HIMACHAL MOTOR TRANSPORT CO. vs WESTEK INDUSTRIES

THIS appeal has been directed against the order dated 2.6.2000 passed by the District Forum-II, Chandigarh. The respondent-complainant booked a consignment of M.S. Pipe Poles with the appellant M/s. Himachal Motor Transport Co. for carriage to the Tapri, District Kangra in the State of Himachal Pradesh for being delivered to the consignee. The appellant sent the said consignment which was valued at Rs. 2,10,220/- through truck No. HIS 1978. The consignment was booked through GR No. 1695 dated 4.5.1996 issued by the appellant, a common carrier. The truck which carried the consignment did not belong to the appellant. The appellant acted as an agent and engaged trucks of various owners for carriage of the consignment of various parties which used to be booked with the appellant. The truck aforesaid fell in Beas river, on way to the destination. The entire consignment was, thus, damaged and completely lost. The respondent-complainant laid a claim in respect of the damaged consignment with the appellant. The appellant, however, did not make the payment of the value of the consignment and damages claimed by the respondent. The respondent filed a complaint before the District Forum-II, Union Territory, Chandigarh bearing Complaint No. 1687 of 1996. The respondent-complainant impleaded the appellant M/s. Himachal Motor Transport Co. through its partner/proprietor having Head Office 22, Transport Area, Sector 26, Chandigarh.

THE appellant filed a reply to the complaint alleging, inter alia, that the goods were transported at owner''s risk without any consideration. THE accident took place and the truck alongwith its load fell in Beas river. It was averred that FIR No. 45 dated 8.5.1996 was got registered. It was further pleaded that the accident took place not due to the negligence but was vis- major or an act of God. THE appellant also took a plea that as per terms and conditions of GR it was not liable to pay to the claimant any amount. The parties led evidence before the District Forum. The District Forum held the appellant- M/s. Himachal Motor Transport Co., guilty of deficiency in service for having caused total loss of the consignment and allowed the complaint with costs of Rs. 1,100/-. The appellant Transport Company was directed to pay a sum of Rs. 2,10,220/- to the complainant with interest @ 12% per annum from 5.5.1996 till the date of payment.

M/s. Himachal Motor Transport Co., the opposite party of the complaint felt aggrieved against the judgment passed by the District Forum-II and has filed this appeal. Upon the issuance of notice of the appeal, the complainant-respondent put in appearance through its Counsel. The file of the complaint case was summoned from the District Forum-II.

WE have heard the learned Counsel for the appellant as well as the learned Counsel for the respondent. WE have also carefully gone through the judgment of the District Forum-II and have perused the record of the case. It is not disputed that the respondent-complainant had booked the said consignment against Goods Receipt (GR) issued by the appellant. It is also not disputed that the consignment aforesaid did not reach its destination as the truck carrying the consignment in question met with an accident and it fell into the river Beas and thereby caused damage and total loss of the entire consignment. The value of the consignment was also not in dispute. The consignment was worth Rs. 2,10,220/-. The appellant took mainly the plea that it was not deficient in the performance of service and it was not negligent in the performance of the service inasmuch as the consignment in question booked by the respondent-complainant was promptly sent for delivery at the destination through a truck. The appellant took the plea of vis-major, i.e. an act of God in which damage and total loss of consignment took place as a result of the truck falling iii to the river Beas. The learned Counsel for the appellant contended that the appellant had no control or power over the driver of the aforesaid truck and had no role to play in the carriage of the consignment by the said truck. The learned Counsel for the appellant relied upon the judgment of the Hon''ble National Commission in Original Petition No. 158 of 1994, Nath Bros. Exim International Ltd. v. Best Roadways Ltd., III (1996) CPJ 91 (NC). This authority was referred to by the District Forum also but the same was distinguished.

THE learned Counsel for the respondent-complainant has produced before us the judgment of Hon''ble Supreme Court of India rendered in appeal filed against the judgment of the National Commission in the case of Nath Bros. Exim International Ltd. (supra). THE Civil Appeal No. 1 of 1997 filed by Nath Bros. Exim International Ltd. was decided by the Supreme Court on 27.3.2000 and the judgment of Hon''ble National Commission was set-aside and the complaint case was remanded with certain direction. THE Judgment of Hon''ble National Commission rendered in Nath Bros. Exim International Ltd. (supra), which has been cited by the learned Counsel for the appellant is thus no longer a good law in view of the said judgment having been set aside in the appeal by the Hon''ble Supreme Court. THE Hon''ble Supreme Court in the judgment rendered in appeal, held in para 31 as under : "Thus the expression ''at owner''s risk'' does not exempt a carrier from his own negligence or the negligence of his servants or agents." Section 9 of the Carriers Act, 1865 (for short to be referred as Act, 1865) lays down as under : "9. Plaintiffs, in suits for loss, damage or non- delivery, not required to prove negligence or criminal act - In any suit brought against a common carrier for the loss, damage or non-delivery of goods (including containers, pallets or similar article of transport used to consolidate goods) entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants, or agents."

A Division Bench of the High Court of Kerala in Orient Roadlines v. B.M. Mohammad Hassan Sahib Co. & Ors., 1989 ACJ 778, in somewhat similar case held that the absolute liability of the carrier is subject to only two exceptions, one of them is any special contract that the carrier may choose to enter into with the customer and the other is an act of God. In the instant case, the appellant has not relied on any special contract having been entered into between the respondent-complainant and the appellant. So far as the plea of vis-major or act of God is concerned the Division Bench of Kerala High Court in the case of Orient Roadlines (supra), had an occasion to consider the same and referred to the judgment rendered by the Kerala High Court in R.R.N. Ramalingu Nadar v. V. Narayana Reddiar, 1971 ACJ 298, where the Bench had considered the question whether the carrier is liable for the loss and damage caused on the way by unruly mob. THE High Court rejected the plea that it is an act of God and held as under : "Act of God is one arising from natural causes. Some of the well-known instances of acts of God are the storms, the tides and the volcanic eruptions. THEy are, in a sense, inevitable accidents beyond the control of man. What is urged in this case is that all inevitable accidents must be taken as acts of God. Matters which are not within the power of any party to prevent, are, according to learned Counsel, inevitable accidents so far as he is concerned and consequently they are to be considered as acts of God. I cannot agree. Accidents may happen by reason of the play of natural forces or by intervention of human agency or by both. It may be that in either of these cases accidents may be inevitable. But it is only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be said to be acts of God."

THE Division Bench of the Kerala High Court referred to Halsbury''s Laws of England, Vol. 8, 3rd Edition, page 183, where an act of God was dealt with. THE Division Bench quoted Halsbury''s law as under : "An act of God, in the legal sense of the term, may be defined as an extraordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against; or, more accurately, as an accident due to natural causes, directly and exclusively without human intervention, and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse himself on the ground of it. THE occurrence need not be unique, nor need it be one that happens for the first time; it is enough that it is extraordinary, and such as could not reasonably be anticipated. THE mere fact that a phenomenon has happened once, when it does not carry with it or import any probability of a recurrence (when, in other words, it does not imply any law from which its recurrence can be inferred) does not prevent that phenomenon from being an act of God. It must, however, be some something overwhelming and not merely an ordinary accidental circumstance, and it must not arise from the act of man."

(Emphasis supplied by us) It is, thus, abundantly clear that for an accident to be treated as an act of God, it should not have any nexus with any human act or agency. In the law explained on act of God by Halsbury which has been quoted above, it has been specifically mentioned that it must not arise from the act of man. Needless to say that in tine instant case the accident which took place with the truck carrying the consignment in question was due to the negligent act of the driver of the truck inasmuch as he is accused of consuming liquor while driving the truck on way to the destination. Such an act, in our opinion cannot in any circumstance be accepted to be an act of God. The learned Counsel for the appellant contended that the appellant is not a common carrier and, therefore, he is not liable for the acts of the agents such as driver of the truck. He also contended that the appellant is not the owner of the truck which carried the consignment in question. The Division Bench of the Kerala High Court in the case of Orient Roadlines (supra), dealt with such an argument in para 15, inter alia, as under : "Lastly, the learned Counsel for the appellant argued that the appellant is not the owner of the lorry in which the goods were carried and is not a common carrier. Section 2 of the Carriers Act defines common carrier as a person other than the Government, engaged in the business of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately. In view of this definition, it is not possible to accept the contention that the appellant was not carrier even assuring that the lorry used by the appellant for transporting the goods did not belong to him..."

The Division Bench further held in para 10 that a common carrier is not a mere bailee of goods entrusted to him. He is insurer of goods. He is answerable for the loss of goods even when such loss is not caused by negligence or want of care on his part. The only exception recognised by law is act of God and of State''s enemies. In II (1996) CPJ 40 (NC)=1996 (2) CPR 130 the Hon''ble National Commission in the case of M/s. Birla Yamaha Ltd. v. M/s. Patel Roadways Ltd., held that in the case of non-delivery of consignment by the carrier, burden of proving absence of negligence was on the carrier. This is in consonance of the provisions of Section 9 of the Act, 1865. Similar view was expressed by the Division Bench of Calcutta High Court in Assam Roadways v. National Insurance Co. & Ors., AIR 1979 Calcutta 178. A Division Bench of the Bombay High Court in M/s. Road Transport Corporation & Ors. v. M/s. Kirloskar Brothers Ltd. & Ors., AIR 1981 Bombay 299, held inter alia in para 9 as under : "...The Trial Court has rightly come to the conclusion that under the mandatory provisions of Section 8 of the Carriers (Act III) of 1865, every common carrier shall be liable to the owner for loss or damage to any property caused by the negligence or fraud of defendants or their agents, notwithstanding anything contained in the terms and conditions in Ex. 49."

A Division Bench of Madras High Court in Assam Bengal Roadways (P) Ltd. v. Hindustan Photo Films Manufacturing Co. Ltd. & Anr., II (1988) ACC 391, held that the onus of proving the negligence in a case of loss of consignment is not on the consignor.

IN view of the settled position of the law which has been referred to above, we are of the considered opinion that the appellant being a common carrier cannot escape his liability on the ground that he had no control over the accident of the truck which occurred in the instant case on way to the destination. We are further of the view that the said accident in which the consignment in question was damaged and lost, the accident was not an act of God but was due to the negligence of the driver of the truck. The District Forum-II in our considered opinion was right in allowing the complaint with costs. The appeal has no substance and merit and is dismissed. Appeal dismissed.