ORDER
Rajyalakshmi Rao, Member
1. The facts of this Original Complaint are as follows:
The complainant M/s. Sai International (Exports) Ltd. had entrusted the opposite party AMI India Logistics Pvt. Ltd. on 22.1.1996 with 158 bales of cargo (general merchandise) for shipment from Mumbai to Dar-e-Salam. The opposite party issued four Multimodal Transport Document (MTD) Bills of Lading and the goods were carried on vessels SS SMBT Zambezi which sailed from Mumbai on 8.2.1996. According to the complainant the ship reached Dar-e-Salam on or about 10th March, 1996. Instead of handing over the goods to the consignee, the opposite party’s, Dar-e-Salam agent cleared the container without presentation of the original Bills of Lading and further carried the container by road to Lusaka (in Zambia).
2. The container reached Lusaka on 10.4.1996 and when it was destuffed in the presence of Customs officials at Lusaka, only 60 bales were available for delivery with 98 bales missing. The opposite party informed the Complainant of this fact for the first time by a fax dated 22nd April, 1996. The complainant protested against the massive shortage of bales and some correspondence ensued between the parties and ultimately the complainant under protest arranged to take delivery of 60 bales on 9.7.1996. He sent a legal notice to the opposite party alleging that the latter had unauthorizedly and negligently transported the goods to Lusaka though he was bound to deliver them at Dar-e-Salam and claimed compensation.
3. When the legal notice was refuted, the complainant filed the present petition on 11.9.1996. The opposite party, raised before us, the question of jurisdiction, arguing that Sections 25 and 29 of the Multimodal Transportation of Goods Act, 1993 bars the jurisdiction of this Commission to try the case. Learned Counsel of O.P. Ms. Indu Malhotra also raised a second objection regarding the jurisdiction namely that the value of the material allegedly lost is admitted to be Rs. 17.66 lakh and that under Section 19 of the Multimodal Transportation Act, 1993, the liability of the carrier is restricted to the total loss of goods which is only Rs. 17.66 lakh. Since at the relevant time, the pecuniary jurisdiction of the National Commission is above Rs. 20 lakh, it is argued that this Commission has no jurisdiction.
4. The case of the opposite party is that the ship has reached Dar-e-Salam on 19.2.1996 and that for about a month, no one on behalf of the consignee or the notified party had come to receive the goods. The notified party also could not be contacted because the complainant gave a bogus address of the notified party. Under the circumstances, the goods which were discharged at Dar-e-Salam were attracting huge amount of demurrage. Since the complainant has given a Lusaka address of the notified party, it was decided by the opposite party that the container should be sent by road to Lusaka.
5. As against this, learned Counsel for the complainant Mr. P.K. Mullick states that the ship reached Dar-e-Salam only around 10th March, 1996. Neither party has led any evidence to show as to when exactly the ship reached Dar-e-Salam. The complainant argues that no intimation has been given either to him or to the consignee or to the notified party by the opposite party about the arrival of the ship at Dar-es-Salaam. The complainant further argues that the statement of the opposite party that false address of the notified party was given to them is incorrect. In fact the complainant has pointed out that a copy of the internal documents of the opposite party shows that the opposite party tried to contact the notified party at a wrong address. While the correct address given in the Bills of Lading was P.B. No. 25682, the opposite party sent the intimation to P.D. No. 25652. Further, the complainant pointed out to documents to show that the opposite party tried to send the intimation (that too, to the wrong address) only after the goods were unauthorisedly sent to Lusaka, and not while the goods were at Dar-e-Salam.
6. The opposite party has not given proper explanation about the, massive shortage of the bales except baldly saying that the seals put on the container at Mumbai were intact when the goods were opened at Lusaka. There is no explanation whatsoever as to how the bulk of the bales disappeared. Assuming but not accepting that the bulk of the bales are missing, the opposite party says that the responsibility ended on the discharge of the goods at Dar-e-Salam and that he cannot be held responsible for the loss of goods after they left Dar-e-Salam. This is indeed a strange argument especially when it is read in juxta-position with his other argument that the Bills of Lading show that the goods are in transit to Lusaka from Dar-e-Salam. Thus, there is no consistency in the argument of the opposite party.
7. On hearing the versions of both the parties, it is clear that there is a prima facie case of negligence on the part of opposite party in this case as the goods seem to have been transported from Dar-e-Salam to Lusaka without any authority and also from the fact that there was a serious shortage of bales. We are, however, not adjudicating the issue on merits at this stage except observing that there is perhaps a prima facie case of negligence. Since the opposite party has strongly contested that this can only be decided under the provisions of the Multimodal Transportation of Goods Act, 1993 and that the jurisdiction of this Commission is barred, we propose to examine this matter in detail.
8. Section 25 of Multimodal Transportation of Goods Act, 1993 (MTOG Act) on which the opposite party relies reproduce below:
25. jurisdiction for instituting action -Any party to the multimodal transport contract may institute an action in a Court which is competent and within the jurisdiction of which is situated one of the following places, namely:
(a) the principal place of business, or, in the absence thereof, the habitual residence, of the defendant; or (b) the place where the multimodal transport contract was made, provided that the defendant has a place of business, branch or agency at such place; or
(c) the place of taking charge of the goods for multimodal transportation or the place of delivery thereof; or
(d) any other place specified in the multimodal transport contract and evidenced in the multimodal transport document.
9. It is the case of the opposite party that under this section, a party to the Multimodal Transport Contract can only institute action in a Court and that too in a Court with jurisdiction as defined in Clauses (a) to (d) of this section. As against this, the complainant has firstly argued that the contract in question is not covered by the MTOG Act since there was only one mode of transportation, namely by sea, though the opposite party has issued a Bill of Lading with nomenclature “Multimodal Transport Document”. Secondly, the complainant has argued that Section 25 only applies in cases where the party decides to institute an action in a Court. The section only defines as to which Court you can have jurisdiction once a party has decided to approach a Court. The section specifically does not debar institution of action in any Consumer Fora which is an additional remedy available to the complainant.
10. The opposite party has also relied on Section 29 of the MTOG Act which is reproduced below:
29. Act to override other enactments- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
According to the opposite party the provisions of this Act prevail notwithstanding anything inconsistent therewith contained in any other law. As against this, the complainant argued that while it is true that there are any provisions in the Consumer Protection Act which is inconsistent with MTOG Act, the provisions of MTOG Act will prevail. There is as a matter of fact no inconsistency between the two Acts. The Consumer Protection Act is only an Act which supplements by providing alternative remedy and there is no inconsistency between the two Acts. In support the complainant relied on the decision dated 4.4.2002 of this Commission in the Diamond Overseas v. All Cargo Movers (India) Pvt. Ltd.
11. Amongst all the decided cases relied upon by both the parties in support of their arguments, we found that the decision dated 4th April, 2002 of this Commission in Diamond Overseas v. All Cargo Movers (India) Pvt. Ltd., (supra), is the one which specifically examined the provisions of MTOG Act and hence has a direct relevance to the matter before us. In this judgment this Commission examined not only the provisions of Sections 25 and 29 of the MTOG Act, but also Section 24 dealing with “Limitation on Action” and Section 26 dealing with “Arbitration”. The Commission in the M/s. Diamond Overseas case came to the conclusion that nothing in Sections 25 and 26 of MTOG Act can be said to be inconsistent with Section 3 of the Consumer Protection Act under which section the provisions of Consumer Protection Act shall be in addition and not in, derogation of any other law for the time being in force.
12. In view of this judgment which specifically examines the provisions of MTOG Act, it can be said that the question whether the Consumer Protection Act would apply to contract covers under MTOG Act has already been settled. However, we have once again examined these provisions. Section 25 of the Act only lays down as to in which Court an action can be instituted by a party to the contract if he so decides to institute such an action. The section reads “Any of the Party to the Multimodal Transport Contract, may institute an action in a Court”. If a party decides to institute an action in a Court, the section then lays down the principles as to which Court would be the competent one and with jurisdiction. The section nowhere excludes the jurisdiction of the Consumer Fora either directly or by implication. Further Section 25 is not the only remedy that is available to a party. The MTOG Act itself provides for arbitration also, under Section 26. So under the MTOG Act itself a person either can institute a civil action in a Court or go in for arbitration. However, neither of these two sections nor any other section in the MTOG Act bars jurisdiction of the Consumer Fora. As correctly observed in the M/s. Diamond Overseas v. All Cargo Movers (India) Pvt. Ltd. case the provisions of Consumer Protection Act are in addition and not in derogation of any law for the time being in force. As correctly argued on behalf of the complainant, where the intention of the Legislature is to bar the jurisdiction of the Consumer Fora or to provide for setting up of special authority for deciding cases under the special Acts that intention has been expressly provided for in the statutes. Examples of these are ESI Act, The Railway Claim Tribunal Act and the Motor Vehicles Act.
13. For instance Section 15 of the Railway Claims Tribunal Acts states as follows:
15. Bar on Jurisdiction-on or from the appointed date no Court or other authority shall have or be entitled to exercise any jurisdiction, powers or authority in relation to the matter referred to in Sub-section 1 and 1A of Section 13.
14. In the case of ESI Act and the Motor Vehicles Act, special Fora like the ESI Tribunals and the Motor Vehicle Accident Claims Tribunal are set up providing special mechanisms for redressing the grievances. However, under the MTOG Act, neither is there an express bar nor any special mechanism provided. This case is therefore one where there are multiple remedies available and the aggrieved party can choose a remedy of his choice under the principle “Doctrine of Election”. The Apex Court in the case of Bihar State Cooperative Marketing Union Ltd. v. Uma Shankar Saran, AIR 1993 S.C. 122, held that the maxim “Generalia specialibus non derogant” does not apply to a case of “Multiple Remedies” even if the said multiple remedies be inconsistent with one another.
15. In conclusion we hold that the Consumer Protection Act provides an additional remedy for consumer grievances arising out of deficiency of service and unless their jurisdiction is expressly barred or special Tribunals or procedures are prescribed under special enactments to deal with such cases, the jurisdiction of Consumer Fora would remain. Since there are no such provisions in the MTOG Act; we hold that this Commission is competent to adjudicate the complaint. Since there is a prima facie case of material loss to the complainant, he can claim compensation for damages and the case also falls under the pecuniary jurisdiction of this Commission.
Issue notice to both the parties for final arguments.