IMPORTANT POINT
Non-delivery of consignment at place of destination amounts to deficiency in service.

D.K. Jain, President—This First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), is directed against order dated 06.08.2007 passed by the Delhi Consumer Disputes Redressal Commission (for short “the State Commission”) in Complaint No. C-175 of 1998.

2. The Appellant is a “Common Carrier” as defined in the Carriers Act, 1865. The Respondent entrusted to the Appellant, a consignment, comprising 296 cases of pesticides, a seasonal commodity, vide GR No. 608281 dated 20.09.1997, for transportation from Delhi to Salem (Tamil Nadu). The declared value of the consignment was Rs.3,79,458/-. The Appellant assured the Respondent that the consignment would reach Salem by 25.09.1997. However, the said consignment was neither transported to the place of its destination nor returned to the Appellant. Having learnt that the consignment had not reached Salem, the Respondent served a legal notice, calling upon the Appellant to deliver the consignment at its place of destination with damages, quantified at Rs.2,00,000/-, which the Respondent claimed to have suffered on account of non-delivery. Having failed to receive any response from the Appellant, the Respondent filed a complaint in the State Commission against the Appellant alleging deficiency of service on their part and inter alia, praying for a direction to the Appellant to pay sums of Rs.3,79,958/-, Rs.2,00,000/- and Rs.94,880/- towards the cost of the consignment, compensation for mental tension, harassment and profit on the consignment, respectively.

3. In their Written Statement to the complaint, while admitting that the said consignment was booked but not transported to the place of its destination and was kept in their go-down, the claim was resisted on three grounds: (i) The consignment, in question, being for commercial purpose and not for personal use, the Respondent was not a “consumer” under the Act; (ii) the Respondent had failed to make payment of a sum of Rs.25,215/- towards freight in respect of its earlier consignments and (iii) notice under Section 10 of the Carriers Act, was not issued and, therefore, the complaint was barred.

4. While allowing the complaint, the State Commission has observed that the Appellant had indulged in most unfair act by treating the consignment as a ransom for recovery of past arrears and after taking possession of the consignment, they started using arm twisting methods to extract the said amount, which according to the Respondent was not at all due, knowing fully well that the consignment was of perishable nature. The State Commission has held that the complaint was not barred under Section 10 of the Carriers Act, as it was not a case where any loss or injury had been caused on account of non-delivery of the goods. Holding that the failure of the Appellant to deliver the consignment amounted to deficiency in service, the State Commission has directed it to pay to the Respondent a sum of Rs.3,79,458/- with interest @ 12% p.a. from the date of the booking of the consignment till payment along with punitive damages of Rs.25,000/- for illegal and highly unscrupulous act on its part. Hence the present Appeal.

5. We have heard Ld. Counsel for the parties. The only ground on which the impugned order is sought to be challenged is the alleged non-compliance with the requirement of notice under Section 10 of the Carriers Act. The Section reads as follows:-

“10. Notice of loss or injury to be given within six months. – No suit shall be instituted against a common carrier for the loss of, or injury to, goods (including container, pallets or similar article of transport used to consolidate goods) entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.”

6. The said provision envisages that no suit/proceedings can be initiated against a C