S. Saghir Ahmad, J.––The appellant had booked a consignment of 77 packages of mulberry/natural silk garments with the respondent for being carried from Noida (U.P.) to Bombay to be delivered to M/s. Jeena & Co., who were the clearing agents of the appellant. The consignment was to be exported to the United Kingdom as the appellant had imported raw silk free of custom duty for manufacture of garments, to be exported back to the United Kingdom. The goods alongwith copies of Invoice No. NBI-7493 dated 9.3.1994 were entrusted to the respondent who issued Consignment Note No. 52330 dated 11.3.1994 to the appellant. Since the consignment was not delivered at Bombay, the appellant wrote a letter to the respondent on 21st of March, 1994 mentioning the non-delivery of consignment. On March 24, 1994 the appellant received a letter dated March 19, 1994 from the respondent through which he came to know that the consignment which was stored at a godown in Bhiwandi was completely destroyed by fire. After serving legal notice on the respondent and after considering its reply, the appellant filed a claim petition before the National Consumer Disputes Redressal Commission, New Delhi (for short, ‘the National Commission’), for recovery of a sum of Rs. 36,12,874.60 alongwith interest at the rate of 18 percent per annum besides costs.

2. The case was contested by the respondent who filed a written statement in which it was pleaded that the goods, entrusted to them, were carried by them with due care and were stored in a godown at Bhiwandi on the instructions of the consignee, M/s. Jeena & Co., who had indicated in their letter dated 14.3.1994 that since the shipment was to take place from C.F.S. Kalamboli, the consignment may be unloaded at Bhiwandi. The respondent further pleaded that there was no negligence on their part nor was there any deficiency in service. It was stated that the fire had suddenly broken out in the adjacent warehouse from where it spread to the godown where the appellant’s consignment was kept and, therefore, that consignment was also destroyed. The respondent also pleaded that the goods were carried at “OWNER’S RISK” and since special premium was not paid, they were not responsible for the loss caused by fire. The National Commission by the impugned judgment dated September 2, 1996, dismissed the claim.

3. Learned Counsel for the appellant has contended that the respondent is a ‘carrier’ within the meaning of Carriers Act, 1865 and, therefore, he is liable for non-delivery of goods to the consignee at the destination indicated to them. It is contended that non-delivery is indicative of the negligence on the part of the respondent and, therefore, the National Commission was not justified in rejecting the claim petition on the ground that the goods were destroyed by fire. It is also contended that the goods, having been entrusted to the respondent, for delivery to M/s. Jeena & Co., at Bombay, could not have been diverted for being unloaded at Bhiwandi or stored there. In any case, since the goods were stored in a godown which was adjacent to another godown in which highly combustible articles were kept by a third person who owned that godown, the respondent was clearly negligent in keeping the consignment in question, which consisted of the silk garments, in that godown so as to expose them to fire which ultimately engulfed not only the godown where the combustible material was kept but also the adjacent godown where the appellant’s goods were negligently stored. The findings recorded by the National Commission that the goods were diverted at the instance of M/s. Jeena & Co. for unloading at Bhiwandi have also been assailed.

4. Learned Counsel for the respondent has, on the other hand, contended that the goods were entrusted to the respondent for being carried from Noida (U.P.) to Bombay at “OWNER’S RISK” as the appellant had not agreed to pay higher freight, as indicated in the terms of contract and was content with th