ORDER
C.L. Chaudhry, J. (Member)
1. M/s. Swastick Conductors, the first Respondent in this case, was the Complainant before the State Commissioner and M/s. Rohit Roadlines (hereinafter referred to as ‘carrier’) was the Opposite Party in the complaint. The Complainant filed a complaint against the carrier for recovery of Rs.8,43,140/- on the allegations that the Complainant was manufacturing electric conductors and for that they required alluminium conductor ingots and aluminium conductor rods which they had purchased from M/s. NALCO situated in the State of Orissa. The goods were purchased under the letter of credit. 20 MT C.G.grade of aluminium rods were sent in two consignments – one was measuring 9.837 mt. which was despatched by G.R. No.91668 and the other was weighing 10.078 mt. sent through G.R. No.91665 through the carrier. Both the consignments were sent on 26.8.97 the Complainant received 10.078 mt. of goods sent through G.R. No.91665 but the other consignment of 9.837 mt. sent through G.R. No. 91668 through the carrier was not delivered. They had already paid its value of Rs.8,14,000/- to the NALCO. The complaint was filed against the carrier and the NCLCO for recovery of the amount.
2. The case pleaded by the carrier before the State Commissioner was that the goods were delivered to them from Angul (Orissa) for carriage and safe delivery to Jaipur and it was also admitted that 9.837 mt. aluminium rods sent through G.R. No.91668 on 26.8.97 were not delivered to the Complainant. According to them, there had been no negligence or callousness on their part in non-delivery of the consignment. The case set up by them was that the consignment was given to M/s. Rajasthan Transport Freight Movers, a transport company of Agul who was the agent of the carrier with the clear instructions that the goods were to be delivered to the Complainant. The truck was owned by M/s. Swastic Tyre Company. The truck after its start from Angul, Orissa on 27th August, 1997 had reached Maneshwar at 9.00 a.m., then it reached Sambalpur at 2.00 p.m. on the same day and on 1.9.1997 it reached Raipur. From there, a telephone was received from the truck driver that on account of over loading the truck had been seized and they would start in the evening. The truck owner gave information to the Police Station, Gumapura that the truck had been hijacked or it was not traceable. It was pleaded that in hijacking of the truck, the transport company could not be held guilty of callousness. Therefore, the claim deserves to be rejected.
3. The parties placed material on the record of the State Commission in support of their respective contentions. The State Commissioner relying upon the judgment of the Supreme Court decided in the case of Patel Roadways Vs. Birla Yamaha Ltd. JT 2000 (3) SC 618 wherein it was observed as under:
“From the provisions of the Consumer Protection Act the position is clear that the consumer disputes redressal agencies, are vested with powers of adjudication of all types of consumer disputes. No exception is made in case of consumer disputes in which the allegations made in the complaint regarding deficiency of service causing damage to or loss of the goods are contested. It is difficult to accept the contention that the dispute redressal agencies provided in the Consumer Protection Act are not forums which have jurisdiction to entertain the complaints in which claims for loss or damage to goods entrusted to a carrier for transportation is seriously disputed” In paras 31 and 47 it was held as under:
“The liability of a carrier in India is more extensive and the liability is that of an insurer. The absolute liability of the carrier is subject to two exceptions: and act of God and special contract which the carrier may choose to enter with the consumer. In Section 9, it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for plaintiff to establish negligence. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time an have been crystalized into accepted position of law”.
and the other judgment of the Supreme Court in the case of Nath Bros. Exim International Ltd. Vs. Best Roadways Ltd. JT 2000(3) SC 433, wherein it was held:
“The liability of the carrier whom the goods are entrusted for carriage 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 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 agents and servants”.
returned the findings that there was a deficiency in service on the part of the carrier and the carrier was directed to pay Rs.8,14,000/- with interest at the rate of 12% pa. From 1.1.90.
4. We have heard Mr. S.M.Suri, learned Counsel for the Appellant in support of his appeal. The first contention raised was that there was a special contract as envisaged under Section 6 of the Carriers Act. In view of the special contract, the carrier was not liable for any amount. In support of his contention, he relied upon the terms and conditions of letter of credit issued on behalf of the Complainant in favour of the National Small Industrial Corporation Ltd., Jaipur. We are afraid, the contention is devoid of any merit. Section 6 of the Carriers Act provides that there should be special contract between the carrier and the consignor. No such contract, as provided under Section 6, has been brought to our notice. In view of this, the contention raised is repelled. The other contention raised by Mr. Suri was that the goods were carried on owner’s risk, and, therefore, the carrier was not responsible for the loss of the goods. This contention also has no force in view of the decision of the Supreme Court in the case of Nath Bros. Exim International Ltd. Vs. Best Roadways Ltd. JT 2000(3) SC 433, wherein the Supreme Court made the following observations regarding the words “owner’s risk”:
“It is understood in the sense that the carrier would not be liable for damage or loss to he goods if it were not caused on account of carrier’s own negligence or the negligence of its servants and agents. The expression “at owner’s risk” does not exempt a carrier from his own negligence or the negligence of hi servants or agents”.
5. In this respect, the State Commission recorded the following findings:
It is, therefore, clear that even if the goods have been sent at owner’s risk the carrier is liable, if the loss or damage has not been caused on account of the carelessness or negligence of the consignee, if the loss has been caused on account of the carrier’s own negligence’ or negligence of its servants and agents then the expression ‘owner’s risk does not absolve him from his liability when the loss of consignment is the result of his own negligence or negligence of his servants or agents. Thus, by this judgment, not only the responsibility of the carrier has been decided for loss of the goods entrusted to it for transport but it has also decided the point that even if the goods are sent at ‘owner’s risk’ then too the carrier is not absolved of his liability for the loss that has been caused on account of the carriers own negligence or the negligence of its servants and agents”.
6. We see no legal flaw in the findings recorded by the State Commission. As a result, we see no force in this appeal and it is dismissed with no order as to costs.