Chattisgarh High Court
Bharat Sanchar Nigam vs M/S Raipur Surguja Roadways on 14 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 173 of 2018
Judgment Reserved on : 17.01.2023
Judgment Delivered on : 14.02.2023
Bharat Sanchar Nigam, Through :- District Engineer, Bharat Sanchar
Nigam Ltd. Ambikapur, Distt. Surguja, (C.G.)
---Appellant/Plaintiff
Versus
1. M/s Raipur Surguja Roadways, Near Damini Petrol Pump, Ring
Road No. 2, Bhanpuri Naka, Raipur (C.G.) and Local branch address
- Mahamaya Road, Rasulpur, Ambikapur, Distt. Surguja (C.G.)
2. Smt. Navprit Kaur, W/o Shri Baljeet Singh, Vir Sawarkar Nagar,
Hirapur, Post Tatibandh, Distt. - Raipur (Chhattisgarh)
3. Shri S.K Pandey, Manager & Representative, Raipur Surguja
Roadways Damini Petrol Pump, Bhanpuri Naka, Raipur
(Chhattisgarh)
4. The Oriental Insurance Company Limited, Branch Ambikapur,
District Surguja, (Chhattisgarh)
---- Respondents
For Appellant : Mr. Sandeep Dubey & Mr. Pragati
Kaushik, Advocates
For Respondent No. 1 : Mr. Ranbir Singh Marhas, Mr. Samarth
Singh Marhas & Mr. Rahul Kumar, Adv.
For Respondent No. 3 : Mr. Ajay Kumar Pandey, Advocate.
For Respondent No. 4 : Mr. Abhishek Sinha, Senior Advocate
assisted by Mr. D.L. Dewangan, Adv.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
CAV JUDGMENT
2
Per N.K. Chandravanshi, J.
1. This appeal is directed against the judgment dated 23.08.2017
passed by Second Upper District Judge, Ambikapur (Sarguja) in Civil
Suit No. 101-B /2011 (Bharat Sanchar Nigam Limited v. M/s. Raipur
Sarguja Roadways & others) whereby suit filed by appellant/plaintiff for
recovery of an amount of Rs.22,50,720/- along with interest from the
respondents/defendants was dismissed.
[For the sake of convenience, parties would be referred to as per
their description shown in the plaint filed before the trial Court].
2. Factual matrix of the case, in brief, is that plaintiff, who is Bharat
Sanchar Nigam Limited; working for telecommunication Sector,
booked consignment containing 72 Unit Battery, total weight 9.720
quintal worth Rs.18,75,600/- with defendant No. 1 to be transported
from Raipur to Ambikapur. On 28.05.2002, said 72 unit batteries were
loaded from Central Store Depot of Bharat Sanchar Nigam Limited in a
Truck bearing registration No. M.P. 23 - D -5973 (hereinafter referred
to as "the Truck"), owned by defendant No. 2 for its transportation from
Raipur to Ambikapur. In this regard, lorry Receipt Invoice No. 000512,
dated 28.5.2002 was issued by defendant No. 3, who is representative
of defendant No.1, in favour of plaintiff. The said batteries were
manufactured by latest technology. The goods /consignment were to
be transported by road from Raipur to Ambikapur. The defendants No.
1 to 3 had taken responsibility for transportation and delivery of goods
in safe & good condition at Ambikapur. Till 30.5.2002, consignment
booked by plaintiff was not reached to Ambikapur, in between,
representatives of defendant No. 1 used to assure plaintiff that
sometimes delay occurred and within one or two days, it will be
reached. Till 3.6.2002, goods did not reach at Ambikapur, hence,
plaintiff wrote a letter to defendant No. 1 on 4.6.2002 in this regard,
thereafter, on the same day vide letter dated 30.5.2002, which was
received by the plaintiff on 4.6.2002, it was informed that aforesaid
truck caught fire on the way to Ambikapur and on being reported the
matter, Agnikand No. 11/2002 has been registered at Police Station,
Ratanpur. Condition of batteries was not mentioned in the letter that
whether it also burned or not. It is further stated that as per
defendants No. 1, the said incident took place at 2 O' clock in the night
of 29.5.2002, despite report was lodged late on 30.5.2002. It is further
averred in the plaint that after receiving information of the said
incident, Telecom District Manager Telecommunication, Ambikapur
alongwith his associates had visited at the place of occurrence, but
they did not find any ramnent of the batteries. According to the
plaintiff, it seems that defendants No. 1 to 3, with mutual connivance,
have misappropriated the goods, which were high valued than the
truck, in which, the batteries were being transported whereas they
were bound to deliver consignment in safe and good condition,
instead, they caused loss to the plaintiff, hence, legal notice was given
to defendants No. 1 to 3 for payment of value of damaged battery i.e.
Rs.18,75,600/- including 20% supervision charge and other
departmental expenses, total amount Rs. 22,50,720/- alongwith
interest, but they did not respond to the said notice, hence, plaintiff
claimed Rs.22,50,720/- alongwith interest @ 18 % per annum from
the date of filing of claim, till its actual payment by filing instant suit.
3. Reply was filed by defendant No. 1, therein he did not deny the
entrustment of the goods and issuance of lorry receipt, as averred in
the suit. Defendant No. 1, pleaded that the consignment was lost in
fire, which was an accident beyond their control and further it was
specifically mentioned in the lorry receipt that goods were being
transported at owner's risk and in any sudden event of fire, water &
lootmaar, the transporter will not be responsible. Defendant No. 1 had
earlier transported various articles of plaintiff and his (plaintiff)
employee has informed that subject consignment were also of alike
nature, hence, it does not require extra packing or safety, hence, he
(defendant No. 1) has accepted to transport the consignment on
earlier rate, which was fixed as per weight of the goods. Value,
description & sensitivity of the batteries were not informed to the
defendants No. 1 / 3. It is further pleaded that while transportation of
consignment, all of a sudden, truck caught fire, which was not because
of any negligence or act of crime of defendants No. 1 to 3, rather it
was due to negligence of plaintiff, as description, sensitivity of the
batteries i.e. those were live batteries and inflammable, etc. were not
informed by the plaintiff and, therefore, after catching fire, whole truck
burned and only iron parts of it remains, which was an accident
beyond the control of defendants No. 1 to 3. Report narrating the
incident was lodged at Police Station, Ratanpur. It was further pleaded
that the loss has taken place for reasons and in circumstances beyond
the control of defendants. Hence, they were not liable to make good
the loss.
4. Defendant No. 3 also filed separate reply. He also took the
same defence in line of defence taken by defendant No.1.
5. Defendant No. 4 / Insurance Company, in his reply, has pleaded
that the consignment, which was being transported in the aforesaid
truck, were not insured by it and no extra premium was paid to the
defendant No.4/Insurance Company for covering the risk of
consignment loaded in the truck. Hence, only because truck was
insured with the Insurance Company, it cannot be held responsible for
payment of any damages caused to the consignment i.e. 72 units of
battery.
6. The trial Court, on the basis of pleading of both the parties,
framed issues and afforded opportunity of hearing to both the parties.
After considering the evidence adduced by both the parties, the trial
Court has dismissed the suit holding that the plaintiff - BSNL had
booked 72 unit batteries for transportation from its Central Depot,
Raipur to Ambikapur with respondent No. 1, which was being
transported by Truck bearing registration No. M.P. 23 D / 5973 owned
by respondent No. 2 and the same caught fire and truck alongwith
batteries destroyed. Thus, the defendants No. 1 to 3 could not deliver
the aforesaid consignment to the plaintiff, but since the plaintiff had not
informed about the value, description & specification sensitivity etc. of
the batteries in view of the provisions contained in Section 3 of The
Carriers Act, 1865 (henceforth "Act, 1865"); Transit Insurance Policy of
the batteries was also not issued by respondent No. 4/Insurance
Company; and any negligence or criminal act / fraud has also not been
proved by the plaintiff against defendants No. 1 to 3; and the incident
was natural beyond control of defendants No. 1 to 3, therefore,
defendants are not liable to compensate the damages caused to the
plaintiff-BSNL.
7. Learned counsel appearing for the appellant / plaintiff would
submit that defendants No. 1 to 3 had taken responsibility of safe
transportation and delivery of consignment in good condition, which
they could not fulfill, delay in lodging the FIR in respect of alleged
incident of fire and also delay occurred in informing the plaintiff about
the said incident, consequently, on being visited by the Plaintiff and his
employees at the place of occurrence, no any ramnents of alleged
burned battery were found, which shows that defendants No. 1 to 3
have misappropriated the valuable consignment and gave wrong
information about the burning of truck and consignment. It is further
submitted that consignment was under the management of persons of
defendants No. 1 to 3 and they have not proved that how the fire
originated, hence, mere occurrence of the fire does not absolve them
from their liabilities. While loading the consignment (batteries),
defendants No. 1 to 3 must have known its sensitivity and
inflammableness, hence, either they ought to have entered into a
special contract under Section 6 of Act, 1865 limiting their liabilities for
negligence, or ought to have proved that they had taken all such
reasonable care, which prudent owners of such public carrier ordinarily
have recourse and if even then, the truck and consignment destroyed
by ablaze from the effects of vis major or the "act of God", which could
give him immunity, but no such facts have been proved by defendants
No. 1 to 3. It is further submitted that Section 9 of the Act, 1865
relieves the plaintiff of proving negligence or criminal act of the carrier,
his servants or agents. Hence, suit instituted by the plaintiff ought to
have been decreed by the learned trial Court but the same has been
rejected without appreciating the law covers the field, therefore, the
appeal may be allowed and the defendants No. 1 to 3 may be directed
to pay the amount of compensation, as claimed by the plaintiff.
8. On the contrary, learned counsel for the respondents/defendants
No. 1 & 3 would submit that the consignment / goods were loaded by
labourers under the supervision of employees of plaintiff - BSNL.
While loading the goods, it was not told by the plaintiff / his employees
that they are live and sensitive batteries, even value and description
thereof was also not disclosed by them. On being sought quotation by
the plaintiff, defendant No. 1 had given quotation on the basis of
weight of the goods and not on the basis of sensitivity, value or
description of the goods, therefore, defendant No. 3 had issued lorry
receipt / Invoice No. 000512, in which, it was specifically mentioned
that the consignment is being transported at owner's risk and the
Transporter will not be responsible for any accidental damage caused
by fire, water and lootmar, etc. It is further submitted that in
compliance of proviso to Section 4 of the Act, 1865, higher rate charge
has been exhibited in the office of defendant No. 1 and plaintiff had
opted not to get transit insurance of the consignment. While
transportation, on the way to Ambikapur, all of a sudden Truck caught
fire and whole truck burnt alongwith consignment immediately. In this
regard, on being reported the matter by owner of the Truck,
jurisdictional police station - Ratanpur has lodged Fire Incident
No. 1150 on 30.5.2002, which has been proved by defendants No. 1
to 3. Thus, the consignment was burnt in fire, which was an accident
beyond the control of defendants No. 1 to 3 or their servants. It is
further submitted that if batteries were live, sensitive and valuable,
then the plaintiff ought to have informed the defendants No. 1 to 3
about the value and description thereof, which was not done by the
plaintiff- BSNL and, therefore, while transportation, due to
sensitiveness of the batteries, which contained Acid, as has been
admitted by the witnesses of the plaintiff, all of a sudden Truck
alongwith consignment caught fire and ablazed whole truck
immediately. Thus, incident occurred due to negligence of
plaintiff -BSNL, as they did not disclose aforesaid facts, therefore, it
(plaintiff) is not entitled to get any compensation from defendants No. 1
to 3. Hence, impugned judgment does not call for any interference.
9. Learned counsel for respondent No. 4/ Insurance Company
would submit that neither transit insurance of the consignment was got
done by plaintiff nor any amount of premium was paid for the same,
therefore, no liability arose against respondent No. 4.
10. We have heard learned counsel for the parties and perused the
record of court below and material available on record including
impugned judgment with utmost circumspection.
11. Finding of learned trial Court, that on being handed over to
defendant No. 1, consignment containing 72 unit battery were being
transported by defendants No. 1 & 3 on a Truck owned by defendant
No. 3 from Raipur to Ambikapur and on the way to Ambikapur, Truck
caught fire and burnt alongwith batteries, has has not been challenged
by the respondents, hence, such finding has attained finality.
12. Learned trial Court declined to allow the amount of
compensation claimed by the plaintiff in view of the provisions
contained in the Act of 1865.
13. At this stage, it would be appropriate to notice the provisions
contained in Sections 3, 4, 6, 8 & 9 of the Act, 1865, which are
reproduced as under :-
"3. Carriers not to be liable for loss of certain goods
above one hundred rupees in value, unless delivered
as such.--No common carrier shall be liable for the loss of
or damage to property delivered to him to be carried
exceeding in value one hundred rupees and of the
description contained in the Schedule to this Act, unless the
person delivering such property to be carried, or some
person duly authorised in that behalf, shall have expressly
declared to such carrier or his agent the value and
description thereof.
4. For carrying such property payment may be
required at rates fixed by carrier. --Every such carrier
may require payment for the risk undertaken in carrying
property exceeding in value one hundred rupees and of the
description aforesaid, at such rate of charge as he may fix:
Provided that, to entitle such carrier to payment at a
rate higher than his ordinary rate of charge, he shall have
caused to be exhibited in the place where he carries on the
business of receiving property to be carried, notice of the
higher rate of charge required, printed or written in English
and in the vernacular language of the country wherein he
carries on such business.
6. In respect of what property liability of carrier not
limited or affected by public notice. Carriers, with certain
exceptions, may limit liability by special contract.--The
liability of any common carrier for the loss of or damage to any
property (including container, pallet or similar article of
transport used to consolidate goods) delivered] to him to be
carried, not being of the description contained in the Schedule
to this Act, shall not be deemed to be limited or affected by
any public notice; but any such carrier, not being the owner of
a railroad or tramroad constructed under the provisions of Act
22 of 1863 (to provide for taking land for works of public utility
to be constructed by private persons or Companies, and for
regulating the construction and use of works on land so taken)
may, by special contract, signed by the owner of such property
so delivered as last aforesaid or by some person duly
authorised in that behalf by such owner, limit his liability in
respect of the same.
8. Common carrier liable for loss or damage caused by
neglect or fraud of himself or his agent. --Notwithstanding
anything herein before contained, every common carrier shall
be liable to the owner for loss of or damage to any property
(including container, pallet or similar article of transport used
to consolidate goods) delivered to such carrier to be carried
where such loss or damage shall have arisen from the criminal
act of the carrier or any of his agents or servants and shall
also be liable to the owner for loss or damage to any such
property other than property to which the provisions of section
3 apply and in respect of which the declaration required by
that section has not been made, where such loss or damage
has arisen from the negligence of the carrier or any of his
agents or servants.
9. Plaintiffs, in suits for loss, damage, or non-delivery,
not required to prove negligence or criminal act .--In any
suit brought against a common carrier for the loss, damage or
non-delivery of goods (including container, pallets or similar
article of transport used to consolidate goods) entrusted to him
for carriage, it shall not be necessary for the plaintiff to prove
that such loss, damage or non-delivery was owing to the
negligence or criminal act of the carrier, his servants or
agents.
14. A conjoint reading of the aforesaid provisions demonstrate that
whenever any consignment in value of more than Rs.100/- is
delivered to be carried by common carrier, then liability has been
casted upon the person booking such consignment to declare
expressly to such carrier or his agent the value and description of the
consignment/property in view of the provisions contained in Section 3
of the Act, 1865 because the words used in the section are, "unless" &
"shall have", so that common carrier may require extra payment for
the risk undertaken in carrying the consignment as provided in Section
4, further he may execute special contract to limit his liability in
respect of such consignment, despite that if any loss, damage or non-
delivery is caused to the plaintiff, then it shall not be necessary for the
plaintiff to prove the fact that such loss, damage or non-delivery was
due to negligence or criminal act of the carrier, his servant or agents.
15. In the instant case, the plaintiff has neither pleaded nor proved
that while delivering /booking the consignment of batteries, its value
and description were expressly declared to defendant No. 1 or
defendant No. 3 or their agent.
16. Dashrath Prasad (PW-1), the then Telecom District Manager
(TDM), Telecommunication, Ambikapur, has stated in his affidavit
(examination-in-chief) that total value of batteries was Rs.18,75,600/-,
but he has not stated in his deposition that he has expressly declared
the value and specification/description of the batteries to defendants
No. 1 or 3 or their agent.
17. As per deposition of Patrik Ained (PW-2), the then Telephone
Mechanic, Telecommunication Department, Ambikapur, batteries were
loaded in the Truck in his supervision but he has also not stated
anything in his deposition about the aforesaid declaration. Rather
quotation (Ex.P-7), which has been proved by Dashrath Prasad
(PW-1) shows that it was submitted by defendant No. 1 on the basis of
weight of the goods to be transported by him. If consignment
(batteries) were high valued and so sensitive & dangerous, which
were containing acid, hence, they were highly inflammable and risky,
as has been admitted by Dashrath Prasad (PW-1) in his deposition,
then it ought to have been declared/informed to defendants No. 1 / 3
or their agent, else, it was delivered for carrying as an ordinary goods.
Thus, non-compliance of provision contained in Section 3 of the Act,
1865 itself shows negligence of the plaintiff that either it itself was not
aware about such inflammatory specification of the batteries or
plaintiff concealed those facts from defendants No. 1 / 3 and his
agents.
18. S.K. Pandey (DW-1) has stated in his affidavit that while
issuance of lorry receipt (Ex.P-26) value or specification about the
consignment were not disclosed. He has further stated that notice is
exhibited in the office of Roadways in compliance of proviso to Section
4 of the Act, 1865, but plaintiff or his Central Depot, Raipur opted not
to get insured the consignment. Since value and description of
consignment were not found proved disclosed by plaintiff to
defendants No. 1 /3 or their agent, hence, there was no occasion for
them to perform special contract in respect of provision of Section 6 of
the Act, 1865. Thus, aforesaid negligence on plaintiff's part deprived
defendants No. 1 / 3 to perform special contract to limit its liability,
otherwise, it could have been done by it.
19. The plaintiff has also not filed and proved any document in
respect of alleged value or description of consignment that value of
batteries was Rs. 18,75,600/-. Ex.P-27 is said to be delivery challan
issued by C.S.D. office but its original document has not been filed
and proved, even this document also does not contain value or
specification about the same.
20. Learned trial Court has recorded a finding that on the way to
Ambikapur, truck loaded with the battery caught fire and, therefore,
truck along with batteries destroyed and only iron part of the truck
were remained. It is a finding of fact based on appreciation of
evidence available on record. On being perusal of the evidence, we
are also satisfied with the finding arrived at by the trial Court.
21. According to pleadings of the plaintiff and statement of Dashrath
Prasad (PW-1), when they visited at the place of occurrence, they did
not find any ramnents of batteries, but Patrik Ained (PW-2) has
admitted in his cross-examination that they had seen the burned truck
and ash (jk[kM+) on the spot. The plaintiff has not adduced any cogent
evidence that no ramnents of burned batteries were found there and
when they visited the place of occurrence has also not been
conclusively proved. Hence, on the basis of their such oral and vague
statement, it cannot be held that batteries were not burned and it was
misappropriated by defendants No. 1 to 3. On the contrary, evidence
available on record proves that batteries were also burned in ablaze
caught to the truck carrying the same.
22. Evidence adduced by the plaintiff shows that the batteries,
which were being transported by defendant No. 1, were live batteries
containing acid, which is admitted by Dashrath Prasad (PW-1) in his
deposition. Despite that neither any transit insurance was done nor its
specification or character of its inflammableness was disclosed by the
plaintiff to defendants No. 1 /3 or their agent, hence, it cannot be ruled
out that while transportation due to some internal cause in or within
the batteries, truck caught fire and due to high number of such
hazardous items, whole truck burned. Although Dashrath Prasad
(PW-1) & Patrik Ained (PW-2) have stated in their deposition that
assignment (battery) were packed safely but except their oral version,
there is no other evidence available on record to support their
statements. Further non - disclosure of value and description of the
batteries, despite being dangerous / hazardous of it, shows
negligence of the plaintiff himself.
23. Dashrath Prasad (PW-1) has deposed that for consignment of
the batteries, agreement was executed between Sub Divisional
Engineer and defendants No. 1 / 3, but except lorry receipt (Ex.P-26),
no other document in respect of alleged agreement has been filed or
proved by plaintiff and as per terms & conditions mentioned in the
lorry receipt (Ex.P-26), consignment was transported at the owner's
risk and it was also, one of the condition mentioned in lorry receipt
that transporter will not be responsible for any accidental damage
caused by fire, water & lootmar etc.. The plaintiff has not proved that
truck caught fire due to any negligence or criminal act of defendants
No. 1 & 3 or their agent, rather evidence available on record shows
that incident of arson is accidental in nature.
24. Thus, since the plaintiff has not expressly declared / informed to
respondents No. 1 / 3 or their agent about the value and description of
the consignment and also he had not complied with the responsibility
casted upon him under Section 3 of the Act, 1865, therefore, the
plaintiff is not entitled to get benefit of the provisions contained in
Section 9 of the Act, 1865.
25. Plaintiff has neither pleaded nor proved the fact that the Bharat
Sanch Nigam Limited (BSNL) had made any transit insurance of
consignment with defendant No. 4 / The Oriental Insurance Company
Limited nor it is proved that any premium was paid by plaintiff in this
regard. On the other hand, Ankit Gupta (DW-4) - Administrative
Officer of defendant No. 4/Insurance Company has deposed that
neither any insurance policy was issued for covering the risk of
consignment loaded in the Truck nor any extra premium was paid to
the Insurance Company by the plaintiff in respect of the said
consignment, therefore, no liability in this regard could be fastened
against the respondent No. 4/Insurance Company.
26. In view of the foregoing discussion of the evidence and material
available on record, we do not find any illegality or infirmity in
impugned judgment & decree warranting interference by this Court.
The appeal, therefore, being devoid of substance, is accordingly
dismissed, leaving the parties to bear their own costs.
27. A decree be drawn-up accordingly.
Sd/- Sd/-
(Goutam Bhaduri) ( N.K. Chandravanshi)
Judge Judge
Amit
