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.

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How to ascertain limitation in suit for recovery of compensation in case of loss or injury to goods?

The period of limitation would obviously run only when a report on the loss that has occurred is obtained from an approved surveyor or loss assessor. The plaintiff can of course be non-suited on the ground of limitation if a suit for compensation is not filed within a period of three years therefrom. That does not however mean that a suit for compensation against a carrier for loss or injury of goods cannot be filed in the absence of such a report. S. 64UM(2) of the Insurance Act, 1938 has impact when the plaintiff or one of the plaintiffs is the insurer who sues on the strength of a letter of subrogation. The claim is settled and the insurer steps into the shoes of the insured on the strength of the letter of subrogation issued by the insured. It is only then can the insurer file a suit for compensation for the loss or injury of goods against the carrier as in the case on hand. The court below erred in holding that the period of limitation runs from the date of knowledge of the loss or injury of goods even for the first plaintiff. The decision in Associated Transport Corporation (P) Ltd.'s case (supra) is distinguishable since the claim therein was for a sum less than ` 20,000/-. There was no occasion therefore to consider the applicability of S. 64UM(2) of the Insurance Act, 1938 in the said decision relied on by the court below. The approved surveyor prepared the loss survey report on 29.8.1994 and the suit for compensation was filed on 25.3.1997 well within the period of three years. The period of limitation for filing a suit for compensation against a carrier for loss or injury of goods is three years when the loss or injury occurs. The suit filed by the insurer and the insured against the carrier is well in time and not barred by the law of limitation as has been erroneously held by the court below. 

IN THE HIGH COURT OF KERALA

A.S. No. 770 of 1999

Decided On: 14.12.2016

United India Insurance Company Ltd. Vs. Surat Goods Transport Service

Hon'ble Judges/Coram:

V. Chitambaresh and Anil K. Narendran, JJ.

Citation: AIR 2017(NOC)908 kerala

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Leading judgment on liability of carrier of goods under Indian law

In Patel Roadways Limited v. Birla Yamaha Ltd. AIR 2000 SC 1461, Supreme Court held that the liability of a carrier in India is like that of an insurer and is an absolute liability subject to an Act of God and a special contract which the carrier may choose to enter with a customer. In this regard, the Court referred to the provisions of Section 9 of the Act, which specifically provides that in case of claim of damage or loss to or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. It was further held that even assuming that the general principle in cases of tortuous liability is that of the party who alleges negligence against the other must prove the same, the said principle has no application to cover the case under the Carriers Act.

THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Pronounced on: 23.11.2010

CS(OS) No. 1468/2001

M/S NATIONAL INSURANCE CO. LTD. & ANR.

V

M/S MUKESH TEMPO SERVICE (CARRIER)

CORAM:-

HON’BLE MR JUSTICE V.K. JAIN

Citation: 2011IAD(Delhi)294, (2011)ILR 1Delhi801, (2011)161PLR36

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