M-S. TRANSPORT CORPORATION OF INDIA LTD. v. M-S. VELJAN HYDRAIR LTD

Citation: [2007] 2 S.C.R. 1082

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, R.V. RAVEENDRAN

Case summary

M-S. TRANSPORT CORPORATION OF INDIA LTD. v. M-S. VELJAN HYDRAIR LTD.pdf

Judgment text

MIS. TRANSPORT CORPORATION OF INDIA LTD. - M/S. VELJAN HYDRAIR LTD. FEBRUARY 22, 2007 [TARUN CHATTERJEE AND R. V. RAVEENDRAN, JJ. ] Consumer Protection Act, 1986: ss. 2(h) and 24-A-Deficiency in 'service'-Contract for carriage of goo TRANSPORT CORPN. or INDIA LTD. \'. VELJAN HYDRA! R LTD. [RAVEENDRAN, 11 1089 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 (supra) relied on by the Appellant, this Court held that the word "suit" used in Section I0 will include a complaint under the Consumer Protection Act, 1986 and that in the absence of a notice under Section I0 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 a claim regarding non-delivery ofthe consignment, where the carrier failed to inform that the goods have been lost.

The said decision does not, therefore, help the Appellant. 9. In this case, the appellant-carrier did not inform the respondent that the goods were lost. The respondent was constantly in touch with the appellant and demanding delivery. By letters dated 15. 12. 1998, 21. 6. 1999 and 3. 7. 1999, the appellant repeatedly informed the respondent that it was in the process of locating the goods, sought time to report about the status and requested the Respondent to wait. Even when the respondent issued a notice through counsel on 27. I0. 2000 (served on 30. I0. 2000) demanding the cost of the consignment, the appellant did not say that the consignment was lost. In such circumstances, it is not possible to attribute knowledge of 'loss' to the person instituting the action for non-delivery. Therefore, there was no need to issue a notice under section I0, and non-issue of a notice under Section I0, did not invalidate the claim or the complaint. Re : Point (ii) : I0.

In the objection filed before the State Commission, the Appellant contended that the cause of action arose on 8. 11. 1996 and having regard to the limitation of two years prescribed under the CP Act, the complaint filed on 5. 7. 2001, was time-barred. However, in the special leave petition, the Appellant contended that the cause of action arose on 8. 8. 1998 and therefore, the claim ought to have been filed on or before 8. 8. 2000. 11. 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 is,ue 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 in\imation of loss of goods, or the date of acknowledgement of liability. 12. In this case, the consignment was entrusted to the appellant on I0. 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. Re : Point No. (iii} 13. In Patel Roadways Ltd. v.

Bir/a 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 TRANSPORTCORPN. OF INDIALTD. v.

VELlAN HYDRAIRLTD. [RAVEENDRAN,l] J09 J 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 ihat 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. In the circumstances, the third point is also answered against the appellant. Conclusion : 14. The State Commission ought to have awarded the entire cost of the consignment.

It committed an error in deducting the freight charges from the amount payable to the respondent. There was no liability to pay the freight charges where the consignment is lost or where there is non-delivery. Be that as it may. As there was no appeal by the Respondent on this issue, there is no . question of increasing the amount awarded. 15. As all the three contentions are rejected, and as we find no infirmity in the order ofthe State Commission, as affirmed by the National Commission, the appeal is dismissed with costs of Rs. 5000/- payable to the Respondent. RP. Appeal dismissed.