A.A. Halbe, President
1. Complainant Salco Extrusions Private Limited have preferred claim of Rs. 18,77,859/- comprising Rs. 7,67,226/-. cost of goods/materiallostin transit, Rs. 1,00,000/- towards profit had the goods received in time, Rs. 2,20,133/- being interest payable, Rs. 90,500/- being expenses incurred by complainant to acquire information regarding incident of dacoity and Rs. 7,00,000/- for damages and compensation for mental agony to the Chairman and other Directors and Senior Officers of the said Salco Extrusions Private Limited.
2. The few undisputed facts can be catalogued as follows. The complainant is private limited company engaged in manufacture of aluminium extrusions. Th
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e complainant engaged services of opposite party for transport of aluminium ingots from Madras Aluminium Company Limited to its factory at Tarapur. 10 M.T. of Aluminium ingots were ordered by complainant from Madras Aluminium Company Ltd. to Tarapur, lorry receipt No. 5033652 dated 25.9.1996 was issued by transporter in favour of the complainant. Motor Truck No. MH 11/A 5438 was engaged for the said purpose. Said consignment was loaded and the truck arrived upto Wada on 29.9.1996. When it was 7-8 kms. away from Bhivandi on Bhivandi Wada road at about 10.30 p.m. dacoits attacked the said truck, driver and cleaner and they were asked to leave the truck under the threat of violance and thereafter dacoits drove away the truck along with ingots. Neither the aluminium ingots nor the truck were traced by police. Complainant has contended that for this loss, opposite party is responsible. Reliance is placed on Clause 11 of consignment note. As indicated aluminium ingots worth Rs. 7,67,226/- were lost during this transit and complainants have claimed this amount alongwith amounts under other heads.
3. This has been resisted by Transport Company. They have denied all the allegations but on the other hand contended that in the night of 29.9.1996 this lorry was attacked by dacoits and goods and truck were stolen and removed by dacoits after driver and cleaner were made to get down and go away from truck. It is also contended that goods were transported for commercial purpose and that the Redressal Forum has no right to enter into the merits of the claim. It is also contended that u/Sec. 9 of Carrier Act where no negligence is established no claim can be sustained against the transporter.
4. Now this controversy requires us to interpret clauses of consignment note. Complainant has relied on Clause 11 which reads as follows : "Where the goods have been lost, damaged, destroyed or have deteriorated, the compensation payable by the transport operator shall not exceed the value declared." Now here complainant Company has contended that this clause enables the complainant to ask for price of the goods that were lost during transit. However, learned Advocate for the Transporter has drawn our attention to Clause 9 of the said note. Clause 9 is as follows: "Notwithstanding any statement in the lorry-receipt or any circumstances surrounding the issue of this lorry receipt the transport operator shall at all times observe its obligations to the consignee Bank named in this lorry receipt and shall be responsible for the sale and due delivery and for any loss or damage to the goods or consignment that has arisen as a result of negligence, default, failure to take responsible precautions mala fides or criminal or fraudulent action of the transport operator or and of its managers, agents, employees, partners, directors or business associates or branches etc." Now in this regard our attention is drawn to the letter written by complainant dated 5.10.1996 which speaks of dacoity that took place between Bhivandi and Wada. Opposite party by its letter dated 11.10.1996 informed the complainant that police complaint was filed. Further on 9.10.1996 opposite party informed the complainant that goods were carried at its owners risk and that it was understood that material was insured by complainant with their underwriters. The complainants were also asked to lodge claim with the Insurance Company. In the letter dated 15.4.1997 it is clearly made out that goods were carried at the owners risk and that owners were responsible for loading, unloading and transit risk. In this regard, we examined letter written by transporter to the complainant in which it is clearly stipulated that rates of transport were exclusive of loading and unloading and transit risk and insurance. We also find that lorry receipt bears title "At owner's risk". There is also a column provided for insurance, which is not filled by complainant. Now, with this correspondence we must conclude that loading and unloading and transit risk insurance was with the complainant and not with the transporter. No special premium is paid for the above risk.
5. Even while we construed the Clauses 9 and 11 we find that clause of the consignment note stipulates that in the event, transporter is found liable, total liability will not exceed value of the consignment declared in the consignment note and this Clause 11 is required to be read in harmony with the other clauses such as Clause 9 and Clause 9 provided that "if transporter is negligent, defaulter or fails to take precaution in the transport, then transporter shall be liable. Clause 11 shall have to be read only if the negligence is established on the part of the transporter. Now in this case we find that there are number of documents, to show that story of dacoity is borne out, complaint is lodged with police station. It is clearly stated that dacoits attacked the truck, they were of about 35 years of age, they tied cloth around eyes of complainant and cleaner, removed them to a distance place and aluminium ingots and truck were stolen. We further find that the owner has also lodged complaint with Spl. I.G.P. on 1.10.1996. Not only that Bombay Goods Transport Association vide Circular dated 7.10.1996 has pronounced story of dacoity in respect of above truck. We feel that there is no negligence whatsoever on the part of the driver. Our attention is drawn to commentary by Dr. Avtar Singh, on page 177 of the book it is commented that "When the goods are booked at owner's risk, the carrier is not absolved from his liability to deliver the consignment. Risk means the risk of accident, etc. It would not include non delivery by reason of theft by carrier's employees." Here is the case of dacoity. We believe that transporter is not proved to be negligent as required u/Sec. 9 of the Carriers Act. Transporter discharges the onus cast on it Clauses 9 and 11 of the consignment note do not warrant payment of any compensation of the price of the goods in absence of negligence on the part of the carriers. Dacoity is not an incidental where any negligence could be attributed to the driver and cleaner when they were attacked during night hours in the Jungle area of Wada and if that be so, we feel that carrier is not answerable for any compensation to the complainant. We, therefore, pass the following order :
Complaint is dismissed with however no order as to costs.