{"id":268726,"date":"2002-12-12T00:00:00","date_gmt":"2002-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/delhi-assam-roadways-corporation-vs-b-l-sharma-on-12-december-2002"},"modified":"2018-02-27T07:48:05","modified_gmt":"2018-02-27T02:18:05","slug":"delhi-assam-roadways-corporation-vs-b-l-sharma-on-12-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/delhi-assam-roadways-corporation-vs-b-l-sharma-on-12-december-2002","title":{"rendered":"Delhi Assam Roadways Corporation &#8230; vs B.L. Sharma on 12 December, 2002"},"content":{"rendered":"<div class=\"docsource_main\">National Consumer Disputes Redressal<\/div>\n<div class=\"doc_title\">Delhi Assam Roadways Corporation &#8230; vs B.L. Sharma on 12 December, 2002<\/div>\n<div class=\"doc_bench\">Bench: D W Member, R Rao, B Taimni<\/div>\n<p id=\"p_1\">ORDER<\/p>\n<p>D.P. Wadhwa, J.(President) <\/p>\n<p id=\"p_1\">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.\n<\/p>\n<p id=\"p_2\">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<br \/>\npackages.   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.\n<\/p>\n<p id=\"p_3\">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.\n<\/p>\n<p id=\"p_4\">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\/-.\n<\/p>\n<p id=\"p_5\">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:\n<\/p>\n<p id=\"p_6\">  &#8220;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&#8221;.\n<\/p>\n<p id=\"p_7\">6.                        To understand the validity of this Condition we may refer to the provisions of the Carriers Act, 1865.\n<\/p>\n<p id=\"p_8\">7.                        Preamble of the Carries Act states that:\n<\/p>\n<p id=\"p_9\">  &#8221; 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:&#8221;\n<\/p>\n<p id=\"p_10\">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  <a href=\"\/doc\/980182\/\" id=\"a_1\">Cinematograph Act<\/a> as contained in clause ( c ) of  <a href=\"\/doc\/1098675\/\" id=\"a_1\">Section 2<\/a> of the Cinematograph Act, 1952   under which  &#8216;cinematograph&#8217; 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  <a href=\"\/doc\/1142975\/\" id=\"a_2\">M\/s. Laxmi Video Threaters &amp; ORs.  v. State of Haryana &amp;  Ors<\/a>.  &#8211; AIR 1993 SCC 2328.  In this case Supreme Court was considering the provisions of the <a href=\"\/doc\/980182\/\" id=\"a_3\">Cinematograph Act<\/a>, 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 <a href=\"\/doc\/980182\/\" id=\"a_4\">Cinematograph Act<\/a> and the relevant  Cinema (regulations)Rules of the State of Haryana was contravening the provisions of  that Act. <a href=\"\/doc\/980182\/\" id=\"a_5\">Cinematograph Act<\/a> 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 <a href=\"\/doc\/980182\/\" id=\"a_6\">Cinematograph Act<\/a>, 1952.  The three articles aforementioned, were household articles and were not hit by the  provisions of <a href=\"\/doc\/980182\/\" id=\"a_7\">Cinematograph Act<\/a>, 1952.  This argument with reference to Section 3 of the Carriers  Act, is rejected.\n<\/p>\n<p id=\"p_11\">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, <a href=\"\/doc\/128634\/\" id=\"a_8\">Section 6<\/a>  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 <a href=\"\/doc\/1525143\/\" id=\"a_9\">Section 8<\/a>,  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 <a href=\"\/doc\/532396\/\" id=\"a_10\">Section 9<\/a> 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.  <a href=\"\/doc\/459780\/\" id=\"a_11\">Section 10<\/a>,  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.\n<\/p>\n<p id=\"p_12\">10.                        We may at this stage refer  to the decision in the case  of  <a href=\"\/doc\/1980603\/\" id=\"a_12\">M\/s. M.G. Brothers Lorry Service vs. M\/s. Prasad Textiles<\/a> &#8211; 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:\n<\/p>\n<p id=\"p_13\"> &#8220;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.\n<\/p>\n<p id=\"p_14\">11.                        Supreme Court held  in that case that condition No. 15  was void in view of <a href=\"\/doc\/1625889\/\" id=\"a_13\">Section 23<\/a> 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.\n<\/p>\n<p id=\"p_15\">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&#8217;s risk has no meaning.  To limit the liability under <a href=\"\/doc\/128634\/\" id=\"a_14\">Section 6<\/a> 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  <a href=\"\/doc\/454146\/\" id=\"a_15\">Sharma Goods Transport, Wardha v. Vidarbha Weavers Central  Cooperative<\/a> society &#8211; 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.\n<\/p>\n<p id=\"p_16\">13.                        <a href=\"\/doc\/1907957\/\" id=\"a_16\">In Patel Roadways Ltd. vs. Birla Yamaha Ltd<\/a>. &#8211; (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  <a href=\"\/doc\/1733066\/\" id=\"a_17\">Consumer   Protection   Act<\/a>   and   that  the   provisions  of <a href=\"\/doc\/532396\/\" id=\"a_18\">Section  9<\/a>  apply  only  to  suits  filed  in  Civil Court and not to Redressal  Forum under the <a href=\"\/doc\/1733066\/\" id=\"a_19\">Consumer Protection Act<\/a> which  adjudicate disputes in a summary manner.  Supreme  Court referred to various provisions of the <a href=\"\/doc\/1733066\/\" id=\"a_20\">Consumer Protection Act<\/a> and observed:\n<\/p>\n<p id=\"p_17\"> &#8220;30.            From the provisions of the <a href=\"\/doc\/1733066\/\" id=\"a_21\">Consumer Protection Act<\/a> 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 <a href=\"\/doc\/1733066\/\" id=\"a_22\">Consumer Protection Act<\/a> 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.\n<\/p>\n<p id=\"p_18\">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:\n<\/p>\n<p id=\"p_19\">  &#8221; that the term  &#8216;suit &#8216;  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 &#8216;suit&#8217;  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 (<a href=\"\/doc\/532396\/\" id=\"a_23\">Section 9<\/a>) 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 <a href=\"\/doc\/1733066\/\" id=\"a_24\">Consumer Protection Act<\/a> was enacted.  A proceeding before the national Commission, in our considered view, comes within the term &#8216;suit&#8217;.&#8221;\n<\/p>\n<p id=\"p_20\">15.                        <a href=\"\/doc\/103988\/\" id=\"a_25\">In P. Rama Rao vs. P. Nirmala  &amp; Ors<\/a>.  &#8211; 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 <a href=\"\/doc\/459780\/\" id=\"a_26\">Section 10<\/a> 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.\n<\/p>\n<p id=\"p_21\">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 <a href=\"\/doc\/1733066\/\" id=\"a_27\">Consumer Protection Act<\/a>, 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.\n<\/p>\n<p id=\"p_22\">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.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>National Consumer Disputes Redressal Delhi Assam Roadways Corporation &#8230; vs B.L. Sharma on 12 December, 2002 Bench: D W Member, R Rao, B Taimni 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 [&hellip;]<\/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":[1],"tags":[],"class_list":["post-268726","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Delhi Assam Roadways Corporation ... vs B.L. 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