2007 Supreme(SC) 232

2007(3) Supreme 372
SUPREME COURT OF INDIA
(From New Delhi High Court)
Tarun Chatterjee and R.V. Raveendran, JJ.
M/s Transport Corporation of India Ltd.—Appellant
versus
M/s Veljan Hydrair Ltd.—Respondent
Civil Appeal No. 3096 of 2005
Decided on 22-2-2007
Counsel for the Parties :
For the Appellant : Rajiv Dutta, Sr. Advocate, Jeetendra, M.F. Humayunsa and Dharmendra Kumar Sinha, Advocates.
For the Respondents : Rana Mukherjee, Siddharth Gautam and Goodwill Indeevar, Advocates.

IMPORTANT POINT
When there is no loss or injury to goods but common carrier wrongly or illegally refused to deliver goods and person entitled to delivery initiates action for non-delivery, Section 10 of Carriers Act will not apply.

Headnote:Carriers Act, 1865—Section 10—Consumer Protection Act, 1986—Section 12 and 17—Consumer complaint for non-delivery of consignment—Maintainability of complaint challenged on ground that notice u/s 10 of the Act was given after six months of date of knowledge of loss of consignment—Notice is required for initiation of proceedings against a common carrier for loss of goods or injury to goods entrusted for carriage—Where there is no loss or damage to goods—But common carrier wrongly or illegally refused to deliver goods and person initiates action, Section 10 will not apply—Appellant had acknowledged to respondent complainant that they were try to trace the consignment—A case of non-delivery will become a case of loss of consignment only when comom carrier informed consignor about loss of consignment—Consumer complaint could not sand to be barred.

       Held : (Para 7)

       (Para 9)

       (ii) Consumer Protection Act, 1986 —Section 24A—Limitation—Consignment of good entrusted to appellant a common carrier not delivered—Respondent-complainant had instructed appellant to re-book consignment on 8-11-1996 when the person for whom goods had been sent did not come for forward to take delivery—Consumer complaint was filed on 5-7-2001—By letters dt. 15-12-1998, 21-6-1999 and 3-7-1999 appellant had assured respondent that it was in process of locating the goods and requested respondent to wait and assured that it will inform about status—Complaint was well within limitation.

       Held : Section 24A of the Consumer Protection Act, 1986 provides that neither the District Forum nor the State Commission nor the National Commission shall admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. The term “cause of action” is of wide import and has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. It refers to all circumstances or bundle of facts which if proved or admitted entitles the plaintiff (complainant) to the relief prayed for. In the context of limitation with reference to a contract for carriage of goods, the date of cause of action may refer to the date on which the goods are entrusted, date of issue of consignment note, the date stipulated for delivery, the date of delivery, the date of refusal to deliver, the date of intimation of carrier’s request to wait for delivery as the goods are being traced, the date of intimation of loss of goods, or the date of acknowledgement of liability. (Para 11)

       In this case, the consignment was entrusted to the appellant on 10.5.1996. On 8.11.1996, the respondent instructed the appellant to re-book the consignment. On 8.8.1998, 13.10.1998, 7.11.1998 and 8.12.1998, the respondent demanded delivery. By letters dated 15.12.1998, 21.6.1999 and 3.7.1999, the appellant assured the respondent that it was in the process of locating the goods and requested the respondent to wait and assured that it will inform about the status. Thereafter the appellant did not inform the status. The complaint has been filed within two years from the date of receipt of the said letter dated 3.7.1999 and is in time. In fact in view of the request of the appellant to the respondent to wait till the consignment was traced, the limitation for an action would not start to run until there was a communication from the appellant either informing about the loss or expressing its inability to deliver or refusal to deliver, or until the respondent makes a demand for delivery or payment of value of the consignment after waiting for a reasonable period and there is non-compliance. Therefore, the complaint is not barred under section 24A of CP Act.(Para 12)

       (iii) Consumer Protection Act, 1986—Section 12 and 17—Non-delivery of goods or damage to goods entrusted to a common carrier for carriage would amount to deficiency in service under Consumer Protection Act—Where common carrier has misplaced or lost the goods and was not in position to deliver goods, it could not demand freight charges nor contend that non-payment of freight charges exonerated it.

       Held : In Patel Roadways Ltd. v. Birla Yamaha Ltd. [2000 (4) SCC 91], this Court held that loss of goods or injury to goods or non-delivery of goods, entrusted to a common carrier for carriage, would amount to a deficiency of service and, therefore, a complaint under the Consumer Protection Act, 1986 would be maintainable. When a person entrusts a goods to a common carrier for transportation and the carrier accepts the same, there is a contract for “service”, within the meaning of CP Act. Therefore, when the goods are not delivered, there is a deficiency of service. It is no doubt true that ‘service’ for purposes of CP Act does not include rendering of service free of charge. Where the contract for transportation is for a consideration (freight charge), the mere fact that such consideration is not paid, would not make the service ‘free of charge’. There is difference between contract without consideration, and contract for consideration, which is not paid. If there is non-payment of the freight lawfully due, the carrier may sue for the charges, or withhold the consignment and call upon the owner/consignor/consignee to pay the freight charges and take delivery, or on failure to pay the freight charges, even sell the goods with due notice to recover its dues, where such right is available. But where the common carrier has misplaced or lost the goods and, therefore, not in a position to deliver the goods, it obviously cannot demand the freight charges, nor contend that non-payment of freight charges exonerates it from liability for the loss or non-delivery. When the carrier informs that the consignment is not traced and is under the process of being traced, obviously the owner/consignor/consignee cannot be expected to pay the freight charges.(Para 13)