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2010 DIGILAW 129 (GAU)

Ashish Kumar Dey v. Food Corporation of India

2010-02-19

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. The petitioner has been working as a transport contractor with respondent No. 1, namely, Food Corporation of India, New Delhi, which is a statutory body and an authority within the meaning of Article 12 of the Constitution of India, the respondent Nos. 2 and 3 being officers under the respondent No. 1, which is hereinafter referred to as the FCF. 2. Pursuant to an agreement reached by and between the petitioner and the FCI, the petitioner was given a contract to transport, by truck, 350 bags of rice from Churaibari godown to Hapania, Agartala. On 11.1.2009, while carrying, pursuant to the said agreement, 350 bags of rice, the truck, by which the petitioner was carrying the bags of rice, met with an accident. As a result of the said accident, as many as 290 bags of rice were, according to the petitioner, damaged or stolen away and only 60 bags or rice could be recovered from the spot. On the basis of an information received, in this regard, Manu Police Station Case No. 2/2009, under Section 379 IPC, has been registered. 3. The petitioner contends that according to the police, as many as 290 bags of rice were damaged or stolen away. In support of this submission, the petitioner has annexed, as Annexure 4 to this writ petition, a police report, dated 13.1.2009, which states that in the accident aforementioned, only 60 bags of rice could be recovered and rest of the bags of rice were damaged/stolen away. 4. The respondents have filed their counter, wherein there is no categorical denial of the fact that the accident, as contended by the petitioner, had taken place and as many as 290 bags of rice, which the petitioner was carrying in the truck, got either damaged or were stolen away and 60 bags of rice only could be recovered. 5. The bags of rice, which were being carried, stood covered, according to the petitioner, by an insurance policy issued by the Oriental Insurance Company Ltd. and the loss, sustained by the FCI, as a result of the said accident, could have been recovered by the FCI from the said insurer. 5. The bags of rice, which were being carried, stood covered, according to the petitioner, by an insurance policy issued by the Oriental Insurance Company Ltd. and the loss, sustained by the FCI, as a result of the said accident, could have been recovered by the FCI from the said insurer. However, acting upon para 27 of the Clause XX of the terms and conditions of the agreement, whereunder the said bags of rice were being carried by the petitioner, respondent No. 2, namely, General Manager, Food Corporation of India, Shillong, passed an order, on 25.3.2009, directing respondent No. 3, namely, Area Manager, Food Corporation of India, Agartala, to recover the value of the said 290 bags of rice from the present petitioner and also to advice the petitioner to lodge appropriate claim with the insurer. Aggrieved by the order, dated 25.3.2009, aforementioned/the petitioner has filed this writ petition, under Article 226 of the Constitution of India, seeking to get set aside and quashed the order, dated 25.3.2009, aforementioned and also to get issued a writ in the nature of mandamus directing the respondents to refund the sum of Rs. 2,61,124/-, which the respondent No. 3 has deducted from the petitioner's running bill, dated 21.3.2009, pursuant to the order, dated 25.3.2009, aforementioned. 6. I have heard Mr. A.K. Bhowmik, learned senior counsel, appearing on behalf of the petitioner, and Mr. P. Chakraborty, learned Counsel, for the respondents. 7. Considering the fact that the respondents rely on the terms and conditions, incorporated not only in para 27 of Clause XX, but also on Clause XII (d) of the terms of the agreement governing the transaction, in question, these provisions are reproduced below : XX. xxx xxx xxx xxx xxx xxx xxx xxx xxx 27. The contractors shall be responsible for the safety of the goods in transmit in their trucks/carts/any other transport vehicles and for delivery of quantity despatched from the Railhead/Godowns etc; as the case may be to the destination or to the recipients to whom the grain etc; is required to be transported by the contractors. They shall provide tarpaulins on decks of the truck, so as to avoid loss of the grain etc; through the holes/crevices in the decks of the trucks. They shall provide tarpaulins on decks of the truck, so as to avoid loss of the grain etc; through the holes/crevices in the decks of the trucks. They shall also exercise adequate care and take precautions to ensure that the food grain bags are not damaged while in transit in their trucks/carts/any other transport vehicles. They shall deliver the number of bags and the weight of foodgrain, fertilizers; etc; received by them and loaded on their trucks. They shall be liable to make good the value of any shortage, wastage, losses or damage to the goods in transit at two times the central issue rate for PDS (not RPDS) as fixed by Govt. of India as applicable from time to time for all foodgrain and commodities other than sugar and three times the central issue rate (GOI) as applicable from time to time in respect of sugar except when the Sr. Regional Manager (whose decision shall be final) decides that the difference between the weights taken at the despatching and receiving ends is negligible and is due to the discrepancies between the scales, gain or loss in moisture or other causes beyond contractor's control. XII. Liability of contractors for losses etc suffered by Corporation : (a) .... (b) .... (c) .... (d) The contractors shall be responsible for the safety of the goods from the time they are loaded on their trucks from Railway Station or siding godowns, until they have been unloaded from their trucks at godowns or at other trucks at, so as to avoid loss of grain, etc. through the holes crevices in the decks of the trucks. They shall deliver the number of bags and the weight of foodgrains, fertilizers etc. received by them and loaded at their trucks and shall be liable to make good the value of any loss, shortage or damage during transit. The Senior Regional Manager will be the sole judge for determining after taking into consideration all the relevant circumstances, the quantum and value of loss and also as regards the liability of the contractors for such loss and the amounts to be recovered from them. The decision of the Senior Regional Manager in this regard shall be final and binding on the contractors. 8. The decision of the Senior Regional Manager in this regard shall be final and binding on the contractors. 8. When Clause XII (d) as well as para 27 of Clause XX are read, as a whole, what clearly transpires is that the agreement imposes some responsibilities and liabilities on the petitioner, as a contractor, which the petitioner must discharge, while carrying the contracted articles, such as, bags of rice. Broadly speaking, it is, under the said agreement, the contractor, who shall be responsible for safety of the contracted articles, which are loaded by him on truck and transported and, while in the transit, the truck, carrying the contracted materials, shall be carried with due care and caution ensuring that the bags of food grains are not damaged, while in transit. Consequently, unless there is failure or omission on the part of a contractor to take due care and caution and/or failure or omission on the part of the contractor to discharge the responsibilities and the liabilities, which the contract agreement imposes on him, no right accrues to the FCI to recover from the contractor, such as, the petitioner, any amount as loss, which the FCI incurs due to damage or theft of the contracted articles, which a contractor carries. For a contractor, such as, the petitioner, abides by all the terms and conditions of the agreement and takes adequate care and precaution to ensure that the bags of food grains are not damaged in transit and even after taking such care and precaution if the bags of food grains sustain damage due to an accident, which takes place not due to negligence of, or failure to take care of by the petitioner, but for reasons beyond his control, no right would accrue to the FCI to recover the loss, which the FCI may sustain. Merely because of the fact that the agreement, in question, puts an obligation, on the petitioner, as a contractor, to take adequate care and precaution as mentioned hereinbefore, the respondents cannot recover the loss as a result of the damage caused to, or theft of, the bags of rice unless a finding is reached by the FCI that the damage to the bags of rice, in question, was caused or the theft thereof took place, due to failure of the petitioner to perform the duties, which the agreement casts on him or discharged his responsibility under the contract. 9. Apart from the fact that the action, taken by the respondents to recover the amount of the loss sustained by them, in the present case is, is penal in nature, no finding, conclusive in nature, can be reached, in a situation, as the one, which we have at hand, without giving an effective opportunity to the contractor, such as the petitioner, to have is say in the matter and, further, unless a finding is reached, as already indicated hereinbefore, that the damage to, or theft of, the bags of rice, in question, was caused due to breach of the agreement, which the parties had entered into, the breach being attributable to the petitioner, the FCI cannot derive the right or authority to recover, by way of deduction or otherwise, the value of the damaged bags or loss of the bags of rice. Viewed from this angle, it becomes abundantly clear that the impugned order, dated 25.3.2009, could not have been passed by the respondent No. 2 without giving, at least, a notice to show cause to the petitioner to have his say in the matter. This apart, even the order, dated 25.3.2009, does not give slightest indication that the respondents are satisfied, or had reached a definite the conclusion, that the damage to the bags of rice had been caused, or theft of the bags of rice had taken place, due to the failure, on the part of the petitioner, to abide by the terms and conditions, which the agreement embodies. 10. Situated thus, this Court has no hesitation in holding that the order, dated 25.3.2009, aforementioned as well as the action of recovery of the said sum of Rs. 2,61,124/- from the running bill of the petitioner by the respondent No. 3, are wholly illegal and cannot be sustained. 11. 10. Situated thus, this Court has no hesitation in holding that the order, dated 25.3.2009, aforementioned as well as the action of recovery of the said sum of Rs. 2,61,124/- from the running bill of the petitioner by the respondent No. 3, are wholly illegal and cannot be sustained. 11. Because of what have been discussed and pointed above, the impugned order, dated 25.3.2009, is hereby set aside and quashed. The respondents shall return the deducted amount of Rs. 2,61,124/- to the petitioner within a period of 6 (six) weeks from today and if, at any point of time, in future, the petitioner is found liable to pay the said amount, the respondents shall remain at liberty to recover the same either from the future bills of the petitioner or from the petitioner's security deposit, which the respondents have with them. The petitioner shall also take necessary steps for the purpose of lodging claim with the insurer in terms of the relevant insurance policy and the respondents shall, in this regard, take all such actions as may be required so as to enable the petitioner lodge the claim and the money, which may be found due and payable by the insurer, shall be made available to the eligible person. If the petitioner fails to take requisite steps to lodge claim with the insurer, the respondents shall remain at liberty to take such action against the petitioner as may be permissible in law. 12. With the above observations and directions, this writ petition stands disposed of. 13. No order as to costs. 14. Furnish a copy of this order to the learned Counsel for the respondents. Petition allowed.