M/S. Transport Corporation Of India Ltd vs M/S. Veljan Hydrair Ltd

2. The appellant is a 'common carrier' as defined in the Carriers Act, 1865 ('Act' for short). The respondent entrusted a consignment (an Hydraulic Cylinder) measuring 2700 kg, covered by sale invoice dated 30.4.1996 to the Appellant for transportation from Patancheru to Bharuch, the consignee being "self." The Appellant issued Consignment Note/Lorry Receipt dated 10.5.1996 to the Respondent in that behalf, wherein the declared value of the consignment was shown as Rs.583440/=. As M/s Prakash Industries Ltd., Bharuch, the customer for whom the consignment was intended was not in a position to clear the consignment, the Respondent, by letter dated 8.11.1996 instructed appellant's Patancheru Branch to re- book the consignment from Bharuch to Patancheru. For this purpose, the respondent enclosed the original (consignee's copy) of the lorry receipt as also its invoice dated 30.4.1996, with the letter dated 8.11.1996. The respondent assured that they will clear all dues including up and down freight charges at appellant's Patancheru office. In view of it, the appellant's Patancheru Branch instructed its Baruach Branch by letter dated 14.11.1996 to rebook the consignment and endorsed a copy of the said communication to the Respondent. The appellant sent a letter dated 22.11.1996 instructing the respondent to send the consignee copy with all freight and demurrage charges by a Demand Draft to the Bharuch office to enable the Bharuch office to re-book the consignment to Patancheru. The Respondent approached the appellant's Patancheru office several times and explained that it had already furnished the consignee copy and that it had also assured that payment will be made at Patancheru, and therefore, the consignment should be re-booked. Finally the Appellant's Patancheru office informed Respondent that the consignment was re-booked vide LR No. 21401 dated 22.1.1997 from Bharuch to Patancheru. As there was no information about the arrival of goods at Patancheru, inspite of constant follow up, the respondent sent letters dated 8.8.1998, 13.10.1998, 7.11.1998 and 8.12.1998 to the appellant, calling upon it to locate the consignment and deliver it, making it clear that if the consignment was not delivered, it will claim Rs.5,83,440/- being the cost of the consignment. Respondent also stated that it will not pay any charges for the consignment. The appellant sent a reply dated 15.12.1998 stating that "the matter is under process to locate the goods" and requested the respondent to "bear" with it for some more time to enable it to revert back with reference to the status of the matter. This was followed by letter dated 21.6.1999 wherein the appellant assured the respondent that "the matter is under inquiry" and that the status of the consignment will be confirmed within a short while. By another letter dated 3.7.1999, the appellant informed that "the process of locating the goods is going on" and requested the respondent to furnish another copy of the invoice as also the sketch of the machine. The respondent's Senior Officer, Marketing, (Sri Sriramamurthy) visited the appellant's office and furnished them. Even thereafter, the consignment was not delivered. Therefore, after serving a notice dated 27.10.2000, through counsel, demanding payment, the respondent filed a complaint before the District Forum on 5.7.2001, alleging that the non-delivery of consignment amounted to deficiency of service and therefore, the appellant was liable to pay Rs.5,83,440, being the cost of consignment with interest at the rate of 24% per annum from 8.11.1996 as damages for deficiency of service. Subsequently, as the District Forum did not have pecuniary jurisdiction, return of the complaint was obtained and re- presented before the State Commission on 17.8.2001.

3. The appellant did not dispute the factual position alleged by the Respondent. It resisted the claim on the following three grounds :

4. The State Commission, allowed the complaint by order dated 14.6.2004. It held that the failure of appellant to deliver the consignment amounted to deficiency of service. The State Commission also held that having lost the consignment and failed to deliver the same, the Appellant could not put forth non-payment of freight, as a ground to avoid liability. The State Commission noted that the only question that arose for its consideration on the contentions urged was whether there was deficiency of service or not. The State Commission did not go into the other two questions relating to limitation and want of notice under section 10 apparently as the said contentions were not specifically urged at the time of arguments. The State Commission directed the appellant to pay the value of the consignment, (Rs.5,83,440/-) less the freight charges, with interest at the rate of 9% per annum from the date of booking, and costs of Rs.2000/-.

5. The appeal filed by the appellant against the order dated 14.6.2004 of the State Commission, was dismissed by the National Commission by a brief order dated 11.8.2004. It found no substance in the appeal, as hiring (for transportation of the goods) was covered by CP Act, and the appellant as carrier, did not deliver the consignment. In this appeal against the order of the National Commission, the appellant reiterated its contentions and also made a grievance that the State Commission and National Commission had failed to consider its contentions relating to maintainability and limitation, inspite of those contentions being specifically raised. On the contentions urged, the following three points arise for our consideration in this appeal :

Re : Point (ii) :

Re : Point No. (iii)

Conclusion :

14. The State Commission ought to have awarded the entire cost of the consignment. It committed an error in deducting the freight charges from the amount payable to the respondent. There was no liability to pay the freight charges where the consignment is lost or where there is non-delivery. Be that as it may. As there was no appeal by the Respondent on this issue, there is no question of increasing the amount awarded.

15. As all the three contentions are rejected, and as we find no infirmity in the order of the State Commission, as affirmed by the National Commission, the appeal is dismissed with costs of Rs.5000/- payable to the Respondent.