Case: Patel Roadways Ltd Vs. Birla Yamaha Ltd

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." 42. 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.43. From the conspectus of views taken in the decisions of different High Court 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 has been borough to our notice to persuade us to make a departure from the accepted position of law. No good reason 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.44. The question that remains to be considered is whether the principles of law discussed in the preceding 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 Carries 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. Pamanatha 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 endeavors 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, and 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 miscellaneous proceedings." Suit Action. "Suit" is a term of wider signification than action it may include proceedings on a petition." 45. 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 not 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 destroyednot 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-deliver 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-deliveryloss of the consignments in question is concerned. It follows that this contention raised by Shri Desai is also to be rejected.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]25. 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 th orders of the redressal agencies and provision is made for execution 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 hierarchy of redressal forums for attending to the grievances of consumers regarding deficiency in service promptly and give 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.26. 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 lability 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.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.43. From the conspectus of views taken in the decisions of different High Court 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 has been borough to our notice to persuade us to make a departure from the accepted position of law. No good reason 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.44. The question that remains to be considered is whether the principles of law discussed in the preceding 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 Carries 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. Pamanatha Aiyars Law Lexicon 1997 Edition some of the references of the term areProsecution of pursuit of some claim, demand or request, the act of suing the process by which one endeavors 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, and 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 miscellaneous proceedings." Suit Action. "Suit" is a term of wider signification than action it may include proceedings on a petition.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 not 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 destroyednot delivered. This contention in our view needs noconsideration 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 ofor loss of the consignment took place when the respondent asked the appellant to issue a certificate ofof 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 asof the consignments in question is concerned. It follows that this contention raised by Shri Desai is also to be rejected.