1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 126 OF 2009 Shiv Ganga Transport Private Limited, a company incorporated and registered under the Companies Act, 1956, having its corporate office at 318, Mahinder Chambers, 3rd floor, 619, 28, W.T.Patil Marg, Opp.Pepsi (Dukes Unit), Chembur, Mumbai400071 ...Petitioner. Vs. The President of India through the Commandant, Embarkation Headquarters 2nd Floor, Nav Bhavan Building, 10, R. Kamani Marg, Ballard Estate, Mumbai 400038 ...Respondent. Mr.Mannadiar i/by M/s.Mannadiar & Co. for the Petitioner. Mr. S. J. Shah for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 10th March, 2010. ORAL JUDGMENT:- 1 The petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Act) and thereby challenged the Award dated 19th May, 2008 whereby the Arbitrator has directed the petitioner to pay the entire loss of Rs.13,53,763/- with 8% interest with effect from 12.08.2006 till payment and also cost of Rs.25,000/- by 2 holding as under: “7 Award. After a passionate consideration of all issues mentioned above I have arrived at the conclusion that the said accident cannot be termed as an act of God or due to actions of the enemy of the Government of India and even though the contractor had taken adequate precautions with respect to the type of vehicle provided, loading and lashing of the equipment and speed of the vehicle during transit, but since the contractor was bound to deliver the consignment entrusted to him safely to the consignee vide para 19(a) of the Contract Deed, it is my considered view that entire loss of 13,53,763/- (Rupees thirteen lac fifty three thousand seven hundred sixty three only) be borne by the contractor with 8% per annum wef 12 Aug 2006 till payment. I also award Rs. 25,000/- (Rupees twenty five thousand only) against the contractor as costs of the arbitration proceedings.” 2 There is no dispute that there is an Arbitration clause between the parties. The parties proceeded accordingly and participated before the Arbitrator and led their respective evidence. 3 The basic facts are as under: 3 On 20.02.2004, pursuant to tender dated February 17, 2004 floated by the respondent, the petitioner entered into a contract for supply of transport for despatch of defence stores by road to various consignees. 4 On 19.05.2004, the petitioner called upon to furnish to respondent seven trailers having certain specifications. On 20.05.2004, the petitioner by letter pointed out to the respondent that trailer requisitioned was not fit for the kind of consignment to be transported and told to avoid transportation by the kind of trailer requisitioned. The petitioner also pointed out that if the goods were carried in the kind of trailer requisitioned then it would be at the risk and cost of the respondent. Despite the said letter, the respondent insisted on despatch of consignment by the trailer ordered. 5 On 21.05.2004, the trailer carrying consignment involved in accident. The consignment damaged. 6 On 8.10.2004, the respondent demands Rs.1,03,38,750/- as damages. On 18.10.2004, the petitioner protested the said claims and denied liability. 7 On 17.05.2005, a letter is written by the petitioner to refer the matter to the arbitration. 8 On 31.03.2008, the learned Arbitrator after considering the claim forwarded to the petitioner a copy of Award dated March 31, 2008. 4 9 On 28.04.2008, the Arbitrator amended the Award. 10 On 8.5.2008, the Arbitrator requested that the amendment note dated April 28, 2008 be treated as cancelled. 11 On 10.5.2008, the learned Arbitrator called for a fresh meeting in view of recommendation of reduction of claims not brought before the Arbitrator earlier. 12 On 19.05.2008 the Arbitrator proceeded to pass a fresh Award. 13 On 4.6.2008, the impugned Award received by the petitioner. 14 On 4.9.2008, the petitioner filed the petition for challenging the Award. 15 The relevant findings so arrived at are as under: “6 (d) Precaution Taken by the Contractor/Consignor with Regards to Type of Vehicle Provided and Loading of the Consignment. As per the evidence on record the consignment was loaded and lashed properly and cause of accident cannot be attributed to the same. The carrying capacity of the veh used was also higher than was demanded. Although the demand was placed for 20 T 40 trailer, however, a trailer of carrying capacity 25 T 40 was provided by the contractor. (e ) Cause of the Accident. The evidence on record confirms that the accident occurred due to material failure of 5 the fish wheel and/or the pin attaching the prime mover to the trailer resulting in the separation of the two causing overturning of the trailer and the Prime Mover. This was not due to any lapse or acts of negligence on the part of the personnel who carried out/supervised the loading and lashing of the consignment at Embarkation HQ. In the opinion of Col Saurabh Gupta then Comdt of the Embarkation HQ, the accident does not legally qualify as “an act of God” as the accident occurred due to material failure of a link between the trailer and the Prime Mover which cannot be detected by visual insp even by an expert. The accident was also not due to rash and negligent driving as per the evidence on record.” 16 The findings so given with regard to the cause of accident, based upon the evidence of the petitioner and appreciated by the Arbitrator and as recorded above shows that the accident occurred due to material failure of the fish wheel and/or the pin attaching the prime mover. It is opined that the prime mover which cannot be detected by visual inspection even by an expert. There is a clear finding that the accident was not due to rash and negligent driving. It is clear that the petitioner took all necessary precaution and care which is required for a carrier/transport to see that the goods/consignment should be delivered at appropriate place as agreed. 6 There is no contra-material on record. The accident occurred due to material failure of the fish wheel and/or the pin attaching the prime mover to the trailer resulting in the separation of th two causing overturning of the trailer and the Prime Mover. This also means that there was no lapse or acts of negligence on the part of the personnel who carried out/supervised the loading and lashing of the consignment after loading the vehicle with the trailer moved also. Merely because the accident so happened that itself cannot be the reason o hold that the petitioner/contractor is liable in the present facts and circumstances of the case, in spite of the above observation. 17 The Agreement itself provides and as recorded in clause (b), as under: “b ) Responsibility of the Contractor in the Event of Damage Caused to the Consignment During Transportation. The contractor, vide Para 12 (a) of the Contract Deed, has committed that the Officer operating the contract or his successor in office can recover from him/them as compensation such sums as he considers reasonable if any goods entrusted to him/them under the contract be lost, damaged or depreciated unless such loss, damage or depreciation was due to the act of God or the enemies of the Government.” 18 The “act of God” as defined by the Supreme Court in Divisional 7 Controller, KSRTC vs. Mahadeva Shetty & anr., (2003) 7 SCC 197 is reproduced as under: “9 The expression “act of God” signifies the operation of natural forces free from human intervention, such as lightning, storm etc. It may include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones, tidal waves and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. An act of God provides no excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence, having regard to the conditions of time and place known to be prevailing. For instance, where by experience of a number of years, preventive action can be taken, Lord Westbury; defined the act of God (damnum fatale in Scotch Laws) as an occurrence which no human foresight can provide against and of which human prudence is not bound to recognize the possibility. This appears to be the nearest approach to the true meaning of an act of God. Lord Blancaburgh spoke of it as “an irresistible and unsearchable providence nullifying our human effort”. 19 In P. K. Kalasami Nadar v. K. Ponnuswami Mudaliar & ors., AIR 1962 8 MADRAS 44, it is held as under : “.... Under the common law of England, there were two categories of bailees on whom the law imposed a greater responsibility, viz., common carriers and innkeepers. These were held liable for the safety of the goods entrusted to them in all events, except where the loss or injury to them was occasioned by an act of God, King’s enemies or from the fault of the consignor or due to the inherent defect in the goods (vide Indian Airlines Corporation v. Jothaji Maniram, ILR (1959) Mad 439 at p. 446 : (AIR 1959 Mad 285 at p. 288) ). 20 In M/s. Caravan Goods Carriers vs. M/s. Corborandum Universal Ltd., CDJ 2008 MHC 3252, it is held as under: “6 (c ) The next decision on which reliance was placed by the learned counsel for the appellant for the act of God is AIR 2002 RAJASTHAN 157 (State of Rajasthan vs. Mehta Transport Company and others), wherein the damage to the consignment occurred due to an accident which resulted due to burst of a type of the vehicle. The Court held that no negligence can be foisted on the driver for the accident which occurred due to busting of the tyre of the vehicle. The relevant observation in the said judgment runs as follows: “A common carrier is responsible for safety of goods except 9 when loss is caused by an act of God. If the carrier wants exoneration from the liability he has to prove that he had taken such care which under the circumstances of the case, was reasonably and practically possible to ensure the safety of the goods.” 21 In view of the above and as there is no material and/or evidence on record to show that the petitioner’s acted negligently and/or undue care or without due diligence as required and as agreed and bound by the contract. On the contrary, there is a clear finding in favour of the petitioner as noted above. 22 The cause of the accident in the present case, in my view, if not the cause of negligence and/or inaction and it happened, in the above circumstances, inspite of due diligence and care taken by the petitioner, that itself is quite akin to the concept for the act of God. In view of uncontrolled circumstances and inspite of due diligence and care as done in the present case and if accident happened, which was never thought of at the time of loading the consignment and at any further stage. Merely because the trailer was of no capacity i.e. 25 T 40 was provided instead of 20 T 40, that itself, cannot be the reason to hold the contractor liable for the damages so ordered. 23 In view of the above, the case is made out by the petitioner. The 10 view so expressed by the learned Arbitrator is not within the frame work of law. It is not the question of appreciation of the evidence and/or the material placed on record. Neither it is a question of giving of particular opinion, based upon any clause of the Agreement. Having once observed the cause of accident as recorded, but still awarded damages against the petitioner, in my view, is incorrect and basically considering the concept of “act of God” as defined and expressed by the Supreme Court and the High Courts. Therefore, the Award so passed is bad, illegal and liable to be quashed and set aside. 24 Resultantly, the Petition is allowed. The Award dated 19th May, 2008 is quashed and set aside. No costs. (ANOOP V. MOHTA, J.)