NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Revision Petition No. 2417 of 2005
(From the order dated
Shree Vaidyanath Ayurved Bhawan Ltd. Petitioner
Versus
1. Vishal Goods Transport Company,
Haldwani, Respondents
District Nainital
2. Vishal Goods Transport Company
Through Wariam Singh, Proprietor/Partner
BEFORE
HON’BLE
MR. JUSTICE R. C. JAIN PRESIDING
MEMBER
HON’BLE
MR. ANUPAM DASGUPTA MEMBER
For the Petitioner Ms Shally
Maheshwari, Advocate
For the Respondents Mr. S. K. Sharma,
Advocate
ANUPAM DASGUPTA
ORDER
This
revision petition challenges the order dated
2. The
undisputed facts of the case are that the petitioner, a limited company engaged
for long in the manufacture and sale of aayurvedic medicines, despatched by
road several consignments of its medicines from its depot-cum-office at
Haldwani, District Nainital to that at Bareilly, through respondent no 1,
Vishal Goods Transport Company, Haldwani (respondent no. 2 being the owner of
the former), during August 1997 and June 1998. The corresponding Goods Receipts
(GRs) issued by Vishal Goods Transport Company were dated 20.08.1997, 24.08.1997,
01.04.1998 (two GRs), 17.02.1998 (two GRs) and 02.06.1998, each GR marking the
petitioner as the consignor, “self” as the consignee and bearing the name of
Navrang Transport Corporation under the heading “Delivery”. It may, however, be
noted at this stage itself that in these GRs, some written in Hindi and others
in English, Navrang Transport is described in varying details but in none of
the GRs is it written as Navrang Transport Corporation, Bareilly to clearly
show that Navrang had any office/depot/godowns at Bareilly from where the
delivery of the goods was to be taken. All the GRs were endorsed to the Punjab
National Bank,
3. It
is the contention of the petitioner that none of these consignments was ever
delivered at its
4. Affirming
the majority order of the District Forum, the State Commission dismissed the
petitioner’s appeal on three main counts. First, it noted the rather unusual
business conduct that the petitioner continued to despatch several consignments
of its medicines, over a period of more than nine months, through the (same)
respondent - transporter (hereafter, ‘Vishal) despite its own contention that
even the first consignment did not reach its agent at Bareilly within a
reasonable period of time. Secondly, the petitioner did not make any attempt to
implead the intermediate transporter, viz., Navrang Transport Corporation
(hereafter, ‘Navrang’) though the latter was named in each GR under the heading,
“Delivery”; thereby the State Commission implicitly held that the consignee,
viz., the petitioner itself or its agent at Bareilly, was expected to take the
delivery of the consignments from Navrang at Bareilly after getting the GRs
discharged through the Bank. The State Commission also noted that despite this
position, the petitioner objected to impleading Navrang on the ground that it
had neither any privity of contract with Navrang nor any dispute with it,
having booked all the consignments in question only through Vishal – an
argument that the State Commission did not find persuasive. Thirdly, and most
important, the State Commission held that (i) section 10 of the Carriers Act,
1865 would apply to this case and, (ii) accordingly, the petitioner was enjoined
to ‘give’ a written notice to Vishal (i.e., not only send a written notice to
but also ensure service of the said notice on Vishal), within six months of the
peril to its consignments first coming to its knowledge and (iii) the
petitioner could not be held to have given the said 6-month notice to Vishal,
even if it was assumed that its registered letter dated 28.06.1999 was sent to
Vishal. In holding that section 10 of the Carriers Act applied to the
petitioner’s case, the State Commission relied on the order of the Apex Court
in the case of Arvind Mills Ltd. versus
Associated Roadways [(2004) 11 SCC 545].
5. We
have heard the learned counsel of both the parties and gone carefully through
the records before the State Commission and the District Forum, as well as the
pleadings and submissions placed before us. The parties have also submitted
their written submissions and copies of the orders of the
6 (a) In
the proceedings before us, Ms Shally Maheshwari, learned counsel for the
petitioner has based her case, first, on the recent order of the Apex Court in
the case of Transport Corporation of
India Ltd. versus Veljan Hydrair Ltd. [(2007) 3 SCC 142] to demonstrate
that the finding of the State Commission, which relied on the Apex Court’s
order in the case of Arvind Mills Ltd.
versus Associated Roadways (supra),
with regard to applicability of section 10 of the Carriers Act to this case and
thus held the petitioner liable to give a 6-month notice to the respondent(s)
under that section, was erroneous.
(b) In
the Transport Corporation of India case,
the
“7. ... ... Section 10 requires a
notice in the manner set out therein, for initiation of a proceeding against a common carrier for loss of goods or injury to
goods entrusted for carriage. The
notice need not say specifically that it is issued under section 10 of the
Carriers Act, 1865. It is sufficient if the notice fulfils the requirement
of section 10, that is, to inform the carrier about the loss or injury to the
goods. Such a notice under section 10
will certainly be required where the common carrier delivers the goods in a
damaged condition, or where the common carrier loses the goods entrusted for
carriage and informs about such loss to the consignor/consignee/owner. The
object of the section is to put the carrier on notice about the claim in
respect of the loss or damage to the consignment so that it can make good the
loss occasioned. But where there is no
loss or injury to the goods, but the common carrier wrongly or illegally
refuses to deliver goods and the person entitled to delivery initiates action
for non-delivery, obviously section 10 will not apply. Similarly, where the
common carrier informs the person entitled to delivery (consignor / consignee/
owner) that the consignment is being traced and process of tracing it is still
going on and requests him to wait for the consignment to be traced and
delivered, but does not subsequently inform him either about the loss of the
consignment, or about its inability to trace and deliver the consignment, the
claim by the consignor / consignee will not be for loss or injury to goods but
for non-delivery of goods. The
requirement relating to notice within six months in section 10 will not apply
to a claim based on such non-delivery. In fact section 10 does not use the word
“non-delivery” of goods, but uses the words “loss of, or injury to, goods”.
A case of “non-delivery” will become a case of “loss” of consignment, only when
the common carrier informs the consignor/ consignee about the loss of the
consignment.
“8. In Arvind
Mills, relied on by the appellant, this Court held that the word
“suit” used in section 10 will include a complaint under the Consumer Protection
Act, 1986 and that in the absence of a notice under section 10 of the Carriers
Act, a complaint against a common carrier for compensation for loss suffered by
the complainant cannot be entertained. But that decision did not relate to a
claim regarding non-delivery of the consignment, where the carrier failed
to inform that the goods have been lost. The said decision does not, therefore,
help the appellant.”
[Emphasis
in italics supplied].
(c) Ms
Maheshwari has further argued that in this case, the respondents did not claim
that the consignments of the petitioner were either lost or delivered in
damaged condition at the business premises of the petitioner or its agent at
(d) Ms
Maheshwari emphasises that this letter of 17.06.2003 is a fabrication by the
respondent(s), in collusion with Navrang, for (i) neither before the date
(17.06.2003) of the purported letter nor at any time thereafter did Navrang
send any other written communication / reminder to the respondent(s) or the
petitioner about the petitioner’s consignments having been received by and
lying undelivered with it; (ii) Navrang’s said letter was never produced before
the District Forum though there was ample time and opportunity to do so ‑
because the lady Member of the Forum pronounced her order on 17.07.2004,
agreeing with the dissenting order dated 05.01.2004 of one Member against the
order dated 20.12.2003 of the President of the Forum – each of these orders was
thus passed much after the date of the said letter of Navrang; (iii) although a
copy of this letter was claimed to have been endorsed to the petitioner, it was
never received by the latter; (iv) though a copy of this letter was filed by
the respondents during the appeal proceedings before the State Commission to
which the petitioner protested strongly, the State Commission neither ruled against
its being taken on record; nor in favour and (v) the petitioner became aware of
the existence of this letter only when the respondent(s) filed a copy before
this Commission.
7 (a) As
against this, Mr. S. K. Sharma, learned counsel for the respondents has argued
that the affidavits, documents and written submissions in the proceedings
before the Fora below fully establish the following points: (i) the
petitioner’s goods were sent (by Vishal) from Haldwani to Bareilly on GRs in
which the consignee was “self”; (ii) according to the GRs, the goods were to be
delivered to Navrang at Bareilly and collected by the petitioner’s
representative from Navrang’s office there; (iii) the tallying details of the
GRs and those in the unloading reports (including the petitioner’s goods
dispatched by Vishal from Haldwani and their unloading by Navrang at Bareilly)
show that the (petitioner’s) goods had been delivered to Navrang at Bareilly;
(iv) the letter of 17.06.2003 written by Navrang to the respondents with copy
to the petitioner further strengthens the case of the respondents and (v) it
was the petitioner which failed to take delivery of its goods from Navrang was
also unable to produce any proof to demonstrate that either itself or its agent
at Bareilly was unable to take the delivery of the goods in question from
Navrang on account of some deficiency on the part of the respondents. Mr.
Sharma also stresses the point that the petitioner was fully aware of this
practice (of Vishal sending the goods to Navrang’s premises at
(b) In
support of his case, Mr. Sharma has also relied on the order of the Apex Court
in the case of Patel Roadways Ltd. versus
Birla Yamaha Ltd. [(2000) 4 SCC 91] and the order of this Commission in the
case of Delhi Assam Roadways Corporation
Ltd. versus B. L. Sharma [I (2003) CPJ 280 (NC)].
(c) In
the Patel Roadways case (supra), the Apex Court held, inter alia, that (i) the word “suit” in
section 9 of the Carriers Act also included the consumer complaints under the
Consumer Protection Act, 1986 (and the Redressal Fora under the Consumer
Protection Act were fully competent, despite the summary nature of proceedings
before them, to consider and adjudicate upon complaints relating to
deficiencies on the part of common carriers); (ii) the liability of a common
carrier under the Carriers Act was that of an insurer; (iii) the general
principle of law in cases of tortious liability (that the responsibility of
proving negligence lay with the party so alleging) had no application to a case covered by the Carriers Act, even a
case where a special contract (to the contrary) existed between the parties;
and (iv) the absolute liability of a common carrier was, however, subject to
the (only) exception where the loss or damage arose from an “act of God”. We
are, however, unable to see the relevance of this order of the
(d) In
the Delhi Assam Roadways Corporation case,
the facts were totally different. That case was undisputedly one of loss of as
well as damage to the personal goods of the complainant, which occurred in the
course of transportation of the goods from Mumbai to Vishakhapattanam. This
Commission held that section 10 of the Carriers Act was, therefore, applicable
and hence it was mandatory for the complainant to give a notice to the carrier
before the expiry of six months from the date of the loss of and damage to his
goods first coming to his notice. The revision petition of the carrier was
allowed only on this ground. Thus this order of the Commission would also not
come to the aid of the respondents here unless the question of applicability of
section 10 (vis a vis section 9) of the Carriers Act is first settled on the
basis of the facts and circumstances of this case.
FINDINGS
8 (a) In
view of these divergent claims and versions, it is necessary to refer to the
records before the Fora below.
(b) Throughout
the proceedings before the District Forum, the stand of the complainant
(petitioner) was that the consignments were booked by its Haldwani office with
Vishal to be sent to Bareilly and the consignee was “self”, i.e., the
complainant’s representative/agent at Bareilly. The complainant averred that at
the relevant time opposite parties (OPs)/Vishal had orally represented to the
complainant that transportation of the petitioner’s goods of from Haldwani to
Bareilly was an internal arrangement of theirs with Navrang, as the latter had
its office at Bareilly. The complainant thus contended that this being the
respondents’ own arrangement, it was entirely the responsibility of the
respondents/Vishal to ensure delivery of the consignments to the complainant’s
representative/agent at Bareilly. That the consignee in each case was marked
“self” is evident from each GR issued by Vishal.
(d) However,
on the strength of the entry of Navrang under the heading “Delivery” in these
GRs, the OPs/respondents repeatedly contended before the Forum that (i) Navrang
and not the OPs/respondents were the “common carrier” in this case; (ii) the
consignments were received by Navrang at Bareilly; (iii) it was, therefore, for
the complainant to take delivery from Navrang; and (iv) the complainant “has
not averred nor produced any evidence to show that Navrang Transport at
Bareilly has failed to deliver these consignments to the consignee”. In their
affidavit on oath (dated 06.10.2003), the OPs contended that the complainant
had “not made compliance of the provisions of section 10 read with other
relevant provisions of the Carriers Act, 1865” and went to the extent of alleging
(in their next affidavit dated 01.12.2003) that possibly “the consignee was
trading in black money either in collusion with or duping the Navrang Transport
of Bareilly... …” In their written submissions dated 16.12.2003, the OPs also
dwelt at length on the complainant not being a “consumer” under the Consumer
Protection Act, 1986 (the ‘Act’) and made several other points, including
application of section 10 of the Carriers Act to this case. We observe,
however, that in none of the above-mentioned averments and submissions of the
OPs was there even a whisper of their being in possession of the letter dated
17.06.2003 written by Navrang to the OPs, explicitly acknowledging receipt of
the complainant’s consignments in question and intimating that these were still
lying with them because no one on behalf of the petitioner/consignee had come
forward to take delivery.
(e) In
filing a copy of Navrang’s letter 17.06.2003 before the State Commission as
late as on 31.01.2005, the OPs sought to explain this delay by stating that
this letter of Navrang’s had been misplaced in their office and it was located
much letter. The complainant/appellant/petitioner had strongly objected to the
filing of this letter. While the State Commission steered clear of the issue of
allowing or disallowing the filing of this letter in its proceedings or in the
impugned order dated 16.06.2005, the questions that remained unanswered in the
process are not trivial.
(f) Vishal
claimed that these consignments were delivered by it at the premises of Navrang
at Bareilly as early as in 1997 – 98. If that were so, the first question is:
what prevented Navrang from sending a similar written intimation to Vishal some
time soon after the arrival of the last consignment in June 1998 that the said
consignment(s) were lying undelivered with Navrang since mid-1997 for want of
necessary action by the consignee? Further, if Navrang were indeed the “common
carrier” and OPs/Vishal only a supplier of transporting trucks by virtue of the
internal arrangement of theirs (as repeatedly averred by the OPs before the
District Forum), was this claimed arrangement with Navrang with the explicit
concurrence of Navrang and demonstrably brought to the notice of the
complainant? If so, why then, as the common carrier, did Navrang not inform the
petitioner directly about the arrival of the consignments by a letter sent by
registered post with acknowledgement due to ensure its receipt by the
complainant/petitioner? If the OPs/respondents, as mere supplier of trucks to
Navrang, were so keenly aware of the definition and full import of being a
“common carrier” under the Carriers Act, surely so would be Navrang.
(g) In
the proceedings before the District Forum, the OPs/respondents relied on the
unloading reports of Navrang, purporting to show that the consignments of the
complainant/petitioner had been received from the OPs/respondents by Navrang at
Bareilly. These reports were on printed letterhead paper of Navrang, showing it
as a registered Transporter with its Head Office at Lucknow and bearing a
rubber stamped addition “BAREILLY”. The letter dated 17.06.2003 was, however,
on a more detailed printed letterhead titled “Navrang transport Corporation,
FLEET OWNERS AND TRANSPORT CONTRACTORS”, with “Admn. Office” at “Aishabagh Road,
LUCKNOW” and “Branch Office” at “TRANSPORT NAGAR, LUCKNOW” but once again a rubber stamped addition, “Phul
Bagh, Bareilly”. The common element
in Navrang’s unloading reports and the letter of 17.06.2003 on its corporate
letterhead was thus the rubber stamped
addition of Bareilly. Why did Navrang
not have a printed letterhead for its office at Bareilly? Why did a
self-proclaimed Fleet Owner and Transporter have to have a business arrangement
with Vishal only for providing trucks? Was this business arrangement restricted
only to transporting the consignments of the petitioner or generally for all
its transportation operations to and from Haldwani and Bareilly and some more?
(h) The
short point, therefore, is that if the OPs/respondents, as mere supplier of
trucks, had to rely so heavily on Navrang, the “common carrier” according to
their own claim before the District Forum, should the OPs/respondents not have
applied for examination of Navrang’s representative at Bareilly in defending
their stance? Why, instead, did the OPs/respondents repeatedly plead that the
complainant/petitioner be called upon to implead Navrang with which the
complainant/petitioner could have been held to have had, at best, a distant,
secondary relationship – that too, as per the claim of the OP/respondent?
(i) Finally,
why did the respondents find it necessary to ‘discover’ and seek to file
Navrang’s letter of 17.06.2003 in at the appellate stage when all through the
proceedings before the District Forum they were content with emphasizing that
the unloading reports of Navrang (which the respondents had filed before the
District Forum on oath as being true) were conclusive proof of the petitioner’s
goods having been delivered in time to Navrang at Bareilly and the failure of
the latter alone to take delivery thereof after getting the GRs duly discharged
from the Bank – was it because the respondents were aware that the unloading
reports were not really sufficient to prove that either the respondents or the
“common carrier” Navrang (as claimed by the respondents) had taken adequate
steps to inform the petitioner of the arrival of its goods at Navrang’s
premises at Bareilly?
(j) It
is easy to see that these unanswered questions have a direct bearing on the
validity, in terms of facts as well as in law, of the finding of the lower Fora
on the issue of the petitioner’s liability (vis a vis that of the respondents’)
to implead Navrang in its complaint (vis a vis that of the respondents to seek
examination of Navrang) before the District Forum – the first alternative
having been highlighted by the two Members of the Forum and, later, by the
State Commission in the impugned order, in dismissing the complaint/appeal.
(k) Equally,
in dismissing the complaint/appeal of the petitioner, it is contradictory to
hold it against the petitioner, on the one hand, that the petitioner failed to
implead Navrang and, on the other that it failed to issue notice under section
10 of the Carriers Act to the respondents. If, as per the respondents’ claim,
it is accepted that Navrang was the “common carrier”, the petitioner should
have been answerable for not giving the section 10 notice to Navrang and not
Vishal/respondents - assuming of course that the findings on the applicability
of section 10 of the Carriers Act to this case and fastening the responsibility
therefor on the petitioner are legally tenable. Conversely, if the respondents
were taken as the common carrier in this case, it would have been necessary for
the Fora below to be satisfied that the respondents, as the common carrier, had
proved conclusively that they had intimated the petitioner, in writing, about
the arrival of the petitioner’s consignments at the premises of Navrang at
Bareilly and yet the petitioner or its representative at Bareilly had failed to
take effective steps to get the goods released after complying with the Bank’s
requirements regarding due discharge of the GRs concerned. Neither the District
Forum nor the State Commission had anything to say on these crucial issues.
(l) Regarding
the question of the legal necessity for the petitioner to implead, in its
complaint, Navrang as a necessary party, Ms Maheshwari has drawn our attention
to the order of the Apex Court in the case of Savita Garg versus Director, National Heart Institute [(2004) 8 SCC
56]. Before we go into the ratio of this order in relation to the matter on
hand, a preliminary question needs to be answered. This petition clearly and
squarely relates to deficiency in “service”, as defined in the Act. At the time
(1999) when the relevant complaint was filed, the definition of “service” in
section 2(1) (o) (after the 1993 amendments by Act 50 of 1993) of the Act stood
as:
“(o)
“service” means 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, ... ... ... ... ... ..., housing construction, entertainment, ... ... ... ... ... ..., but does not
include the rendering of any service free of charge or under a contract of
personal service” (emphasis supplied).
(m) The
case on hand is in respect of alleged deficiency in rendering transport service. On the basis of the
material before the lower Fora, it is also clear that the transport services
provided by the respondents (and/or, by Navrang, according to the claim of the
respondents) to the respondents were under a “contract for service” – professional service at that – with the petitioner.
(n) The
Savita Garg case (SCC 56-70, supra) before the Apex Court was a case
of alleged medical negligence. The complainant had brought up a complaint of
deficiency in medical service rendered by a hospital in the treatment and care
of the patient, her husband, who ultimately died. In its order of 06.02.2003,
this Commission held that the complaint was not maintainable because the
treating doctors had not been impleaded by the complainant. The complainant
appealed to the Apex Court against the said order of this Commission. Allowing
the appeal and remitting the matter back to this Commission by its order of
12.10.2004, the Apex Court held:
“The Consumer Forum is primarily meant for better protection in the
interest of consumers and not to short-circuit the matter or to defeat the
claim on technical grounds.
“As
far as the Commission is concerned, the provisions of CPC are applicable to a
limited extent and not all provisions of CPC are made applicable thereto.
According to the procedure laid down by the Consumer Protection Rules, 1987
(“the Rules”), by Rule 14 thereof a complainant has to give the name,
description and address of the opposite party or parties so far as they can be
ascertained
(Emphasis supplied).
(Paragraphs 7 to 9)
“So
far as the law with regard to the non-joinder of a necessary party under Order
1 Rule 9 and Order 1 Rule 10 CPC is concerned, there also even no suit shall
fail because of misjoinder or non-joinder of parties. It can proceed against
the persons who are parties before the court. Even the court has the power
under Order 1 Rule 10 (4) to give direction to implead a person who is a
necessary party. Therefore, even if after the direction given by the
Commission the doctor concerned and the nursing staff, who were looking after
the deceased A, had not been impleaded as opposite parties it cannot result in
dismissal of the original petition as a whole.
(Emphasis supplied)
(Para. 9)
“Once
a claim petition is filed and the claimant has successfully discharged the
initial burden that the hospital was negligent, and that as a result of such
negligence the patient died, then in that case the burden lies on the hospital
and the doctor concerned who treated that patient, to show that there was no
negligence involved in the treatment. Since the burden is on the hospital, they
can discharge the same by producing the doctor who treated the patient in
defence to substantiate their allegation that there was no negligence. It is
the hospital which engages the treating doctor;, thereafter it is their
responsibility. The burden is greater on the institution/ hospital than that on
the claimant. In any case, the hospital is in a better position to disclose
what care was taken or what medicine was administered to the patient. It is the
duty of the hospital to satisfy that there was no lack of care or diligence. The
institution is a private body and it is responsible to provide efficient
service and if in discharge of its efficient service there are a couple of weak
links which have caused damage to the patient, then it is the hospital which is
to justify the same and it is not possible for the claimant to implead all of
them as parties.
(Para.10)
“Therefore,
the expression used in Rule 14 (1) (b), “so far as they can be ascertained”,
makes it clear that the farmers of the Rules realized that it will be very
difficult, especially in the case of the medical profession, to pinpoint who is
responsible for not providing proper and efficient service which gives rise to
the cause for filing a complaint, and especially in a case like the one in
hand.
(Para. 10)
“Even
otherwise also given that, as held above, the burden to absolve itself shifts
on to the hospital/ doctor; the Institute has to produce the treating physician
concerned and has to produce evidence that all care and caution was taken by it
or its staff to justify that there was no negligence involved in the matter.
Therefore, nothing turns on not impleading the treating doctor as a party.
(Para. 16)
“The
hospital is responsible for the acts of their permanent staff as well as staff
whose services are temporarily requisitioned for the treatment of the patients.
Therefore, the distinction between “contract of service” and “contract for
service” which is sought to be pressed into service cannot absolve the hospital
or the Institute as it is responsible for the acts of its treating doctors and
nursing staff who are on the panel/ staff of the hospital and whose services
are requisitioned from time to time, temporarily, by the hospital for treatment
of patients. For both, the hospital, as the controlling authority, is
responsible and it cannot take shelter under the plea that as the treating
physician is not impleaded as a party the claim petition should be dismissed.
(Para. 15)
(o) In
this case, there was a ‘written contract’ for (transport) service between the
petitioner and the respondents in the shape of several GRs. It might be also
inferred, as per the say of the respondents, that there was perhaps a contract
of sorts for further transport-related service between the respondents and
Navrang. the terms of the latter contract were, however, never disclosed before
either the District Forum or the State Commission. In any case, it is amply
clear from the explicit rulings of the Apex Court cited above that if, as
claimed by the respondents, Navrang was the key service provider in the
complaint, it was for the respondents to bring in Navrang before the lower Fora
and prove their say in support of the respondents’ claim, in the presence of
and subject to cross-examination of Navrang by the petitioner. It was also the
duty of the District Forum to ensure this and not (for the two learned Members)
to go off at a tangent altogether on this issue. Even more unfortunate was the
approach adopted by the appellate body, viz., the State Commission. The only
thing that could perhaps be said in favour of the stance of the District Forum
and the State Commission is that neither could have been aware of the clear
rulings of the Apex Court in the two cases (particularly the Transport Corporation of India case supra) now cited by the petitioner.
However, the fact remains that (as observed so succinctly and conclusively by
the Apex Court in para. 7 to 9 of its order in the Savita Garg case) a proper application of Order I Rule 10 of the
CPC (of which the Fora below were surely aware) would also have sufficed in
coming to the right decision. Be that as it may.
(p) It
is thus clear that in this case (i) the respondents were the common carrier and
not Navrang; (ii) the petitioner’s complaint was not of loss of or damage to
their goods upon actual delivery of the goods after transportation but of
“non-delivery”, making it a case covered by section 9 of the Carriers Act (and
not section 10) and thus fully casting the responsibility to prove the absence
of any negligence on the carrier itself and (iii) no conclusive evidence was
produced by the respondents to show that they (or, even Navrang) ever informed
the petitioner about the arrival of the petitioner’s consignments from Haldwani
to Bareilly to enable the latter to take delivery thereof. As already observed,
the production by the respondents of the letter of 17.06.2003 purportedly
written by Navrang during the appeal before the State commission rightly
deserved the treatment meted out to this letter by the State Commission,
namely, completely ignoring the said letter as an admissible piece of evidence.
(q) On
the other hand, we cannot also lose sight of the perplexing business conduct of
the petitioner in this case. The petitioner continued to send several
consignments of its goods through the respondents over a fairly long period of
time. But it did not bring on record, in its complaint or in the
affidavits/documents filed before the District Forum, to convincingly explain
why it chose to do so if the intimation of arrival of even the first consignment
at Bareilly had not been given by the respondents or Navrang in time. This
weakens the petitioner’s claim for recovery of the cost of the goods and any
further compensation because of non-delivery.
(r) Before
we part with our findings, it would be desirable to set at rest the confusion
on the definition of “consumer” under section 2(1) (d) of the Act. As a plain
reading of the definition would show, sub-clause (i) of clause, defining a
“consumer” in the context of “goods”, excluded, ab initio, “a person who obtains such goods for resale
or for any commercial purpose” (emphasis
supplied). On the other hand, the analogous clause in the definition of a
“consumer” of “service”, viz., “but does
not include a person who avails of such service for any commercial purpose”
(emphasis supplied) was first
introduced in sub-clause (ii) of clause (d) of section 2(1) only by the
Amending Act of 2002 (Act 62 of 2002, which came into effect from 15th
March 2003). The amendments to the Act brought about in either 1993 or 2003 did
not have retrospective effect, at least in the context of services other
than “housing construction” (for interpretation in respect of “housing
construction”, reference to the ruling of the Apex Court in the case of Lucknow Development Authority versus M. K.
Gupta [(1994) 1 SCC 243] would
be necessary). In other words, a consumer of service (including the service of
transport) was not excluded, upto the amendments to the Act by Act 62 of 2002,
from the definition of “consumer” under the Act merely because the consumer
availed of the service in question for any commercial purpose. Thus, the
petitioner in this case was very much a “consumer” under the Act when it filed
the complaint in 1999.
9. On
the basis of the discussion above, we set aside the impugned order of the State
Commission as well as that of the District Forum and direct the respondents to
pay, jointly / severally, to the petitioner the sum of Rs. 2,44,000/- (Rs. two
lakh forty four thousand only), being the cost (rounded off) of the
petitioner’s undelivered goods, within four weeks from the date of this order.
We refrain from ordering payment of any interest on this amount or any other
compensation because the business conduct of the petitioner (in sending several
consignments of its goods over a fairly long period of time through the
respondents without making any proven efforts to check on their delivery at
Bareilly) does not show the petitioner up as a prudent or diligent consumer.
There shall also be no order as to costs, for the same reason.
..................................................
[R.
C. JAIN, J]
...................................................
[ANUPAM
DASGUPTA]