ORDER
D.P. Wadhwa, J.(President)
1. Appellant is a common carrier. Appellant was opposite party before the State Commission which allowed the complaint of the respondent-complainant, a Naval Officer who filed a complaint against the appellant claiming a sum of Rs. 1,20,680/- as compensation for loss of the goods and Rs. 10,000/- as damages for the harassment and mental agony suffered by him because of the deficiency in service rendered by the appellant.
2. On transfer from Mumbai to Vishakapatnam respondent engaged appellant for carriage of his household goods. He gave 38 packages to the appellant on 20.5.92 and also paid Rs. 6,000/- transportation charges. A receipt was obtained by the respondent from the appellant showing the payment of the transport charges as well as entrusting of the 38
packages. Respondent said that appellant had promised that the goods will reach the destination within two days but till 27.5.92 there was no sign of the goods being received at Vishakapatnam. Respondent got worried. He contacted the local office of the appellant at Vishakapatnam but they could not render any help to find out where the goods were. However, a lorry of the appellant reached Vishakapatnam on 27.5.92 and when the goods of the respondent were unloaded it was found that there were only 34 packages and two big suit cases packed in gunny bags were missing and two packages were in empty condition. They bore the marks of cuts with a knife. Respondent took statements of the driver and the cleaner of the lorry. He contacted appellant at its office at Mumbai when he was informed that the matter will be pursued by them to find out the loss of the goods. Since there was no proper response from the appellant a complaint was also lodged with the Police Station at Vishakapatnam on 4.6.92. Since the missing articles were not found and not restored to the respondent nor was value paid he filed a complaint before the State Commission. It was the stand of the appellant that though it was engaged for transportation of 38 packages but their contents were not made known to the appellant. It may be stated that along with the complaint respondent also filed a list of articles which were missing and their value. Appellant also took the stand that the signature of the driver and the cleaner were forged and even if it is assumed that they did really sign the receipt of loss of the packages that could have been done under coercion or misrepresentation of facts. In short, appellant repudiated its liability altogether.
3. State Commission examined the respondent who also brought on record certain documents. Appellant examined its manager. It did not lead any documentary evidence. State Commission allowed the complaint and directed the appellant to pay Rs. 1,20,680/- to the respondent with interest @ 12% per annum from 27.5.92 till payment.
4. A sum of Rs. 10,000/- was also awarded towards mental agony and suffering but without interest. Respondent was also awarded cost of Rs. 5,000/-.
5. Aggrieved, appellant has filed this appeal. Arguments of Mr. Rajiv Bansal, counsel for the appellant were two fold. As per first condition of the consignment note no liability could be fastened on the appellant and in the absence of notice under Section 10 of the Carriers Act, 1865, the complaint was not maintainable. Finding of the State Commission of the fact that 38 packages were entrusted to the appellant for carriage by road from Mumbai to Vishakapatnam and out of that 34 packages were received intact could not be assailed. Condition of the consignment note to which reference has been made reads as under:
“Unless otherwise agreed, all goods are accepted for carriage by Road and Rail entirely at the risk, and the responsibility of the owner and/or Consignee(s) and or Consignor(s) thereof”.
6. To understand the validity of this Condition we may refer to the provisions of the Carriers Act, 1865.
7. Preamble of the Carries Act states that:
” Whereas it is expedient 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; It is enacted as follows:”
8. Reference is made to Section 3 which limits the liability of the common carrier with respect to the articles mentioned in the Schedule of the Act. Under Section 3 no common carrier shall be liable for loss or damage to property delivered to him to be carried exceeding in value one hundred rupees and of the description contained in the Schedule to the Act, unless the person delivering such property to be carried shall be expressly declared to such carrier or his agent the value and description thereof. It was submitted that in the list filed by the complainant giving the details of the articles lost there were listed coloured T.V. Sony ( value Rs. 18,000/-), VCR Sony ( value : Rs. 15,000) and Deck Sony ( value : Rs. 10,000) . It was submitted that these articles would fall within the definition of Cinematograph Act as contained in clause ( c ) of Section 2 of the Cinematograph Act, 1952 under which ‘cinematograph’ includes any apparatus for the representation of moving pictures or series of pictures. Argument was that these three items would make the case fall under Section 3 of the Carriers Act and the claims could not be admitted in any case not exceeding value of Rs. 100/- in each of the three articles. To support this submission reference is made to a decision of the Supreme Court in the case of M/s. Laxmi Video Threaters & ORs. v. State of Haryana & Ors. – AIR 1993 SCC 2328. In this case Supreme Court was considering the provisions of the Cinematograph Act, 1952 with reference to the controversy whether the appellant who had been running video parlour wherein pictures were exhibited through the medium of VCR and was not having licence for exhibition under the provisions of the Cinematograph Act and the relevant Cinema (regulations)Rules of the State of Haryana was contravening the provisions of that Act. Cinematograph Act was enacted to make the provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematograph. It was in that context that the Supreme Court referred to the definition of cinematograph and held that the appellant was covered under the provisions of the Cinematograph Act, 1952. The three articles aforementioned, were household articles and were not hit by the provisions of Cinematograph Act, 1952. This argument with reference to Section 3 of the Carriers Act, is rejected.
9. Sections 6, 8, 9 and 10 of the Carriers Act are relevant to consider the two objections raised by the appellant. Under Section 6 of the Carriers Act by a special contract signed by the owner of the property delivered to the carrier or by some person duly authorised by him could limit its liability in respect of the same. There is no special contract signed by the respondent which was produced by the appellant and nothing has been shown to us as well. As a matter of fact, in principle, Section 6 bars any contract to limit the liablity of the common carrier for loss or damage to the property delivered to it to be carried. Under Section 8, a common carrier is nevertheless liable where the loss or damage had arisen from any criminal act of carrier or any of his agent or servant. Under Section 9 it is not necessary for the person who delivers the goods to the common carrier where loss or damage had occurred to prove negligence or criminal act on the part of the carrier or its agent or servant. Section 10, mandates giving a notice before filing the suit and that notice has to be given within six months of the time when the loss or injury first came to the knowledge of the plaintiff.
10. We may at this stage refer to the decision in the case of M/s. M.G. Brothers Lorry Service vs. M/s. Prasad Textiles – AIR 1984 SC 15. In this case Supreme Court was examining the validity of condition No. 15 in the Way Bill of the appellant a common carrier with reference to the provisions of the Carries Act which condition No. 15 reads as under:
“No suit shall lie against the firm in respect of any consignment without a claim made in writing in that behalf and preferred within thirty days from the date of booking or from the date of arrival at the destination by the party concerned.
11. Supreme Court held in that case that condition No. 15 was void in view of Section 23 of the Contract Act because its object was to defeat the provisions of Section 10 of the Carriers Act. Supreme Court also observed that in a contract or bargain which seeks to defeat the liability of the carrier as enacted by law would defeat the provisions of the Act.
12. It is apparent that in the present case the loss which had occasioned was on account of criminal act of the carrier or any of his agents or servants inasmuch as two packages were missing and two had been cut open showed the marking of cut by knife. No explanation has been offered by the common carrier as to how that happened. A common carrier cannot contract out of Section 8 of the Carriers Act. To print on the goods receipt that the goods are being carried at the owner’s risk has no meaning. To limit the liability under Section 6 as well there has to be a special contract. No such special contract has been produced or even brought to our notice. We have been referred to a decision of Single Judge of the Bombay High Court in the case of Sharma Goods Transport, Wardha v. Vidarbha Weavers Central Cooperative society – AIR 1988 Bombay 269, where it has been held that it is absolutely obligatory for the plaintiff in a suit for compensation for loss of goods to give a prior notice as required under Section 10 of the Carriers Act. But then no form has been prescribed what notice should contain. However, notice has to be given in writing of the loss or injury to the goods before institution of the suit and the valuation thereof.
13. In Patel Roadways Ltd. vs. Birla Yamaha Ltd. – (2000) 4 SCC 91, Supreme Court was considering the scope of Section 9 of the Carries Act. the argument was raised by the common carrier that Section 9 of the Carrier Act in terms did not apply to the proceedings under the Consumer Protection Act and that the provisions of Section 9 apply only to suits filed in Civil Court and not to Redressal Forum under the Consumer Protection Act which adjudicate disputes in a summary manner. Supreme Court referred to various provisions of the Consumer Protection Act and observed:
“30. 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 the 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 a perusal of the provisions of the Act it is clear that the scheme of the statute is to provide a 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.
14. Further it was held by the Supreme Court that in proceedings before a Consumer Forum section 9 of the Carriers Act would be applicable. Dealing with the argument that a complaint before the Consumer Forum could not be termed as a suit, the Court said:
” that the term ‘suit ‘ is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. The meaning of the term ‘suit’ also depends on the context of its user which in turn, amongst other things, depends on the Act or the rule in which it is used. No doubt the proceedings before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil court. That does not mean that the proceeding before the Commission is to be decided ignoring the express statutory provisions of the Carriers Act (Section 9) in a proceeding in which a claim is made against a common carrier as defined in the said Act. Accepting such a contention would defeat the object and purpose for which the Consumer Protection Act was enacted. A proceeding before the national Commission, in our considered view, comes within the term ‘suit’.”
15. In P. Rama Rao vs. P. Nirmala & Ors. – 1997 (1) SCC 757 Supreme Court observed that reading of Section 10 of Carriers Act would make it clear that no suit shall be instituted against a common carrier for the loss or injury to goods entrusted to him for carriage unless notice in writing of the loss or injury to the goods has been given to him before institution of the suit within six months of the time when the loss or injury to the goods first came to the knowledge of the plaintiff. If a notice as required by Section 10 is not issued a suit would not lie against the common carrier. In the case before the Supreme Court, however, insured had recovered the loss occasioned to him from the insurer in respect of his goods lost by the common carrier.
16. These two decisions of the Supreme Court settled the law on the subject and that Carriers Act is applicable to a complaint under the Consumer Protection Act, 1986. That being so, it was mandatory for the respondent to issue notice as required under Section 10 of the Carriers Act. This having not done, complaint was not maintainable. Claim of the respondent for value of the goods lost cannot be sustained.
17. This petition is therefore allowed, judgments of the District Forum and the State Commission are set aside except to the extent of award of Rs. 10,000/- towards mental agony and suffering on account of delay in transporting the goods by the appellant. There will be no order as to cost.
