessed the said value after deducting 2/3rd value of the household goods as the same, though were old and used, but having a considerable amount of resale value thereof.  
10. The learned counsel for the respondent-complainant further submitted that as the consigned goods of the complainant were not delivered by the appellant to the complainant, he had to purchase all those articles which are most essential for day to day enjoyment and living of the family of the complainant. He further submitted that if all the facts are taken together, it can be said without any hesitation that the Ld. Forum properly and rightly assessed the value of the household articles of the complainant and awarded the compensation, accordingly by the impugned judgment which being proper, legal and justified should be affirmed and the appeal should be dismissed.
11. At the time of hearing of appeal, the learned counsel for the respondent has filed the copy of the judgment passed by this Commission delivered on 16.01.2015 in appeal case No.F.A-26/14 and submitted that by the same truck the household articles of another person were also carrying and the appeal preferred by the present appellant was dismissed accepting findings of the Ld. District Forum given in the same facts and circumstance of the case.
12. Perusing 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 old and used household articles of the complainant-respondent in 12 packets with the firm of the appellant named HOME PACKERS & MOOVERS for transporting the same from Agartala to Kolkata for delivering the same to the residential flat of the respondent. It is also admitted fact that the appellant received Rs.18,500/- from the respondent as transportation  charges on 10.05.2013. It is also admitted fact that at the time of packing and booking of the household articles of the respondent, no list of articles with value thereof was prepared and exchanged 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 admitted fact that a consignment note bearing No.A097X12 dated 10.05.2013 was also issued by the appellant in favour of the respondent-complainant. It is also found admitted position that the appellant sent the household articles of the respondent along with the household articles of some other persons towards Kolkata by a truck bearing registration No-HR-55L-7518 on 17.05.2013 from Agartala. It is also found admitted position that the said truck loaded with household articles of the respondent and other persons was hijacked on 20.05.2013 at about 8.30 p.m. by some miscreants from near H.P. patrol pump at Khanapara, Gawahati. It is also found admitted position that over the said incident of hijacking a criminal case being Baishisthapur Police Station case No.384 of 2013 under Section 379 of the I.P.C. was registered. It is also now admitted position from the submissions of the learned counsels of both sides that the investigation of the said Baishisthapur Police Station case was completed, but no recovery of the household articles of the complainant and others has been made till now. It is also found admitted position that the appellant while booking the household articles of the respondent did not prepare any list of articles received and booked by him for transportation from the respondent.       
13. In course of hearing of appeal and also as pointed out in the impugned judgment that the driver of the concerned truck is still alive and has not been examined by the present appellant, although the said driver is the best witness being an eye-witness of the alleged incident in whose presence the alleged hijacking of the truck containing the household articles of the respondent and other persons took place near H.P.patrol pump at Khanapara, Guwahati, Assam on 20.05.2013. It further appears that the alleged incident of hijacking of the truck took place on 20.05.2013, but the driver-owner of the said truck informed the appellant only on 22.05.2013. No cogent explanation has been offered from the side of the appellant as to why there was such delay of two days in sending the information to the appellant by the driver of the said truck. In this regard, it can be said without any hesitation that the appellant as O.P. in the District Forum intentionally withheld the said best witness, the driver-cum-owner of the truck in the complaint case.  
14. From the consignment note, it transpires that there is a rubber stump “Insurance by party”, but in fact, the household articles of the respondent booked for transportation were not insured. Although, it was pleaded in the written objection that the O.P.-appellant asked the respondent-complainant at the time of booking for insuring his household articles, but in that plea, we find no substance because the household articles of the respondent were packed and booked on 10.05.2013 and after booking, there cannot have any scope for insuring the household articles. Admittedly, the appellant did not receive any premium for insuring the said articles. Not only so, the appellant not being the authorized person also cannot receive any premium from the respondent in respect of the household goods. As it has already been mentioned that there could not have any scope to insure the household articles of the respondent after its booking, so, the putting of the rubber stamp “Insurance by party” on the consignment note makes no meaning in the eye of law. It is needless to say that the consignment note (Ext. No-1) does not contain any statement that the consignments were handed over for carrying at owner’s risk.
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. 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 consignee, 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 that the respondent filed a list of articles prepared and consigned by him with the date 10.05.2013 mentioning therein his household articles in detail along with value thereof, but the fact remains that there was no exchange of said list of articles between the appellant and the respondent herein at the time of booking the household articles for transportation.
17. Admittedly, the appellant-O.P. booked the old and used household articles of the respondent-complainant from Agartala with an undertaking for door delivery in the residential flat of the respondent-complainant in Kolkata. It is also admitted fact that the appellant hired a truck bearing No-HR-55L-7518 and the household goods of the respondent along with household goods of some others were loaded in the said truck and at the relevant time, the owner-driver Ramnobel Yadav was driving that truck. In that circumstances, the driver-cum-owner of the truck was an agent of the appellant-O.P.. It transpires from The Carriers Act, 1865 which was enacted earlier covering carrying of goods by road, water and air, but the said Carriers 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.
18. 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”.
19. 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”.
20. The liability of the common carrier as provided under Section 10 of the said 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.”  
21. 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 the with the consignor;”
22. 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”.
23. 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”.
24. 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”.

25. 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 :- 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 delivering there, had not taken place due to his fault or neglect or that of his servants or agents thereof”.
26. 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. patrol pump at Khanapara, Guwahati, Assam, but the driver-owner Ramnobel Yadav informed only on 22.05.2013. It has already been mentioned that no cogent explanation has been offered for such delay of two days in reporting of the alleged incident to the appellant by the driver-owner of the truck. It has also been stated that Ramnobel Yadav, the driver-owner of the said truck is still alive. The said driver only as an eye-witness of the incident who could throw the light regarding the incident as to how or in what manner the said incident of hijacking took place as alleged, is the best witness of this case. We have already mentioned that the Ld. District Forum rightly pointed out in the impugned judgment that the driver-owner of the truck who can be called a best witness of the incident in question has been withheld as a witness by the appellant-O.P.. In this regard also, there is no explanation as to why the said Ramnobel Yadav has not been examined by the appellant for proving that the driver-owner exercised due diligence and care in the carriage of the consignment to avoid such loss etc.. No doubt, the driver-owner Ramnobel Yadav was the agent of the appellant-O.P.. So, it is found that the appellant as carrier cannot avoid his responsibility for the loss of the consigned goods of the respondent-complainant.  
27. The exception clause of alternative part of Section 17(b) of the Carriage by Road Act, 2007 i.e. public enemy may be 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 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 way to Kolkata from Agartala.     
28. It has been alleged that the said truck loaded with household goods of the respondent-complainant and others was hijacked by some unknown miscreants. According to Section 17 of The Carriage By Road Act, 2007, the alleged miscreants at best can be called public enemy, but for non-examination of the driver-owner and non-explanation of said delay of two days in sending intimation to the appellant-O.P. by the owner-driver speaks a lot and it cannot be said under any stretch of imagination that the due diligence and care was taken by the appellant-O.P. through his agent, driver-owner of the truck for avoiding such loss to the consigned goods of the respondent. So, the appellant-O.P. as the common carrier is vicariously responsible for the loss of the consigned goods of the respondent. Accordingly, 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/Birendra Kr. Sharma.
29. Going through the impugned judgment and the documentary evidences, we find that the complainant-respondent in the list of goods (Ext.2) has mentioned the value of the consigned goods at Rs.3,66,810/-. 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 also did not prepare any list as to what were those goods of the respondent he booked for transporting 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 has assessed market value of the same at Rs.1,22,266/- in lump sum being one third of the amount of Rs.3,66,800/-. It further appears that the Ld. Forum specifically allowed Rs.1,22,000/- to the complainant as compensation towards the loss of his consignment. It also appears that having no specific evidence regarding the price of these household articles of the respondent, the Ld. Forum has assessed the present market value of those goods on guess.
30. It is needless to say that even the old and used household goods have got resale value. It has come to our notice that the respondent-complainant resided in Tripura with his family in connection with his service for many years. The list of documents (Ext.2) indicates that such type of goods may be required and remained in the family of an officer like the complainant-respondent in the rank of civil service of the Government of Tripura. It transpires from the Exhibit 1 (consignment note) that the complainant-respondent paid Rs.18,500/- to the appellant-O.P. as transportation charge. 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.1,22,000/- on guess which, according to us, cannot be said to be an unreasonable and unacceptable method. Considering the facts and circumstances of the case, we are also of the view that the method of assessing the market value of the old and used household goods of the respondent on guess 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.            
31. In the result, the appeal fails. The impugned judgment dated 11.07.2014 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C-105/2013 is hereby affirmed. There is no order as to costs.

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura