The liability of a common carrier under the Carriers Act is that of an insurer, and the burden of proof on absence of negligence is upon the carrier.

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 compensaton 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 Consumer 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 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 Mr. 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 Mr. Desai the provision