KOPRAN LIMITED Vs. FREIGHT CARRIERS OF INDIA

JUDGEMENT

(1.) The case of the complainants is that Indian Drugs and Pharmaceuticals Ltd. , Virbhadra, had despatched to the first complainants on or about 22nd June, 1995 vide Invoice No. AR/b/76 of 22.6.1995, the consignment of Penicillin 'g' Potassium First Crystal packed in 44 fibre drums. The opposite party accepted the consignment on behalf of the first complainants for carriage, consideration and safe delivery Ex. Virbhadra (Rishikesh) to Khopoli by road. The copy of the invoice is at Exh. 'a'. The consignment was loaded on truck No. DL/ilb/1580 vide lorry receipt No.294415 dated 22, June, 1995. A copy of the lorry receipt is at Exh. 'b'. It is contended by the complainant that the opposite party delivered the said consignment in damaged conditions and also short delivery. The details of damages of 14 drums are given in the complaint. The samples of the damaged Penicillin were tested and they were found to be below the standard prescribed. This degraded Penicillin 'g' would result in poor quality product and, therefore, it cannot be used for manufacturing. Ilas Consultants Pvt. Ltd. , the Surveyors have submitted their report at Exh. 'c'. The opposite party has duly admitted the shortage/damage and contamination caused to the consignment by their certificate of 1.12.1995 which is at Exh. 'd' and test report is at Exh. 'e'. Since the damage and contaminated material could not be used for any purpose, the same was destroyed and certificate of destruction has been issued by Ilas Consultants Pvt. Ltd. who witnessed the destruction on 25.3.1997, which is at Exh. 'f'. The complainants lodged their claim to the opposite party on 4.12.1995 as required under Sec.10 of the Carriers Act, 1865 as per Exh. 'g' but the opposite party failed to settle the claim.

(2.) The first complainants, therefore, being the owners/consigners and insured of the said consignment claimed to be the consumer and contended that there is a deficiency in service on the part of the opposite party. The first complainants preferred their money claims from the second complainants to cover the risk of the consignment and the second complainants, National Insurance Company Ltd. have settled the claim of the first complainants, after scrutiny of the documents. The first complainants executed a letter of subrogation and special power of attorney for Rs.4,63,293/- in favour of the second complainants. A copy thereof is placed at Exh. 'h'. It is contended that the first complainants are consumers under the provisions of the Consumer Protection Act, 1986 and by the settlement of the claim and based on the letter of subrogation and special power of attorney, the second complainants are entitled to be indemnified by thue opposite party the sum of Rs.4,63,293/-. It is submitted that the second complainants are also accordingly consumers. The complainants ahve further submitted that the consignment was damaged and contaminated due to failure on the part of the opposite party in not exercising reasonable care, skill and diligence. As a public carriers an absolute obligation was imposed upon them to take all efforts necessary to secure the safety of the consignment. It is contended that as a common/public carriers, the opposite parties are the insurers/common carriers and that their liabilities are absolute. Under the law, the liability falls on them as bailees also. The first complainants have received the amount of the loss from the second complainants and the second complainants, who are now claiming to be indemnified to the extent of Rs.6,30,078/-. The complainats have requested the Commission to order the opposite party to pay an amount of Rs.6,30,078/- alongwith 18% interest and Rs.30,000/- towards the cost. The amount of Rs.6,30,078/- includes interest @ 18% from 22.6.1995 to 21.5.1997 on the amount of Rs.4,63,293/-.

(3.) The opposite parties were noticed several times by this Commission and a notice was given Hamdast to the complainants' Counsel also. On 26.4.1999, Mr. B. C. Shukla, Manager appeared on behalf of the opposite party and the copy of the complaint was supplied to Shri Shukla with a direction to file written version by 15.7.1999. On 15.7.1999, the opposite party remained absent and they did not file the written version. Mr. Ramdas, learned Advocate for the complainants had served the notice Hamdast and has submitted the acknowledgement alongwith affidavit in support thereof. On 7.10.1999, Mrs. Poonam Bhosale, Advocate holding for Mr. Kanugle, Advocate appeared on behalf of the opposite party but the opposite party neither filed any written version nor any written submission to the Commission. Even a request was not made to the Commission to allow them to submit their written version. On 8.12.1999, none appeared on behalf of the opposite party. The learned Counsel for the complainants submitted his affidavit, which is taken on record. The matter proceeded ex parte against the opposite party due to their failure to submit their written version, documents etc. and that they chose to remain absent. Therefore, this complaint is being decided on its merits in the absence of the opposite party.