BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.<br /> <br /> COMPLAINT NO. DCFR. 72/07.<br /> <br /> THIS THE 31st DAY OF MARCH 2008.<br /> <br /> P R E S E N T<br /> <br /> 1. Sri. N.H.Savalagi, B.A.LLB. (Spl) PRESIDENT.<br /> 2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.<br /> 3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.<br /> *****<br /> <br /> COMPLAINANT :- 1. The Manager, New India Assurance Company <br /> Ltd., Raichur. <br /> <br /> 2. Shah Nagaraj Babulal & Company, Cotton <br /> Ginners, Gowshala Road, Raichur.<br /> <br /> //VERSUS//<br /> <br /> RESPONDENT :- The Proprietor, New Shakti Roadlines, Goods <br /> Transport Contractors & Commission Agents, Oil Taners & Lorries, Sath Kacheri Road, Raichur- 584 101.<br /> <br /> CLAIM :- For a total compensation of Rs. Two Lakh <br /> with interest, penalty, caused and damages.<br /> <br /> Date of institution :- 12-09-06.<br /> Notice served :- 14-12-07.<br /> Date of disposal :- 31-03-08.<br /> Complainant represented by Smt. Marry Daniel, Advocate. <br /> <br /> Respondent Ex-parte.<br /> -----<br /> This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.<br /> <br /> <br /> JUDGEMENT<br /> <br /> This is a complaint filed U/s. 12 of Consumer Protection Act by the complainants-Manager New India Assurance Company Ltd., Raichur and (2) Shah Nagaraj Babulal & Company, Cotton Ginners, Gowshala Road, Raichur against the Respondent Proprietor New Shakti Roadlines Goods Transport Contractors & Commission Agents, Oil Taners & Lorries, Sath Kacheri Road, Raichur- 584 101. The brief facts of the complaint are as under:-<br /> The relationship between the complainant NO- 1 & 2 is that off insured and insurer the relationship between the complainant NO-2 and Respondent is that of the consignor and Carriers. The complainant No-2 is the Cotton Ginners at Gowshala Road Raichur he had consigned 330 bags of Cotton Seeds to be delivered to Vijaya Oil Mills Hissar Haryana. The said consignment was loaded vide L.R. No. 193 dt. 11-09-2005 issued by Respondent by Transport in HR-B63-B 1579 dt. 11-09-05. The said consignment was insured with complainant NO-1.<br /> Due to negligence of the driver of the Truck of HR-63-B1579 it met with an accident on NH-13 near Alamatti. The information of accident was not intimated to the complainant by the driver of the lorry or the owner of the lorry. The complainant NO-2 trans-shipment from the damaged lorry and shifted to Raichur and after loading the complainant No-2 found cotton seeds issued by Diesel and Water. The loss sustained was Rs. 1,50,060/-. The Respondent is liable to pay the said loss. The complainant No-2 issued a legal notice to Respondent NO-2 on 05-10-05 by RPAD calling upon to make the payment of said loss. The Respondent replied to the dis-owning his liability. The Respondent being public carrier had taken the responsibility of transporting the goods of the second complainant from Raichur to Vijaya Oil Mills Hissar Haryana. As per section 6 & 8 of Carriers Act the common carrier is liable for the loss and damage caused due to its negligence or mis-conduct of its Agents and Servants and that liability cannot be limited by a contract. The condition that the goods to be sent at owner’s risk and that no responsibility would be taken in-case of fire or accident cannot protect a common carrier. As such Respondent is liable to pay the damages to the complainant.<br /> <br /> 2. The complainant No-2 has executed subrotative letters in-favour of the first complainant for recovery of Rs. 1,50,060/- which came to be paid by the first complainant and the complainant had received Rs. 93,500/- in-respect of the loss and damaged to the goods insured under policy No. 671801/21/05/00018 and all the rights and remedies in-consequence of the damages caused to the goods were assigned in-favour of the first complainant. The Respondent being the transport carrier of the goods under the consignment is liable for the loss caused in-transit and liable to make good the loss, damage caused to the goods. As such Respondent is liable to pay compensation of the total loss. The complainants are the consumer and Respondent is the service render on payment of cost. Hence there is deficiency in service so the Respondent is liable to pay for the loss. Hence for all these reasons the complainant has sought for a total compensation of Rs. Two Lakh with interest, penalty, caused and damages.<br /> <br /> 3. In-response to service of notice of the complaint issued by this Forum, The Respondent remained absent on 19-01-08 when called out so he has been placed Ex-parte.<br /> 3. During the course of enquiry the complainant i.e, the senior Assistant of complainant No-1 Insurance Company has filed sworn-affidavit by way of examination-in-chief reiterating the contents of complaint and has got marked (6) documents at Ex.P-1 to Ex.P-6. The Respondent is Ex-parte.<br /> <br /> 4. Heard the arguments of counsel for complainant and perused the records. The following points arise for our consideration and determination:<br /> 1.Whether the complainants prove deficiency in service by the Respondent, as alleged.?<br /> <br /> 2.Whether the complainant is entitled for the reliefs sought <br /> for?<br /> <br /> 5. Our finding on the above points are as under:-<br /> 1)In the affirmative. <br /> <br /> 2) As per final order for the following<br /> <br /> REASONS<br /> POINT NO.1:-<br /> 6. The complainants have produced (6) documents at Ex.P-1 to Ex.P-6. Ex.P-1 is the Xerox copy of the letter dt. 05-10-05 of complainant NO-2 issued to Respondents. Ex.P-2 is the Xerox copy of Reply letter of the Respondent addressed to Respondent NO-2. Ex.R-3 is the another Xerox copy of letter of the complainant No-2 dt. 29-09-05 addressed to complainant No-1. Ex.P-4 is the another Xerox copy of letter of complainant No-2 dt. 30-09-05 addressed to complainant No-1. Ex.P-5 is the Xerox copy of permit for transportation of Agricultural produce issued by Agricultural Marketing Department. Ex.P-6 is the Xerox copy of letter of subrogation. <br /> <br /> <br /> <br /> 7. Ex.P-2 is the Reply letter of Respondent addressed to the complainant No-2 which is material for our purpose reads thus: <br /> Ref No. Date 13-10-05.<br /> <br /> Dear Sir,<br /> We acknowledge of the receipt of your letter cited we noted the contents we have lorry met with accident dits we on our control further the goods or booked or transported owner risk the same was noted in the L.R.<br /> Hence paying of the compensation does not arise in the above case.<br /> Thanking you Yours faithfully<br /> New Shaki Road Lines<br /> Sd/-<br /> Proprietor<br /> <br /> From this letter it shows relationship between complainant NO-2 as consignor who entrusted the goods with Respondent for transportation and the loss of consignment in the accident. In this Reply letter at Ex.P-2, the Respondent has stated that the goods were transporting at owner’s risk and accident was beyond their control, and so they are not liable for the loss. <br /> <br /> 8. The Respondent has not appeared and contested the case by producing the L.R. showing the Note of owner’s risk. The complainant has also not produced the L.R. Even assuming that there is a Note regarding owner’s risk, but as rightly argued by the L.C. for the complainants, this Note in the L.R. cannot be taken as Special Contract/Agreement between the parties in the absence of the contention that L.R. bears the signature of the consignor/complainant No-2 in token of agreement regarding the said Note of owner’s risk. So it cannot be said that there is agreement between the consignor and carrier regarding Note on owner’s risk. This our view is supported by the decision of Kerala High Court reported in 1988 (2) Ker LT 619. Head Note which reads as under:<br /> “The goods were consigned on the owner’s risk but even though the carrier was not able to draw any benefit from the owner’s excluding his liability unless the document containing those condition were consigned by the consignor or his Agent”. <br /> The Bombay High Court in the decision reported in AIR 1981 Page-299 has interalia observed as under”<br /> “In order that terms or conditions on the overlief of a consignment passed by common carrier be binding on the consignor or consignee and in-order that it should operate as a special Contract between the consignor and consignee on the one hand and the carrier is on the other hand, the consignment Note must be consigned by the consignor and consignee and constitute a contractual agreemtn or at least must be identified as an integral part of the contractual agreement. In-case of unsigned consignor Notes containing clauses limiting the liability of the carriers as well as excluding terms and conditions of certain courts and restricting it to specific court only, such clauses or terms or conditions must be brought to the notice of the consignor of the goods if such terms and conditions are not brought to the notice of the consignor specifically and adequately then the consignor or consignee would not be bound by those terms………………………………………………..”<br /> <br /> 9. In the reply letter at Ex.P-2 the Respondent has further stated that the accident was occurred due to accidental and beyond their control and thereby they are not liable for the loss. The L.C. for the complainant argued that since the carrier/Respondent admitted the loss of goods due to accident, so the complainant is not required to prove negligence or criminal act against common Carrier the burden to prove of the accident was not due to his negligence and but it was act of god would be on the Respondent. In-support of his arguments the L.C. has relied on the decision of Karnataka High Court reported in AIR 2005 Page 369. <br /> As per section 9 of the Carriers Act in any claim against Common Carrier for the loss, damage or non-delivery of goods, entrusted for carriage it shall not be necessary for the claimanant to prove that such loss, damage or non-delivery was owing to negligence or criminal act of the Carrier his servants or agents it is upto the carrier to prove the same. Even though the Respondent New Shakti Road Lines has replied to the complainant NO-2 that the accident and beyond their control etc., vide Ex.P-2 but has not established by contesting the claim of the complainant and has remained absent in-spite of service of notice issued by this Forum. This in-turn shows that the Respondent Company has no defence to rebut the case of the complainant. Hence as per section 9 of Act the complainant is not required to prove negligence or criminal act against common carrier as per the principles laid down in the decision of Karnataka High Court referred to above.<br /> <br /> 10. In the letter of subrogation at Ex.P-6 interalia it is stated that in-consideration of payment of Rs. 93,500/- in-full settlement of claim for Marine Transit under Policy No. 671801/21/05/00018, the complainant No-2 he transfer and abandon by way of subrogation in-favour of the complainant NO-1. So the complainant No-2 had subrogated his claim against the Respondent in-favour of complainant No-1 by receiving Rs. 93,500/- from the complainant NO-1. <br /> <br /> The L.C. for the complainant argued that by virtue of this letter of subrogation executed by consignor-complainant No-2, the complainant No-1 is entitled to recover the loss of goods due to the consignor-complainant No-2 from the Transport company Respondent. In-support of her argument the L.C. has relied on the decision of our Hon’ble National Commission reported in III (2007) CPJ-101 (NC) Head Note which reads as under:<br /> “Consumer Protection Act, 1986__ Section 21(b)__Transport Services__Short deliveryof goods__consignment of pesticides sent through OP__Found leaked at time of delivery__Open delivery taken__Short delivery certificates issued __Claim filed with Insurance Company__Complaint__Letters of subrogation executed in-favour of Insurance Company by complainant__Certain amounts awarded by District Forum__Appeal dismissed__Hence revision__Held, complaint filed against transport company jointly by consignor and insurance company valid__No illegality or jurisdictional error in order passed by For a below__Upheld”<br /> AND<br /> (2) decision Kerala State Commission of reported in II (1999) CPJ Page 304 (i) Head Note which reads as under:<br /> “Consumer Protection Act, 1986__ Section 2(1) (d)(ii)__Consumer __Section 2(1)(e)__Consumer Dispute__Section2(1)(o) Service__Transport__Insurance Company__Letter of Subrogation__Second__complainant sent consignment__Loss in accident__Claim settled by insurance company__Letter of subrogation issued in favour of Insurance Company__Complaint filed against Transport Company__It is a consumer dispute including service within the meaning of Act__Insurance Company joined with consignor is entitled to maintain complaint.”<br /> <br /> 11 As discussed above the letter of subrogation executed by the consignor-complainant NO-2 in-favour of Insurance Company/complainant NO-2 shows that in consideration of payment of Rs. 93,500/- in full settlement of claim for Marine transit under policy obtained the complainant NO-2, transfer and abandon by letter of subrogation in-favour of complainant NO-1 his claim against the Respondents regarding loss of consigned goods. So in-view of our discussion and conclusion holding the liability of Respondent No-1 Transport Company being Carrier to indemnify the loss of consigned goods to the consignor-complainant No-2, so the transport company Respondent NO-1 is liable to make good the loss to the consignor-complainant No-2. However having regard to the letter of subrogation executed by the consignor-complainant NO-2 in-favour of complainant No-1 New India Assurance Company Ltd., so the complainant No-1 is entitled to claim the loss of goods from the Respondents and so the claim of the complainant NO-1 is maintainable as observed by the Hon’ble N.C. in the above referred ruling which is based on the decision of Hon’ble Supreme Court reported in (i) (2000) CPJ Page-7 as observed vide Para-3 of the order.<br /> <br /> 12. The denial of the liability by Respondent in his Reply letter at Ex.P-2 itself constitutes deficiency in service by the Respondents in not indemnifying the loss sustained by the complainant. Hence we hold that the complainants have proved deficiency in service by the Respondents. So Point No-1 is answered in the affirmative.<br /> <br /> POINT NO.2:- <br /> 13. The complainants have claimed Rs. 1,50,060/- with interest at 18% from the date of accident and thus they have claimed a total compensation of Rs. Two Lakh with interest penalty caused damage etc., As per subrogation letter at Ex.P-6 the consignor-complainant No-2 has received Rs. 93,500/- from the complainant No-1 New India Assurance Company in full settlement of his claim. So having regard to the amount received by the consignor-complainant No-2 as per subrogation letter at Ex.P-6 and taking into facts & circumstances of the case, we find it just and proper to award the said sum of Rs. 93,500/- to the complainant No-1 along with a global compensation of Rs. 10,000/- including cost of litigation. In this view of the matter we pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint of the complainants is allowed in part.<br /> The Respondent NO-1 M/s. Lucky Transport Company shall pay Rs. 93,500/- being the loss of consigned goods to the complainant NO-1 by-virtue of subrogation letter executed by the consignor-complainant No-2. Respondent No-1 shall also pay a global compensation of Rs. 10,000/- including cost of litigation.<br /> The Respondent shall comply this order within (6) weeks from the date of receipt of copy of this order.<br /> Office to furnish a copy of this order to both the parties forth with free of cost.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 31-03-08)<br /> <br /> <br /> Sd/-<br /> Sri. N.H. Savalagi<br /> President<br /> Dist.Consumer Forum-Raichur.<br /> <br /> Sd/- <br /> Smt.Pratibha Rani Hiremath<br /> Member.<br /> Dist.Consumer Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Gururaj <br /> Member.<br /> Dist.Consumer Forum-Raichur.<br /> <br /> <br />