TRANSPORT CORPORATION OF INDIA LTD. vs KSHETRIYA SRI GANDHI ASHRAM

THIS is an appeal by the Transport Corporation of India Ltd., Branch Kaladungi Road, Haldwani, Distt. Nainital against the order dated 3rd December, 2002 passed by the District Forum, Nainital whereby the appellants were directed to pay a sum of Rs. 1,15,020.65 as price of 6 bundles of Khadi cloth to the complainant and further to pay a sum of Rs. 20,000 as compensation for mental, physical pain and Rs. 1,500 as cost of litigation.

THE brief facts of the case are that Kshetriya Sri Gandhi Ashram, Kendriya Vastragaar, Haldwani booked 6 bundles of cloth weighing 397 kgs. worth Rs. 1,15,020.65 on 15th May, 1998 at the Branch Office of the appellants to be carried to M/s. Gandhi Ashram Central Store, Jagipur, Distt. Gazipur, Uttar Pradesh. THE articles never reached the consignee. On 15th September, 1998 the complainant received a letter from Gazipur that the articles have not been received by them. THE complainant enquired from the office of the opposite party. THEy informed that it has been lost somewhere. THE complainant may lodge the claim. THEn the complainant gave a notice through his Counsel on 30th March, 1999 informing the entire facts but no reply was received, then he filed the complaint. The appellants filed written statement and admitted the booking of bundles and alleged that the complainant is not a consumer as defined under the Act. The complaint is not maintainable. It is of civil nature. The plea was also raised that the articles have been delivered at the delivery station but the addressee did not take the delivery knowingly. The complainant desired that a No Objection Certification may be issued to them, they do not want to take delivery. The Manager of the branch of the appellants was taken in the grip of the talks of the complainant and a certificate was issued. The appellants are not aware about the price of the bundles. It is just double. No notice has been received by them. The complaint is barred and is liable to be dismissed.

After taking the evidence of the parties, the learned Forum allowed the complaint, against which order the present appeal has been filed.

WE have heard the learned Counsel for the parties and gone through the records. Sh. Amar Singh Verma, learned Counsel for the appellants advanced good arguments in a bad case with full ability and he argued much on legal points than on facts. His one grievance was also that he has referred a number of rulings and advanced a number of arguments before the learned Forum, which were not read and referred by the learned Forum, which resulted in an incorrect judgment. WE can very well appreciate the argument but the consumer proceedings are summary proceedings. WE are not obliged to write long judgments replying each and every argument of the parties but still the learned Forum has given a detailed judgment running into 7-8 pages appreciating the entire facts of the case. On facts, it is admitted fact that the booking was made on 15th May, 1988. It was booked from Haldwani. The destination station was Gazipur. According to the complainant it never reached Gazipur and no delivery was given to the addressee in spite of repeated efforts. The appellants have half-heartedly pleaded that the articles have reached the destination, the complainant did not want to take the delivery, he wanted to lodge a claim, therefore the appellants issued a No Objection Certificate and the complaint has been filed. We can very much appreciate the argument of the learned Counsel for the appellants that the appellants'' corporation is a big corporation having his branches all over India having got good reputation but still its employees are used to come in the grip of talks as pleaded by the appellants is not imaginable. No employee shall ever give a No Objection Certificate if the consignment is there, he will immediately tell that your goods are there and take the delivery, why No Objection Certificate? Even an illiterate labour will tell like this but the Manager of a corporation is so innocent that he comes in the grip of talks is not believable. If the articles have been received at the Gazipur station, some receipt should have been filed, some entry, record should have been filed, some documents should have been produced to show that articles have been received there but there is nothing on record. Merely by saying that the complainant wanted a No Objection Certificate to lodge a claim, they issued the certificate is a plea only to avoid the liability. This is also not in the written statement of the appellants that the complainant told where they will lodge the claim and against whom they will lodge the claim. If the claim was to be lodged against the appellants themselves, nobody should be such a fool to issue such a certificate. The learned Counsel for the appellants has very much relied upon their bilty and at the same time he wanted to avoid the No Objection Certificate by telling that it was only issued at the desire of the complainant. The alleged certificate said to be certificate of facts is on the record. It has specifically been written by the opposite party/appellants in this certificate, material lost in transit, loss value as per party invoice Rs. l,15,020.65. They have disclosed the declared value as Rs. 1,15,020.65. They also wrote the amount of loss Rs. 1,15,020.65. They have signed it. They have issued it. Then there is absolutely no justification for the appellants to argue against this certificate of facts. It is specifically written in this certificate NONDELIVERY. It is nowhere said that the articles have been received, the complainant did not want to take the delivery to lodge the claim.

BEFORE us the records of the learned Forum have been summoned by the parties and we have an opportunity to inspect the records of the learned Forum. There is also a letter of Mannath Bhanjan branch, Gazipur of the appellants dated 21.12.1998 which has been sent to the complainant in which it is specifically written, in reply to the letter of the complainant that, "In this respect we have to inform you that the consignment has not reached us, therefore you should enquire from the Haldwani Booking Office from where the consignment has been dispatched." Thus till 21.12.1998 the articles have not been received at Gazipur Office of the appellants, although the booking was on 15.5.1998. The certificate of facts is dated 17.11.1999. Then when after 21.12.1998 the consignment has been received at Gazipur has not been explained anywhere by the appellants. Thus this plea is totally false and baseless that the articles were received at Gazipur. The complainant out of his own did not take the delivery to lodge the claim. Then on facts it is proved that the articles were despatched. Its price is also almost admitted. Even otherwise in the Forum the complainant has filed the records to show the price of the articles. Each paisa account has been given in those records. Merely the saying of the appellants that they do not know the price and the claim is exaggerated one, the case of the complainant cannot be falsified. To the contrary in the certificate of facts, the value of the articles has been admitted. At least no other value has been explained by the appellants. It is admitted fact that the delivery has not been given to the complainant. This is clearly a deficiency in service of the appellants to not have delivered the consignment to the consignee. No explanation whatsoever has been given why the delivery has not been given. To the contrary the false plea taken by the appellants proves a case of deficiency in service against them.

THE argument of the appellants was more based on legal points than on facts as stated above. However it is said that the complainant is not a consumer. THE argument in this behalf was that the consideration has not passed to the appellants. THE consideration is the booking charges and i.e. a sum of Rs. 1,090. It is written in the consignment letter that it is to be paid on delivery. Thus the agreement is there that the consignment is booked on a consideration of Rs. 1,090. For being a consumer, there is no mandatory provision that the consideration should have been paid first before hand or in advance. THE Section 2(d) of the Consumer Protection Act itself speaks that a person is a consumer who buys any goods or services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. In transport matters there is a system of deferred payment. It is not said by the appellants that there was no system of deferred payment. Secondly the consideration should not be immediately paid. THEre may be promise to pay. THEre is specific promise to pay on delivery a sum of Rs.1,090. Thus the consideration might have passed to the appellants or not but the complainant becomes a consumer.

THE second argument in this behalf was that this was a commercial transaction. THE complainant has sent its 6 bundles of cloth to its sister branch at Gazipur. It has not sold these bundles. This is only a transportation of cloth from one branch to another branch. No profit is to be gained by this transportation. THE other branch has not purchased the bundles from the complainant. It was a transfer of stock from one place to another place. Commercial purpose means which has been defined in a number of rulings that there should be an element of profit or earning to show commercial purpose. THE complainant was not to gain any profit or earning by transferring his stock from one place to another place. THErefore, there was no element of commercial purpose. Secondly also a number of rulings have been referred by both the parties which conclusively show that the status of the transport company carrier is that of an insurer. In the ruling reported in Economic Roadways Corporation v. Soundararaja Mills Ltd. and Another, II (2001) ACC 13=2003 ACJ 1158, the High Court of Madras has definitely held on the basis of the ruling reported in Patel Roadways Ltd. v. Birla Yamaha Ltd., I (2000) CPJ 42 (SC)=III (2000) SLT 554=II (2000) CLT 83 (SC)=2000 CCJ 801 (SC), an Hon''ble Supreme Court decision that : "THE Supreme Court, in the above decision, has reiterated the position of law with regard to liability of common carrier. Hence, it is clear that the liability of the defendant, as a common carrier, under the Carriers Act is that of an insurer with regard to the goods of the plaintiff No. 1 entrusted to it and the defendant is liable for the loss and damage caused to the goods of the plaintiff No. 1. As rightly held by the Trial Court, the defendant is liable for the suit claim."

In the ruling reported in M/s Economic Transport Organization, etc. v. Dharwad Distt. Khadi Gramudyog Sangh, etc., I (2000) CPJ 41 (SC)=III (2000) SLT 537=AIR 2000 SC 1635, which was also a case of Khadi cloth, the Hon''ble Supreme Court has held : "We are of the view that the liability of the common carrier is that of the insurer. It was held that Section 9 of the Carriers Act, 1865 applies to matters before the Consumer Fora under the Consumer Protection Act."

In view of these rulings the relationship between the complainant and the appellants is that of insurer and insured. In recent cases decided by the Hon''ble National Commission particularly, First Appeal No. 159/2004, I (2005) CPJ 27 (NC), M/s. Harsolia Motors v. M/s. National Insurance Co. Ltd., First Appeal No. 160/2004, M/s. Diwakar Goiram Porkhayat v. M/s. National Insurance Co. Ltd., and First Appeal No. 161/2004, M/s. Tractor House v. M/s. National Insurance Co. Ltd., decided on 3.12.2004, the National Commission has definitely held : "Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words ''for any commercial purpose'' it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose. In this view of the matter, a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit."

There is nothing to show on record that the complainant has transferred his stock to Gazipur to gain any profit. He has not sold the articles to the Gazipur branch to get any profit. The complainant can keep his stock here or there. There is no question of profit in keeping the stock at any particular place. Therefore this argument also does not hold good that the booking was for commercial purposes, therefore the complaint shall not lie. The learned Counsel for the appellants referred a number of rulings in this context, which we propose to discuss to meet out the grievances of the appellants that their rulings were not considered and referred by the learned Forum. (i) He referred the ruling reported in Gagan Chowdhary v. New India Assurance Co. Ltd. & Anr., I (2004) CPJ 158. In this ruling the insurance was taken for a restaurant. It was held to be for commercial purpose. In view of the decision referred above given by the National Commission, this ruling stands overruled, therefore should not have been referred. The insurance is never for commercial purposes. It is never for earning any profit. It is only to indemnify oneself in case of loss.

(ii) The Learned Counsel for the appellants referred the ruling reported in Kalpavruksha Charitable Trust v. Toshniwal Brothers (Bombay) Pvt. Ltd. & Another, 1999 (37) ALR (SC) Page 814. In this ruling a charitable trust was running a hospital and CT scans, etc. were being taken. It was held to be for commercial purposes. In this ruling the ruling of Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC), was referred and it was held that where the main purpose is to earn profit or to gain high profits that is commercial purpose. In this particular case the cloth may be for sale but the booking has not been for any sale or profit earning or commercial purpose. It is only transfer of stock from one place to another place. Therefore, this ruling shall also not apply to the facts of the present case. The complainant was to get nothing by booking of the articles with the appellants for being transported to Gazipur branch. Had it been sold to Gazipur branch to earn profit, it could have been argued to be commercial purpose but if one businessman sends his articles from one godown to another godown only for the transfer of the stock that is not a commercial purpose.

(iii) The ruling reported in Kores (India) Pvt. Ltd. & Anr. v. Samir Purkayastha, II (1996) CPJ 71 (NC), was referred. This was a case of copier machine. The copier machine was purchased for earning profit. It was held to be for commercial purposes. We do not disagree with this ruling but again to emphasize only the transfer of stock from one place to another place cannot be said to be for commercial purposes.

(iv) Another ruling although on different point reported in Parrys Confectionery Ltd. & Anr. v. Bhandari Interstate Carriers, I (2001) CPJ 145, was referred. In this ruling the insurance company has made payment. It has got a letter of subrogation and special power of attorney. The booking was by Parrys Confectionery Ltd. It was to be delivered to M/s. Arora and Wadhwa Associates, New Delhi. The consignment was damaged. The Insurance Company made the payment on the basis of letter of subrogation and special power of attorney. The complainant filed the complaint for recovery before the learned Forum. It was held that the Insurance Company is not a consumer because it has not available any services nor it is beneficiary. Since it has not availed any services, it was held not to be a consumer but in this particular case the complainant has availed the services of the appellants by booking the consignment from Haldwani to Gazipur on consideration agreed to be paid. This ruling does not apply to the facts of the present case.

(v) The ruling reported in Sunil & Company v. Kataria Transport Corporation & Ors., IV (2004) CPJ 33, was referred. The facts of this ruling are entirely different to the facts of the present case. In this ruling the goods were transported. The parties could not prove their case by their evidence. It was held that the transporter has performed his duties quite honestly. Since there was no deficiency in service, the complaint was dismissed. The facts of this ruling are entirely different from the facts of the present case. The booking was accepted by the transporter in this case. In this case the articles did not reach the destination. Deficiency in service is apparent on the face of records. Nothing is to be proved.

(vi) The appellants again referred the ruling reported in Lieutenant Commander, Officer-in-Charge, Naval Department & Anr. v. G. Krishnan, I (1999) CPJ 391. In this ruling the complainant''s vessel was hired by the opposite party. The vessel sunk. The value was not paid. Deficiency in service was held. The State Commission held that it is the opposite party who had hired the services, the complainant''s vessel and not vice-versa. One who hires services is a consumer and not vice-versa. The complaint was dismissed because the service provider was the opposite party and not the complainant. Such is not the fact of the present case and therefore this ruling will not apply to the facts of this particular case.

(vii) The ruling reported in Dr. R.N. Mukherjee v. D.W.L. World Wide Express, I (2003) CPJ 79, was referred. In this ruling the opposite party had taken the liability to make the loss good only to the extent of Rs. 1,000 in the case of non-delivery of consignment, therefore the learned Commission held that if the compensation of Rs. 1,000 has been paid, that is sufficient compensation. The compensa-tion of Rs. 87,000 cannot be awarded. There is no question of any limited liability in the present case. No such special contract has been shown in the records.

(viii) The ruling reported in Rehal Carrier (Transport Contractors) v. M/s. Ashok Leyland Ltd. & Ors., I (1999) CPJ 403, was referred. In this ruling the complainant was a transport contractor. He had already two trailers. He purchased the 3rd trailer. It did not give satisfactory service. He filed the complaint. He was held not to be a consumer because the trailer was purchased for commercial purposes. Such is not the fact of the present case. Nothing has been purchased by the complainant for commercial purposes. The dispute is only of transportation and services of transportation are included within the ambit of the Consumer Protection Act.

We will also like to refer the ruling of the Hon''ble Allahabad High Court referred by the appellants reported in Shrikant v. State of U.P. and Others, 1997 (30) ALR 608, that Photostat copies are not admissible in evidence. The ruling was in case of a civil dispute under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. In that Act, the provisions of Evidence Act, 1872 are applicable. But everybody knows that provisions of Evidence Act and Civil Procedure Code are not applicable to the Consumer Protection Act except so far it is provided under the Act. Secondly if the appellant was conscious to raise these pleas, he should have raised it in the Forum itself. Thirdly we have examined the records of the Forum and we find that the bilty is admitted. We also find that the certificate of facts is admitted. The copy of the invoice is in original. The letter of Gazipur branch is in original. If the appellant thought that these letters are false and farji, these papers were with both the parties and the complainant could have filed the original. Fourthly the case of the parties is admitted. Booking is admitted. Non-delivery is admitted. Even the original certificate of facts has been filed. What is to be proved by original documents? Therefore this ruling is useless for purposes of decision of this case.

THEN another argument was that no notice has been issued to the appellants and therefore the present claim does not lie. In this respect the ruling reported in Delhi-Assam Roadways Corporation Ltd. v. B.L. Sharma, I (2003) CPJ 280 (NC), was referred wherein on the basis of the Hon''ble Supreme Court decision, it has been held notice of loss or injury is mandatory before institution of suit. Notice was not issued, therefore the complaint was said not to be maintainable. We can refer in this context, the case decided by the National Commission in Branch Manager, Economic Transport Organization v. M/s. Synco Textiles, reported in I (1992) CPJ 154 (NC), wherein it has been held that no notice under Seciton 10 of the Carriers Act is necessary to file the complaint. Again the National Commission in the ruling reported in National Insurance Co. Ltd. v. Venus Traders, I (1994) CPJ 210 (NC), has held that the complaint is maintainable even if no notice under Section 10 of the Carriers Act was given. However the decision of I (2003) CPJ 280 (NC) in Delhi Assam Roadways is on the basis of Hon''ble Supreme Court decision and therefore is binding on us but this plea is meaningless in view of the fact that there is specific in this case that the booking was on 15.5.1998. The complainant was informed in September, 1998 that the consignment is not available. The parties were in regular correspondence and lastly the notice has been given on 30.3.1999. The original receipt of registration has also been filed as Annexure-6 and 7 of the original complaint. The A.D. has been filed as Annexure-8 and this notice has been received by the opposite party No. 2 of the complaint. This is a false and wrong case of the appellants that no notice was given but in fact the notice has been received by the main office of the Transport Corporation situated at Hyderabad. It did not lie in their mouth to say that no notice has been given. This is not the case that the notice is invalid because it is beyond 6 months. The case is that notice has not at all been given. The parties were in regular correspondence even after the notice. The letter of Mannath Bhanjan branch is dated 21.12.1998. The notice is well within time after 21.12.1998. Therefore the plea of the absence of notice is meaningless. The main argument of the learned Counsel for the appellants was that the booking was on owner''s risk, therefore the transport company is not liable. It appears that by the owner''s risk, the appellants wanted to say that whatsoever the transporter may do, it is not liable to pay anything to the complainant. In this context the learned Counsel for the appellants was fair enough to refer the ruling reported in Roadwings International v. Hindustan Copper Limited & Anr., III (1999) CPJ 23 (NC). In this ruling it has been specifically held in para 12 that, if the argument advanced on behalf of the carrier 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". It has further been held in this ruling in para 11 : "The combustible, fragile and perishable goods are carried at the owner''s risk. The goods which were not properly packed are also carried at the owner''s risk. The owner''s risk mentioned in the goods receipt in this context, is limited in combustible materials and perishable goods and bulky goods and machines which were not properly packed. ''Owner''s risk'' does not mean that the owner will be liable for loss of or damage to the goods even when the goods are entrusted to the carrier under all circumstances. The owner''s risk is limited only to the circumstances mentioned in the consignment note. Under the terms of carriage, the carrier is not liable for loss or damage to goods occasioned by extraneous factors like pilferage, theft, strike, riot, etc. In the instant case, the goods were in the custody of the carrier. If the goods are lost or damaged by the negligence of the carrier or his servants and agents the carrier is not absolved from his liability."

It was held that the printing of the owner''s risk does not mean that the transporter is absolved from his liability.

THE provision of Carriers Act, 1865 are very clear. It is specific in the Act that the carrier is liable for the loss. In Section 6 of the Act, it is mentioned that the liability may be limited by special contract. In the ruling referred above of Dr. R.N. Mukherjee (supra), by a special contract the liability was limited but in this case neither any special contract has been alleged, nor has been proved. In Section 9 of the Act, it has been held that in any suit brought against a common carrier for the loss, damage or non-delivery of 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. It is clear therefore, that once the loss, damage or non-delivery is proved, the negligence or criminal act is presumed on the part of the carrier and then it becomes the duty of the common carrier to rebut the presumption or to pay the loss. In the ruling referred above of Economic Roadways Corporation (supra), it has been specifically held that the liability of the public carrier is that of an insurer and it has been specifically held in para 13(24) of this ruling : "The next contention raised on behalf of the appellants is that in Exh. A-l lorry receipt, there is a clause that the goods were transported as ''owner''s risk'' and that since the plaintiff No. 2 agreed to transport the goods through the defendant No. 1 ''s lorry at owner''s risk, he is not entitled to claim any damages. Under the law of public carriers, the public carrier is not entitled to say that he is carrying the goods at the owner''s risk. It is very specifically stated that the goods transported through public carrier is only at the risk of the lorry owner and not at the risk of the owner of the goods. No signature of the plaintiff No. 2 was obtained in Exh. A-l receipt to prove that he agreed to transport the goods at the owner''s risk. DW 1 the defendant No. 1''s agent has stated that everything was negotiated through the Managing Director of the plaintiff No. 2 company. So, there is no record produced that the plaintiff No. 2 agreed to transport the goods at owner''s risk. So, the entry in Exh. A-l receipt that the goods had been transported at owner''s risk is against the provisions of the Carriers Act, and it will not bind the plaintiffs. The defendant, as a public carrier, is not entitled to contend that it transported goods at the owner''s risk and the contention is devoid of merits."

The contents of para 16 of this ruling have already been referred earlier. In the ruling referred above of M/s. Economic Transport Organization, etc. v. Dharwad Distt. Khadi Gramudyog Sangh, etc. (supra), it has been held that the initial burden is discharged by the complainant by relying on Section 9 of the Carriers Act. It is the duty of the carrier to prove that he was not negligent. Incidentally this was a case of Khadi Gramudyog and the case in Consumer Fora and the judgment of the Fora was upheld up to the Hon''ble Supreme Court.

IN the ruling reported in M/s. M.G. Brothers Lorry Service v. M/s. Prasad Textiles, AIR 1984 Supreme Court 15, it has been specifically held that any condition on the way bill limiting the liability of carrier defeats the provisions of Section 10 of the Act and it is void in view of Section 23 of the Contract Act. Therefore any provision restricting the liability alleging that the booking was on owner''s risk is void.

IT was argued that the Nainital Forum has got no territorial jurisdiction. Haldwani is within the District of Nainital. IT was argued that the territorial jurisdiction is that of Gazipur Forum. This argument that only the Gazipur Forum has jurisdiction is devoid of any force. Under Section 11 of the Consumer Protection Act, a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, besides (a) and (b) every other cause of action wholly or in part arises. The cause of action in this case arose even at Haldwani from where the consignment was booked. Had there not been booking, there would not have been any dispute. IT is the booking which has created the cause of action, therefore under Section 11 (2) (c), Nainital and Gazipur, both Forums have got jurisdiction and if the complaint was filed in Nainital Forum, it cannot be said that the Nainital Forum has got no territorial jurisdiction. It was argued that the Insurance Company has not made party in this case. The status of the appellant itself is that of insurer and the complainant is free to get his claim from the appellant. It is not clear whether the articles were insured or not but since the loss was occasioned by the appellant, there was deficiency in service of the appellant, the complainant cannot be said that go to the Insurance Company, do not make any claim from the appellant, it is free to digest any amount of bundles that it can get. This plea is therefore meaningless.

We do not find any force in this appeal. The appeal is liable to be dismissed. The complainant has unnecessarily been dragged into litigation. The complainant/opposite party shall get a cost of Rs. 5,000 (Rupees five thousand only) from the appellants. ORDER The appeal is hereby dismissed with a cost of Rs. 5,000 (Rupees five thousand only) to the complainant/opposite party of this appeal. Appeal dismissed.