Sunday 22 August 2021

Is it mandatory to issue prior notice U/S 10 of Carriers Act in Consumer complaints?

  Section 10 of the Carriers Act is reproduced hereunder :-

“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.”

Learned Counsel for the appellant relied upon a

Judgment of this Court in Arvind Mills Ltd. Vs.

Associated Roadways, reported in (2004) 11 SCC 545,

wherein this Court has held as under :-

“7. Since the word 'suit' has been

used both in Section 9 and Section

10 of the Carriers Act, there is no

reason why we should not construe

the said word as far as Section 10

is concerned in the same manner as

it was done in Patel Roadways

Limited (supra) qua Section 9. The

distinction that has been sought to

be drawn between Section 9 and

Section 10, namely, that the former

creates a substantive right whereas

the latter only provides for

procedure is unacceptable. Section

9 deals with the rule of evidence

to be followed in dealing with

cases under the Carriers Act and

rules of evidence are the rules of

procedure. Besides, the

construction of the word 'suit' in

Patel Roadways Limited (supra) did

not turn on whether Section 9 was

either procedural or substantive.

8. The fact that the remedies under

the Consumer Protection Act are in

addition to and not in derogation

of any other law does not mean that

the rights under the Carriers Act

can be exercised, except in

accordance with the manner provided

under the Act. Section 9 and 10

form an integral scheme by which a

common carrier is fastened with

liability irrespective of proof of

negligence. Merely because the

procedure under the Consumer

Protection Act is summary in nature

does not in any way warrant the

abrogation of the requirement to

serve notice under Section 10 of

the Carriers Act before fastening

any liability under that Act on the

carriers.”

The NCDRC has held that since the complaint was

filed before the State Consumer Commission within a

period of six months, it will amount to a notice upon

the common carrier, therefore, the requirement of

serving prior notice under Section 10 of the Carriers

Act stands satisfied.

We find that the proceedings initiated before the

Consumer Fora without serving a notice under Section

10 of the Carriers Act was not maintainable. The

requirement of Section 10 of the Carriers Act is

serving of prior notice in writing of the loss or

injury. Notice is required to be served prior to

initiation of proceedings and not the proceedings

itself.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 4412-4413 OF 2010

M/S. ASSOCIATED ROAD CARRIERS LTD.  Vs M/S. KAMLENDER KASHYAP 

Dated: AUGUST 17, 2021.


The challenge in the present appeals is to an

order passed by the National Consumer Disputes

Redressal Commission (in short, “NCDRC”) dated

10.01.2008, whereby an order of the Himachal Pradesh

Consumer Disputes Redressal Commission directing the

appellant to pay a sum of Rs.4,29,445/- along with

interest at the rate of 8% and costs of Rs.5000/- was

not interfered with.

The sole argument raised by the learned counsel

for the appellant is that in terms of Section 10 of

Carriers Act, 1865, no prior notice was served upon

the common carrier, therefore, the complaint before

the Consumer Fora was not maintainable. Section 10

of the Carriers Act is reproduced hereunder :-

“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.”

Learned Counsel for the appellant relied upon a

Judgment of this Court in Arvind Mills Ltd. Vs.

Associated Roadways, reported in (2004) 11 SCC 545,

wherein this Court has held as under :-

“7. Since the word 'suit' has been

used both in Section 9 and Section

10 of the Carriers Act, there is no

reason why we should not construe

the said word as far as Section 10

is concerned in the same manner as

it was done in Patel Roadways

Limited (supra) qua Section 9. The

distinction that has been sought to

be drawn between Section 9 and

Section 10, namely, that the former

creates a substantive right whereas

the latter only provides for

procedure is unacceptable. Section

9 deals with the rule of evidence

to be followed in dealing with

cases under the Carriers Act and

rules of evidence are the rules of

procedure. Besides, the

construction of the word 'suit' in

Patel Roadways Limited (supra) did

not turn on whether Section 9 was

either procedural or substantive.

8. The fact that the remedies under

the Consumer Protection Act are in

addition to and not in derogation

of any other law does not mean that

the rights under the Carriers Act

can be exercised, except in

accordance with the manner provided

under the Act. Section 9 and 10

form an integral scheme by which a

common carrier is fastened with

liability irrespective of proof of

negligence. Merely because the

procedure under the Consumer

Protection Act is summary in nature

does not in any way warrant the

abrogation of the requirement to

serve notice under Section 10 of

the Carriers Act before fastening

any liability under that Act on the

carriers.”

The NCDRC has held that since the complaint was

filed before the State Consumer Commission within a

period of six months, it will amount to a notice upon

the common carrier, therefore, the requirement of

serving prior notice under Section 10 of the Carriers

Act stands satisfied.

We find that the proceedings initiated before the

Consumer Fora without serving a notice under Section

10 of the Carriers Act was not maintainable. The

requirement of Section 10 of the Carriers Act is

serving of prior notice in writing of the loss or

injury. Notice is required to be served prior to

initiation of proceedings and not the proceedings

itself.

However, keeping in view the fact that the

consignment was booked in the year 1997, it is too

late in the day to relegate the parties to meet out

the requirement of notice under Section 10 of the

Carriers Act. The parties have contested the

proceedings on merits and the State Commission as

well as the NCDRC have returned a finding of fact

that the appellant was deficient in providing

service.

Therefore, in the facts and circumstances of the

case, we do not wish to interfere with the impugned

order. The appeals are, accordingly, dismissed with

no order as to costs.

.......................J.

[ HEMANT GUPTA ]

.......................J.

[ A. S. BOPANNA ]

New Delhi;

AUGUST 17, 2021.


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