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M/S. Prakash Transport v. M/S. Yadav Crafts .
Judgment Summary — D.P. Wadhwa, J. (President)
Factual and Procedural Background
The appeal was filed by a common carrier (appellant) who was the opposite party before the State Commission. The State Commission had allowed the complainant's claim and directed the appellant to pay Rs. 1,43,000 and Rs. 1,10,600 with interest at 15% per annum on the first amount from 1.8.92 and on the second amount from 3.8.92. These dates correspond to the booking dates of consignments alleged not to have been delivered.
The complainant had booked three consignments for delivery to a consignee in Kathmandu, Nepal. The third consignment, invoiced at Rs. 2,20,898.75, was dispatched on 11.8.92; it is alleged that the complainant accepted Rs. 1,60,558 from the ultimate consignee in Kathmandu in relation to this consignment. The goods were transported by the appellant up to the India–Nepal border, after which Prakash Transport (Nepal) (P) Ltd. (a separate Nepal company) took delivery upon paying customs duties and taxes and carried the goods to Kathmandu. The consignee (Khushboo Fashion Industries) did not take delivery and the shipping documents were returned to the bank. The complainant sought rebooking of remaining consignments back to India; the appellant declined, and the complaint before the State Commission followed.
Legal Issues Presented
- Whether a common carrier operating in India is liable for non-delivery of goods that remained in a foreign country (Nepal) after another transport company in that country received the goods and the consignee failed to take delivery.
- Whether the appellant was under an obligation to rebook and bring back the consignments from Kathmandu to India in the absence of any agreement to that effect.
- Whether there existed any custom or usage in the transport business obliging the carrier to return consignments to the consignor at the consignor's cost when the consignee fails to take delivery.
Arguments of the Parties
Appellant's Arguments
- The appellant, a common carrier operating in India, transported the goods up to the India–Nepal border; thereafter Prakash Transport (Nepal) (P) Ltd., a separate Nepal-registered company, took delivery after paying customs duties and taxes and carried the goods to Kathmandu.
- As to the third consignment, the appellant contended that the goods were delivered and that the complainant received Rs. 1,60,558 from the ultimate consignee in Kathmandu.
- The appellant denied any obligation to rebook the goods back to India, stating it was unable to rebook them and that there was no agreement to that effect.
Complainant's Arguments
- The complainant argued that because the consignments could not be delivered, the appellant (as common carrier) was liable.
- The complainant contended that, by custom and usage in the transport business, if the consignee fails to take delivery the transport company can bring back the goods at the consignor's cost to the place from which they were booked.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court noted the State Commission's reasoning was brief and that the question was not as simple as treated below. The court analysed the factual matrix: the appellant carried the goods only up to the India–Nepal border; a separate Nepal company (Prakash Transport (Nepal) (P) Ltd.) received the goods after customs formalities and transported them to Kathmandu; the consignee did not take delivery and documents were returned to the bank. The court found there was no agreement obliging the appellant to rebook the consignments back to India.
The court examined the complainant's contention of a customary usage obliging carriers to return undelivered consignments and found no evidence on record to support the existence of any such custom or usage. The court emphasised that goods lying in a foreign country are subject to that country's customs formalities and the complainant had not shown how the appellant could have brought the goods from Kathmandu across the customs barrier. Given the appellant's stated inability to rebook and the absence of any contractual obligation or proved custom, the court held the burden to take steps to bring the goods from Nepal lay with the complainant and not with the appellant.
On this basis the court concluded there was no deficiency in service by the appellant, the common carrier.
Holding and Implications
The appeal is allowed and the order of the State Commission is set aside.
Direct effects on the parties: the State Commission's directions to the appellant to pay the claimed amounts with interest were discharged and the appellant was awarded costs of Rs. 2,500. The opinion does not discuss broader precedent or wider legal implications beyond the direct effect on these parties.
D.P Wadhwa, J. (President):— This appeal is by the common carrier who was opposite party before the State Commission. Complaint of the respondent-complainant was allowed by the State Commission and the appellant was directed to pay Rs. 1,43,000/- and Rs. 1,10,600/- with interest both @ 15% per annum, on first amount from 1.8.92 and on the second amount from 3.8.92 These two different dates refer to the booking of consignments by the complainant which consignments it is alleged could not be delivered.
Complainant booked three consignments with the appellant for delivery to consignee based in Khatmandu in Nepal, a foreign country. The invoice value of the third consignment was Rs. 2,20,898.75 and was despatched on 11.8.92 It is alleged that regarding this third consignment complainant accepted a sum of Rs. 1,60,558/- from the ultimate consignee based in Khatmandu.
The impugned judgment of the State Commission is brief. It merely proceeds on the basis that since the consignments could not be delivered, appellant as a common carrier could be liable. We do not think the question was as simple as State Commission thought it. Appellant which is a common carrier operates in India. Goods were to be delivered at Khatmandu to Khushboo Fashion International Ltd. Goods receipts and other documents were to be negotiated through the Rashtriya Banijya Bank, Khatmadu. The goods were carried by the appellant upto India Nepal border thereafter another transport Company Prakash Tranport (Nepal) (P) Ltd. where after paying the custom duty and taxes, rceived the goods and took them to Khatmandu. Khushboo Fashion Industries did not take delivery of the goods. Consequently documents were returned to the Bank. It is the contention of the appellant that as regards third consignment, goods were directly delivered to the consignee and the amount as aforesaid was received by the complainant. As regards remaining consignments complainant required appellant to rebook the same for home to India. On the failure of the appellant to do so, the complaint was filed.
Admittedly, there is no agreement under which appellant was bound to rebook the goods. It is stated that Parkash Transport (Nepal) (P) Ltd., Khatmadu is altogether separate company registered in the Nepal itself and it had no relation with the appellant. It is contended by the complainant that though there was no terms and conditions on the goods receipt that appellant was required to rebook the consignment back home but there is custom and usage of the transport business and if the consignee fails to take delivery of the goods, the transport company can bring back the goods at the cost of the consignor to the place from where it was booked. We are unable to find any custom and usage. There is no evidence on record to justify such a stand.
Then the question arises as to what is to be done to the goods which are lying in a foreign country. There are bound to be certain formalities of custom before the goods can pass through the Nepal border. Complainant has failed to show as to how appellant could have brought the goods of its own from Khatmandu passing the custom barrier at the India - Nepal border. Appellant expressed its inability to rebook the goods as desired by the complainant. In our view it was for the complainant to take steps for having the goods brought from Nepal as per the custom formalities applicable in Nepal. The burden of this could not be imposed on the appellant and we do not think there is anything to allege that there was any deficiency in service on the part of the appellant, a common carrier.
Accordingly this appeal is allowed. The order of the State Commission is set aside. Appellant will be entitled to cost which we assess at Rs. 2500/-.
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