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CASE NO.:

Appeal (civil) 9071 of 1996

PETITIONER:

PATEL ROADWAYS LIMITED

Vs.

RESPONDENT:

BIRLA YAMAHA LIMITED

DATE OF JUDGMENT: 28/03/2000

BENCH:

D.P.Mohapatro

JUDGMENT:

D.P.MOHAPATRA,J.

L.....I.........T.......T.......T.......T.......T.......T..J

The core question that arises for determination in

this appeal is whether section 9 of the Carriers Act, 1865

(Act 3 of 1865) is applicable to a proceeding under the

Consumer Protection Act, 1986 (68 of 1986). The answer to

this question depends on the interpretation of section 9 of

the Carriers Act and its inter-action with the relevant

provisions of the Consumer Protection Act. The factual

matrix of the case relevant for determination of the issue

may be stated thus : The respondent M/s Birla Yamaha

Limited booked 237 consignments containing 267 generator

sets at Ghaziabad in the State of Uttar Pradesh, with the

appellant M/s Patel Roadways Limited for transportation.

The freight charges were duly paid by the consignor to the

carrier and necessary lorry receipt was issued by the latter

in favour of the former. The goods booked by the respondent

were destroyed in a fire 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 Rs.56,00,799/- along

with interest. The said sum comprised of Rs.50,78,231/- as

cost of 267 generator sets, Rs.22,568/- as freight charged

and Rs.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

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and filed their counter affidavit. Therein the appellant

did not deny the entrustment of the goods, the booking

particulars and issue of lorry receipt, as averred in the

complaint. The appellant, pleaded that the consignments

were lost in fire which was an accident beyond their

control, and therefore, there was no deficiency in service

and the complaint was not maintainable. It was further

pleaded by the appellant that the loss having taken place

for reasons and in circumstances beyond their control they

were not liable to make good the loss either under the

contract between the parties or under general law.

Both the parties filed affidavits and documents in

support of their case. The Commission on assessment of the

materials on record held inter alia, that the respondent was

entitled to receive from the appellant Rs.51,00,799/- i.e.

Rs.50,78,231/- towards cost of the generator sets and

Rs.22,568/- being the refund of freight charges. The

Commission rejected the claim of Rs.5,00,000/- towards

general and special damages. The Commission in its order

placed reliance on the provision in section 9 of the

Carriers Act to hold that the appellant are deficient in the

performance of their service as common carrier, as the goods

entrusted have not been at all delivered in accordance with

the contract of carriage for consideration evidenced by the

receipts. The Commission also held that section 9 relieves

the complainant from the burden of showing that the loss or

non- delivery was owing to any negligence or criminal act;

and that the loss to the goods sent is prima facie evidence

of negligence. Feeling aggrieved by the said order the

appellant filed this appeal under section 23 of the

Consumers Protection Act.

The main thrust of the submissions of Shri Ashok

Desai, learned senior counsel appearing for the appellant

was that section 9 of the Carriers Act in terms does not

apply to a proceeding under the Consumer Protection Act.

According to Shri Desai the provision applies only to suits

filed in civil court and not to redressal forums under the

Consumer Protection Act which adjudicate disputes in a

summary manner. The further submission of Shri Desai was

that since section 9 is not applicable in this case the

general law that the burden to prove negligence lies on the

party who alleges it, is applicable in the case. Since the

respondent has failed to discharge the burden the complaint

should have been dismissed.

Shri Shanti 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

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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 business

of property under multinodal transport document or of

transporting for hire property from place to place, by land

or inland navigation, for all persons indiscriminately.

In section 3 of the said Act it is declared that no

common carrier shall be liable for the loss of 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 this Act, unless the person delivering such

property to be carried, or some person duly authorised in

that behalf, shall have expressly declared to such carrier

or his agent the value and description thereof.

In section 4 of the said Act it is laid down that such

carrier may require payment for the risk undertaken in

carrying property exceeding in value one hundred rupees and

of the description aforesaid, at such rate of charge as he

may fix. In the proviso the carrier is required to give

notice of the rate of charge by exhibiting it in the place

where he carries on the business of receiving property to be

carried.

In section 6 of the said Act it is laid down that the

liability of any common carrier for the loss of or damage to

any property delivered to him to be carried , not being of

the description contained in the Schedule to the Act, shall

not be deemed to be limited or affected by any public

notice; but any such carrier, not being the owner , by

special contract signed by the owner of such property so

delivered or by some person duly authorised on that behalf

by such owner, limit his liability in respect of the same.

Section 8 of the said Act provides, inter alia, that

notwithstanding anything hereinbefore contained, every

common carrier shall be liable to the owner for loss of or

damage to any property (including container, pallet or

similar article of transport used to consolidate goods)

delivered to such carrier to be carried where such loss or

damage shall have arisen from the criminal act or any of his

agents or servants and shall also be liable to the owner for

loss or damage to any such property other than property to

which the provisions of section 3 apply and in respect of

which the declaration required by that section has not been

made, where such loss or damage has arisen from the

negligence of the carrier or any of his agents or servants.

Section 9 of the said Act on which reliance has

particularly been placed by the 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

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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 the first mentioned person.

In Section 2(g) "deficiency" is defined to mean any fault,

imperfection, shortcoming or inadequacy in the quality,

nature and manner of performance which is required to be

maintained by or under any law for the time being in force

or has been undertaken to be performed by a person in

pursuance of a contract or otherwise in relation to any

service; Section 2(o) defines "service" to mean service of

any description which is made available to potential users

and includes the provision of facilities in connection with

banking, financing, insurance, transport, processing, supply

of electrical or other energy, board or lodging or both,

housing, construction, entertainment, amusement or the

purveying of news or other information, but does not include

the rendering of any service free of charge or under a

contract of personal service.

In section 3 of the Act it is declared that the

provisions of the Act shall be in addition to and not in

derogation of the provisions of any other law for the time

being in force.

Chapter III of the Act contains the provisions

regarding Consumer Disputes Redressal Agencies. In

section 9 establishment of three agencies i.e. District

Forum, State Commission and National Consumer Disputes

Redressal Commission is provided for.

In Section 13 the procedure to be followed by the

District Forum on receipt of a complaint is laid down. In

section 15 provision is made for appeal by any person

aggrieved by an order made by the District Forum to the

State Commission. In Section 17 the jurisdiction of the

State Commission is laid down and in section 18 it is laid

down that the provisions applicable to State Commissions are

akin to the same as provided in sections 13 and 14 and the

rules made thereunder for disposal of complaint by the

District Forum. In section 19 it is provided that any

person aggrieved by an order made by the State Commission

may prefer an appeal to the National Commission. Section 21

which contains the provisions regarding jurisdiction of the

National Commission lays down inter alia, that subject to

the other provisions of the Act the National Commission

shall have jurisdiction (a) to entertain (i) complaints

where the value of the goods or services and compensation,

if any, claimed exceeds rupees twenty lakhs and (ii) appeals

against the orders of any State Commission; and (b) to call

for the records 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

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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 to the Supreme Court.

In section 24 a declaration is made that every order

of a District Forum, the State Commission or the National

Commission shall, if no appeal has been preferred against

such order under the provisions, of this Act, be final.

Section 25 makes provision regarding enforcement of

orders by the forum, the State Commission or the National

Commission. Therein it is laid down, inter alia, that every

order made by the District Forum, the State Commission or

the National Commission may be enforced by the District

Forum, the State Commission or National Commission, as the

case may be in the same manner as if it were decree or order

made by a Court in a suit pending therein and it shall be

lawful for the District Forum, the State Commission or the

National Commission to send, in the event of its inability

to execute it, such order to the court within the local

limits of whose jurisdiction (a) in the case of an order

against a company, the registered office of the company is

situated, or (b) in the case of an order against any other

person, the place where the person concerned voluntarily

resides or carries on business or personally works for gain,

is situated.

And thereupon, the court to which the order is so sent

, shall execute the order as if it were a decree or order

sent to it for execution.

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 executon

and implementation of the orders passed by them treating

such orders as decree of the court. It is relevant to state

here that on perusal of the provisions of the Act it is

clear that the scheme of the statute is to provide heirarchy

of redressal forums for attending to the grievances of

consumers regarding deficiency in service promptly and give

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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. 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 conclusively presume that the carrier has been

guilty of a negligence unless he can show that the loss or

damage was occasioned by what is technically called the "act

of God", or by King's enemies."

In Akhil Chandra Saha and others Vs. India General

Navigation and Railway Co. [ Vol XXI (1915) Cal LJ 565] a

Division Bench of the Calcutta High Court held that a common

carrier in this country is liable as an insurer i.e., he is

responsible for the safety of the goods entrusted to him in

all events except when loss or damage arises from act of God

or king's enemies; but his liability for loss or injury in

respect of the goods carried may be varied by the contract.

The Court further held that the burden of proof on absence

of negligence is upon the common carrier, on the theory that

the loss or damage to the goods is prima facie proof of

negligence.

The same High Court in the case of Dekhari Tea Co.

Ltd. Vs. Assam Bengal Railway Co. Ltd. [AIR 1920

Calcutta 758] considered a case where a railway company

entered into a contract with the plaintiff-firm for the

carriage of certain goods to a port and thence to England.

Owing to a breach on the railway line, the goods had to be

transported by river and in steamers and flats belonging to

a steamship company under an agreement with the railway

company. While the goods were in a vessel of the steamship

company, a fire broke out and about one-fourth of the goods

were destroyed. The plaintiff instituted the suit to

recover from both the railway company and the steamship

company the value of the goods destroyed. The High Court

held that although there was no contract between the

steamship company and the plaintiff the company was

nevertheless liable as a common carrier for the loss

incurred by the plaintiff. Comparing the provisions of the

Indian Carriers Act, 1865 with the English Act of 1830 the

Court observed: "However this may be, the Indian Carriers

Act, 1865 when compared carefully with the English Act of

1830, does I think purport and intend to make a common

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carrier liable to the owner of the goods as such, though not

as an insurer. This English Act is very carefully worded;

it refers to the person or persons sending or delivering the

goods (Ss.1 and 2) as the party entitled to recover damages

in respect of such loss (s.7) S.8 of the Indian Act was

undoubtedly drawn with S.8 of the English Act before the

draftsman. 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 Madhya Pradesh High Court in the case of M/s

Mooljee Sicka and Co. Vs. Sardar Narharsingh [AIR 1959 MP

351] considering the scope of sections 8 and 9 of the

Carriers Act held : "The mere occurrence of the fire, under

circumstances such as the present is evidence of negligence,

the truck with the coal-gas plant on it being under the

management of the defendant No.1's servants; and as they

have not been produced to show how the fire originated and

no explanation offered, the respondent has not discharged

the onus cast upon him by law of showing that there was no

negligence and that being so, the plaintiff was entitled to

recover."

The Court also quoted the following observation of

Rankin ,J. in I.G.N. and Ry.Co. Ltd. V. Eastern Assam

Co. Ltd. 33 Cal LJ 71 = AIR 1921 Cal 315): "When a

defendant is called upon to prove that he was not negligent

he is not really called upon to prove a negative. He is

called upon to prove that he took reasonable care The task

is burdensome not because the thing to be proved is a

negative but because the field within which care has to be

proved is quite indefinite and the presumption being against

the carrier the defendant's positive proof must cover the

whole field."

In P.K.Kalasami Nadar vs. K.Ponnuswami Mudaliar and

ors. [AIR 1962 Madras 44] a Division Bench of the Madras

High Court relying on the Privy Council decision in Irrawady

case (supra) held that where loss has occurred to cotton

bales in transit 'cotton' being one of the goods not

mentioned in Carriers Act, 1965 and in respect of which the

liability of the common carrier (in that case the owner of

the lorry) is not limited by a special contract the owner of

the goods in a suit against the common carrier for

loss/damages or non-delivery of articles or goods entrusted

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to the carrier is not required to prove negligence; the

reason being that the liability of a common carrier is that

of an insurer; it therefore follows that, notwithstanding

the fact that there is no negligence on the part of the

comon carrier he is liable to compensate, the owner of the

goods for loss of the goods that occurred during transit.

In the said decision the Court considered the question

whether loss of goods by accidental fire can be said to be

an act of God. The Court observed that an act of God will

be an extraordinary occurrence due to natural causes, which

is not the result 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 Rajasthan High Court that in a suit against

common carrier in respect of loss of goods delivered to him

for transportation there need not be any privity of contract

between the owner of the goods and the carrier. It is

sufficient if the carrier has accepted the goods for

transmit and has failed to deliver them. Thereafter to

escape his liability which is normally absolute, he has to

show that there was a special contract made by the owner of

the goods or his duly authorised agent, even if, the

necessity of having the contract in writing is thought to be

a technical provision .

In the case of Muralidhar Mohanlal and others vs.

Rivers Steam Navigation Co. Ltd. [ AIR 1967 Assam and

Nagaland 79] considering the provisions of sections 6,8 and

9 of the Carriers Act, the High Court held that these

sections are based on English common law and also the common

Carriers Act of England. The Court placed reliance on Privy

Council in Irrawady Flotilla V. Bugwandas (1891) ILR 18

Cal. 620 ] in which the legal position was stated in the

following words :

A common carrier is responsible for the safety of the

goods entrusted to him in all events, except when loss or

injury arises solely from act of God or the Queens enemies

or from the fault of the consignor, or inherent vice in the

goods themselves. He is, therefore, liable even when he is

overwhelmed and robbed by an irresistible number of persons.

He is an insurer of the safety of the goods against

everything extraneous which may cause loss or injury except

the act of God or the Queens enemies and if there has been

an unjustifiable deviation or negligence or other

fundamental breach of contract on his part, he will be

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liable for loss or injury due to the Queerns enemies or, it

would seem, due to act of God.

This responsibiloity as an insurer is imposed upon a

common carrier by the custom of realm, and it is not

necessary to prove a contract between him and the owner of

the goods in order to establish liability. Failure on the

part of the carrier to deliver the goods safely is a breach

of the duty placed upon him by the common law; and

therefore an action of tort lies against him for such

breach, the owner not being bound to prove any contract.

Where, however, there is a contract, liability may arise

either at common law or under the contract, and the contract

may limit the carriers responsibility.

A common carrier is 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 Pvt. Ltd. Vs. Delhi Cloth & General

Mills Ltd. & Ors. [ ILR (1974) 1 Delhi 790] in which the

Court took note of the position that in common law the

liability of a common carrier is equivalent to that of an

insurer.

Similar view has also been taken by Bombay High Court

in M/s Road Transport Corporation and others vs. Kirloskar

Brothers Ltd. [AIR 1981 Bom 299]. In Kerala Transport

Company Vs. Kunnath Textiles [ 1983 Kerala Law Times 480] a

Division Bench of the High Court of Kerala considering the

question whether, if the defendant has failed to deliver the

goods not on account of any negligence or carelessness,

would the defendant be liable; answered the question in the

affirmative. The Court reiterating the position of a

carrier in India as noted above held that it is only those

causes which can be traced to natural causes as opposed to

human agency that can be said to be acts of God and that can

therefore be an answer to claim for absolute liability. The

Court further held that if the defendant was trying to

answer the liability on the basis of the terms of the

special contract he would have to show what reasonable

protection he took against the fire. The Court placed

reliance on the decision in R.R.N. Ramalinga Vs. Narayana,

[AIR 1971 Kerala 197] .

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A similar view was also taken by the Patna High Court

in the case of Banwari Lal Podar vs. Road Transport

Corporation (AIR 1989 Patna 303). Therein it was held that

from a perusal of the section 8 and 9 of the Carriers Act,

1965 it is clear that the burden of proof that there was no

criminal act or negligence on the part of the carrier or its

agents or servants is upon the plaintiff.

Our attention was also drawn to a decision of this

Court in Bharathi Knitting Company vs. DHL Worldwide

Express Courier Division of Airfreight Ltd. [ (1996) 4 SCC

704] wherein this Court considered thequestion when parties

have contracted and limited their liabilities, whether the

State/National Commission could go behind the terms of the

contract and give relief for damages in excess of the limit

prescribed under the contract. This Court interpreting the

provisions of section 2(1)(g), 19 and 23 of the Consumers

Protection Act, 1986 held :

It is true that the Act is a protective legislation

to make available inexpensive and expeditious summary

remedy. There must be a finding that the respondent was

responsible for the deficiency 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 ?

xxxxxxxxx xxxxxxxx xxxxxxxxx

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 Court therein.

From the conspectus of views taken in the decisions of

different High Courts noted above it is clear that the

liability of a common carrier under the Carriers Act is that

of an insurer. This position is made further clear by the

provision in section 9, in which it is specifically laid

down that in a case of claim of damage for loss to or

deterioration of goods entrusted to a carrier it is not

necessary for the plaintiff to establish negligence. Even

assuming that the general principle in cases of tortious

liability is that the party who alleges negligence against

the other must prove the same, the said principle has no

application to a case covered under the Carriers Act. This

is also the position notwithstanding a special contract

between the parties. These principles have held the field

over a considerable length of time and have been

crystallized into accepted position of law. No good reason

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has been brought to our notice to persuade us to make a

departure from the accepted position. Therefore we

reiterate the position of law noticed above. The

consequential position that follows is that the contention

of Shri Ashok Desai learned senior counsel, that the

respondents herein having failed to establish negligence on

the part of the appellant, their claim for damages should be

rejected, cannot be accepted.

The question that remains to be considered is whether

the principles of law discussed in the preceeding paragraph

is applicable in a proceeding before the consumer disputes

redressal agency, particularly the National Commission. In

this regard the contention of Shri Desai is that the use of

the term suit in section 9 of the Carriers Act shows that

the provision is applicable only to cases filed in civil

court and does not extend to proceedings before the National

Commission which is a forum which is to decide complaints by

consumers following a summary procedure. Elucidating the

point Shri Desai submitted that in a proceeding before the

National Commission the general principle that the burden to

prove negligence lies on the party alleging negligence

should be applicable though the position may be different in

a suit filed in a civil court. The term suit has not been

defined in the Carriers Act nor is it provided in the said

Act that the term suit will have the same meaning as in

the Civil Procedure Code. Therefore, the ordinary

dictionary 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

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 proceeding 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

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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 Consumers Protection Act

was enacted. A proceeding before the National Commission,

in our considered view, comes within the term suit.

Accordingly we reject the contention raised by Shri Ashok

Desai in this regard.

Shri Desai also raised a contention on the amount

awarded by the National Commission under the impugned order.

He urged that the respondent by its conduct led the

appellant to believe that the goods entrusted for

transportation are insured and having been led by such

representation the appellant had not insured the goods.

This, according to Shri Desai is a circumstance which should

be taken as a mitigating factor for quantification of the

damage. In the impugned order the National Commission

taking note of the stipulations in the delivery receipt

which was signed by both the parties, confined the amount of

damages to the value of the consignment destroyed/ not

delivered. This contention in our view needs no in-depth

consideration for the reason that there is no material

placed before us to show that at the time of booking of the

consignment any representation as stated by Shri Desai was

given by the respondent to the appellant. Shri Shanti

Bhushan pointed out that the question regarding insuring the

consignment was raised after the incident of non-delivery or

loss of the consignment took place when the respondent asked

the appellant to issue a certificate of non-delivery of the

consignments. Then the respondent ascertained though it had

insured all its consignments in bulk the amount stated in

the policy had been exceeded by the date the consignments in

question were booked, and therefore the insurance policy was

not of any avail so far as non-delivery/loss of the

consignments in question is concerned. It follows that this

contention raised by Shri Desai is also to be rejected. On

the discussion in the foregoing paragraphs all the

contentions raised on behalf of the appellant having been

negatived the appeal is dismissed. There will, however, be

no order as to costs. .J (S.SAGHIR AHMAD)