PRAVEEN KATAREY vs KHANDELWAL ROADWAYS

THIS appeal is directed against the order dated 20.12.2000 passed in Case No. 37/2000 by the District Consumer Disputes Redressal Forum, Guna (for short the ''District Forum''), whereby the complaint for deficiency in service of the loss of 1200 litres of oil carried in Tanker Tata 407 bearing Registration No. MP-07 G-3102 owned by the respondent No. 2 to which consignment was booked by the respondent No. 1 as Commission Agent was dismissed holding that the consignment was damaged in motor accident, therefore, the appellants, if so advised, may file an application under Section 166 of the Motor Vehicles Act, 1988 (for short ''M.V. Act'', before Motor Accident Claims Tribunals to claim compensation.

AFTER hearing learned Counsels for parties without expressing any opinion on merits in our opinion, the order of the District Forum cannot be sustained in view of the law declared by the Supreme Court in Nath Bros. Exim International Ltd. v. Best Roadways, I (2000) CPJ 25 (SC)=III (2000) SLT 181, in Patel Roadways v. Birla Yamaha, I (2000) CPJ 42 (SC)=III (2000) SLT 554=2000 (2) CPR 35 (SC); M/s. Economic Transport Organization Etc. v. Dharwad Distt. Khadi Gramudyog Sangh, I (2000) CPJ 41 (SC)=III (2000) SLT 531=2000 (2) CPR 33 (SC), and a decision of this Commission in Oriental Insurance Company Ltd. v. Delhi M.P. Transport, 1999 (3) CPR 348, wherein it has been held that Consumer Fora under the Consumer Protection Act, 1986 (for short the ''Act'') has jurisdiction to entertain and decide the complaint by applying principles of Section 9 of the Carriers Act, 1865 (for short the "Carriers Act"), wherein the complainant has to discharge initial onus to prove deficiency in service of negligence. Thereafter, the burden of proof gets shifted to the carrier by the application of the legal presumption under the common law and it will be for the carrier to prove absence of negligence. As to Owner''s Risk : The Supreme Court in case of Nath Bros. Exim International Ltd. v. Best Roadways Ltd. (supra), observed that the expression, "Owner''s Risk" does not exempt carrier from his own negligence or negligence of his servants or agents. "Owner''s Risk" in the realm of commerce has a positive meaning. It is understood in the sense that the carrier would not be liable for damage or loss to the goods if it were not caused on account of carrier''s own negligence or the negligence of its servants and agents.

This Commission in Oriental Insurance Co. Ltd. & Anr. v. Managing Director/Proprietor/Partner, Delhi M.P. Transport Co. & Anr. (supra), relying on the decision of the National Commission in case of Roadwings International v. Hindustan Copper Ltd. & Anr., III (1999) CPJ 23 (NC)=(1999) NCJ 400 (NC), and after referring the provisions of Sections 3, 6, 8 and 9 of the Carriers Act, 1865 observed that carrier cannot escape liability for loss of consignment on plea that goods were carried at owner''s risk when goods were not combustible, fragile and perishable, and if the argument advanced is to be accepted, it will have to be held that even if the carrier himself disappears with the goods, he will not be liable for loss or damage to the goods because the goods were being carried at "Owner''s Risk".

THE complaint is for deficiency in service due to negligence of the carrier of the goods entrusted to a carrier for carriage, it being a case of bailment as set out in Section 148 of the Indian Contract Act, 1872, hence, the Consumer Fora has jurisdiction to decide the complaint, which cannot be maintained under Section 166 of the M.V. Act as the Motor Accident Claims Tribunals are constituted under Section 165 of the M.V. Act for adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of the motor vehicles or damages to any property of a third party so arising, or both. In view of the above, as the complaint has not been decided on merits, the case has to go back to the District Forum for deciding the complaint afresh in accordance with law, where the parties shall be afforded opportunity to adduce evidence. The District Forum shall decide the complaint within a period of 90 days from the date of appearance of parties which is fixed as 19.8.2002 of which no notice shall be issued to the parties as they have been noticed here through their Counsel.

IN the result, appeal is allowed. The order of the District Forum is set-aside. IN the circumstances, parties to bear their own costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with record of the case. Appeal allowed.