EAST INDIA TRANSPORT CO. vs MEHTA FENT CENTRE

ALL these appeals involved identical facts. Although the respondents were different and they had filed separate complaints before the District Forum, Pali but such complaints were decided by two orders of different dates. These were, therefore, heard together and are disposed of by this consolidated order. The main order shall be placed on the record of Appeal No. 1887/97 and a copy of such order shall be placed on the record of all other four appeals.

THE undisputed facts in all the appeals are that the respondents had hired the services of the appellant, which is a transporter, for transportation of their goods from Pali to different places in India. M/s. Mehta Fent Centre, respondent in Appeal Nos. 1887/97 and 1888/97 had sent their consignment to Purulia (West Bengal), M/s. Shah Bhanwarlal, respondent in Appeal No. 1890/97 to Ranchi (Bihar), M/s. Sati Dying and Printing, respondent in Appeal No. 1925/97 to Purulia (West Bengal) and M/s. Jain Fabrics, respondent in Appeal No. 1926/97 to Singhboom (Bihar). It is also not in dispute that all the consignments of all the respondents were being transported by the appellant by one and the same truck. But the vehicle was hijacked on its way to Ranchi and the goods of the respondents were also taken away by the hijackers. It may be stated that the goods being transported was insured in all the given cases. THE appellant issued non-delivery certificate of the goods in favour of the respondents. THE respondents, however, filed their respective complaints before the Forum at Pali and by its two separate orders the Forum decreed their claim against the appellant. The main contention of the learned Counsel for the appellant was that since the goods, being transported by them, were insured and such goods had been hijacked by the hijackers in the course of transit, the Insurance Company concerned and not the present appellants were liable to reimburse the respondents for the loss occasioned to them. The contention of the learned Counsel for the respondents, on the other hand, is that since the appellant transporter had undertaken to transport the goods to their destination, the appellant also was having the character of insurer qua the respondents and, therefore, the appellant cannot escape from their liability to re-imburse the respondents for the loss suffered by them.

In the case of Patel Roadways Ltd. v. Birla Yamaha Ltd., I (2000) CPJ 42 (SC)=III (2000) SLT 554=JT 2000 (3) SC 618, it has been held that the consigner was not required to prove negligence on the part of the carrier in the cases of damage/loss of goods in the course of transportation. It was pointed out that the absolute liability of carrier is subject to two exceptions, namely, an act of God and a special contract which the carrier may choose to enter with the customer. In view of this settled position of law on the subject, insofar as the absolute liability of the transporter was concerned, the question for determination is as to whether the appellant would still be liable, although the goods being transported by them was insured by an Insurance Company.

IT could not be disputed by the respondents that the consignments in all the cases were insured against loss/damage to the goods. This fact is clearly borne out from the stamp put on the relevant Lorry Receipts (LRs) in all these cases. Looking to the places, the consignments were required to be delivered at, the argument of the learned Counsel for the appellant that consignments for delivery to such distant places in West Bengal and Bihar are not accepted and received by them for transportation unless the goods are insured, seems to be quite plausible and acceptable. The information by the consignor to the transporter of the goods to be transported being insured or not insured may reasonably influence the decision of the transporter as to whether it should or should not enter into a contract of transportation of goods, to such distant place, with the consignor. As the liability of the transporter/carrier in India is, as held in Patel Roadways case (supra), that of an insurer, a carrier, in a given case, may not agree to undertake such liability; and may reasonably require his consignor to shift the liability/risk of the goods against loss of/damage to, by theft or robbery or such other like acts, in the course of transit of the goods, to an Insurance Company which, in the very nature of the business being carried on by it, undertakes such liability. Therefore, since the consignments in all these cases, are proved to be insured, the appellant cannot be held liable for the loss thereof by commission of robbery in the course of transit. We may add that it was not disputed before us that the vehicle, through which the consignments in all these cases were being transported, was forcefully taken away by the robbers along with the goods therein. In the course of arguments we enquired of the learned Counsel for the parties as to whether the respondents had lodged their respective claims to the Insurance Company, with which the goods in question in these cases stood insured. Whereas it was emphatically asserted on behalf of the appellants that all the respondents/consignors/complainants had lodged their claims and received the assured amounts or part thereof from the concerned Insurance Company, the respondent could not dispute such a fact with equal vehemence.

IN view of the above discussion we hold that since the goods were looted by the robbers in the course of transit thereof from Pali to the places of their respective destinations, and such goods were insured in all these cases and thus the normal rule of the liability of the appellant carrier being that of as an insurer also, got in-effective and inapplicable to the facts of these cases and settlement of their claims with the INsurance Company/companies was not specifically denied before us, the appellants did not render deficient services to the complainant-respondents in any of these cases. In the result the impugned orders in all these appeals are set aside and the appeals allowed with cost on parties throughout. Appeals allowed.