Case: Patel Roadways Ltd Vs. Birla Yamaha Ltd

The factual matrix of the case relevant for determination of the issue may be stated thus. The respondent Ms Birla Yamaha Limited booked 237 consignments containing 267 generator sets at Ghaziabad in the State of Uttar Pradesh, with the appellant Ms 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 Petition No. 43 of 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 asbeing noticed by Commission the appellant appeared 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 generalthe 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 serv ice 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 owning 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.

Reasoning:
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.