FAST AND SAFE TRANSPORT PVT. LTD. vs PETERS APPARALS

THIS appeal is directed against the order passed by the District Forum, Ernakulam, in O.P. No. 59/96. The Opposite Party is the appellant.

THE complainant is a partnership firm engaged in manufacturing garments and they had entrusted a consignment of Gents Briefs worth Rs. 7552/ to the Opposite Party on 22.6.1995 for delivery to M/s.Textorium, Trichur. THE consignment was not delivered and it was admitted that it was lost in the fire accident, which took place in the godown of the Opposite Party at Thrissoor on 25.6.1995. In the version filed by the Opposite Party, it was admitted that the entire consignment was lost in the fire accident, but it is contended that according to the terms and conditions in the forwarding note mention has been made specifically that the company would not be responsible for the loss or damage to the goods due to fire to the godown in which the goods are stored. The District Forum based on the decision of the Kerala High Court in Kerala Transport Company v. Kunnath Textiles, 1993 K.L.T. 480, held that the conditions mentioned in the overleaf of the forwarding note cannot bind the complain ant and in that view passed an order directing the Opposite Party to pay Rs. 7,552/ together with interest at 15% per annum from 21.9.1996 to the complainant within one month.

Feeling aggrieved by the said order this appeal has been preferred.

LEARNED Counsel invited our attention to decision of the Supreme Court in Bharathi Knit ting Company v. K.H.L. World Wide Express Courier Division of Airfreight Limited, 1996 (4) C.T.J. 557, where the Supreme Court upheld the decision of the National Commission limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent only. It held that when there is a specific term in the contract the parties are bound by the terms in the contract. The forwarding note has been produced and it is found that the complainant has signed the forwarding note and also affixed the firm''s seal in acceptance of the term therein. In the decision of the Division Bench of the Kerala High Court referred to above itself it has been stated that absolute liability of the carrier is subject to two exceptions and one of them is any special contract that the carrier may choose to enter into with the customer and the other is act of God. In the exclusion clause which came for consideration of the Division Bench it is stated that though the clause was no doubt very wide in scope and certainly takes in fire but it is subject to the condition that the defendant takes all reasonable precautions to provide against such contingency. Naturally, therefore, defendant who is trying to press for the limited liability on the basis of the term of special contract has to show that reasonable precaution was taken against fire. However there is no such clause restricting the ambit of exclusion clause in the forwarding note which was signed by the complainant. LEARNED Counsel for the complainant also invited our attention to the decision of the Division Bench of the Kerala High Court in Indian Road ways Corporation v. Unneerikutty, 1990 (1) K.L.T. 292. The decision was rendered by one of us (Justice Shamsuddin). The Division Bench considered whether the clause relating to liability of common carrier for damage caused by pilferage and theft and providing in the consignment note that consignments were accepted to be delivered at the owner''s risk would operate as a special contract. The Division Bench pointed out that the only exceptions recognised by law are the acts of God and of State''s enemies, or a special contract that the carrier may choose to enter into with the customer. In that case the consignment note was not signed by the customers and there was no meeting of mind constituting special contract and it is under those circum stances it was held that the exclusion clause will not be helpful to the carrier to avoid the liability created under Section 6 of the Carriers Act. In this case we find there is meeting of mind as the complainant has signed the forwarding note which states "read and understand and accept the terms and conditions overleaf". Though learned Counsel appearing for the respondent/ complainant submitted that the terms are contained in the overleaf and meeting of mind can be attributed, we are unable to accept this argument in view of the specific statement contained in the front portion of the forwarding note itself where the complainant has signed accepting the term. However, we find that the Opposite Party has offered to pay 50% of the bill amount in reply to a demand made by the complainant but that was not acceptable to the complainant and he approached the District Forum. We also find that the Opposite Party has settled with other customers by paying at the rate of 50 to 65% of the value. After discussion the Counsel for the appellant fairly agreed to pay 65% of the total value of consignment excluding the sales tax to the complainant. We direct the Opposite Party to pay this amount to the complainant together with interest at 10% within a period of two months from today. The appeal is disposed of above. Appeal disposed of. ____________