Mrs. Silpi Majumder, Member:
1. This appeal has been directed against the judgment passed by the learned District Forum, Siliguri, on 26.7.2010, in its case No. 112/S/2009, where by the learned District Forum allowing the complaint on contest in part against the OP with cost of Rs. l,000 has directed the OP to pay a sum of Rs. 38,950 together with hiring charges of Rs. 135 totalling to Rs. 39,120 to the Complainant within a period of 45 days and the learned Forum below was pleased to award compensation in favour of the Complainant to the tune of Rs. 5,000 payable by the OP and the Forum has directed to pay the abovementioned total amount within 45 days from the date of passing of the judgment, failing which the awarded sum would carry interest @ 9% p.a. from the date of institution of the instant case dated 29.12.2009 till realization of the entire awarded amount.
2. The brief fact of the case of the Complainant is that he used to deal with high quality imported vegetables and other seeds. The OP is engaged in carrying documents and seeds parcel from Siliguri to several parts of the country. The OP is governed by Indian Carriage Act and all the provisions of the carriage are applicable in addition to other laws of the loss as applicable from time-to-time. The Complainant booked a parcel containing 4.5 kgs. of imported hybrid vegetables seed for safe transportation and delivery within three days to the consignee namely Assam Beej Bhandar, Bazar Road, Ward No. 9, North Lakhimpur on 22.8.2009 under consignment note and on payment of Rs. 135 as service charges. The said consignment should have been reached to the consignee by 26.8.2008.
3. The Complainant also handed over a copy of the bill for Rs. 38,950 and a declaration that the consignment/parcel containing imported hybrid seed. On the body of the parcel the Complainants representative has also mentioned âconsist of imported hybrid seed valued Rs. 40,000 about. The said consignment was booked on 21.8.2009. The Complainant is not concerned how the said consignment would be carried by the OP. After about lapse of 10 days the Complainant received a message from the consignee that the said parcel had not yet reached to its destination. The seed is seasonable item and it looses its value if it is not utilized within a fixed period. On inquiry it has been intimated that the parcel in question had already been delivered to the addressee consignee. When the Complainant asked for document of delivery known as POD it has come to his notice that the said parcel was to move through plane, so Custom Authorities bad written the same and it would take more time. Ultimately on 22.9.2008 it has been intimated over phone that the said consignment had been misplaced and lost somewhere. The Complainant then wrote a letter for non-delivery of the said consignment on 23.9.2009 which was posted on 24.9.2009 under registered post with A/D. But the OP refused to accept the said registered letter on 25.9.2009 and accordingly it was returned to him with the remark ârefused, return to sender. On inquiry it has been further disclosed that the said consignment had been lost in transit by their Agent/ Service provider Tridev Exp Cargo of Siliguri to whom the OP had delivered in Siliguri for onward transportation. Subsequently, the OP furnished a Xerox copy of G.D. entry dated 21.9.2009 lodged by one Sri Satya Sarkar stating therein that a parcel weighing six kgs was booked by the OP under the consignment on 22.8.2009 issued by Tridev Exp Cargo in the name of Indian Courier Private Limited and the same was lost near NTS More, Sevoke Road, Siliguri on 22.8.2009. Since the Complainant sustained loss due to non-delivery to the consignment through the OP who grabbed the said parcel for illegal gain and it amounts unfair trade practice and deficiency in service. It is the primary duty of the OP to take all precaution and measure for safe transportation and safe delivery in good condition within reasonable time. Therefore, due to negligence on the part of the OP the Complainant suffered a loss to the tune of Rs. 38,950. Thereafter, finding no other alternative the Complainant approached before the learned Forum below by filing a petition of complaint, wherein prayer has been made to give direction upon the OP to pay a sum of Rs. 38,950 along with value of the consignment for Rs. 135, compensation for Rs. 25,000 for mental agony, tension and hamper of prestige, pendente lite interest @15 % p.a. on Rs. 38,950 till realization and prayer has been made for litigation cost.
4. Being aggrieved by the abovementioned judgment the OP-the Appellant has preferred the present appeal before this Commission contending that in absence of the partnership deed and in absence of other partners no effective decree could be passed under Section 14 of the C.P. Act. It has been mentioned in the grounds of memorandum of appeal that the present Respondent did not disclose the description or the identity of the article said to have contained in the consignment although the Appellant repeatedly requested for the same. Receipt of Rs. 135 does not prove that the value of the article was for Rs. 40,000 (in approx). The Respondent nowhere disclosed the value of the consignment, where on the contrary the Appellant disclosed that in case of the value exceeds Rs. 1,000, the same should be insured. It has been further stated by the Appellant that in case of lost of consignment in the transit the liability is limited and there was no negligence on the part of the Appellant, which the learned Forum below has completely ignored. The learned Forum below also without any basis has awarded the abovementioned amount in favour of the Complainant. According to the Complainant the judgment passed by the learned Forum below being erroneous is liable to be set aside and prayer has been made by the Appellant to allow the present appeal.
5. The case of the OP before the learned Forum below was that the Complainant had failed to describe himself in accordance with law because when the Complainant is a partnership firm, it requires to be registered Under Sections 69(1) and (2) of Indian Partnership Act. Unless by registered the partnership firm cannot sue. The further allegation of the OP was that the Complainant is a company who used to carry out business transaction, which is commercial in the nature, therefore, the Complainant cannot be considered as consumer under the Act. Further allegation was that the nature of goods cannot be booked through courier and the Complainant without following the terms and conditions sent the said article and as such, so there was no negligence on the part of the OP and prayer was made for dismissal of the complaint.
6. For adjudication of this Appeal the LCR has been called for. We have carefully perused the record, several documents, LCR and heard the submissions so advanced by the learned Counsel for the parties. It is seen by us that the contention of the Complainant-Respondent is that a parcel containing 4.5 kgs. of Imported Highbred seed was booked for transportation and delivery to the consignee Assam Beej Bhandar on 22.8.2009 under consignment note on payment of Rs. 135 towards service charges. The case of the OP-the appellant is that the staff of the Complainant did not disclose the particulars of the materials inside the packed box in spite of repeated request, so the Appellant has no liability for any deficiency in service as there was no negligence on its part. We have noticed from the LCR that before the learned Forum below the Complainant filed original receipt together with bill showing that the seeds amounting to Rs. 38,950 were delivered to the OP for delivery to the consignee Assam Beej Bhandar on 22.8.2009. From the said receipt it has been revealed that a sum of Rs. 135 was taken as service charge. It has been stated by the Appellant that owners must insured the article if value exceeds Rs. 1,000. In this respect we are of the opinion that where the OP found that the value of the consignment has exceeded Rs. 1,000, why the OP took the consignment for delivery and why the OP did not direct or make any request to the Complainant to get the article insured before delivery. The answer in this respect from the Appellant is not clear and satisfactory one. The Forum has minutely observed that there was no denial on the part of the OP that the parcel was not booked to them for delivery to the consignee Assam Beej Bhandar and the receipt itself does not speak whether it was booked on owners risk or couriers risk. Admittedly service was taken on consideration if it has to be insured, in case of the valuation of the materials are more than Rs. 1,000 it requires to be insured under the alleged terms and condition as stated, why the OP has accepted for delivery. It has been mentioned in the judgment that even the valuation of the materials in question is to be disclosed why it has been accepted initially, why the same was accepted without mentioning the valuation of the goods has also not been explained that in spite of repeated request as alleged the Complainant refused to mention it and in this context mere defence is not sufficient. Moreover, in the written version the OP did not controvert the petition of complaint that the value of the article was not disclosed by the Complainant. In our opinion, it the duty of the carrier to take proper care and caution to reach the goods in question safely to its destination and to accept the goods for delivery on satisfying their terms and conditions as stated above. But in this case the documents filed by the Complainant dated 21.9.2009 speaks that Tridev Exp Cargo lodged a G.D. entry to the police authority, Siliguri wherein it has been stated that a parcel weighing 6 kgs. under consignment note was picked up for delivery through their agency but it was lost in transit. It is pertinent to mention that the Complainant booked the said materials through the OP on 22.8.2009 and therefrom Tridev Exp Cargo took the same for delivery but during transit the consignment was lost. We have also observed that the police diary was lodged on 21.9.2009 whereas the alleged loss took place on 22.8.2009 and such diary was made after a lapse of one month and there is no explanation in the said diary to the extent why such delay was caused for lodging diary before the police station. Neither the OP nor the Courier concerned intimated the Complainant just after the incident about its loss. The learned Counsel for the Respondent has mentioned to the judgment passed by the Honble Supreme Court, reported in I (2000) CPJ 42 (SC), wherein it has been held that âit is the duty of the carrier to prove that proper care and safety of the materials were taken during transit. When the materials in question were entrusted to a carrier it is not necessary for the Complainant to establish negligence. In the case in hand the fact is that after lapse of one month by lodging a diary before the local police station the OP tried to avoid its liability that it has no liability to the loss as claimed by the Complainant. In another decision the Honble Supreme Court has held I (2000) CPJ 25 (SC), that âliability of a carrier to whom the goods are entrusted for carriages is that of an insurer and is absolute in terms in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants so the allegation of owners risk does not lie as because it has not been proved by sufficient evidence that all possible care and caution was taken by the carrier. In the instant case the above-mentioned judgment is fully applicable and so the question of insure or not does not arise when no specific care and cautions was taken by the OP and it has also not been proved by sufficient evidence. Along with the Forum below we are also of the view that all the conducts and the activities of the OP clearly prove that it has failed to take proper care and from their custody the goods have been lost due to their negligence.
7. Going by the foregoing discussion hence, it is ordered that the appeal fails and the judgment passed by the learned Forum below is hereby affirmed. As the learned Forum below has passed a very well reasoned judgment, we are not inclined to interfere with it and the same will remain unaltered. The office is directed to send down the LCR along with a copy of this judgment to the learned Forum below forthwith.