{"id":65615,"date":"2010-03-10T00:00:00","date_gmt":"2010-03-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dukes-unit-vs-the-president-of-india-through-the-on-10-march-2010"},"modified":"2016-02-23T13:33:25","modified_gmt":"2016-02-23T08:03:25","slug":"dukes-unit-vs-the-president-of-india-through-the-on-10-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dukes-unit-vs-the-president-of-india-through-the-on-10-march-2010","title":{"rendered":"Dukes Unit vs The President Of India Through The on 10 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dukes Unit vs The President Of India Through The on 10 March, 2010<\/div>\n
Bench: Anoop V.Mohta<\/div>\n
                                                1\n\n                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                     ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                                      \n                     ARBITRATION PETITION NO. 126 OF 2009     \n\n\n\n\n                                                              \n    Shiv Ganga Transport Private Limited,\n    a company incorporated and registered\n\n\n\n\n                                                             \n    under the Companies Act, 1956, having\n    its corporate office at 318, Mahinder Chambers,\n    3rd floor, 619, 28, W.T.Patil Marg, Opp.Pepsi\n\n\n\n\n                                                   \n    (Dukes Unit), Chembur, Mumbai400071                                ...Petitioner.\n                  Vs.          \n    The President of India through the\n    Commandant, Embarkation Headquarters \n                              \n    2nd Floor, Nav Bhavan Building, 10, \n    R. Kamani Marg, Ballard Estate,\n    Mumbai 400038                                                      ...Respondent.\n          \n       \n\n\n\n    Mr.Mannadiar i\/by M\/s.Mannadiar & Co. for the Petitioner.\n    Mr. S. J. Shah for the Respondent.\n\n\n\n\n\n                                 CORAM :- ANOOP V. MOHTA, J.\n<\/pre>\n
                                 DATED  :-    10th March, 2010.\n    ORAL JUDGMENT:-\n\n\n\n\n\n    1      The   petitioner   has   invoked   Section   34   of   the   Arbitration   and \n\n<\/pre>\n
    Conciliation   Act,   1996   (for   short,   the   Act)   and   thereby   challenged   the <\/p>\n
    Award   dated   19th   May,   2008   whereby   the   Arbitrator   has   directed   the <\/p>\n
    petitioner to pay the entire loss of Rs.13,53,763\/- with 8% interest with <\/p>\n
    effect   from   12.08.2006   till   payment     and   also   cost   of   Rs.25,000\/-   by <\/p>\n
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\n                                                  2<\/span><\/p>\n
    holding as under:\n<\/p>\n
                  “7      Award.          After a passionate consideration of all <\/p>\n
           issues mentioned above I have arrived at the conclusion that <\/p>\n
           the said accident cannot be termed as an act of God or due to <\/p>\n
           actions   of   the   enemy   of   the   Government   of   India   and   even <\/p>\n
           though   the   contractor   had   taken   adequate   precautions   with <\/p>\n
           respect to the type of vehicle provided, loading and lashing of <\/p>\n
           the   equipment   and   speed   of   the   vehicle   during   transit,   but <\/p>\n
           since   the   contractor   was   bound   to   deliver   the   consignment <\/p>\n
           entrusted to him safely to the consignee vide para 19(a) of the <\/p>\n
           Contract   Deed,   it   is   my   considered   view   that   entire   loss   of <\/p>\n
           13,53,763\/-   (Rupees   thirteen   lac   fifty   three   thousand   seven <\/p>\n
           hundred sixty three only) be borne by the contractor with 8% <\/p>\n
           per annum wef 12 Aug 2006 till payment.   I also award Rs.\n<\/p><\/blockquote>\n
           25,000\/-   (Rupees   twenty   five   thousand   only)   against   the <\/p>\n
           contractor as costs of the arbitration proceedings.”\n<\/p><\/blockquote>\n
    2      There is no dispute that there is an Arbitration clause between the <\/p>\n
    parties.     The   parties   proceeded   accordingly   and   participated   before   the <\/p>\n
    Arbitrator and led their respective evidence.\n<\/p>\n
    3      The basic facts are as under:\n<\/p>\n
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\n                                                    3<\/span><\/p>\n
           On 20.02.2004, pursuant to tender dated February 17, 2004 floated <\/p>\n
    by   the   respondent,   the   petitioner   entered   into   a   contract   for   supply   of <\/p>\n
    transport for despatch of defence stores by road to various consignees.\n<\/p>\n
    4      On 19.05.2004, the petitioner called upon to furnish to respondent <\/p>\n
    seven trailers having certain specifications.  On 20.05.2004, the petitioner <\/p>\n
    by letter pointed out to the respondent that trailer requisitioned was not fit <\/p>\n
    for   the   kind   of   consignment   to   be   transported   and   told   to   avoid <\/p>\n
    transportation   by   the   kind   of   trailer   requisitioned.     The   petitioner   also <\/p>\n
    pointed   out   that   if   the   goods   were   carried   in   the   kind   of   trailer <\/p>\n
    requisitioned   then   it   would   be   at   the   risk     and   cost   of   the   respondent.\n<\/p>\n
    Despite the said letter, the respondent insisted on despatch of consignment <\/p>\n
    by the trailer ordered.\n<\/p>\n
    5      On   21.05.2004,   the   trailer   carrying   consignment   involved   in <\/p>\n
    accident.  The consignment damaged.\n<\/p>\n
    6      On   8.10.2004,   the   respondent   demands   Rs.1,03,38,750\/-   as <\/p>\n
    damages.     On 18.10.2004, the petitioner protested the said claims and <\/p>\n
    denied liability.\n<\/p>\n
    7      On   17.05.2005,     a   letter   is   written   by   the   petitioner   to   refer   the <\/p>\n
    matter to the arbitration.\n<\/p>\n
    8      On   31.03.2008,   the   learned   Arbitrator   after   considering   the   claim <\/p>\n
    forwarded to the petitioner a copy of Award dated March 31, 2008.\n<\/p>\n
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\n                                                 4<\/span><\/p>\n
    9      On 28.04.2008, the Arbitrator amended the Award.\n<\/p>\n
    10     On   8.5.2008,   the   Arbitrator   requested   that   the   amendment   note <\/p>\n
    dated April 28, 2008 be treated as cancelled.\n<\/p>\n
    11     On 10.5.2008, the learned Arbitrator called for a fresh meeting in <\/p>\n
    view   of   recommendation   of   reduction   of   claims   not   brought   before   the <\/p>\n
    Arbitrator earlier.\n<\/p>\n
    12     On 19.05.2008 the Arbitrator proceeded to pass a fresh Award.\n<\/p>\n
    13<\/span><\/p>\n
           On 4.6.2008,  the impugned Award  received by the petitioner.\n<\/p>\n
    14     On   4.9.2008,   the   petitioner   filed   the   petition   for   challenging   the <\/p>\n
    Award.\n<\/p>\n
    15     The relevant findings  so arrived at are as under:\n<\/p>\n
                  “6 (d)  Precaution   Taken   by   the   Contractor\/Consignor <\/p>\n
           with Regards to Type of Vehicle Provided and Loading of the <\/p>\n
           Consignment.   As per the evidence on record the consignment <\/p>\n
           was loaded and lashed properly and cause of accident cannot <\/p>\n
           be attributed   to the same.   The carrying capacity of the veh <\/p>\n
           used   was   also   higher   than   was   demanded.     Although   the <\/p>\n
           demand was  placed for 20 T 40 trailer, however, a trailer of <\/p>\n
           carrying capacity 25 T 40 was provided by the contractor.\n<\/p><\/blockquote>\n
                  (e )     Cause of the Accident.         The   evidence   on   record <\/p>\n
           confirms that the accident occurred due to material failure of <\/p>\n
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\n                                                  5<\/span><\/p>\n
          the fish wheel and\/or the pin attaching the prime mover to the <\/p>\n
          trailer   resulting   in   the   separation   of   the   two   causing <\/p>\n
          overturning of the trailer and the Prime Mover.   This was not <\/p>\n
          due   to   any   lapse   or   acts   of   negligence   on   the   part   of   the <\/p>\n
          personnel who carried out\/supervised the loading and lashing <\/p>\n
          of the consignment at Embarkation HQ.  In the opinion of Col <\/p>\n
          Saurabh   Gupta   then   Comdt   of   the   Embarkation   HQ,   the <\/p>\n
          accident   does   not   legally   qualify   as   “an   act   of   God”   as   the <\/p>\n
          accident occurred due to material failure of a link between the <\/p>\n
          trailer and the Prime Mover which cannot be detected by visual <\/p>\n
          insp even by an expert.  The accident was also not due to rash <\/p>\n
          and negligent driving as per the evidence on record.”\n<\/p><\/blockquote>\n
    16     The findings so given  with regard to the cause of accident, based <\/p>\n
    upon the evidence of the petitioner and appreciated by the Arbitrator and <\/p>\n
    as recorded  above shows that the accident occurred due to material failure <\/p>\n
    of the fish wheel and\/or the pin attaching the prime mover.   It is opined <\/p>\n
    that   the prime mover which cannot be detected by visual inspection even <\/p>\n
    by an expert.  There is a clear finding that the accident  was   not   due   to <\/p>\n
    rash and negligent driving.  It is clear that the petitioner took all necessary <\/p>\n
    precaution and care which is required for a carrier\/transport to see that the <\/p>\n
    goods\/consignment   should   be   delivered   at   appropriate   place   as   agreed.\n<\/p>\n
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\n                                                  6<\/span><\/p>\n
    There   is   no   contra-material   on   record.     The   accident   occurred   due   to <\/p>\n
    material failure of the fish wheel and\/or the pin attaching the prime mover <\/p>\n
    to the trailer resulting in the separation of th two causing overturning of <\/p>\n
    the trailer and the Prime Mover.  This also means that there was no lapse or <\/p>\n
    acts of negligence on the part of the personnel who carried out\/supervised <\/p>\n
    the loading and lashing of the consignment  after loading the vehicle with <\/p>\n
    the trailer moved also.  Merely because the accident so happened that itself <\/p>\n
    cannot be the reason o hold that the petitioner\/contractor is liable in the <\/p>\n
    present   facts   and   circumstances   of   the   case,   in   spite   of   the   above <\/p>\n
    observation.\n<\/p>\n
    17     The   Agreement   itself   provides   and   as   recorded   in   clause   (b),   as <\/p>\n
    under:\n<\/p>\n
                   “b )   Responsibility   of   the   Contractor   in   the   Event   of <\/p>\n
           Damage   Caused   to   the   Consignment   During   Transportation.\n<\/p><\/blockquote>\n
           The   contractor,   vide   Para   12   (a)   of   the   Contract   Deed,   has <\/p>\n
           committed   that   the   Officer   operating   the   contract   or   his <\/p>\n
           successor in office can recover from him\/them as compensation <\/p>\n
           such sums as he considers reasonable if any goods entrusted to <\/p>\n
           him\/them under the contract be lost, damaged or depreciated <\/p>\n
           unless such loss, damage or depreciation was due to the act of <\/p>\n
           God or the enemies of the Government.”\n<\/p><\/blockquote>\n
    18     The   “act   of   God”   as   defined   by  the   Supreme   Court   in    Divisional <\/p>\n
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\n                                                 7<\/span><\/p>\n
    Controller,   KSRTC   vs.   Mahadeva   Shetty   &<\/a>   anr.,  (2003)   7   SCC   197  is <\/p>\n
    reproduced as under:\n<\/p>\n
                  “9      The expression “act of God” signifies the operation <\/p>\n
           of   natural   forces   free   from   human   intervention,   such   as <\/p>\n
           lightning,   storm   etc.     It   may   include   such   unexpected <\/p>\n
           occurrences of nature as severe gale, snowstorms, hurricanes, <\/p>\n
           cyclones, tidal waves and the like.   But every unexpected wind <\/p>\n
           and storm does not operate as an excuse from liability, if there <\/p>\n
           is a reasonable possibility of anticipating their happening.  An <\/p>\n
           act of God provides no excuse unless it is so unexpected that <\/p>\n
           no   reasonable   human   foresight   could   be   presumed   to <\/p>\n
           anticipate the occurrence, having regard to the conditions of <\/p>\n
           time and place known to be prevailing.  For instance, where by <\/p>\n
           experience   of   a   number   of   years,   preventive   action   can   be <\/p>\n
           taken, Lord Westbury; defined the act of God (damnum fatale <\/p>\n
           in Scotch Laws) as an occurrence which no human foresight <\/p>\n
           can   provide   against   and   of   which   human   prudence   is   not <\/p>\n
           bound   to   recognize   the   possibility.   This   appears   to   be   the <\/p>\n
           nearest approach to the true meaning of an act of God.  Lord <\/p>\n
           Blancaburgh  spoke  of   it  as   “an   irresistible   and  unsearchable <\/p>\n
           providence nullifying our human effort”.\n<\/p><\/blockquote>\n
    19     In P. K. Kalasami Nadar v. K. Ponnuswami Mudaliar & ors.<\/a>, AIR 1962 <\/p>\n
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\n                                                8<\/span><\/p>\n
    MADRAS 44,  it is held as under :\n<\/p>\n
                 “…. Under the common law of England, there were two <\/p>\n
         categories   of   bailees   on   whom   the   law   imposed   a   greater <\/p>\n
         responsibility,   viz.,   common   carriers   and   innkeepers.     These <\/p>\n
         were held liable for the safety of the goods entrusted to them in <\/p>\n
         all   events,   except   where   the   loss   or   injury   to   them   was <\/p>\n
         occasioned by an act of God, King’s enemies or from the fault of <\/p>\n
         the consignor or due to the inherent defect in the goods (vide <\/p>\n
         Indian   Airlines   Corporation   v.   Jothaji   Maniram,   ILR   (1959) <\/p>\n
         Mad 439 at p. 446 : (AIR 1959 Mad 285 at p. 288) ).\n<\/p><\/blockquote>\n
    20    In  M\/s.   Caravan   Goods   Carriers   vs.   M\/s.   Corborandum   Universal <\/p>\n
    Ltd.,  CDJ 2008 MHC 3252, it is held as under:\n<\/p>\n
                 “6 (c )        The   next   decision   on   which   reliance   was <\/p>\n
          placed by the learned counsel for the appellant for the act of <\/p>\n
          God   is   AIR   2002   RAJASTHAN   157   (State   of   Rajasthan   vs. <\/p>\n
          Mehta Transport Company  and others<\/a>), wherein the damage to <\/p>\n
          the consignment occurred due  to an accident which resulted <\/p>\n
          due to burst of a type of the vehicle.   The Court held that no <\/p>\n
          negligence can be foisted on the driver for the accident which <\/p>\n
          occurred due to busting of the tyre of the vehicle.  The relevant <\/p>\n
          observation in the said judgment runs as  follows:\n<\/p>\n
          “A   common   carrier   is   responsible   for   safety   of   goods   except <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:41:48 :::<\/span>
\n                                                     9<\/span><\/p>\n
            when   loss   is   caused   by  an   act   of   God.     If   the   carrier   wants <\/p>\n
            exoneration from the liability he has to prove that he had taken <\/p>\n
            such   care   which   under   the   circumstances   of   the   case,   was <\/p>\n
            reasonably and practically possible to ensure the safety of the <\/p>\n
            goods.”\n<\/p>\n
    21     In view of the above and as there is no material and\/or evidence on <\/p>\n
    record to show that the petitioner’s acted  negligently and\/or undue care or <\/p>\n
    without due diligence as required and as agreed and bound by the contract.\n<\/p>\n
    On the contrary, there is a clear finding in favour of the petitioner as noted <\/p>\n
    above.\n<\/p>\n
    22     The cause of the accident in the present case, in my view, if not the <\/p>\n
    cause   of   negligence   and\/or   inaction   and   it   happened,   in   the   above <\/p>\n
    circumstances, inspite of due diligence and care taken by the  petitioner, <\/p>\n
    that  itself   is   quite  akin  to  the   concept  for  the   act  of   God.      In   view  of <\/p>\n
    uncontrolled circumstances and  inspite of due diligence and care  as done <\/p>\n
    in the present case and if accident happened, which was never thought of <\/p>\n
    at the time of loading the consignment and at any further stage.   Merely <\/p>\n
    because the trailer was of no capacity i.e.  25 T 40  was provided instead of <\/p>\n
    20 T 40, that itself,  cannot be the reason to hold the contractor liable for <\/p>\n
    the damages so ordered.\n<\/p>\n
    23     In view of the above, the case is made out by the petitioner.   The <\/p>\n
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\n                                                   10<\/span><\/p>\n
    view so expressed by the learned Arbitrator is not within the frame work of <\/p>\n
    law.     It   is   not   the   question   of   appreciation   of   the   evidence   and\/or   the <\/p>\n
    material placed on record.   Neither it is a question of giving of particular <\/p>\n
    opinion, based upon any clause of the Agreement.  Having once observed <\/p>\n
    the cause of accident as recorded, but still awarded damages against the <\/p>\n
    petitioner, in my view, is incorrect and basically  considering the concept of <\/p>\n
    “act of God” as defined and expressed by the Supreme Court and the High <\/p>\n
    Courts.       Therefore, the Award so passed is bad, illegal and liable to be <\/p>\n
    quashed and set aside.\n<\/p>\n
    24     Resultantly, the Petition is allowed.  The Award dated 19th May, 2008 <\/p>\n
    is quashed and set aside.   No costs.\n<\/p>\n
                                                           (ANOOP V. MOHTA, J.)<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 15:41:48 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Dukes Unit vs The President Of India Through The on 10 March, 2010 Bench: Anoop V.Mohta 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-65615","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDukes Unit vs The President Of India Through The on 10 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dukes-unit-vs-the-president-of-india-through-the-on-10-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dukes Unit vs The President Of India Through The on 10 March, 2010 - 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