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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.),Presiding Member
This Order shall decide three Revision Petitions Nos. 128, 129 and 178 of 2016 filed under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) arising out of the Order dated 16.10.2015 passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (‘State Commission’) in FA Nos. 1974 and 2022 of 2011, wherein the State Commission dismissed both the Appeals and affirmed the Order of the District Consumer Disputes Redressal Forum, Dhaulpur ("District Forum") in CC No. 204 of 2010 dated 30.09.2011, wherein the District Forum allowed the Complaint filed by M/s. Akash Udyog.
For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum. M/s. Akash Udyog is referred as the Complainant, Hindustan Freight Carrier & Commission Agent is denoted as Opposite Party No.1 (OP-1) and United India Insurance Co. Ltd. is referred to as Opposite Party No.2 (OP-2).
The brief facts of the case were that the complainant, Aakash Udyog Firm, manufactured and sold mustard oil under the brand name "Double Sher." The firm had contracted with OP-1 for the delivery of 945 oil tins to M/s Gupta Galla Bhandar in Jharkhand, valued at Rs.6,86,843/- vide Bilty No. GR-5012. The oil tins were loaded in a truck bearing registration No. HR-38J-1224. The 945 oil tins were insured by OP-2 on 14.12.2003 under Policy No.141401/21/03/000/0 with a premium of Rs.3308/-. The insurance was valid until the delivery of the goods. On the midnight of 16/17.12.2003, about 5 KM from Handia on the Allahabad-Banaras Road, the truck’s tyre got punctured, and it was parked on the roadside. That night, 556 oil tins were stolen from the truck. FIR No. 169/2003 was registered regarding the theft in PS Handia. OP-2 was informed on 18.12.2003, and a survey was conducted by OP-2, but no compensation was paid to the complainant. Being aggrieved, the complainant filed a consumer complaint before the District Forum seeking Rs.4,01,171/- along with 12% interest per annum as compensation, Rs.50,000/- for mental shock/agony, and Rs.5000/- as costs.
In the reply filed before the District Forum, OP-1 stated that Aakash Udyog was a partnership firm and acted as a Commission Agent, providing the truck for delivery as per the contract. OP-1 argued that their role did not fall under the category of Consumer/Customer and that if any harm was caused to the goods, OP-2 was liable to pay compensation. OP-1 claimed there was no deficiency in their services and no consumer/customer relationship with the complainant. In reply, OP-2 contended that despite repeated requests, the complainant had failed to submit the necessary documents and that the report lodged by the driver was still under investigation. OP-2 found the circumstances of the loss suspicious, particularly the theft of 556 tins within an hour. OP-2 further averred that since the goods were for business purposes, the complaint could not be entertained by a Consumer Forum. OP-2 sought the dismissal of the complaint due to the business nature of the goods and alleged procedural lapses by the complainant.
The learned District Forum vide Order dated 30.09.2011, allowed the complaint and directed the OP-1 and 2 jointly to pay compensation of Rs.4,01,171/- with interest @12% per annum from the date of filing of the complaint till realization to the complainant. They will also pay Rs.1,000/- as litigation expenses.
Being aggrieved by the District Forum Order, OPs filed Appeals No. 1974 and 2022 of 2011 and the State Commission vide order dated 16.10.2015 dismissed the said Appeals and affirmed the District Forum order dated 30.09.2011, with the following observations: -
“8. We have heard the arguments of both the parties and carefully perused the record, evidence and impugned judgment.
It is pertinent to mention here that against the impugned judgment dated 30.09.2011, aforesaid two appeals were preferred before this Commission and this Commission vide it's order dated 12.12.2011 and 11.12.2013 dismissed the appeals of the transporter and the Insurance Company respectively. Against these orders, a revision petition No.1006/ 2012 by the transporter and another revision petition No.1359/ 2014 by the Insurance Company, were preferred before the National Commission and the Hon'ble National Commission vide it's order dated 17.04.2014 remanded the matter back to this Commission to decide both the appeals afresh on merits by a reasoned order and hence, the matters are being heard afresh.
It an admitted fact that the complainant booked 945 tins of mustered oil with the transporter on 14.12.2003 vide GR-5012 and the aforesaid consignment was transported by truck No.HR-38-J-1224 for M/s Gupta Galla Bhandar, Ramganj, District Hajaribagh, Jharkhand. It is also an admitted fact that the complainant obtained on 14.12.2003 a marine cargo policy from the Insurance Company for the transportation of the goods from Dholpur to Ramgarh and it covered the "full risk" to the extent of Rs.6,86,843/-. Therefore, if any loss is suffered by the complainant during the transit of the consignment, then the Insurance Company is liable to indemnify the insured. It is also evident from the record that when the aforesaid truck was on it's way to Ramganj, it's one of the tyre got punctured on the intervening night of 16th & 17th December, 2003 and the vehicle had to be parked by the roadside. It also appears from the Survey Report dated 24.12.2003 (Annex.A2) prepared by Mr.B.S.Chawla that the punctured tyre was replaced by the spare tyre, but the driver and the cleaner of the truck slept in the truck around 2:30 a.m. midnight. When the driver got up in the morning at around 6:00 AM, he found a cut in the tarpaulin of the truck in the rear portion and found that some tins of oil were missing. The driver of the truck reported the matter to the complainant, who visited the site and reported the matter to the police on 18.12.2009. The Survey Report also contains a fact that the FIR No.169/2008 u/s 379 IPC could be registered only at the intervention of the Superintendent of Police.
The Surveyor found that 556 tins of oil were missing from the truck and total value of the missing tins of oil was Rs.4,01,171/-. Though, assessed the surveyor assessed the loss to the extent of Rs.4,01,171/- in the theft of the consignment but he concluded that the incident was improbable as it was not possible to remove 556 tins of oil from 2:30 a.m. to 6:00 a.m. i.e. during three hours, when the driver and cleaner of the truck were sleeping. He also suspected the incident on the ground that it was not convincing that the driver did not hear any sound and kept sleeping all the time, when the tins of oil were removed or transferred from the truck to some other vehicle. The aforesaid reason Surveyor does not appear convincing because it is possible that the driver and the cleaner had a very sound sleep and they did not wake up when the tins of oil were removed from their truck. It appears from the photographs available on record that tarpaulin at the rear side of the truck had a cut and torn and we are of the view that it is possible that the tins of oil were removed from that cut.
One of the contentions of the learned counsels for the Insurance Company and the transporter is that the police did not submit any charge sheet or final report in the matter so it cannot be concluded that the complainant's goods were stolen from the truck. In this regard, we are of the view that the complainant had lodged an FIR in the matter and it was the duty of the police to investigate and submit the conclusion before the concerned Court, but if the police did not submit the result of investigation, then complainant cannot be held responsible for it, because he does not have any control over the investigation by the police. It is evident from the GR No.5012 dated 14.12.2003 of the transporter and the cover note of the Marine Cargo Policy issued by the insurance company that 945 tins of mustered oil were sent from Dholpur to Ramgarh by truck No.HR-38-J-1224 and the consignment was insured for an insured declared value of Rs.6,86,843/-. The Surveyor in his report Annex.A2 has also found that 556 tins of oil were missing from the truck and he assessed the loss to the extent of Rs.4,01,171/-. As the complainant sustained a loss to the extent of Rs.4,01,171/- and hence, the Insurance Company liable to indemnify complainant for the aforesaid amount. As the Insurance Company did not settle the claim of the complainant and hence, it's act and conduct amount to deficiency in service on it's part.
As regard the liability of the transporter is concerned, we are of the view that the transporter also had undertaken a safe transport Dholpur of complainant's goods from Ramgarh, while booking the to consignment. If the transporter failed in it and if any theft took place during the transit then the transporter is also liable to indemnify the complainant for the loss suffered by it. If it is presumed for the sake of arguments that the theft took place during midnight, when the truck broke down on it's way and while the driver and cleaner of the truck had slept, even then the transporter is liable for the carelessness and negligence of it's driver and cleaner for not taking proper precaution for the safety of the complainant's goods. Hon'ble National Commission in 2007 CTJ 463 (Allahbad Bank v/s S.S.Sriniwasan) has held that the employer is liable for acts and omissions of his employees. Therefore, if the transporter failed to deliver the goods to the complainant at the destination in a safe condition and if any theft of the consignment took place during the transit due to carelessness and negligence of the driver, then the transporter is also liable to indemnify the complainant for the loss sustained by it.
For the aforesaid reasons, we are of the view that the findings given and the conclusions arrived at by the learned DCF in the impugned judgment are just and reasonable and it rightly held both the transporter as well as the Insurance Company liable to indemnify the complainant for the loss suffered by it. We do not find any illegality or irregularity either of fact or of law in the impugned judgment and therefore, the same does not call for any further interference by this Commission and hence, both the present appeals are liable to be dismissed and the impugned judgment deserves to be affirmed.
ORDER
The appeal No.1974/2011 of the Hindustan Freight Carrier (the Transporter) and the appeal No.2022/2011 of United India Insurance Company Ltd. are dismissed. The impugned judgment dated 30.09.2011 of the learned DCF in complaint No.204/2010 titled M/s Akash Udhyog Vs. Hindustan Freight Carrier & Ors. is affirmed. Both the appellants shall also pay complainant Rs.10,000/- each to the i.e. Rs.20,000/- (Rupees Twenty Thousand Only) in all, as cost of proceedings for the present appeals in addition to the cost awarded by the learned DCF. The compliance of the order shall be made within one month from today. The appellants shall be at liberty to withdraw the amount, if any, deposited by them in the present appeals before the learned DCF.”
Dissatisfied by the State Commission order dated 16.10.2015, both OPs filed these Revision Petitions before this Commission seeking:
RP/128/2016-filed by OP-2: United India Insurance Co. Ltd.
a. that the order dated 16.10.2015 in Appeal No.1974/2011 in the matter United India Insurance Company Vs. M/s. Akash Udyog Ltd., of the State Commission, Circuit Bench 3, Rajasthan holding the petitioner liable jointly and severally with the respondent No.2 be set aside.
b. may please pass any other order as may deem fit.”
RP/129/2016 filed by OP-2: United India Insurance Co. Ltd.
a. that the order dated 16.10.2015 in Appeal No.2022/2011 in the matter United India Insurance Company Vs. M/s. Akash Udyog Ltd., of the State Commission, Circuit Bench 3, Rajasthan holding the petitioner liable jointly and severally with the respondent No.2 be set aside.
b. may please pass any other order as may deem fit.”
RP/178/2016-filed by OP-1:Hindustan Freight Carrier & Commission Agent
“For meeting the ends of justice and in the facts and circumstances stated above, it is respectfully prayed that the Hon’ble Commission may be pleased to call for records of Appeal No.1974/2011 titled ‘Hindustan Freight Carrier and Commission Agent vs. M/s. Aakash Udyog & Anr., from the State Consumer Disputes Redressal Commission, Rajasthan (Bench No.3) at Jaipur and to set aside/quash Commission’s order dated 16.10.2015 and to pass such further order(s) as considered just, fit and proper in the facts and circumstances of the case.”
Learned Counsel for United India Insurance Co. Ltd. (OP-2) reiterated the facts of the case and the grounds of the Revision Petition, contending that the complainant, M/s Akash Udyog, had failed to establish the occurrence of the purported theft. According to the Marine Insurance Policy issued under the Marine Insurance Act of 1963, coverage applied only to losses incidental to transit, which M/s Akash Udyog had not demonstrated. Both the District Forum and the State Commission had failed to thoroughly investigate and adjudicate the alleged theft. The orders of these forums were seen as lacking proper inquiry into whether the theft had actually occurred. The State Commission had upheld the District Forum's view that the driver’s negligence made the insurance company liable. However, the learned counsel argued that negligence by the driver was irrelevant since the purported theft had not been established. The State Commission had introduced new elements, such as negligence or misappropriation by the driver, which were not initially claimed by M/s Akash Udyog. The State Commission’s order was alleged to have serious legal infirmities, as it had ventured beyond its jurisdiction by addressing issues not raised by M/s Akash Udyog. The learned counsel argued that the Commission's decision should be set aside on this basis. M/s Hindustan Freight Carriers was a carrier as per law, and thus liable for the goods under the Indian Contract Act of 1872. The District Forum and State Commission had correctly held Hindustan Freight Carriers liable as a bailee under the Indian Contract Act. The learned counsel emphasized that even if the goods were transported by a different agency, the original contracting agency (Hindustan Freight Carriers) remained liable for the goods. He sought that the order dated 16.10.2015 by the State Commission in Appeal No. 2022/2011 be set aside. The complaint by M/s Akash Udyog against OP-2 should be dismissed as not maintainable. The Revision Petition No. 178/2016 filed by M/s Hindustan Freight Carriers (OP-1) should also be dismissed, maintaining them as liable as the carrier/bailee of the consignment for non-delivery. The petitioner sought an order for the release of the amounts deposited with the District Forum.
Learned Counsel for the Hindustan Freight Carrier & Commission Agent (OP-1) reiterated the grounds of Revision Petition No.178/2016. He contended that the complainant, M/s Akash Udyog, does not qualify as a "consumer" under Section 2(1)(d)(ii) of the Consumer Protection Act, as the services were availed purely for commercial purposes, specifically for transporting goods during the normal course of business. He asserted that while this objection was raised before the fora below, the same was not addressed, making the complaint against Hindustan Freight Carrier unsustainable. The consignment in question was insured and the loss was due to a tyre puncture, leading to the alleged theft. The inquiry should have focused on whether the insurance company was liable for the loss due to the alleged theft, not on holding the carrier responsible. The driver and a staff of the complainant followed the truck and an FIR was filed, making it clear that the issue of theft was primarily the insurance company's responsibility. He asserted that Clause 8 of the terms of the contract between the parties, printed on the back of the Goods Receipt (GR), absolves Hindustan Freight Carrier of liability in such situations, treating them as force majeure events and this clause has not been challenged or disputed by the complainant. Further, the Hindustan Freight Carrier was only a commission agent and merely facilitated the arrangement of the truck and the liability should lie with the truck owner, whose name is available in the records and mentioned on the GR. Both the findings of lower fora are perverse, ignoring the material on record, and wrongly fastened liability on them. The learned counsel relied on the following citations in support of his arguments:
A. Birla Technologies Ltd Vs Neutral Glass & Allied (2011)1 SCC 525.
B. Sarwinder Kumar vs. Action Construction (FA No. 539/2011, decided on 14.03.2012).
C. Deepak Tandon & Anr Vs. Rajesh Kumar Gupta (CA No. 1537-38/2019, decided on 07.02.2019).
Learned counsel for the complainant argued that Aakash Udyog Firm manufactures and sells mustard oil under the brand name "Double Sher." The complainant contracted with OP-1 for delivery of 945 oil tins to M/s Gupta Galla Bhandar in Jharkhand. The goods were valued as Rs.6,86,843 and the oil tins were loaded in a truck registration No. HR-38J-1224. The complainant had taken transit insurance cover for 945 oil tins from OP-2 on 14.12.2003 vide Policy No.141401/21/03/ 000/0 and paid the premium of Rs.3308. The insurance was valid from the commencement of the transit till delivery of the goods. On the midnight of 16/17.12.2003 about 5 KM from Handia on the Allahabad-Banaras Road, the truck’s tyre got punctured. Consequently, the vehicle was parked on the roadside. That night, 556 insured oil tins loaded in the truck were stolen. Immediately on noticing the same, FIR No. 169/2003 was registered about the theft in PS Handia. OP-2 was informed on 18.12.2003, and a survey was conducted by OP-2. While the complainant made the claim in time and established the loss, no compensation was paid. The loss of insured goods was bonafide and repudiation of the claim was illegal. He asserted that the concurrent findings of the Fora below are based on established facts and law.
I have examined the pleadings and associated documents, including the orders of the District Forum and State Commission and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
It is pertinent to mention that this is a second round of litigation. Earlier both the Petitioners/OP-1 & 2 filed Revision Petitions No.1006 and 1359 of 2014, decided on 17.04.2014 by this Commission against the non-speaking orders passed by the State Commission dated 12.12.2011 in Appeal No.1974/2011 and dated 11.12.2013 in Appeal No.2022 of 2011 and this Commission remanded the matters back to the State Commission for deciding the same afresh in accordance with mandate of law as laid down by Hon’ble Supreme Court. Now, both the Petitioners/OP-1 & 2 filed the present Revision Petitions against the impugned order dated 16.10.2015. The learned District Forum passed a detailed order dated 30.09.2011 partially allowing the complaint and the learned State Commission vide order dated 16.10.2015 dismissed the appeals and upheld the District Forum order.
Examination of the case in its entirety reveals that, it is undisputed position that the complainant had contracted with the Hindustan Freight Carrier (OP-1) for vehicle for conveying 945 Tins of Mustard oil from Dholpur (Rajasthan) to Ramgarh Hazaribagh (Jharkhand). Accordingly, OP-1 provided Truck No. HR-38-J-1224. The consignment of 945 tins of Mustard Oil each containing 15.5 Kgs of oil per tin was insured for ‘full risk’ for Rs.6,86,843 by the complainant during transit from Dholpur (Rajasthan) to Ramgarh Hazaribagh (Jharkhand) with OP-2 Insurer. The truck commenced its move from Dholpur to the destination on 14.12.2003. It is the contention of the complainant that at about 2 AM on 16-17.12.2003, while the truck was on the highway near Upardaha Village about 5 KM from Handia town, which is about 45 KM from Allahabad on Varanasi GT Road, it sustained a puncture and the punctured tyre was replaced with the spare tyre and the driver and the cleaner decided to sleep in the truck at about 2:30 AM on 17.12.2003. It is the contention of the complainant that when the driver got up at 6.00 AM on 17.12.2003, he found a cut in the tarpaulin of the truck in the rear portion and some oil tins missing. The driver immediately reported the matter to the complainant, who visited the site and reported the matter to the police on 18.12.2009 and the FIR No.169/2008 under section 379 IPC could be registered only at the intervention of the Superintendent of Police. The complainant had also reported to OP-2 insurer and a surveyor was appointed to ascertain the matter and submit a report. The surveyor immediately visited the site, ascertained the matter, examined the police records and submitted his report dated 24.12.2004.
The Surveyor found that of the insured stock 945 tins of oil, 556 tins were missing from the truck and total value of the missing tins was Rs.4,01,171. He found about 30x30 inches cut to the tarpaulin cover at the rear of the truck. The surveyor concluded that the incident of theft as alleged was improbable as it was not possible to remove 556 oil tins from 2:30 AM to 6:00 AM, when the driver and cleaner of the truck were sleeping within the truck. The truck driver informed the complainant at about 6 A.M. and he reached the site on the same day and filed an FIR and informed OP-2. In the whole process loss of 556 tins weighing 15.5 KG each containing mustard oil is undisputed and the loss occasioned while the driver and cleaner were sleeping within the truck. Thus, the main issue to be determined in the case is the loss sustained by the insured and whether the loss is covered within the scope of the policy?
It is the contention of the complainant that 945 tins of oil was loaded in the said truck and covered with tarpaulin. When the truck had a puncture and was stopped at the site, 556 tins were stolen from the truck and total value of the missing tins of oil was Rs.4,01,171. It is also undisputed that there was about 30x30” cut on the tarpaulin cover at the rear side of the truck through which 556 oil tins of 15.5 KGs each were removed within 3½ Hours during the wee hours on 17.12.2003. It is also clear that none of these oil tins were found in the vicinity.
For a claim to be tenable, it shall have reasonable possibility for the cause of action claimed to occasion. Under no circumstances it can be stated that it was known to anyone in the vicinity that the said truck filled with oil tins would be available unguarded at the site it where it was parked. It is undisputed that there were safer and convenient parking places were available in the proximity. In the incident in question, 556 oil tins weighing 15.5 KG were removed from the truck through a small opening and these were taken away to very far distance as none of the lost tins were even found. The nature of oil tin is such that more than one unit cannot be removed by one person at one time. The entire incident of theft of 556 tins happened within about 210 minutes. That is to say, each tin was removed and taken away to a distant place in less than 30 seconds. If it is theft, it can most likely be committed either by a very large number of thieves; or the stock of 556 tins was removed and reloaded into some other vehicle and taken away. In either situation the driver and/or cleaner ought to have been alerted. In any case, it was incumbent upon the driver or the cleaner to park the vehicle which was loaded with such stock at a safe location at such midnight hours and then to take rest if they wanted to. The truck driver is stated to have informed the complainant at about 6.00 AM on 17.12.2003 and the insured reached the site on the same day and filed an FIR as well as informed OP-2.
In the whole process, the loss of 556 oil tins weighing 15.5 KG each containing mustard oil is undisputed. It is also undisputed that this loss occasioned from the truck while the driver and cleaner were sleeping within the truck. The surveyor submitted a detailed report 24.12.2003 that the claim of loss is not convincing. It is the vehement contention of OP-2/insurer that the theft is very unlikely and further the truck could have easily been taken to safer location and then taken such rest as possible which the driver and the cleaner chose not to do. Considering the above deliberations, without conspicuous negligence on the part of the driver and/cleaner whom the complainant engaged through OP-2 the possibility of such theft was very remote. On due consideration of these material aspects, there is no reason to dispute the report of the surveyor dated 24.12.2003. Therefore, under the stated circumstances the Insurer OP-1 cannot be held liable for the loss of said oil tins.
As regards the liability of the Carrier OP-1, it is first necessary to examine the nature of the engagement of the Complainant with OP-1 and examine whether the complainant is the consumer of OP-1 under the Consumer Protection Act, 1986. OP-1 is Hindustan Freight Carriers, which is unequivocally a commercial entity involved in commercial transportation activities. Specifically, the complainant had sought the services of the OP-1 to facilitate the carriage and secure delivery of commercial consignment consisting of 945 oil tins of mustard oil from Dholpur (Rajasthan) to Ramgarh Hazaribagh (Jharkhand). Despite the consignment is loaded, packed, secured and accepted by OP-1, the loss occasioned. Upon discovering the loss of stocks insured by OP-2 while under the custody of OP-1, the complainant initiated a monetary claim against OP-1 and OP-2, underscoring their position as carrier and Insurer. Therefore, based on the outlined circumstances, it is evident that the Complainant's engagement with the OP-2 was directly tied to commercial endeavours. Specifically, the services rendered by OP-1 were sought to facilitate the safe transit of commercial goods until their delivery at destination. This establishes that the Complainant availed the services of OP-1 for a commercial purpose. Therefore, Complainant is not a ‘consumer’ as defined under section 2(1) (d) of the Act with respect to OP-1.
Based on the deliberations above, the orders of the learned District Forum dated 30.09.2011 and the learned State Commission dated 16.10.2015 are untenable as they suffer material irregularity and, therefore, set aside and the Complaint No. 204 of 2010 is dismissed. All the three Revision Petitions Nos. 128, 129 and 178 of 2016 are, therefore, Allowed.
Needless to say, the Respondent No.1/Complainant has right to approach appropriate legal fora to seek relief in respect of the grievances against the OP-1 Hindustan Freight Carrier & Commission Agent. It may also seek benefit of the provisions of Section 14 of the Limitation Act, 1963 in doing so.
Keeping in view the facts and circumstances of the present case, there shall be no order as to costs.
All pending Applications, if any, also stand disposed of accordingly. The statutory amounts deposited, if any, may be refunded to the depositor as per law.