VERY IMPORTANT POINTS
1. 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.
2. 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).

Headnote:(i) Carriers Act, 1865-Section 9-Common carrier-Claim for loss/damage against-Liability of carrier is that of insurer-Plaintiff need not establish negligence on part of carrier.
       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. 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. (Paras 31 & 46)
       (ii) Consumer Protection Act, 1986-Section 2(d) r/w Section 9 of the Carriers Act, 1865-Application of provisions of Section 9 of Carriers Act to proceedings under Consumer Protection Act-Plea that proceedings under Consumer Protection Act is not suit and Section 9 of Carrier Act applies only to suit-Pleas untenable-Proceedings before Consumer Forum comes within purview of term suit -Principle enshrined in Section 9 of Carriers Act that plaintiff in suit against carrier for loss/damage need not prove negligence applicable to proceedings under Consumer Protection Act.
       Held : 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 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 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. (Para 30)
       The argument 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 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 cannot be accepted. 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 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". Therefore in a proceeding under Consumer Protection Act against a common carrier the complainant/claimant need not prove negligence of the part of the carrier inasmuch as Section 9 of the Carrier Act would be applicable to such proceedings. (Paras 47 & 48)
       (iii) Carriers Act, 1865-Section 9-Burden of proof of negligence-Application of principle that burden is not on plaintiff to proceedings under Consumer Protection Act-Proceedings under Consumer Protection Act would come within purview of suit -Principles contained in Section 9 applicable to proceedings before Consumer Protection Act. (Paras 30, 47 & 48)

Judgement Key Points

Based on the provided legal document, here are the key points with corresponding references:

Liability of Common Carrier as an Insurer: In a case involving damage to or loss of goods entrusted to a carrier, the liability of the carrier is that of an insurer. The plaintiff does not need to establish negligence on the part of the carrier. This absolute liability is subject only to exceptions such as an act of God or a special contract. (!) (!) (!)
Applicability of Carriers Act to Consumer Proceedings: Section 9 of the Carriers Act, 1865 is applicable to proceedings under the Consumer Protection Act, 1986. The argument that this section applies only to suits in civil courts and not to consumer redressal forums is untenable. (!) (!) (!)
Definition of "Suit": The term "suit" in Section 9 of the Carriers Act is a generic term that encompasses all proceedings initiated by a party to realize a right vested in them under the law, including summary proceedings before the National Commission under the Consumer Protection Act. (!) (!) (!)
Burden of Proof: Under the principles enshrined in Section 9 of the Carriers Act, the burden is not on the plaintiff to prove negligence in proceedings before consumer dispute redressal agencies when claiming against a common carrier. Instead, the burden shifts to the carrier to prove the absence of negligence or the existence of an exempting cause. (!) (!) (!)
Factual Background: The respondent (Birla Yamaha Ltd.) booked generator sets with the appellant (Patel Roadways Ltd.), which were subsequently destroyed in a fire at the carrier's godown. The respondent filed a complaint before the National Consumer Disputes Redressal Commission claiming the value of the goods, freight refund, and damages. (!)
Commission's Order: The National Commission held that the carrier was deficient in service and liable for the loss. It relied on Section 9 of the Carriers Act, ruling that the loss of goods was prima facie evidence of negligence and relieved the complainant from proving negligence. (!)
Carrier's Defense: The appellant argued that the loss was due to an accident beyond their control (fire) and that since Section 9 did not apply to consumer proceedings, the general law requiring the plaintiff to prove negligence should apply. (!) (!)
Interpretation of Statutes: The Consumer Protection Act, 1986 provides a hierarchy of redressal forums with finality to their orders, treating them as decrees of a court. Section 3 of the Consumer Protection Act ensures its provisions are in addition to, not in derogation of, other laws like the Carriers Act. (!) (!)
Precedent on Carrier Liability: Various High Courts have held that a common carrier in India is liable as an insurer for loss or damage to goods, except in cases of Act of God or inherent vice of the goods, without the need to prove negligence by the owner of the goods. (!) (!) (!) (!) (!)

JUDGMENT

D.P. Mohapatra, 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.

2. 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 Petition 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.

3. On being noticed by Commission the appellant appeared 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.

4. 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.

5. 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 pro

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2000 Supreme(SC) 630

Cases Referred (3)