PRAVEEN KATAREY Vs. KHANDELWAL ROADWAYS

JUDGEMENT

(1.) This appeal is directed against the order dated 20.12.2000 passed in Case No.37/2000 by the District Consumer Disputes Redressal Forum, Guna (for short the 'district Forum'), whereby the complaint for deficiency in service of the loss of 1200 litres of oil carried in Tanker Tata 407 bearing Registration No. MP-07 G-3102 owned by the respondent No.2 to which consignment was booked by the respondent No.1 as Commission Agent was dismissed holding that the consignment was damaged in motor accident, therefore, the appellants, if so advised, may file an application under Sec.166 of the Motor Vehicles Act, 1988 (for short 'm. V. Act', before Motor Accident Claims Tribunals to claim compensation.

(2.) After hearing learned Counsels for parties without expressing any opinion on merits in our opinion, the order of the District Forum cannot be sustained in view of the law declared by the Supreme Court in Nath Bros. Exim International Ltd. V/s. Best Roadways, 2000 1 CPJ 25, in Patel Roadways V/s. Birla Yamaha, 2000 1 CPJ 42; M/s. Economic Transport Organization Etc. V/s. Dharwad Distt. Khadi Gramudyog Sangh, 2000 1 CPJ 41, and a decision of this Commission in Oriental Insurance Company Ltd. V/s. Delhi M. P. Transport,1999 3 CPR 348, wherein it has been held that Consumer Fora under the Consumer Protection Act, 1986 (for short the 'act') has jurisdiction to entertain and decide the complaint by applying principles of Sec.9 of the Carriers Act, 1865 (for short the "carriers Act"), wherein the complainant has to discharge initial onus to prove deficiency in service of negligence. Thereafter, the burden of proof gets shifted to the carrier by the application of the legal presumption under the common law and it will be for the carrier to prove absence of negligence.

(3.) As to Owner's Risk : The Supreme Court in case of Nath Bros. Exim International Ltd. V/s. Best Roadways Ltd., observed that the expression, "owner's Risk" does not exempt carrier from his own negligence or negligence of his servants or agents. "owner's Risk" in the realm of commerce has a positive meaning. It is understood in the sense that the carrier would not be liable for damage or loss to the goods if it were not caused on account of carrier's own negligence or the negligence of its servants and agents.