{"id":189140,"date":"2007-02-22T00:00:00","date_gmt":"2007-02-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-transport-corporation-of-vs-ms-veljan-hydrair-ltd-on-22-february-2007"},"modified":"2016-03-01T04:52:24","modified_gmt":"2016-02-29T23:22:24","slug":"ms-transport-corporation-of-vs-ms-veljan-hydrair-ltd-on-22-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-transport-corporation-of-vs-ms-veljan-hydrair-ltd-on-22-february-2007","title":{"rendered":"M\/S. Transport Corporation Of … vs M\/S. Veljan Hydrair Ltd on 22 February, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Transport Corporation Of … vs M\/S. Veljan Hydrair Ltd on 22 February, 2007<\/div>\n
Author: Raveendran<\/div>\n
Bench: Tarun Chatterjee, R. V. Raveendran<\/div>\n
           CASE NO.:\nAppeal (civil)  3096 of 2005\n\nPETITIONER:\nM\/s. Transport Corporation of India Ltd\n\nRESPONDENT:\nM\/s. Veljan Hydrair Ltd\n\nDATE OF JUDGMENT: 22\/02\/2007\n\nBENCH:\nTarun Chatterjee & R. V. Raveendran\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
RAVEENDRAN, J.\n<\/p>\n
\tThis appeal is directed against the order dated 11.8.2004 of the
\nNational Consumer Disputes Redressal Commission (‘National
\nCommission’ for short) affirming the order dated 14.6.2004 passed by the
\nAndhra Pradesh State Consumer Disputes Redressal Commission (‘State
\nCommission’ for short).\n<\/p>\n
2.\tThe appellant is a ‘common carrier’ as defined in the Carriers Act,
\n1865 (‘Act’ for short). The respondent entrusted a consignment (an
\nHydraulic Cylinder) measuring 2700 kg, covered by sale invoice dated
\n30.4.1996  to the Appellant for transportation from Patancheru to Bharuch,
\nthe consignee being “self.” The Appellant issued Consignment Note\/Lorry
\nReceipt  dated 10.5.1996 to the Respondent in that behalf, wherein the
\ndeclared value of the consignment was shown as Rs.583440\/=. As M\/s
\nPrakash Industries Ltd., Bharuch, the customer for whom the consignment
\nwas intended was not in a position to clear the consignment, the Respondent,
\nby letter dated 8.11.1996  instructed appellant’s Patancheru Branch  to re-
\nbook the consignment from Bharuch to Patancheru. For this purpose, the
\nrespondent enclosed the original (consignee’s copy) of the lorry receipt as
\nalso its invoice dated 30.4.1996, with the letter dated 8.11.1996. The
\nrespondent assured that they will clear all dues including up and down
\nfreight charges at appellant’s Patancheru office. In view of it, the appellant’s
\nPatancheru Branch instructed its Baruach Branch by letter dated 14.11.1996
\nto rebook the consignment and endorsed a copy of the said communication
\nto the Respondent. The appellant sent a letter dated 22.11.1996 instructing
\nthe respondent to send the consignee copy with all freight and demurrage
\ncharges by a Demand Draft to the Bharuch office to enable the Bharuch
\noffice to re-book the consignment to Patancheru. The Respondent
\napproached the appellant’s Patancheru office several times and explained
\nthat it had already furnished the consignee copy and that it had also assured
\nthat payment will be made at Patancheru, and therefore, the consignment
\nshould be re-booked. Finally the Appellant’s Patancheru office informed
\nRespondent that the consignment was re-booked vide LR No. 21401 dated
\n22.1.1997 from Bharuch to Patancheru. As there was no information about
\nthe arrival of goods at Patancheru, inspite of constant follow up, the
\nrespondent sent letters dated 8.8.1998, 13.10.1998, 7.11.1998 and 8.12.1998
\nto the appellant, calling upon it to locate the consignment and deliver it,
\nmaking it clear that if the consignment was not delivered, it will claim
\nRs.5,83,440\/- being the cost of the consignment. Respondent also stated that
\nit will not pay any charges for the consignment. The appellant sent a reply
\ndated 15.12.1998 stating that “the matter is under process to locate the
\ngoods” and requested the respondent to “bear” with it for some more time to
\nenable it to revert back with reference to the status of the matter. This was
\nfollowed by letter dated 21.6.1999 wherein the appellant assured the
\nrespondent that “the matter is under inquiry” and that the status of the
\nconsignment will be confirmed within a short while. By another letter dated
\n3.7.1999, the appellant informed that “the process of locating the goods is
\ngoing on” and requested the respondent to furnish another copy of the
\ninvoice as also the sketch of the machine. The respondent’s Senior Officer,
\nMarketing, (Sri Sriramamurthy) visited the appellant’s office and furnished
\nthem. Even thereafter, the consignment was not delivered. Therefore, after
\nserving a notice dated 27.10.2000, through counsel, demanding payment, the
\nrespondent filed a complaint before the District Forum on 5.7.2001, alleging
\nthat the non-delivery of consignment amounted to deficiency of service and
\ntherefore, the appellant was liable to pay Rs.5,83,440, being the cost of
\nconsignment with interest at the rate of 24% per annum from 8.11.1996 as
\ndamages for deficiency of service. Subsequently, as the District Forum did
\nnot have pecuniary jurisdiction, return of the complaint was obtained and re-
\npresented before the State Commission on 17.8.2001.\n<\/p>\n
3.\tThe appellant did not dispute the factual position alleged by the
\nRespondent. It resisted the claim on the following three grounds :\n<\/p>\n
(i)\tThe respondent did not issue a notice under Section 10 of the Act,
\nabout the loss of the consignment, within six months of the time when the
\nloss first came to its knowledge. Therefore, the complaint was barred under
\nSection 10 of the Act.\n<\/p>\n
(ii)\tThe cause of action arose on 8.11.1996 when the respondent
\ninstructed the appellant to re-book the consignment and on 22.1.1997, when
\nthe consignment was re-booked. The complaint, filed beyond two years from
\nthat date, was barred by limitation under section 24A of Consumer
\nProtection Act, 1986 (‘CA Act’ for short).\n<\/p>\n
(iii)\tThe respondent did not pay the freight charges and that therefore,
\nthere was no ‘consideration’ for the contract for ‘service’. Therefore, the
\nappellant was not liable to pay any amount, either towards loss of the
\nconsignment or as damages, on the ground of deficiency of service.\n<\/p>\n
4.\tThe State Commission, allowed the complaint by order dated
\n14.6.2004. It held that the failure of appellant to deliver the consignment
\namounted to deficiency of service. The State Commission also held that
\nhaving lost the consignment and failed to deliver the same, the Appellant
\ncould not put forth non-payment of freight, as a ground to avoid liability.
\nThe State Commission noted that the only question that arose for its
\nconsideration on the contentions urged was whether there was deficiency of
\nservice or not. The State Commission did not go into the other two questions
\nrelating to limitation and want of notice under section 10 apparently as the
\nsaid contentions were not specifically urged at the time of arguments. The
\nState Commission directed the appellant to pay the value of the
\nconsignment, (Rs.5,83,440\/-) less the freight charges, with interest at the rate
\nof 9% per annum from the date of booking, and costs of Rs.2000\/-.\n<\/p>\n
5.\tThe appeal filed by the appellant against the order dated 14.6.2004 of
\nthe State Commission, was dismissed by the National Commission by a brief
\norder dated 11.8.2004. It found no substance in the appeal, as hiring (for
\ntransportation of the goods) was covered by CP Act, and the appellant as
\ncarrier, did not deliver the consignment. In this appeal against the order of
\nthe National Commission, the appellant reiterated its contentions and also
\nmade a grievance that the State Commission and National Commission had
\nfailed to consider its contentions relating to maintainability and limitation,
\ninspite of those contentions being specifically raised. On the contentions
\nurged, the following three points arise for our consideration in this appeal :\n<\/p>\n
(i)\tWhether the complaint was barred by the provisions of Section 10
\nof the Carriers Act, 1865?\n<\/p>\n
(ii)\tWhether the complaint was barred by limitation under Section 24A
\nof the Consumer Protection Act, 1986?\n<\/p>\n
(iii)\tWhether there was no contract for service, as the respondent had
\nrefused to pay the freight charges?\n<\/p>\n
Re : Point No.(i) :\n<\/p>\n
6.\tSection 10 of the Act provides that no suit (or complaint) could be
\ninstituted against a common carrier for the loss of goods, unless a notice in
\nwriting, of the loss, had been given to the carrier before the institution, but
\nwithin six months of the time when the plaintiff (or complainant) came to
\nknow about the loss. The appellant contends that the respondent can be said
\nto have become aware of the loss of the consignment on 8.8.1988 (when it
\ndemanded delivery), but issued the legal notice demanding the value of
\nconsignment only on 27.10.2000 long after the expiry of six months from
\nthe date of knowledge. It further contended that even the notice dated
\n27.10.2000 did not purport to be one under Section 10 of the Carriers Act.
\nReliance is placed on the decisions of this Court in Arvind Mills Ltd. v.
\nAssociated Roadways<\/a> [2004 (11) SCC 545] to contend that the complaint is
\nbarred without a notice under section 10 of the Act.\n<\/p>\n
7.\tSection 10 of the Act requiring notice, is extracted below:
\n“10.\tNotice of loss or injury to be given within six months.No suit
\nshall be instituted against a common carrier for the loss of, or injury to,
\ngoods (including containers, pallets or similar article of transport used to
\nconsolidate goods) entrusted to him for carriage, unless notice in writing
\nof the loss or injury has been given to him before the institution of the suit
\nand within six months of the time when the loss or injury first came to the
\nknowledge of the plaintiff.”\n<\/p>\n
Section 10 requires a notice in the manner set out therein, for initiation of a
\nproceedings against a common carrier for loss of goods or injury to goods
\nentrusted for carriage. The notice need not say specifically that it is issued
\nunder section 10 of Carriage Act, 1865. It is sufficient if the notice fulfils the
\nrequirement of section 10, that is to inform the carrier about the loss or
\ninjury to the goods. Such notice under Section 10 will certainly be required
\nwhere the common carrier delivers the goods in a damaged condition, or
\nwhere the common carrier loses the goods entrusted for carriage and informs
\nabout such loss to the consignor\/consignee\/owner. The object of the section
\nis to put the carrier on notice about the claim in respect of the loss or damage
\nto the consignment so that it can make good the loss occasioned. But where
\nthere is no loss or injury to the goods, but the common carrier wrongly or
\nillegally refuses to deliver goods and the person entitled to delivery initiates
\naction for non-delivery, obviously section 10 will not apply. Similarly,
\nwhere the common carrier informs the person entitled to delivery
\n(consignor\/consignee\/owner) that the consignment is being traced and
\nprocess of tracing it is still going on and requests him to wait for the
\nconsignment to be traced and delivered, but does not subsequently inform
\nhim either about the loss of the consignment, or about its inability to trace
\nand deliver the consignment, the claim by the consignor\/consignee, will not
\nbe for loss or injury to goods but for non-delivery of goods. The requirement
\nrelating to notice within six months in section 10 will not apply to a claim
\nbased on such non-delivery. In fact section 10 does not use the word ‘non-
\ndelivery’ of goods, but uses the words ‘loss of, or injury to, goods’. A case
\nof ‘non-delivery’ will become a case of ‘loss’ of consignment, only when the
\ncommon carrier informs the consignor\/consignee about the loss of the
\nconsignment.\n<\/p>\n
8.\tIn Arvind Mills (supra) relied on by the Appellant, this Court held that
\nthe word “suit” used in Section 10 will include a complaint under the
\nConsumer Protection Act, 1986 and that in the absence of a notice under
\nSection 10 of the Carriers Act, a complaint against a common carrier for
\ncompensation for loss suffered by the complainant cannot be entertained.
\nBut that decision did not relate a claim regarding non-delivery of the
\nconsignment, where the carrier failed to inform that the goods have been
\nlost. The said decision does not, therefore, help the Appellant.\n<\/p>\n
9.\tIn this case, the appellant-carrier did not inform the respondent that
\nthe goods were lost. The respondent was constantly in touch with the
\nappellant and demanding delivery. By letters dated 15.12.1998, 21.6.1999
\nand 3.7.1999, the appellant repeatedly informed the respondent that it was in
\nthe process of locating the goods, sought time to report about the status and
\nrequested the Respondent to wait. Even when the respondent issued a notice
\nthrough counsel on 27.10.2000 (served on 30.10.2000) demanding the cost
\nof the consignment,  the appellant did not say that the consignment was lost.
\nIn such circumstances, it is not possible to attribute knowledge of ‘loss’ to
\nthe person instituting the action for non-delivery. Therefore, there was no
\nneed to issue a notice under section 10, and non-issue of a notice under
\nSection 10, did not invalidate the claim or the complaint.\n<\/p>\n
Re : Point (ii) :\n<\/p>\n
10.\tIn the objection filed before the State Commission, the Appellant
\ncontended that the cause of action arose on 8.11.1996 and having regard to
\nthe limitation of two years prescribed under the CP Act, the complaint filed
\non 5.7.2001, was time-barred. However, in the special leave petition, the
\nAppellant contended that the cause of action arose on 8.8.1998 and
\ntherefore, the claim ought to have been filed on or before 8.8.2000.\n<\/p>\n
11.\tSection 24A of the Consumer Protection Act, 1986 provides that
\nneither the District Forum nor the State Commission nor the National
\nCommission shall admit a complaint unless it is filed within two years from
\nthe date on which the cause of action has arisen. The term “cause of action”
\nis of wide import and has different meanings in different contexts, that is
\nwhen used in the context of territorial jurisdiction or limitation or the accrual
\nof right to sue. It refers to all circumstances or bundle of facts which if
\nproved or admitted entitles the plaintiff (complainant) to the relief prayed
\nfor. In the context of limitation with reference to a contract for carriage of
\ngoods, the date of cause of action may refer to the date on which the goods
\nare entrusted, date of issue of consignment note, the date stipulated for
\ndelivery, the date of delivery, the date of refusal to deliver, the date of
\nintimation of carrier’s request to wait for delivery as the goods are being
\ntraced, the date of intimation of loss of goods, or the date of
\nacknowledgement of liability.\n<\/p>\n
12.\tIn this case, the consignment was entrusted to the appellant on
\n10.5.1996. On 8.11.1996, the respondent instructed the appellant to re-book
\nthe consignment. On 8.8.1998, 13.10.1998, 7.11.1998 and 8.12.1998, the
\nrespondent demanded delivery. By letters dated 15.12.1998, 21.6.1999 and
\n3.7.1999, the appellant assured the respondent that it was in the process of
\nlocating the goods and requested the respondent to wait and assured that it
\nwill inform about the status. Thereafter the appellant did not inform the
\nstatus. The complaint has been filed within two years from the date of
\nreceipt of the said letter dated 3.7.1999 and is in time. In fact in view of the
\nrequest of the appellant to the respondent to wait till the consignment was
\ntraced, the limitation for an action would not start to run until there was a
\ncommunication from the appellant either informing about the loss or
\nexpressing its inability to deliver or refusal to deliver, or until the respondent
\nmakes a demand for delivery or payment of value of the consignment after
\nwaiting for a reasonable period and there is non-compliance. Therefore, the
\ncomplaint is not barred under section 24A of CP Act.\n<\/p>\n
Re : Point No. (iii)<\/p>\n
13.\tIn Patel Roadways Ltd. v.  Birla Yamaha Ltd.<\/a> [2000 (4) SCC 91], this
\nCourt held that loss of goods or injury to goods or non-delivery of goods,
\nentrusted to a common carrier for carriage, would amount to a deficiency of
\nservice and, therefore, a complaint under the Consumer Protection Act, 1986
\nwould be maintainable. When a person entrusts a goods to a common carrier
\nfor transportation and the carrier accepts the same, there is a contract for
\n“service”, within the meaning of CP Act. Therefore, when the goods are not
\ndelivered, there is a deficiency of service. It is no doubt true that ‘service’
\nfor purposes of CP Act does not include rendering of service free of charge.
\nWhere the contract for transportation is for a consideration (freight charge),
\nthe mere fact that such consideration is not paid, would not make the service
\n‘free of charge’. There is difference between contract without consideration,
\nand contract for consideration, which is not paid. If there is non-payment of
\nthe freight lawfully due, the carrier may sue for the charges, or withhold the
\nconsignment and call upon the owner\/consignor\/consignee to pay the freight
\ncharges and take delivery, or on failure to pay the freight charges, even sell
\nthe goods with due notice to recover its dues, where such right is available.
\nBut where the common carrier has misplaced or lost the goods and,
\ntherefore, not in a position to deliver the goods, it obviously cannot demand
\nthe freight charges, nor contend that non-payment of freight charges
\nexonerates it from liability for the loss or non-delivery. When the carrier
\ninforms that the consignment is not traced and is under the process of being
\ntraced, obviously the owner\/consignor\/consignee cannot be expected to pay
\nthe freight charges. In the circumstances, the third point is also answered
\nagainst the appellant.\n<\/p>\n
Conclusion :\n<\/p>\n
14.\tThe State Commission ought to have awarded the entire cost of the
\nconsignment. It committed an error in deducting the freight charges from the
\namount payable to the respondent. There was no liability to pay the freight
\ncharges where the consignment is lost or where there is non-delivery. Be that
\nas it may. As there was no appeal by the Respondent on this issue, there is
\nno question of increasing the amount awarded.\n<\/p>\n
15.\tAs all the three contentions are rejected, and as we find no infirmity in
\nthe order of the State Commission, as affirmed by the National Commission,
\nthe appeal is dismissed with costs of Rs.5000\/- payable to the Respondent.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Transport Corporation Of … vs M\/S. Veljan Hydrair Ltd on 22 February, 2007 Author: Raveendran Bench: Tarun Chatterjee, R. V. Raveendran CASE NO.: Appeal (civil) 3096 of 2005 PETITIONER: M\/s. Transport Corporation of India Ltd RESPONDENT: M\/s. Veljan Hydrair Ltd DATE OF JUDGMENT: 22\/02\/2007 BENCH: Tarun Chatterjee & R. V. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-189140","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. Transport Corporation Of ... vs M\/S. 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