Full Judgment Text
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CASE NO.:
Appeal (civil) 9071 of 1996
PETITIONER:
PATEL ROADWAYS LIMITED
Vs.
RESPONDENT:
BIRLA YAMAHA LIMITED
DATE OF JUDGMENT: 28/03/2000
BENCH:
D.P.Mohapatro
JUDGMENT:
D.P.MOHAPATRA,J.
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The core question that arises for determination in
this appeal is whether section 9 of the Carriers Act, 1865
(Act 3 of 1865) is applicable to a proceeding under the
Consumer Protection Act, 1986 (68 of 1986). The answer to
this question depends on the interpretation of section 9 of
the Carriers Act and its inter-action with the relevant
provisions of the Consumer Protection Act. The factual
matrix of the case relevant for determination of the issue
may be stated thus : The respondent M/s Birla Yamaha
Limited booked 237 consignments containing 267 generator
sets at Ghaziabad in the State of Uttar Pradesh, with the
appellant M/s Patel Roadways Limited for transportation.
The freight charges were duly paid by the consignor to the
carrier and necessary lorry receipt was issued by the latter
in favour of the former. The goods booked by the respondent
were destroyed in a fire which took place in the godown of
the appellant shortly after booking of the consignments.
The respondent made a claim for the value of the goods, for
refund of freight charged and compensation for the loss.
Some correspondence between the parties followed. Since no
satisfactory solution was arrived at between them the
respondent filed a petition before the National Consumers
Disputes Redressal Commission (the Commission for short)
in 1994 which was registered as Original Petiition
No.43/1994. The respondent claimed Rs.56,00,799/- along
with interest. The said sum comprised of Rs.50,78,231/- as
cost of 267 generator sets, Rs.22,568/- as freight charged
and Rs.5,00,000/- as general and special damages on account
of harassment and undue loss of time. It was alleged in the
complaint, inter alia, that the carrier having accepted the
responsibility of transportation of the consignments and
safe delivery of goods failed to deliver the same. Thus
there was deficiency in the service to be rendered by the
appellant as carrier.
On being noticed by Commission the appellant appeared
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and filed their counter affidavit. Therein the appellant
did not deny the entrustment of the goods, the booking
particulars and issue of lorry receipt, as averred in the
complaint. The appellant, pleaded that the consignments
were lost in fire which was an accident beyond their
control, and therefore, there was no deficiency in service
and the complaint was not maintainable. It was further
pleaded by the appellant that the loss having taken place
for reasons and in circumstances beyond their control they
were not liable to make good the loss either under the
contract between the parties or under general law.
Both the parties filed affidavits and documents in
support of their case. The Commission on assessment of the
materials on record held inter alia, that the respondent was
entitled to receive from the appellant Rs.51,00,799/- i.e.
Rs.50,78,231/- towards cost of the generator sets and
Rs.22,568/- being the refund of freight charges. The
Commission rejected the claim of Rs.5,00,000/- towards
general and special damages. The Commission in its order
placed reliance on the provision in section 9 of the
Carriers Act to hold that the appellant are deficient in the
performance of their service as common carrier, as the goods
entrusted have not been at all delivered in accordance with
the contract of carriage for consideration evidenced by the
receipts. The Commission also held that section 9 relieves
the complainant from the burden of showing that the loss or
non- delivery was owing to any negligence or criminal act;
and that the loss to the goods sent is prima facie evidence
of negligence. Feeling aggrieved by the said order the
appellant filed this appeal under section 23 of the
Consumers Protection Act.
The main thrust of the submissions of Shri Ashok
Desai, learned senior counsel appearing for the appellant
was that section 9 of the Carriers Act in terms does not
apply to a proceeding under the Consumer Protection Act.
According to Shri Desai the provision applies only to suits
filed in civil court and not to redressal forums under the
Consumer Protection Act which adjudicate disputes in a
summary manner. The further submission of Shri Desai was
that since section 9 is not applicable in this case the
general law that the burden to prove negligence lies on the
party who alleges it, is applicable in the case. Since the
respondent has failed to discharge the burden the complaint
should have been dismissed.
Shri Shanti Bhushan, learned senior counsel for the
respondent, on the other hand, contended that the expression
suit in section 9 of the Carriers Act should be understood
in its generic sense and should not be given a restrictive
meaning. The Commissison, submitted Shri Shanti Bhushan,
was right in applying the provision of section 9 in the
proceeding. The further contention raised by Shri Shanti
Bhushan was that a common carrier is also an insurer under
general law, and therefore, even keeping aside the provision
of section 9 its liability for making good the loss of the
goods in its custody squarely lies on the carrier.
The Carriers Act is intended not only to enable common
carriers to limit their liability for loss of or damage to
property delivered to them to be carried but also to declare
their liability for loss of or damage to such property
occasioned by the negligence or criminal acts of themselves,
their servants or agents. Therefore, the Act is not only
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protective of the interest of the common carriers but also
enhances the credibility of the business with general
public.
In section 2 of the said Act common carrier denotes
a person other than the Government, engaged in the business
of property under multinodal transport document or of
transporting for hire property from place to place, by land
or inland navigation, for all persons indiscriminately.
In section 3 of the said Act it is declared that no
common carrier shall be liable for the loss of or damage to
property delivered to him to be carried exceeding in value
one hundred rupees and of the description contained in the
Schedule to this Act, unless the person delivering such
property to be carried, or some person duly authorised in
that behalf, shall have expressly declared to such carrier
or his agent the value and description thereof.
In section 4 of the said Act it is laid down that such
carrier may require payment for the risk undertaken in
carrying property exceeding in value one hundred rupees and
of the description aforesaid, at such rate of charge as he
may fix. In the proviso the carrier is required to give
notice of the rate of charge by exhibiting it in the place
where he carries on the business of receiving property to be
carried.
In section 6 of the said Act it is laid down that the
liability of any common carrier for the loss of or damage to
any property delivered to him to be carried , not being of
the description contained in the Schedule to the Act, shall
not be deemed to be limited or affected by any public
notice; but any such carrier, not being the owner , by
special contract signed by the owner of such property so
delivered or by some person duly authorised on that behalf
by such owner, limit his liability in respect of the same.
Section 8 of the said Act provides, inter alia, that
notwithstanding anything hereinbefore contained, every
common carrier shall be liable to the owner for loss of or
damage to any property (including container, pallet or
similar article of transport used to consolidate goods)
delivered to such carrier to be carried where such loss or
damage shall have arisen from the criminal act or any of his
agents or servants and shall also be liable to the owner for
loss or damage to any such property other than property to
which the provisions of section 3 apply and in respect of
which the declaration required by that section has not been
made, where such loss or damage has arisen from the
negligence of the carrier or any of his agents or servants.
Section 9 of the said Act on which reliance has
particularly been placed by the appellant reads :
9. In any suit brought against a common carrier for
the loss, damage or non delivery of goods (including
containers, pallets or similar article of transport used to
consolidate goods) entrusted to him for carriage, it shall
not be necessary for the plaintiff to prove that such loss,
damage or non-delivery was owing to the negligence or
criminal act of the carrier, his servants or agents.
In Section 10 provision is made regarding prior notice
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of loss or injury to be given within six month of the time
when the loss or injury first came to the knowledge of the
plaintiff beore filing of the suit. Coming to the
provisions of the Consumers Protection Act, 1986 - In
Section 2(d) thereof "consumer" is defined to mean any
person who.. (ii) hires or avails of any services for a
consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment
and include any beneficiary of such services other than the
person who hires or avails of the services for consideration
paid or promised, or partly paid and partly promised, or
under any system of deferred payment, when such services are
availed of with the approval of the first mentioned person.
In Section 2(g) "deficiency" is defined to mean any fault,
imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance which is required to be
maintained by or under any law for the time being in force
or has been undertaken to be performed by a person in
pursuance of a contract or otherwise in relation to any
service; Section 2(o) defines "service" to mean service of
any description which is made available to potential users
and includes the provision of facilities in connection with
banking, financing, insurance, transport, processing, supply
of electrical or other energy, board or lodging or both,
housing, construction, entertainment, amusement or the
purveying of news or other information, but does not include
the rendering of any service free of charge or under a
contract of personal service.
In section 3 of the Act it is declared that the
provisions of the Act shall be in addition to and not in
derogation of the provisions of any other law for the time
being in force.
Chapter III of the Act contains the provisions
regarding Consumer Disputes Redressal Agencies. In
section 9 establishment of three agencies i.e. District
Forum, State Commission and National Consumer Disputes
Redressal Commission is provided for.
In Section 13 the procedure to be followed by the
District Forum on receipt of a complaint is laid down. In
section 15 provision is made for appeal by any person
aggrieved by an order made by the District Forum to the
State Commission. In Section 17 the jurisdiction of the
State Commission is laid down and in section 18 it is laid
down that the provisions applicable to State Commissions are
akin to the same as provided in sections 13 and 14 and the
rules made thereunder for disposal of complaint by the
District Forum. In section 19 it is provided that any
person aggrieved by an order made by the State Commission
may prefer an appeal to the National Commission. Section 21
which contains the provisions regarding jurisdiction of the
National Commission lays down inter alia, that subject to
the other provisions of the Act the National Commission
shall have jurisdiction (a) to entertain (i) complaints
where the value of the goods or services and compensation,
if any, claimed exceeds rupees twenty lakhs and (ii) appeals
against the orders of any State Commission; and (b) to call
for the records and pass appropriate orders in any consumer
dispute which is pending before or has been decided by any
State Commission where it appears to the National Commission
that such State Commission has exercised jurisdiction not
vested in it by law or has failed to exercise jurisdiction
so vested or has acted in the exercise of its jurisdiction
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illegally or with material irregularity. Section 22 of the
Act which provides for power of and procedure applicable to
the National Commission reads: 22. Power of and procedure
applicable to the National Commission The National
Commission shall, in the disposal of any complaints or any
proceedings before it, have
(a) the powers of a civil court as specified in sub-
sections(4), (5) and (6) of section 13; (b) the power to
issue an order to the opposite party directing him to do any
one or more of the things referred to in clauses (a) to (I)
of sub-section (1) of section 14,
and follow such procedure as may be prescribed by the
Central Government.
In section 23 provision is made for an appeal by any
person aggrieved by an order made by the National Commission
in exercise of its powers conferred by sub-clause (I) of
clause (a) of section 21 to the Supreme Court.
In section 24 a declaration is made that every order
of a District Forum, the State Commission or the National
Commission shall, if no appeal has been preferred against
such order under the provisions, of this Act, be final.
Section 25 makes provision regarding enforcement of
orders by the forum, the State Commission or the National
Commission. Therein it is laid down, inter alia, that every
order made by the District Forum, the State Commission or
the National Commission may be enforced by the District
Forum, the State Commission or National Commission, as the
case may be in the same manner as if it were decree or order
made by a Court in a suit pending therein and it shall be
lawful for the District Forum, the State Commission or the
National Commission to send, in the event of its inability
to execute it, such order to the court within the local
limits of whose jurisdiction (a) in the case of an order
against a company, the registered office of the company is
situated, or (b) in the case of an order against any other
person, the place where the person concerned voluntarily
resides or carries on business or personally works for gain,
is situated.
And thereupon, the court to which the order is so sent
, shall execute the order as if it were a decree or order
sent to it for execution.
From the provisions of the Consumer Protection Act
noted in the foregoing paragraph the position is clear that
the consumer disputes redressal agencies, i.e., District
Forums, State Commissions and the National Commission are
vested with powers of adjudication of all types of consumer
disputes. No exception is made in case of consumer disputes
in which the allegations made in the complaint regarding
deficiency of service causing damage to or loss of the goods
are contested. Indeed finality is attached to the orders of
the redressal agencies and provision is made for executon
and implementation of the orders passed by them treating
such orders as decree of the court. It is relevant to state
here that on perusal of the provisions of the Act it is
clear that the scheme of the statute is to provide heirarchy
of redressal forums for attending to the grievances of
consumers regarding deficiency in service promptly and give
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finality to the orders passed by the agencies. Therefore,
it is difficult to accept the contention that the dispute
redressal agencies provided in the Consumer Protection Act
are not forums which have jurisdiction to entertain the
complaints in which claims for loss or damage to goods
entrusted to a carrier for transportation is seriously
disputed. The contention raised by Shri Desai in this
regard is accordingly rejected.
Coming to the question of liability of Common Carrier
for loss of or damage to goods, the position of law has to
be taken as fairly well settled that the liability of a
carrier in India, as in England, is more extensive and the
liability is that of an insurer. The absolute liability of
the carrier is subject to two exceptions; an act of God and
a special contract which the carrier may choose to enter
with the customer.
In Sarkar on Evidence (Fifteenth Edition 1999) at page
1724 under the heading "Negligence" it is stated "As a rule
negligence is not to be presumed; it is rather to be
presumed that ordinary care has been used. The rule does
not apply in the case of common carriers, who, on grounds of
public policy, are presumed to have been negligent if goods
entrusted to their care have been lost or damaged or delayed
in delivery" (Ross v. Hill, 2 CB 890; Jones s 15). The
law will conclusively presume that the carrier has been
guilty of a negligence unless he can show that the loss or
damage was occasioned by what is technically called the "act
of God", or by King’s enemies."
In Akhil Chandra Saha and others Vs. India General
Navigation and Railway Co. [ Vol XXI (1915) Cal LJ 565] a
Division Bench of the Calcutta High Court held that a common
carrier in this country is liable as an insurer i.e., he is
responsible for the safety of the goods entrusted to him in
all events except when loss or damage arises from act of God
or king’s enemies; but his liability for loss or injury in
respect of the goods carried may be varied by the contract.
The Court further held that the burden of proof on absence
of negligence is upon the common carrier, on the theory that
the loss or damage to the goods is prima facie proof of
negligence.
The same High Court in the case of Dekhari Tea Co.
Ltd. Vs. Assam Bengal Railway Co. Ltd. [AIR 1920
Calcutta 758] considered a case where a railway company
entered into a contract with the plaintiff-firm for the
carriage of certain goods to a port and thence to England.
Owing to a breach on the railway line, the goods had to be
transported by river and in steamers and flats belonging to
a steamship company under an agreement with the railway
company. While the goods were in a vessel of the steamship
company, a fire broke out and about one-fourth of the goods
were destroyed. The plaintiff instituted the suit to
recover from both the railway company and the steamship
company the value of the goods destroyed. The High Court
held that although there was no contract between the
steamship company and the plaintiff the company was
nevertheless liable as a common carrier for the loss
incurred by the plaintiff. Comparing the provisions of the
Indian Carriers Act, 1865 with the English Act of 1830 the
Court observed: "However this may be, the Indian Carriers
Act, 1865 when compared carefully with the English Act of
1830, does I think purport and intend to make a common
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carrier liable to the owner of the goods as such, though not
as an insurer. This English Act is very carefully worded;
it refers to the person or persons sending or delivering the
goods (Ss.1 and 2) as the party entitled to recover damages
in respect of such loss (s.7) S.8 of the Indian Act was
undoubtedly drawn with S.8 of the English Act before the
draftsman. The changes are conspicuous and intentional.
The English Act says that nothing in that Act shall protect
the carrier from liability for loss or injury to goods
arising from felonious acts of the carrier’s servants. The
Indian Act says that notwithstanding anything in that Act
contained every common carrier shall be liable to the owner
where the loss has arisen from the negligence or criminal
act of the carrier or any of his agents or servants. The
Indian section not only puts negligence and crime on the
same footing; the whole structure of the clause is
different: it affirms or creates a liability and gives the
benefit of it to the owner. The English section makes the
carrier in no case liable where he was not liable before.
There can be, I think, no doubt that the clause of the
Indian Act must be taken to mean advisedly what it says:
"The person entitled to recover in respect of such loss" is
the phrase taken from the English Act and used in S.5, by
the Legislature when that phrase is adequate to the
intention. The word "owner" in S.8 is the product of a
reforming zeal which found the corresponding English section
to stand in need of drastic alteration."
The Madhya Pradesh High Court in the case of M/s
Mooljee Sicka and Co. Vs. Sardar Narharsingh [AIR 1959 MP
351] considering the scope of sections 8 and 9 of the
Carriers Act held : "The mere occurrence of the fire, under
circumstances such as the present is evidence of negligence,
the truck with the coal-gas plant on it being under the
management of the defendant No.1’s servants; and as they
have not been produced to show how the fire originated and
no explanation offered, the respondent has not discharged
the onus cast upon him by law of showing that there was no
negligence and that being so, the plaintiff was entitled to
recover."
The Court also quoted the following observation of
Rankin ,J. in I.G.N. and Ry.Co. Ltd. V. Eastern Assam
Co. Ltd. 33 Cal LJ 71 = AIR 1921 Cal 315): "When a
defendant is called upon to prove that he was not negligent
he is not really called upon to prove a negative. He is
called upon to prove that he took reasonable care The task
is burdensome not because the thing to be proved is a
negative but because the field within which care has to be
proved is quite indefinite and the presumption being against
the carrier the defendant’s positive proof must cover the
whole field."
In P.K.Kalasami Nadar vs. K.Ponnuswami Mudaliar and
ors. [AIR 1962 Madras 44] a Division Bench of the Madras
High Court relying on the Privy Council decision in Irrawady
case (supra) held that where loss has occurred to cotton
bales in transit ’cotton’ being one of the goods not
mentioned in Carriers Act, 1965 and in respect of which the
liability of the common carrier (in that case the owner of
the lorry) is not limited by a special contract the owner of
the goods in a suit against the common carrier for
loss/damages or non-delivery of articles or goods entrusted
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to the carrier is not required to prove negligence; the
reason being that the liability of a common carrier is that
of an insurer; it therefore follows that, notwithstanding
the fact that there is no negligence on the part of the
comon carrier he is liable to compensate, the owner of the
goods for loss of the goods that occurred during transit.
In the said decision the Court considered the question
whether loss of goods by accidental fire can be said to be
an act of God. The Court observed that an act of God will
be an extraordinary occurrence due to natural causes, which
is not the result of any human intervention and which could
not be avoided by any amount of foresight and care, e.g. a
fire caused by lightning; but an accidental fire though it
might not have resulted from any act of or omission of the
common carrier, cannot be said to be an act of God.
In Rivers Steam Navigation Co. Ltd. Vs. State of
Assam [AIR 1962 Assam 110] a Division Bench of the Assam
High Court considered the case of consignment of goods not
perishable by nature in respect of which there was no
special contract as to the time for delivery and the goods
suffered deterioration due to delay caused by abnornal time
taken for transit. The Court held that the plaintiff
consignee who claimed damages need not prove negligence on
the part of the carrier. Relying on the principle that
there was an obligation on the carrier to carry the goods
safely and in the absence of any special contract the goods
must be delivered within a reasonable time. A similar view
was taken by a Division Bench of the Bombay High Court in
the case of D.V.Patel v. G.Wagle [AIR 1963 Bom 208]. In
the case of Vidya Ratan vs. Kota Transport Co. Ltd. [AIR
1965 Rajasthan 200] interpreting sections 8 and 9 it was
held by the Rajasthan High Court that in a suit against
common carrier in respect of loss of goods delivered to him
for transportation there need not be any privity of contract
between the owner of the goods and the carrier. It is
sufficient if the carrier has accepted the goods for
transmit and has failed to deliver them. Thereafter to
escape his liability which is normally absolute, he has to
show that there was a special contract made by the owner of
the goods or his duly authorised agent, even if, the
necessity of having the contract in writing is thought to be
a technical provision .
In the case of Muralidhar Mohanlal and others vs.
Rivers Steam Navigation Co. Ltd. [ AIR 1967 Assam and
Nagaland 79] considering the provisions of sections 6,8 and
9 of the Carriers Act, the High Court held that these
sections are based on English common law and also the common
Carriers Act of England. The Court placed reliance on Privy
Council in Irrawady Flotilla V. Bugwandas (1891) ILR 18
Cal. 620 ] in which the legal position was stated in the
following words :
A common carrier is responsible for the safety of the
goods entrusted to him in all events, except when loss or
injury arises solely from act of God or the Queens enemies
or from the fault of the consignor, or inherent vice in the
goods themselves. He is, therefore, liable even when he is
overwhelmed and robbed by an irresistible number of persons.
He is an insurer of the safety of the goods against
everything extraneous which may cause loss or injury except
the act of God or the Queens enemies and if there has been
an unjustifiable deviation or negligence or other
fundamental breach of contract on his part, he will be
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liable for loss or injury due to the Queerns enemies or, it
would seem, due to act of God.
This responsibiloity as an insurer is imposed upon a
common carrier by the custom of realm, and it is not
necessary to prove a contract between him and the owner of
the goods in order to establish liability. Failure on the
part of the carrier to deliver the goods safely is a breach
of the duty placed upon him by the common law; and
therefore an action of tort lies against him for such
breach, the owner not being bound to prove any contract.
Where, however, there is a contract, liability may arise
either at common law or under the contract, and the contract
may limit the carriers responsibility.
A common carrier is liable for loss or injury caused
wholly by the negligence of other persons over whom he has
no control; as where the carriers barge runs against an
anchor wrongfully left in the water by a stranger, or where
the goods which he is carrying are destroyed by accidental
fire or by rats, or where they are stolen from him, even
though taken by force.
The general obligation of a common carrier of goods to
carry the goods safely whatever happens renders it
unnecessary to import into the contract for carriage a
special warranty of the roadworthiness of the vehicle or the
seaworthiness of the vessel, for if the goods are carried
safely the condition of the vehicle or vessel is immaterial,
and, if they are lost or damaged it is unnecessary to
inquire how the loss or damage occurred; where however, a
common carrier of goods is seeking relief from liability by
reason of one of the excepted perils the condition of the
vehicle or vessel is material in determining the question of
negligence, and if the carrier fails to prove a sufficient
and proper conveyance and loss or damage results therefrom
he will be liable.
A similar view was taken in the case of The Associated
Traders & Engineers Pvt. Ltd. Vs. Delhi Cloth & General
Mills Ltd. & Ors. [ ILR (1974) 1 Delhi 790] in which the
Court took note of the position that in common law the
liability of a common carrier is equivalent to that of an
insurer.
Similar view has also been taken by Bombay High Court
in M/s Road Transport Corporation and others vs. Kirloskar
Brothers Ltd. [AIR 1981 Bom 299]. In Kerala Transport
Company Vs. Kunnath Textiles [ 1983 Kerala Law Times 480] a
Division Bench of the High Court of Kerala considering the
question whether, if the defendant has failed to deliver the
goods not on account of any negligence or carelessness,
would the defendant be liable; answered the question in the
affirmative. The Court reiterating the position of a
carrier in India as noted above held that it is only those
causes which can be traced to natural causes as opposed to
human agency that can be said to be acts of God and that can
therefore be an answer to claim for absolute liability. The
Court further held that if the defendant was trying to
answer the liability on the basis of the terms of the
special contract he would have to show what reasonable
protection he took against the fire. The Court placed
reliance on the decision in R.R.N. Ramalinga Vs. Narayana,
[AIR 1971 Kerala 197] .
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A similar view was also taken by the Patna High Court
in the case of Banwari Lal Podar vs. Road Transport
Corporation (AIR 1989 Patna 303). Therein it was held that
from a perusal of the section 8 and 9 of the Carriers Act,
1965 it is clear that the burden of proof that there was no
criminal act or negligence on the part of the carrier or its
agents or servants is upon the plaintiff.
Our attention was also drawn to a decision of this
Court in Bharathi Knitting Company vs. DHL Worldwide
Express Courier Division of Airfreight Ltd. [ (1996) 4 SCC
704] wherein this Court considered thequestion when parties
have contracted and limited their liabilities, whether the
State/National Commission could go behind the terms of the
contract and give relief for damages in excess of the limit
prescribed under the contract. This Court interpreting the
provisions of section 2(1)(g), 19 and 23 of the Consumers
Protection Act, 1986 held :
It is true that the Act is a protective legislation
to make available inexpensive and expeditious summary
remedy. There must be a finding that the respondent was
responsible for the deficiency in service, the consequence
of which would be that the appellant had incurred the
liability for loss or damages suffered by the consumer due
to deficiency in service thereof. When the parties have
contracted and limited their liabilities, the question
arises: whether the State Commission or the National
Commission under the Act could give relief for damages in
excess of the limits prescribed under the contract ?
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It is true, as contended by Mr.M.N. Krishnamani, that
in an appropriate case, the Tribunal without trenching upon
acute disputed question of facts may decide the validity of
the terms of the contract based upon the fact situation and
may grant remedy. But each case depends upon its own facts.
In an appropriate case where there is an acute dispute of
facts necessarily the tribunal has to refer the parties to
original civil court established under the CPC or
appropriate State law to have the claims decided between the
parties. But when there is a specific term in the contract,
the parties are bound by the terms in the contract.
This decision is of little assistance to the appellant
since the contentions raised by them before us herein were
not considered by this Court therein.
From the conspectus of views taken in the decisions of
different High Courts noted above it is clear that the
liability of a common carrier under the Carriers Act is that
of an insurer. This position is made further clear by the
provision in section 9, in which it is specifically laid
down that in a case of claim of damage for loss to or
deterioration of goods entrusted to a carrier it is not
necessary for the plaintiff to establish negligence. Even
assuming that the general principle in cases of tortious
liability is that the party who alleges negligence against
the other must prove the same, the said principle has no
application to a case covered under the Carriers Act. This
is also the position notwithstanding a special contract
between the parties. These principles have held the field
over a considerable length of time and have been
crystallized into accepted position of law. No good reason
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has been brought to our notice to persuade us to make a
departure from the accepted position. Therefore we
reiterate the position of law noticed above. The
consequential position that follows is that the contention
of Shri Ashok Desai learned senior counsel, that the
respondents herein having failed to establish negligence on
the part of the appellant, their claim for damages should be
rejected, cannot be accepted.
The question that remains to be considered is whether
the principles of law discussed in the preceeding paragraph
is applicable in a proceeding before the consumer disputes
redressal agency, particularly the National Commission. In
this regard the contention of Shri Desai is that the use of
the term suit in section 9 of the Carriers Act shows that
the provision is applicable only to cases filed in civil
court and does not extend to proceedings before the National
Commission which is a forum which is to decide complaints by
consumers following a summary procedure. Elucidating the
point Shri Desai submitted that in a proceeding before the
National Commission the general principle that the burden to
prove negligence lies on the party alleging negligence
should be applicable though the position may be different in
a suit filed in a civil court. The term suit has not been
defined in the Carriers Act nor is it provided in the said
Act that the term suit will have the same meaning as in
the Civil Procedure Code. Therefore, the ordinary
dictionary meaning of the term will have to be taken for
ascertaining its meaning. In P.Ramanatha Aiyars Law
Lexicon 1997 Edition some of the references of the term are:
Suit Prosecution of pursuit of some claim, demand or
request; the act of suing, the process by which one
endeavours to gain an end or object; attempt to attain a
certain result; the act of suing; the process by which one
gains an end or object, an action or process for the
recovery of a right or claim; the prosecution of some
demand in a Court of Justice; any proceeding in a Court of
Justice in which plaintiff pursues his remedy to recover a
right or claim; the mode and manner adopted by law to
redress Civil injuries; a proceeding in a Court of Justice
for the enforcement of a right.
The word suit in Ss.51 to 55 Act IX of 1879, Court
of Wards Act, does not mean only what is usually called a
regular suit. It embraces all contentious proceedings of
an ordinary civil kind, whether they arise in a suit or
miscelleneous proceedings.
Suit Action . Suit is a term of wider signification
than action; it may include proceedings on a petition.
(Emphasis supplied)
From the above it is clear that the term suit is a
generic term taking within its sweep all proceedings
initiated by a party for realisation of a right vested in
him under law. The meaning of the term suit also depends
on the context of its user which in turn, amongst other
things, depends on the Act or the Rule in which it is used.
No doubt the proceeding before a National Commission is
ordinarily a summary proceeding and in an appropriate case
where the Commission feels that the issues raised by the
parties are too contentious to be decided in a summary
proceeding it may refer the parties to a civil court. That
does not mean that the proceeding before the Commission is
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to be decided ignoring the express statutory provisions of
the Carriers Act (section 9) in a proceeding in which a
claim is made against a common carrier as defined in the
said Act. Accepting such a contention would defeat the
object and purpose for which the Consumers Protection Act
was enacted. A proceeding before the National Commission,
in our considered view, comes within the term suit.
Accordingly we reject the contention raised by Shri Ashok
Desai in this regard.
Shri Desai also raised a contention on the amount
awarded by the National Commission under the impugned order.
He urged that the respondent by its conduct led the
appellant to believe that the goods entrusted for
transportation are insured and having been led by such
representation the appellant had not insured the goods.
This, according to Shri Desai is a circumstance which should
be taken as a mitigating factor for quantification of the
damage. In the impugned order the National Commission
taking note of the stipulations in the delivery receipt
which was signed by both the parties, confined the amount of
damages to the value of the consignment destroyed/ not
delivered. This contention in our view needs no in-depth
consideration for the reason that there is no material
placed before us to show that at the time of booking of the
consignment any representation as stated by Shri Desai was
given by the respondent to the appellant. Shri Shanti
Bhushan pointed out that the question regarding insuring the
consignment was raised after the incident of non-delivery or
loss of the consignment took place when the respondent asked
the appellant to issue a certificate of non-delivery of the
consignments. Then the respondent ascertained though it had
insured all its consignments in bulk the amount stated in
the policy had been exceeded by the date the consignments in
question were booked, and therefore the insurance policy was
not of any avail so far as non-delivery/loss of the
consignments in question is concerned. It follows that this
contention raised by Shri Desai is also to be rejected. On
the discussion in the foregoing paragraphs all the
contentions raised on behalf of the appellant having been
negatived the appeal is dismissed. There will, however, be
no order as to costs. .J (S.SAGHIR AHMAD)