Hrishikesh Roy, J.Heard Mr. K.N. Choudhury, learned Senior counsel appearing for the petitioner in the WP (C) No. 6136/2007. The petitioner in the WP(C) No. 2803/2007 is represented by Ms. K.M. Talukdar, learned counsel. The respondent FCI is represented by their Standing counsel Mr. P.K. Roy, while Mr. S. Dutta, represents the respondent Oriental Insurance Company ltd. In pursuant to the tender notice 8.6.2006 issued by the Food Corporation of India (FCI), the petitioner was appointed as transport contractor through the order dated 27.9.2006 issued by the General Manager (Assam Region) of the FCI. The contractor was engaged to transport PDS rice from New Guwahati Railway side/FSD to the FCI, FSD Badarpurghat. The initial one year contract was subsequently extended by 3 (three) months through the letter dated 22.11.2007 and accordingly the contract was valid until 28.2.2008.

2. During the subsistence of the contract, on 13.9.2007 the truck No. AS01/AA/5765 loaded with 435 rice bags while proceeding to Badarpurghat was parked at Hilara petrol pump as the highway was submerged then by flood water. At about 2:00 a.m.. night of 13.9.2007, taking advantage of the flooded area, 50/60 boat riding miscreants came near the parked truck and looted away about 407 bags of rice and accordingly GD entry No. 440/2007 u/s 380 IPC was registered in the Katigorah Police Station.

2.1. Six months earlier while the truck bearing No. AS 01-T-7381 while similarly proceeding on 22.3.2007 with loaded rice to Badarpurghat, the loaded truck was stolen away and accordingly intimation about the theft of the truck and the loaded materials was given by the contractor on 4.4.2007 to the Chandmari Police Station.

3. Since only 28 bags of rice was spared in the first incident and the entire loaded rice with the truck was stolen away in the 2nd incident, the FCI authorities held the carriage contractor to be negligent and responsible for the loss of the PDS rice and since they failed to deliver the rice at destination at Badarpurghat, the FCI decided to invoke Clause 27 of the Contract, to recover penal damages for the lost rice from the carriage contractor.

4. Assailing the decision of the FCI, the petitioner contends that they took all reasonable care for safe carriage of the PDS rice in their trucks and since the loaded rice was looted on 13.9.2007 by boat laden miscreants who took advantage of the flooded terrain (first incident) and the entire loaded truck was stolen away in the 2nd incident on 3.4.2007, the decision to recover penal damages from the carriage contractor is not tenable as they cant be held responsible for the theft and the looting.

4.1. Mr. K.N. Choudhury, learned Senior counsel submits that on 13.9.2007 the National Highway itself was submerged by flood water and this being an act of god, the due care responsibility of the carriage contractor cannot be taken to unreasonable level and since the contractor took reasonable care to avoid loss of grain, invocation of Clause 27 to recover penal damage is wholly unjustified.

4.2. The petitioners project that at the instances of the FCI, the goods were insured for loss and damage with the Oriental Insurance Company Limited and since the loss is likely to be compensated by the Insurance Company, the recovery of penal damage from the carriage contractor is wholly unjustified.

5. For the respondent FCI, Mr. P.K. Roy, Standing counsel, however, argues that the carriage contractor is required to take all care for safe delivery of the goods at destination and since the goods could not be delivered as per the contract terms, the carriage contractor failed to discharge their responsibility and accordingly he argues that the FCI was within its right to invoke Clause 27 to claim penal damages.

5.1. Projecting that loss by theft is not admitted by the FCI, Mr. Roy argues that these are disputed questions and the writ Court should therefore adopt hands off approach in such cases.

6. Since the Insurance Company hasnt not filed any counter-affidavit, advocate Mr. S. Dutta, does not have any specific instructions on the issues raised in the two cases. However, as regards the Insurance policies Nos. 2008/04 and 2007/62, the counsel submits that the Insurance Company will certainly process the claim in accordance with the applicable norms.

7. I have considered the rival arguments but before proceedings any further it must be clarified that this Court is examining the decision making process of the respondent FCI and more particularly whether they are entitled to recover penal charges by invoking Clause 27 of the contract. As this Clause will require further consideration, the same is extracted herein below for ready reference:--

27. The contractors shall be responsible for the safety of the goods while in transit in their trucks/carts/any other transport vehicles and for delivery of quality dispatched from the Railhead/godowns etc. as the case may be, to the destination or to the recipients to who, the grain etc is required to be transported by the contractors. They shall provide tarpaulins on decks of the trucks, so as to avoid loss of 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 grains bags are not damaged while trucks/carts/any other transport vehicles are on transit. They shall deliver the number of bags and the weight of food grains, fertilizers, etc received by them and loaded on trucks. They shall be liable to make good the value of any shortage, wastage, losses or damage to the goods in transit at 2 times the central issue rate for PDS (not RPDS) as fixed by Govt. Of India, as applicable from time to time for all food grains and commodities other than sugar, and three times the central issue rate (Govt. of India), as applicable from time to time in respect of sugar except when the General Manager (Region) (whose decision shall be final) decides that the difference between the weights taken at the dispatching and receiving ends is negligible and is due to the discrepancies between the scales, gain of loss in moisture or other causes beyond contractors control.

8. A reading of the above clause shows that the carriage contractor is made responsible for safety of the goods while in transit and the kind of safety measures to be taken by the carrier is also indicated in the Clause itself. The contractor is required to provide tarpaulins on the decks of the truck to avoid loss through holes, crevices in the truck and for default on this count, the carriage contractor is liable to be fastened with penal damage at double the applicable rate of PDS goods stipulated by the Central Government. Therefore, it is apparent that the care that is required to be taken for protection of the goods under Clause 27 is certainly not to the extent of protecting the goods from looting/theft by miscreants, in adverse unnatural circumstances.

9. What needs to be reiterated is that in the 1st incident, the loaded truck was stranded on the night on 13.9.2007 due to flooded highway and 407 rice bags were looted away by 50/60 boat borne miscreants who took opportunistic advantage of the flooded area and the submerged road. Therefore, the loss in the 1st incident cannot really be attributed to the negligence of the carriage contractor as it appears to be an act of god and the carrier cant be held responsible for the sudden flood and the truck being robbed while stranded amidst flooded water on the submerged highway. It was certainly the carriage contractors responsibility to take due care of the goods to prevent loss and damage through negligence but when the loaded goods are looted by boat riding miscreants from a truck stranded in flooded water, the responsibility of the contractor cant be stretched to a point to expect them to protect goods from opportunistic looters. In the 2nd case the truck itself was stolen away with the loaded goods while being parked on the Highway and here also it cannot be said the carriage contractor failed to take reasonable care of the goods under their custody, to the extent envisaged by Clause 27.

10. The fact that the petitioner had also insured the goods for loss/damage at the instances of the FCI and since the insurance policies show that the insurer was the Area Manager, FCI, Guwahati, and the petitioner only paid the premium, the possibility of the loss being compensated through honoring of the insurance claim is a distinct possibility in the present cases.

11. In the context of above, I am of the view that FCI could not have invoked Clause 27 to fasten penal liability on the carriage contractor. For the two incidents in question, the contractor cant be said to have failed to exercise due care for the goods in transit. Consequently, the deduction of Rs. 6,31,184.00 and Rs. 6,80,098.00 respectively from the contractors bill are held to be unjustified and the same are accordingly quashed. However, the FCI authorities are at liberty to make insurance claims for the lost rice bags and direction is hereby issued to the Insurance Company to consider them as per the norms, when claim is made by the FCI. With the above observation and direction, both cases are allowed without any order on cost.