9911796707
TMI Blog2011 (8) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... a consignment of Reactive Dyes with the appellant Ethiopian Airlines to be delivered at the Dar Es. Salaam, Tanzania on 30.9.1992. The airway bills were duly issued by the appellant from its office in Bombay at the Taj Mahal Hotel for the said consignment. According to the respondent there was gross delay in arrival of the consignment at the destination, which led to deterioration of the goods. 4. The respondent filed a complaint on 11.5.1993 before the Maharashtra State Consumer Dispute Redressal Commission (hereinafter referred to as `the State Commission'). Pursuant to the notice issued by the State Commission, the appellant filed a written statement in which the appellant raised a preliminary objection regarding maintainability of the complaint. 5. On 17.1.1996, the State Commission held that the complaint filed by the respondent was not maintainable. The respondent aggrieved by the said order preferred an appeal before the National Consumer Disputes Redressal Commission (hereinafter referred to as `the National Commission'). The National Commission categorically observed in the impugned judgment that Section 86 of the Code of Civil Procedure (for short `C.P.C.') ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. It is not disputed that every sovereign State is competent to make its own laws in relation to the rights and liabilities of foreign States to be sued within its own municipal Courts. Just as an independent sovereign State may statutorily provide for its own rights and liabilities to sue and be sued, so can it provide for the rights and liabilities of foreign States to sue and be sued in its municipal Courts. That being so, it would be legitimate to hold that the effect of section 86(1) is to modify to a certain extent the doctrine of immunity recognised by International Law. This section provides that foreign States can be sued within the municipal Courts of India with the consent of the Central Government and when such consent is granted as required by section 86(1), it would not be open to a foreign State to rely on the doctrine of immunity under International Law, because the municipal Courts in India would be bound by the statutory provisions, such as those contained in the Code of Civil Procedure. In substance, section 86(1) is not merely procedural; it is in a sense a counter-part of section 84. Whereas section 84 confers a right on a foreign State to sue, section 86(1) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in writing by the Secretary to that Government. In view of the provisions aforesaid, before any action is launched or a suit is filed against a foreign State, person concerned has to make a request to the Central Government for grant of the necessary consent as required by sub-section (1) of Section 86 and the Central Government has to accede to the said request or refuse the same after taking into consideration all the facts and circumstances of the case. ... ... ..." 12. It was submitted by the learned counsel for the appellant, Mr. K.G. Presswala, that when interpreting Section 86 of the CPC, it should always be kept in view that the said Section gives effect to the principles of international law. 13. The learned counsel for the appellant placed reliance on the judgment of this court delivered in the case of H.H. The Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. State of Rajasthan and Others AIR 1964 SC 444, where an ex-ruler contended that under section 86 of the CPC, a reference made by the Government under the Industrial Disputes Act in respect of employees' wages was not maintainable without the prior consent of the Central Government. This Court in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) displayed on the goods or any package containing such goods; (c) displayed on the price list exhibited by him or under any law for the time being in force; (d) agreed between the parties (v) goods which would be hazardous to life and safety when used are being offered for sale to the public (a) in contravention of any standards relating to safety of such goods as required to be complied with by or under any law for the time being in force; (b) if the trader could have known with due diligence that the goods so offered are unsafe to the public. (vi) services which are hazardous or likely to be hazardous to the life and safety of the public when used are being offered by the Service Provider could have known with due diligence injurious to life and safety. 16. Mr. Presswala also submitted that a Complaint and a Plaint is one and the same thing and a proceeding in the Consumer Court, though not a suit under the Civil Procedure Code, is still a proceeding which is in the nature of a suit and is commenced by a proceeding in the nature of a Plaint (i.e. a Complaint and is in respect of a claim which is ordinarily triable by a Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g matters, namely: (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed. (5) Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860), and the District Forum shall be deemed to be a civil court for the purposes of Section 195 and chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (6) Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-section (1) of Section 2, the provisions of rule 8 of Order 1 of the first Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the provisions of the CPC are not applicable to the proceedings under the Consumer Protection Act, 1986 and consequently, the bar under Section 86 of the CPC likewise does not apply to the proceedings initiated under the Consumer Protection Act, 1986. 28. Mr. Khanna contended that the impugned order passed by the National Commission is in consonance with the legal position crystallized in a series of judgments of this Court and calls for no interference. 29. Mr. Khanna gave the historical background of the enactment of the Consumer Protection Act, 1986. He submitted that the interests of consumers around the world had drawn the attention of the United Nations for a long time and that after long deliberations and continued consultations, the United Nations in its General Assembly adopted guidelines for consumer protection. The relevant portion of the guidelines is given as under: "1. Taking into account the interests and needs of consumers in all countries, particularly in developing countries, recognize that consumers often face imbalances in economic terms, educational levels, and bargaining power; and bearing in mind that consumers should have the right of acces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent contended that the Act was enacted to provide better protection for the consumers and their interests. By this Act, the legislature sought to constitute quasi judicial Tribunals/Commissions as an alternative system of adjudicating consumer disputes via summary proceedings. That is the whole purpose of providing for a separate three tiered system comprised of a District Forum, State Commission and the National Commission which would provide inexpensive and speedy remedies to consumers. In creating those fora, the legislature required the fora to arrive at conclusions based on reasons following the rules of natural justice. He also submitted that while enacting the Consumer Protection Act, Parliament was fully aware that the provisions of the CPC were available for the trial of a claim of a consumer dispute, yet, in its wisdom, Parliament decided not to apply the procedure provided in the CPC to the proceedings under the Act. Instead, Parliament chose to apply only limited provisions of the Code of Civil Procedure to the complaints to be entertained under the Act. Specifically, in Sections 13 (4), (5) and (6), the Act explicitly provided for limited applicability of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the 1985 Act. Rejecting this contention, the Special Court had come to the conclusion that the Special Court Act being a later enactment would prevail. The headnote which brings out succinctly the ratio of the said decision is as follows: Where there are two special statutes which contain non obstante clauses the later statute shall prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non obstante clause. If the Legislature still confers the later enactment with a non obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment would continue to apply." 35. Mr. Khanna also submitted that the Act is a special and a later Act which will prevail over the provisions of the CPC, which is a general and previous statute. He submitted that the Act is a complete Code in itself as regards the disputes covered under it. As such, the general statute i.e. CPC can have no applicability and stands excluded after the enactmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d other persons shall, subject to the provisions of this act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage. (2) For the purpose of this Act, the High Contracting Parties to the Convention and the date of enforcement of the said Convention shall be such as are included in part-I of the Annexure-1. (3) Any reference in the first schedule to the territory of any High Contracting Party to the Convention shall be construed as a reference to all the territories in respect of which he is a party. (4) Any reference in the first schedule to agents of the carrier shall be construed as including a reference to servants of the carrier. (5) The Central Government may, having regard to the objects of this act, and if it considers necessary or expedient so to do, by notification in the official gazette, add to, or, as the case may be, omit from, Part I of the Annexure, any High Contracting Party and on such addition, or as the case may be, omission, such High Contracting Party shall be or shall cease to be, a High Contracting Party." 39. Section 7 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to the Convention. A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of these Rules." 41. Rule 2 of these Rules, provides that these rules apply to carriage performed by the State or by legally constituted public bodies. Rule 2 reads as under: "2. (1) These rules apply to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in rule 1. (2) These rules do not apply to carriage performed under the terms of any International Postal Convention." 42. Rule 18 provides for liability of the carrier for damages and Rule 19 provides for liability of the carrier for damages occasioned by delay. Rule 18 and 19 read as under: "18. (1) The carrier is liable for damage sustained in the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government: Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid (a foreign State) from whom he holds or claims to hold the property. (2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the court in which (the foreign state) may be sued, but it shall not be given, unless it appears to the Central Government that (the foreign State) - (a) has instituted a suit in the Court against the person desiring to sue (it), or (b) by (itself) or another, trades within the local limits of the jurisdiction of the Court, or (c) is in possession of immovable property situated within those limits and is to be sued with reference to such property or for money charged thereon, or (d) has expressly or impliedly waived the privilege accorded to (it) by this section." 47. Thus, the provisions of Section 7 of the Air Act read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s led by the complainants about negligence of the driver of the appellant. 54. It is no doubt true that Section 14(1)(d) of the Act contemplates award of compensation to the consumer for any loss suffered by the consumer due to the negligence of the opposite party (the carrier). Section 9 of the Carriers Act does not lay down a proposition that a carrier will be liable even if there was no negligence on its part. On the other hand, it merely raises a presumption that when there is loss or damage or non-delivery of goods entrusted to a carrier, such loss, damage or non-delivery was due to the negligence of the carrier, its servant and agents. Thus where the consignor establishes loss or damage or non-delivery of goods, it is deemed that negligence on the part of the carrier is established. The carrier may avoid liability if it establishes that the loss, damage or non-delivery was due to an act of God or circumstances beyond its control. Section 14(1)(d) of the Act does not operate to relieve the carrier against the presumption of negligence created under Section 9 of the Carriers Act. 55. The contention of the appellant that the presumption under Section 9 of the Carriers Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, by relying on Section 9 of the Carriers Act. It will, therefore, be for the carrier to prove absence of negligence." 57. We reiterate the said settled position and reject the contention of the appellant that the presumption under Section 9 of the Carriers Act is not available in a proceeding under the Consumer Protection Act and that therefore, in the absence of proof of negligence, it is not liable to compensate the respondents for the loss." 50. Mr. Khanna further submitted that in the case of E.I.C.M. Exports Ltd. v. South Indian Corporation (Agencies) Ltd. and Another 2009 (10) SCALE 22, this Court has held firstly that the cases filed before the consumer forum are not suits within the meaning of Section 9 of CPC and secondly the limitation of two years for filing a case under the Act as provided vide Section 24 (A) of the Act will be applicable instead of Article III, Clause 6 of the schedule of the Indian Carriage of Goods by Sea Act, 1925, which provides for limitation of one year extendable by three months at the discretion of the Court. According to learned counsel for the respondent there is no conflict between the judgments of this Court in the cases of E.I.C.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the court is sought is a suit." Id. The Michigan Supreme Court similarly found that "the word ["suit"], as applied to legal controversies, both by the legal profession and others, is now used and recognized as a generic term of broad significance, often understood and used, even by legislatures and courts, to designate almost any proceeding." Patterson v. Standard Accident Insurance Co., 178 Mich. 288. The proceedings held before the consumer redressal fora easily fall within the aforementioned definitions : these are proceedings in which consumers may pursue the remedies afforded to them by the Consumer Protection Act and other laws and where the rights of the parties are fully litigated by an organ of justice. 58. However, notwithstanding the fact that proceedings of the National Commission are "suits" under the Carriers Act, vide the expressio unius principle, The Consumer Protection Act, 1986 clearly enumerates those provisions of the CPC that are applicable to proceedings before the consumer fora. Such provisions include 13(4), in which the Consumer Protection Act, 1986 vests those powers vested in a civil court under the CPC to the District Forum. However, according t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Air Act, 1972. And, under these Acts, Ethiopian Airlines is not entitled to sovereign immunity in a suit like that at issue here. Thus, consent of the Central Government is not required to subject Ethiopian Airline to suit in an Indian court, let alone in a consumer redressal forum. 61. In Ratan Lal Adukia and Another v. Union of India, AIR 1990 SC 104, the Apex Court found that Section 80 of the Railways Act, 1890, substituted 1961, was a special provision and self-contained code and that it impliedly repealed in respect of suits covered by it the general provisions of the CPC. The Railways Act provides for a forum in which a suit for compensation for loss of life of, or personal injury to, a passenger for loss, destruction, damage, deterioration or non-delivery of animals or goods against a railway administration may be brought. This is very much akin to the fora created by the Consumer Protection Act. Thus, a similar finding should be made here : the Consumer Protection and Carriers Acts must be deemed special Acts bypassing Section 86 of the CPC, with respect to suits covered by those special Acts. 62. That is, the Consumer and Carriage Acts, which came long after the CPC, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Others (supra) dealt with the object of the Consumer Protection Act, 1986 : to provide expeditious adjudication of consumers' complaints by adopting summary procedure. The Consumer Protection Act, 1986 is a comprehensive and self-contained piece of legislation, and its object is to decide consumers' complaints expeditiously, via summary procedure. The Consumer Protection Act, 1986 also permits authorized agents to appear on behalf of the complainants in order to ensure that they are not burdened with the heavy professional fees of lawyers. 67. Similarly, the Carriage by Air Act, 1972 explicitly provides that its rules apply to carriage performed by the State or by legally constituted public bodies under Chapter 1, Section 2, Sub-section 1. Thus, it is clear that according to the Indian Law, Ethiopian Airlines can be subjected to suit under the Carriage Act, 1972. It may be pertinent to mention that the Carriage by Air Act, 1972 (69 of 1972) is an Act to give effect to the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on the 12th day of October, 1929 and to the said Convention as amended by the Hague Protoco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerns... the commercial transactions of a foreign government... and it arises properly within the territorial jurisdiction of [a country's] courts, there is no ground for granting immunity," finding implicitly that it would not "offend the dignity of a foreign sovereign to have the merits of such a dispute canvassed in the domestic courts of another country." 71. Likewise, in Trendtex Trading Corporation Ltd. v.Central Bank of Nigeria (1977) 1 All E.R. 881, the Court held that the Central Bank of Nigeria was not entitled to plead sovereign immunity because, according to International Law Principle of restrictive immunity, a state-owned entity is not entitled to immunity for acts of a commercial nature, jure gestionis. The Court noted that "if a government department goes into the market places of the world and buys boots or cement - as a commercial transaction - that government department should be subject to all the rules of the market place." The Court also noted an "important practical consideration." stating that foreign sovereign immunity, "in protecting sovereign bodies from the indignities and disadvantages of that process, operates to deprive other persons of the be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
