TMI Blog2000 (3) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... stored at a godown in Bhiwandi was completely destroyed by lire. Alter serving legal notice on the respondent and after considering its reply, the appellant filed a claim petition before the National Consumer Disputes Redressal Commission, New Delhi (for short, 'the National Commission'), for recovery of a sum of Rs. 36,12,874.60 along with interest at the rate of 18 per cent per annum besides costs. 2. The case was contested by the respondent who filed a written statement in which it was pleaded that the goods entrusted to them, were carried by them with due care and were stored in a godown at Bhiwandi on the instructions of a consignee, M/s. Jeena Co., who had indicated in their letter dated 14.3.1994 that since the shipment was to take place from C.'F.S. Kalamboli, the consignment may be unloaded at Bhiwandi. The respondent further pleaded that there was no negligence on their part nor was there any deficiency in service. It was stated that the fire had suddenly broken out in the adjacent warehouse from where it spread to the godown where the appellant's consignment was kept and, therefore, that consignment was also destroyed. The respondent also pleaded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were stored in the appellant's own warehouse. It is another matter that in the adjacent godown, highly combustible articles were stored which suddenly caught fire resulting in the loss of the appellant's goods. The outbreak of the fire was sudden and it could not be controlled in spite of the services of the fire-brigade which were requisitioned by the respondent who had duly informed the appellant not only of the fact that the goods were diverted at the instance of consignee but also that they were completely destroyed by fire in the adjacent godown which had unfortunately spread to the godown where the appellant's goods were stored. 5. Rights and liabilities of common carriers are indicated in the Carriers Act, 1865 (for short, the Act ). The Preamble of the Act provides as under: Whereas it is expedient not only to enable common carriers to limit their liability for loss of or damage to property delivered to them to be carried but also to declare their liability for loss of, or damage to, such property occasioned by the negligence or criminal acts of themselves, their servants or agents. 6. Section 3 of the Act provides that a common carrier would not be li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of a railroad or tram road constructed under the provisions of Act XXII of 1863 (to provide for taking land for works of public utility to be constructed by private persons or Companies, and for regulating the construction and use of works on land so taken) may, by special contract, signed by the owner of such property so delivered as last aforesaid or by some person duly authorised in that behalf by such owner, limit his liability in respect of the same. 8. Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent.-Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property (including container, pallet or similar article of transport used to consolidate goods) delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of Section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der similar circumstances, take of his own goods. It is contended that if that amount of care, which a person would have taken of his own goods, is not taken by the carrier, it would amount to deficiency in service and the carrier would be liable in damages to the owner for the goods bailed to him. 13. Before analysing the submissions made by learned Counsel for the appellant, we may reproduce the provisions of Section 151 152 of the Indian Contract Act, 1872, hereinbelow: 151. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. 152. The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, it' he has taken the amount of care of its described in Section 151. 14. These provisions, in effect, embody the English Common Law Rule as to the liability of bailee. Under the English Common Law Rule, the measure of care required of the person to whom the goods were bailed, was the same as a man of ordinary prudence w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the roadworthiness of the vehicle or the seaworthiness of the vessel, for if the goods are carried safely the condition of the vehicle or vessel is immaterial, and, if they are lost or damaged it is necessary to inquire how the loss or damage occurred; where however, a common carrier of goods is seeking relief from liability by reason of one of the excepted perils the condition of the vehicle or vessel is material in determining the question of negligence, and if the carrier fails to prove a sufficient and proper conveyance and loss or damage results therefrom he will be liable, it is unnecessary to inquire how the loss or damage occurred; where however, a common carrier of goods is seeking relief from liability by reason one of the excepted perils the condition of the vehicle or vessel is material in determining the question of negligence, and if the carrier fails to prove a sufficient and proper conveyance and loss or damage results therefrom he will be liable. 15. In the meantime, the Parliament intervened and the Carriers Act, 1865 was enacted with the result that the liability of a common carrier came to the considered in the light of the provisions contained in that Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce in this country, being almost unaffected by the provisions of the Indian Contract Act, Section 6 Carriers Act, to which I have referred earlier, enables the common carrier to limit his liability by a special contract; otherwise the liability which the common law imposes is there. Even the special, contract contemplated by Section 6 would be of no avail where the loss or damage has been caused by negligence or any criminal act on the part of the carrier or his agents or servants. Where the loss or damage arises from any criminal act of the carrier or any of his agents or servants, the common carrier shall be liable to the owner for the loss or damage, and Section 9 of the Act relieves the plaintiff from the burden of showing that the loss or damage or non-delivery was owing to any such negligence or criminal act. These sections, therefore, recognise the common law doctrine, save in so far as the liability is limited by same special contract, as provided by Section 6. Therefore, even if it were found that the defendants took as much care of the goods as a man of ordinary prudence would, under similar circumstances, the defendants would be liable if the loss was not occasioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 190 - And if a carrier be robbed by a hundred men, he is never the more excused. Thus the general principle of the common law is a common carrier is insurer of goods which he contracts to carry and he is liable for all loss of, or injury to those goods while they are in the course of transit unless such loss or injury is caused by the act of God or by the State enemies or is the consequence of inherent vice in the thing carried or is attributable to consignor's own fault. It was further held as under: The law is the same in India. The Carriers Act No. III of 1865 is framed on the same lines of the English Carriers Act of 1830. 20. The Bombay High Court in Nussainbhai Mulla Fida Hussain v. Motilal Nathulal and Anr. AIR 1963 Bom 208 , held that the liability of common carriers under the Common Law and the Carriers Act, 1865 is not affected by the provisions of the Contract Act and by law common carriers are liable as insurers of goods and they are responsible for any injury caused to the goods delivered to them, howsoever caused except only by act of God or action of alien enemies. The Court further held that no proof of negligence is, in such a case, needed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him, has been caused by his own negligence or criminal act or that of his agents or servants. In that situation, the carrier would be liable for the damage to or loss or non-delivery of goods. In this situation, if a suit is filed for recovery of damages, the burden of proof will not be on the owner or the plaintiff to show that the loss or damage was caused owing to the negligence or criminal act of the carrier as provided by Section 9. The carrier can escape his liability only if it is established that the loss or damage was due to an act of God or enemies of the State (or the enemies of the King, a phrase used by the Privy Council). The Calcutta decision in The British Foreign Marine Insurance Co. v. The Indian General Navigation Railway Co. Ltd., (Supra), the Assam decision in River Steam Navigation Co. Ltd. and Anr. v. Syam Sunder Tea Co. Ltd., (Supra), the Rajasthan decision in Vidya Ratan v. Kota Transport Co. Ltd., (Supra), the Kerala decision in Kerala Transport Co. v. Kunnath Textiles (Supra), which have already been referred to above, have considered the effect of special contract within the meaning of Sections 6 8 of the Carriers Act, 1865 and, in our opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be liable. 29. 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. In Burton v. English (1863) 12 QBD 218 and again in Wade v. Cocker line (1905) 10 CC 47, it was held that in spite of the goods having been booked at OWNER'S RISK , it would not absolve the carrier of its liability and it would be liable for the loss or damage to the goods during trans-shipment or carriage. These decisions granted absolute immunity to the carrier, but they have lost their efficacy on account of subsequent decisions in Sevens sons v. Cliffe S.S. Co. (1932) 1 KB 490, which was considered in Exercise Shipping Co. Ltd. v. Bay Maritime Lines Ltd. (The Fantasy) (1991) 2 LR 391 (Queen's Bench Division), in which it was observed as under: The question whether words such as at charterer's risk can operate as an exemption cause in favour of a party otherwise liable for negligence was decided by Mr. Justice Wright (as he then was) in Sevens sons Travaruaktiebalag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the space provided for the same. 33. The name of the consignee indicated therein is Messrs Jeena Co., Bombay. The address of the ultimate consignee is mentioned as : Scars Womcnswear Limited, 1 Garrick Road, Hendon, London NW9 6AU, U.K. . It is further indicated that the goods are to be loaded at Bombay. The nature of the goods indicated in the invoice is 100% Natural Silk Readymade Garments consisting of 3672 pieces of the value of GBP 48,470.40. The description of the goods indicated in the Consignment Note was Mulberry Raw Silk Garments (Natural Silk Readymade Garments) comprising 77 packages. 34. The contention of the learned Counsel for the respondent that since the goods were booked at OWNER'S RISK the respondent would not be liable for any loss to those goods, is not acceptable to the appellant who contends that before the liability of the carrier can be restricted, there has to be an agreement in writing as contemplated by Section 6 of the Act, which has to be signed by the owner of the goods, and since the Consignment Note, even if it is to be treated to be an agreement between the parties, is not signed by the owner or the appellant, there was no co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transportation provides: 1. The company (opposite party) carriages the goods at owners risk, unless a special Insurance of Rs. 0.80 for every hundred rupees of value declared by the vender, having been charged and paid. Payment of such insurance charges, if made, should be mentioned on the goods consignment note at the space provided for the same. 2. The Company (opposite party) shall not be responsible for any loss or damage due to theft, fire explosion or accident, unless the special insurance charges, as stated in Clause 1 above is charged and paid. An affidavit duly attested by Sukhbir Singh, the Booking Clerk of the opposite party, who had booked the goods of the complainant on behalf of the opposite party, is annexed as Annexure A-l. 37. It was then that the appellant in his rejoinder, raised the question that there was no agreement in writing between the parties so and, therefore, the liability of the carrier would not be restricted. The appellants pleaded in Paragraph 4, as under: That the submissions made in Para No. 4 of the preliminary objection are not correct. The term ONWER'S RISK has not been defined in the Carriers Act.As per Section 6 of the Carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere for carrying the same to Bombay and the representative of the opposite party issued consignment note in the factory of the complainant and at no stage the opposite party asked the complainant to get the consignment insured. The affidavit of Shri Puran Singh is submitted herewith as Annexure-J to the rejoinder. (Emphasis supplied) 38. In view of the above, there did arise a controversy between the parties whether there was any special agreement between them which would have the effect of restricting the liability of the respondent in carrying the goods in question to Bombay for delivery to Messrs Jeena Co. This question has not been answered in clear terms by the National Commission and a positive finding, whether or not there existed a special contract between the parties within the meaning of Section 6 of the Act, has not been recorded. The Commission, after considering various provisions of the Act came to the conclusion that even if the goods were carried at OWNER'S RISK , the carrier would not be fully absolved of his liability to pay compensation if the loss was occasioned on account of his negligence or the negligence of his servants and agents. The Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under your G.C. No. 52330 dt. 11.3.1994 Ex. Delhi to Bombay. In this connection we hereby advise you to unload the said consignment of 77 packages of the above party at Bhiwandi as the shipment of the same will take place at CFS, Kalamboli (Nhava Sheva Port). 42. The appellant disputed the genuineness of this letter and contended that it was a forged letter. It was contended that 14th March, 1994 was a public holiday at Bombay on account of Id-ul-Fitr and the offices of the banks including that of Messrs Jeena Co. were closed. It was also contended that Messrs Jeena Co. had addressed a fax message on 15th March, 1994 to the appellant complaining of non-receipt of the goods. It was contended that if the goods had arrived at Bombay and were diverted by Messrs Jeena Co. to Bhiwandi for being unloaded there, they would not have issued the fax message of 15th March, 1994 complaining of non-receipt of goods. It is also pointed out that in none of the communications earlier exchanged between the parties, respondent had indicated about the letter dated 14th March, 1994 of Messrs Jeena Co. by which they had instructed the respondent to divert the goods to Bhiwandi. It is also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expected to depart on any day immediately after 16th March, 1994. Annexure A-3 is the map of the Greater Bombay showing the location of the Mulund Check post of the Greater Bombay, where Octroi duty is collected by the Municipal Corporation on the entry of the goods, Bhiwandi on the outskirts of the Greater Bombay and the situation of the Bombay Docks and Nhava Sheva Port across the creek of Bombay. It is, therefore, not true that opposite party wrongly unloaded the consignment at Bhiwandi, outside the Bombay Octroi check post and hence it can easily be inferred from the facts as stated above, that storing of the goods at Bhiwandi instead of directly taking it to Bombay does not speak of any deficient and in-adequate service on the part of the opposite party. The opposite party will further like to add that complainant was bound to have complied with the requirement and provision of the Bombay Municipal Corporation Exemption from Octroi (Export) Promotion Rule 1976, copy of which is annexed as Annexure A-4, in respect of the articles imported into Greater Bombay for the purpose of export to foreign countries, as such registration as exporters with the Municipal Corporation of Great ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 14.3.1994 purported to have been issued by Jeena Co. (Annexure 2 to W.S.) relied upon by the opposite party to justify the change of destination of consignment from Bombay to Bhiwandi is totally false, collusive, an after thought, managed one and mischievous in view of earlier fax of dt. 15.3.1994 of Jeena Co. (Annexure K) in which they informed the complainant regarding 77 packages (Consignment in question) CARGO AWAITED Furthermore, the opposite party could not have informed Jeena Co. on 14.3.1994 and Jeena Co. could not have issued impugned letter dt. 14.3.1994 on that date itself as this day was a holiday under Negotiable Instruments Act on account of Id-ul-Fitur when undoubtedly Govt. Offices and Bank were closed in Bombay. To this effect a telex confirmation dt. 29.4.7995 issued by Indian Overseas Bank R.O. (Metro) Bombay to Indian Overseas Bank, Parliament Street, New Delhi (Bankers of the Complainant) is enclosed herewith as Annexure L Furthermore, the office of Jeena Co. itself was closed on 14.3.1994 as certified by them in the fax message dt. 22.4.1995 which is enclosed herewith as Annexure M. Furthermore, the opposite party had not taken any plea based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Paragraph 10(4) of the rejoinder as under: It is submitted that above facts clearly show that the story of giving information of arrival of goods at Bombay to Jeena Co. and receiving instructions from them to unload goods at Bhiwandi on 14.3.1994 is totally false and the opposite party stored the goods at Bhiwandi of their own volition. The implantation of letter dated 14.3.1994 is, therefore, only a crude attempt to justify their unauthorised action of storing goods at Bhiwandi. 47. In view of the above pleadings, a serious dispute had arisen between the parties as to the genuineness of the letter dated 14th March, 1994, said to have been written by Messrs Jeena Co. to the respondent to unload the goods at Bhiwandi instead of delivering the consignment at Bombay. 48. The National Commission did not advert itself to these questions and disposed of the whole matter observing inter alia, as under: Were destroyed around noon on 16.3.1994 because of a huge fire and explosion that occurred in the adjoining godown No. 7 belonging to Shri Rati Bhai were drums containing hazardous chemicals were stored. The fire spread to the Opposite Party's godown Nos. 5 and 6 as w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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