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TMI Blog2000 (3) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 ₹ 56,00,799/- along with interest. The said sum comprised of ₹ 50,78,231/- as cost of 267 generator sets, ₹ 22,568/- as freight charged and ₹ 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 and filed their counter affidavit. Therein the appellant did not deny the entrustment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raftsman. 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 Madhy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciency 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary 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 generi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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