1. THIS appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the ''Act'' for short) is directed against the order dated 13.8.2002 in Complaint No. 100/2002 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) whereby the complaint was allowed and the opposite party appellant herein, was directed to pay the complainant-respondent, a sum of Rs. 1,09,138.84 p. with interest and cost to the complaint.
2. THE relevant facts no longer in dispute stated in brief are, that the complainant respondent is a dealer in coir mattresses, pillo covers, etc. THE opposite party appellant is a common carrier. THE complainant respondent booked a consignment consisting of 19 bundles of coirform mattresses, duly packed, with the appellant for delivery at Nagpur. Receipt No. 100543 dated 18.1.2002 was issued by the opposite party appellant. THE value of the consignment as mentioned in the receipt was Rs. 1,47,121.72 p. However, opposite party appellant returned to the complainant 4 bundles of the said consignment of 19 bundles, initially booked. THE value of the said 4 bundles returned to the complainant was Rs. 37,982.88 p. Thus, consignment worth Rs. 1,09,138.84 p. was despatched by the appellant, which was to be delivered to the consignee, at Nagpur. It is also not in dispute that the said consignment was not delivered to the consignee.
According to the complainant respondent, despite requests and reminders by him the aforesaid consignment was not delivered to the consignee at Nagpur. Therefore, the complainant wrote letter dated 29.1.2002 to the opposite party-appellant, which was neither replied to nor the consignment was delivered to the consignee. The complainant, therefore, served a notice dated 2.3.2002 on the appellant and demanded Rs. 1,09,138.84 p. the value of the goods booked with the appellant. Since the amount was not paid, the complainant preferred complaint before the District Forum.
The complaint was resisted by the opposite party appellant. According to it, no freight was paid by the complainant-respondent. It was also alleged that though 15 bundles were despatched for delivery at Nagpur by truck No. MTG-4700, however, on account of ''vis majeure'' the consignment caught fire and was destroyed. Therefore, the consignment could not be delivered. It was also averred that the consignment was booked at ''owner''s risk'' and, therefore, the appellant was not liable to pay compensation. It was further averred that since the value of consignment was more than Rs. 10,000/- the same should have been insured. Since the complainant-respondent did not insure the consignment, the transporter i.e., appellant is not liable for the loss.
3. LEARNED District Forum held that 15 bundles of coirform mattresses worth Rs. 1,09,138.84 p. were despatched by the complainant through appellant and the said consignment was not delivered by the appellant. The learned District Forum, therefore, held that there was deficiency in service, on the part of appellant and accordingly the amount claimed as compensation was awarded with interest, etc. as noticed above.
Learned Counsel for the appellant reiterated the stand taken by it in the District Forum. It was urged that as no freight was paid, the complainant respondent was not ''consumer'' of the appellant. It was also urged that the consignee having not been made a party, the complaint was incompetent. It was further urged that the consignment was booked at ''owner''s risk'' hence the appellant cannot be held liable for the loss. The learned Counsel for the appellant also urged that it was obligatory for the complainant to have insured the goods; which he did not do, hence the appellant carrier cannot be made liable for the loss caused during transit. It was submitted that the loss occurred on account of truck having caught fire which was an ''act of God. Hence, the appellant transporter could not be held responsible for the same.
4. LEARNED Counsel for the complainant respondent however, submitted that under Section 9 of the Carriers Act, it was not obligatory for the respondent to prove negligence on the part of the carrier. It was further submitted that it was for the appellant transporter to have shown that the loss of goods was because of ''act of God''. It was submitted in the above context that even if the consignment was destroyed due to fire, the same could not be treated as ''vis majeure'' of Act of God. LEARNED Counsel also urged that the appellant''s contentions that it was not liable because the goods were booked at ''owner''s risk'' or the consignment was not insured, have no legal foundation. It was, therefore, submitted that the impugned order awarding damages to the complainant-respondent is just and proper.
In view of the contentions as above, it has first to be considered as to whether the complainant respondent was the consumer of the appellant transporter? It may be noticed in the above context that it was averred in the complaint that freight of Rs. 5,455/- was to be paid at the time of delivery of the goods. This is also so mentioned in the receipt issued by the appellant transporter. In view of the above, there appears to be no doubt that the freight was to be paid at the time of delivery of the consignment. That being so, it is obvious that the consignment was booked for consideration, the payment of which was deferred till the time of delivery of the goods. In view of the above the complainant respondent was a consumer as defined under Section 2(1)(d)(ii) of the Act.
The next contention of the learned Counsel for the appellant was that the complaint was incompetent as the consignee was not made a party in the complaint. The contention as above cannot be accepted. It is clear that the complainant respondent had booked goods with the opposite party appellant. The complainant has thus availed of the service of the appellant for consideration. That being so, the appellant transporter owed an obligation towards complainant respondent to deliver the goods to the consignee, as directed by the complainant. He had failed to do so. Alleging deficiency in service as above, the complainant filed the complaint. In view of the above it is clear that consignee was not necessary party, and his non-joinder would not render the complaint incompetent.
5. THE question that now arises for consideration is as to whether the appellant transporter could avoid its liability on the plea that the goods were booked at owner''s risk and were not insured by the complainant respondent? It may be noted in the above context that Carriers Act, 1865 provides rights and liability of the common carriers. THE term ''owner''s risk'' has not been defined in the Carriers Act. THE normal connotation of the said term would be that the owner incurs the risk for loss or damage to the goods, in case the same is not caused due to negligence or misconduct of the carrier. Section 9 of the Carriers'' Act provides that in a suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the consignor to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. In other words, if the goods entrusted to a carrier for transportation are not delivered, it is not necessary for the owner to prove negligence on the part of the carrier. THE negligence on his part would be presumed, in the absence of proof otherwise, by the carrier.
6. IT may be noticed that in Patel Roadways v. Birla Yamaha Ltd., I (2000) CPJ 42 (SC), it was laid down by the supreme Court that the liability of a common carrier under Carriers'' Act is that of an insurer. IT was observed therein that this position is made further clear by the provision in Section 9 in which it is specifically laid down that in case of claim of damages for loss or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. Reference in the above context may also be made to the decision of Chandigarh State Commission in Himachal Motor Transport Co. v. Westek Industries, II (2001) CPJ 242.
The Supreme Court in Nath Bros. Exim International Ltd. v. Best Roadways Ltd., I (2000) CPJ 25 (SC), after considering pronouncements of various High Courts observed that expression ''at owner''s risk'' does not exempt a carrier from his own negligence or negligence of his servants or agents. It was further laid down in the said case: ''From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods on account of his own negligence or criminal act or that of his agent and servants''. In the said decision it was further observed that even if the goods are damaged or destroyed on account of accidental fire, the same would not amount to act of God so as to absolve the carrier from liability.
In the above context reference may also be made to the decision of the National Commission in Birla Yamaha Ltd. v. Patel Roadways Ltd. II (1996) CPJ 40 (NC)=1996 (2) CPR 130, in which it was observed that Section 9 of the Carriers Act relieves the complainant from the burden of showing that the loss or non-delivery was owing to any negligence or criminal act. The loss is prima facie evidence of negligence. It was further observed that since the opposite parties failed to explain the original cause of fire, the same was indicative of negligence and that unknown cause of alleged fire is presumptive proof of negligence of the carrier.
7. IT may also be noted that the Delhi State Commission in Bhaskar Khulbe v. Satwant Singh, I (1993) CPJ 594, held that the Carriers Act does not enjoin any duty on the complainant to get the goods insured. The responsibility of the owner of the carrier does not originate from the contract between the parties but it originates from the provisions of the Carriers Act. IT was laid down therein that even if the goods were not insured the respondent carrier is liable to pay the damages to the complainant.
In the instant case it is clear that the consignment booked by the complainant respondent was not delivered at Nagpur as per the complainant''s directions. Non-delivery of the goods is itself a presumptive proof of negligence on the part of carrier appellant and the complainant was not obliged to prove the same. The opposite party appellant in its reply had alleged that the truck carrying the consignment caught fire on way, which was an Act of God. However, nothing has been pleaded regarding cause or origin of the fire. In the circumstances it cannot be said that fire was ''Act of God'' and, therefore, appellant could not be absolved from its liability, in view of the provisions of Carriers Act. Therefore, the complainant was entitled to get compensation for the loss of the consignment.
8. THE learned District Forum, therefore, was justified in accepting the claim of the complainant. No interference in the impugned order is, therefore, called for. This appeal had no substance and is accordingly dismissed. THE appellant shall bear his own cost of the appeal and shall pay that of the complainant, which is quantified at Rs. 1,000/- (one thousand) only. Appeal dismissed.
