PER SURESH CHANDRA, MEMBER This revision petition has been filed by Nagpur Golden Transport Co. which was the OP-1 before the District Forum. According to the complainant, who is respondent no.1 herein, he booked a consignment of cloth with the petitioners/OP-1 for being transported and delivered to the complainant at Manendragarh, Dist. Koria. The value of the consignment was shown as Rs.29,600/- in the bilty. It is alleged that the said consignment was not delivered to the complainant and hence a consumer complaint was filed by him claiming the value of the consignment along with compensation from the petitioner and other OPs/respondents - 2 & 3 herein. On being noticed, the respondents resisted the complaint. It was averred that since the complainant did not book the consignment, he is not a consumer of respondent no.1. It was also pleaded on behalf of the respondents that the statutory notice as laid down under section 10 of the Carriers Act was not given within the prescribed period of six months and hence claim against R-1 is not maintainable. Besides this, since admittedly the goods were booked on 29.11.2000 at Amritsar and yet the complaint before the District Forum was filed on 26.9.2003, i.e., after more than 2 years of the booking, the same was barred by limitation and hence not maintainable. On appraisal of the issues and the evidence adduced by the parties, the District Forum by its order dated 8.12.2005 held that since the transaction in question was for commercial purpose, the complainant is not a consumer and hence cannot claim compensation for deficiency in service under the Consumer Protection Act. Accordingly, the District Forum dismissed the complaint of the petitioner. Aggrieved by this order, the petitioner carried the same in appeal before the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur which allowed the appeal and set aside the order of the District Forum. While accepting the appeal of the complainant, the State Commission on the strength of ratio laid down by this Commission in Harsolia Motors Vs. National Insurance Co. Ltd. [1/2005 CPJ (NC)] held that the complainant is a consumer qua hiring of services of transportation provided by the respondents and hence can claim compensation for deficiency in service on the part of the respondents. Accordingly, the State Commission directed the respondents to jointly and severally to pay Rs.29,600/- to the complainant with interest @ 9% p.a. from 1.12.2000 along with cost of litigation quantified at Rs.3,000/-. It is against this order of the State Commission that the present revision petition has been filed by OP-1. 2. We have heard counsel for the petitioners and the respondents and perused the record. It is well settled by now that the complainant/respondent no.1 is a consumer and his complaint in respect of deficiency qua the transportation of carriage of goods in question is very much maintainable under the Consumer Protection Act. In view of this, the two legal issues which have arisen for consideration in the present case are in respect of the statutory notice under section 10 of the Carriers Act 1865 and the filing of the consumer complaint by the complainant before the District Forum within the specified period of limitation. Learned counsel for the petitioners submitted that requirement of statutory notice under section 10 of the Carriers Act within a period of six months of the time when the loss or injury first came to the knowledge of the plaintiff is mandatory for institution of any claim against the common carrier. Relying on the judgement of the Apex Court in the case of Arvind Mills Ltd. Vs. Associated Roadways [AIR 2004 SC 5147], learned counsel submitted that the requirement of notice under section 10 before institution of proceedings is mandatory in respect of the claims under the Consumer Protection Act. So far as the knowledge about the loss of goods is concerned, it was all along submitted by the petitioner that it was the respondent no.1 who refused to take delivery of the goods in question when the representatives of the respondents approached him on the ground that the consignment did not contain the goods booked. It has nowhere been averred by the complainant as to why he took almost three years from the date of the booking of the goods to send a legal notice in regard to the loss of goods. In view of this, it is established that the complainant failed to give the statutory notice under section 10 of the Carriers Act within the prescribed period and complying with the mandatory provisions of law as contained in the Carriers Act. He submitted that this important aspect has been ignored by the State Commission in spite of specific plea being taken in this regard by the petitioner in its pleadings. As regards the cause of action, learned counsel submitted that all along the petitioner has maintained before the fora below that even though the complainant himself had not booked the consignment, since the complainant was the consignee, the goods in question were carried and delivered to the complainant although he refused to give any receipt in this regard and later on issued a certificate under pressure from the local agent of the petitioner that he has not received the goods against bilty. In any case, it is not the contention of the complainant that he did not have knowledge about the alleged loss of goods and hence it was incumbent upon him to have served statutory notice of loss of goods on the petitioners at the earliest and in any case within a period of six months. Besides this, the complaint filed by him was also beyond a period of two years from the date of booking. In fact, the complaint was filed only on 26.9.2003, i.e., about 2 years and 10 months from the date of booking. Learned counsel for the petitioner contended that assuming and granting a reasonable period for delivery of the goods, the complaint filed by him would be beyond the period of limitation laid down in the Consumer Protection Act and hence the same is not maintainable. Per contra, learned counsel for the respondent no.1/complainant has relied on the judgment of the Apex Court in the case of Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd. [II (2007) CPJ 35 (SC)] and submitted that in the present case goods were not delivered to the complainant and hence the claim cannot be invalidated for non-issuance of notice under section 10. Arguing on the strength of the judgement of this case, he further submitted that filing of the consumer complaint in the present case in the year 2003 will not be hit by section 24A of the Consumer Protection Act because the cause of action cannot be assumed to arise from the date of booking but will have to be reckoned with from the date on which the loss of goods is intimated or comes to the notice of the complainant. He, therefore, submitted that both the pleas taken by the learned counsel for the petitioners are of no consequence in view of the later judgement of the Apex Court in the case of Transport Corporation of India (supra). The revision petition therefore, deserves to be dismissed and the impugned order of the State Commission should be upheld. 3. We have carefully considered the submissions of the counsels and also perused the record placed before us. We have also gone through the citations relied upon by the respective counsels to support their contentions. The facts and circumstances of the case and those in the case of Transport Corporation of India Ltd. (supra) relied upon by the counsel for the respondent no.1/complainant were quite different and hence the observance made and the ratio laid down in that case do not get attracted to the present case. However, while considering the question of arising of the cause of action and the period of limitation in the present case, it is to be noted that the complainant/respondent has not placed any document or piece of evidence on record to indicate as to when exactly he came to know about the alleged loss of consignment entrusted for transportation to the petitioners from Amritsar to Manendragarh. On the other hand, the petitioner has all along pleaded that apart from other grounds, the complaint of respondent no.1 is hit by the non-issuance of mandatory notice in accordance with section 10 of the Carriers Act and that the complaint was filed beyond the period of two years from the date of cause of action and hence barred by limitation. The complainant has not placed any material on record to rebut or deny any of the two important contentions of the petitioners. In the absence of any evidence to the contrary, normally cause of action would be assumed to arise soon after the expiry of reasonable period expected to be taken for the movement of the consignment. Even if we assume this period to be one month, both the legal notice dated 25.7.2003 sent by the complainant to the petitioner and the complaint filed on 26.9.2003 would be beyond the respective statutory period of 6 months and two years respectively laid down by law. Unfortunately, both the fora below have erred in ignoring these important legal issues while dealing with the consumer complaint. It is well settled through a catena of judicial pronouncements that unless a consumer complaint is filed within two years from the date on which the cause of action has arisen, the consumer fora concerned shall not admit the same. This is mandatory requirement which must be fulfilled before a consumer complaint can be admitted by the District Forum. In view of all these aspects of the present case, we are of the considered opinion that the consumer complaint of the respondent no.1 is not maintainable and the same is dismissed accordingly. Consequently, the impugned order of the State Commission is set aside and the order of the District Forum dismissing the complaint is upheld albeit for entirely different reasons and grounds. The parties shall bear their own costs. |
