DELHI-UP-MP TRANSPORT CO. vs NEMICHAND BHATRI

THIS appeal is directed against the order dated 20.12.2000 passed in Complaint Case No. 32/1999 by the District Consumer Disputes Redressal Forum, Narsinghpur (for short the ''District Forum'') whereby the complaint for deficiency in service in not delivering the consignment entrusted to the appellant on 24.9.1998 vide Bilty No. 289608 to be transported from Ludhiana to Narsinghpur to be delivered to the respondent No. 1 was allowed with an order to the appellant to pay Rs. 20,663/- with interest thereon at the rate of 10% per annum from 1.10.1998 along with Rs. 500/- as costs of the proceedings.

IT is not in dispute that on way at the gun point dacoits kidnapped the driver and the cleaner and looted the truck No. P.A.T. 6913 with the goods loaded with readymade hosiery and woolen garments was also being transported. A First Information Report was lodged at the Police Station. During investigation the truck and some of the goods were seized/recovered by Seemapuri Police Station, Delhi of which the appellant sent information to the respondent No. 1 to take delivery of the goods so recovered from the said Police Station, but the respondent No. 1 did not take delivery of the goods. Learned Counsel for the appellant submitted that on admitted facts which have come on record there was no negligence on the part of the appellant, hence, in view of Section 9 of the Carriers Act, 1865 as negligence having not been established, the appellant is not liable to pay the amount for the reason that the truck was looted by the dacoits and driver and cleaner of the truck were kidnapped. Placing reliance on the decision of the Maharashtra State Consumer Disputes Redressal Commission, Bombay in case of Salco Extrusions Private Limited v. Deepak Transport Agency Pvt. Ltd., I (1999) CPJ 342, it was submitted that in the circumstances the appellant cannot be made liable to pay the amount.

Learned Counsel for the respondent No. 1 submitted that the appellant ought to have taken care that enroute the goods are not looted and reach at the destination for their safe delivery. Moreover, no such intimation or information of seizure of the goods by the police was given before filing of the complaint. Besides, only part of the goods were recovered by the police, hence, the District Forum rightly held the appellant to pay the amount.

AFTER hearing learned Counsel for the parties, true the complainant is not required to prove negligence or criminal act of the transporter or of his agent or servant for loss of goods in view of Section 9 of the Carriers Act. However, as the loss or damages caused to the property was not owing to the negligence or criminal act of the carrier or his agent, no liability can be fastened under Section 8 or 9 of the Carriers Act. On admitted facts that the truck with goods was not only looted by the dacoits but the driver and the cleaner were also kidnapped, in the circumstances, no inference of neligence or of criminal act of the carrier or his driver or cleaner can be drawn, as inspite of reasonable care taken by the carrier the loss was not due to negligence or any act of the carrier or of his agent or servant as the truck was looted and the driver and the cleaner were kidnapped at the point of gun by the dacoits. The question was considered by the Maharashtra State Consumer Disputes Redressal Commission, Bombay in the case of Salco Extrusions Private Limited v. Deepak Transport Agency Pvt. Ltd. (supra), wherein the State Commission in para 5 observed thus : "...We believe that transporter is not proved to be negligent as required under Section 9 of the Carriers Act. Transporter discharges the onus cast on it. Clauses 9 and 11 of the consignment note do not warrant payment of any compensation of the price of the goods in absence of negligence on the part of the carriers. Dacoity is not an incidental where any negligence could be attributed to the driver and cleaner when they were attacked during night hours in the jungle area of Wada and if that be so, we feel that carrier is not answerable for any compensation to the complainant. We, therefore, dismiss the complaint."

BESIDES, in the present case, during investigation the police not only recovered the truck but also seized some goods. The appellant sent the information to the respondent No. 1 of the goods so recovered as the goods could not have been delivered to the appellant in supurdagi by the police except to the owner of the goods, but, the respondent No. 1 did not take care to take delivery of the goods and prosecuted the complaint. In such circumstances, in the absence of proof of want of reasonable care by the carrier, in our opinion, the carrier cannot be held liable to pay the amount of loss so suffered by the respondent No. 1. In the result, the appeal is allowed. The order of the District Forum is set aside and the complaint is dismissed with no order as to costs throughout. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case. Appeal allowed.