(Delivered on 11/12/2017)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed by the original complainant  feeling aggrieved by the order dated 31/01/2009 passed by the District Consumer Forum, Amravati in consumer complaint  No. 187/2008, by which the complaint has been dismissed on two grounds  i.e. firstly   complaint  is not maintainable  in view of  the provisions  of  Carriers Act, 1865 which requires  prior  service of notice and secondly the original O.P./ respondent herein   has not rendered  deficient  service  to the original complainant /appellant.

2.         We have heard today Advocate Mr. S.M. Kasture appearing for the appellant and  Advocate Mrs. Kasare appearing for the respondent.  We have perused  entire record of appeal. It is not disputed   that the respondent  herein  is a transport  company and complainant /appellant  had assigned certain goods  to the respondent for transportation and handing  over the same  to the consignee only after receiving  signed copy from the bank about payment  of goods of consignment. It is also alleged by the appellant  that  without receiving  any singed copy  by the respondent  it handed over entire  goods and thereby caused loss to  the appellant. Thus   alleging  deficiency in service on the part of the respondent herein, consumer complaint  was filed before the District Consumer Forum  with request to direct the respondent  herein  to pay  compensation of   Rs.15,02,097/- with 18% p.a. interest  towards  loss  caused as above and further  for  payment of litigation cost of Rs.10,000/-.

3.         The said  complaint was resisted by respondent  herein  by filing reply. The main defence of the  original O.P./respondent herein taken  in reply was that on oral instruction   of the  complainant/ consignor it handed  over the goods to  M/s. Roshni Tyres as   it was  usual practice  of the appellant  to take payment  directly from  M/s. Roshni Tyres and thereupon  oral instruction  the goods used  to be handed over to it.  Therefore, denying the allegations in the complaint it was requested by the O.P./respondent herein to dismiss the complaint.

4.         During the course of hearing before District Consumer Forum  one  contentions was raised by the  advocate of the respondent that no prior notice as required under Carriers Act, 1865 was served to the respondent and therefore, complaint was not maintainable.

5.         The Forum accepted the aforesaid submission of the respondent and held that the complaint is not maintainable for want of that notice.  Moreover, the Forum also held that  as per oral instructions of appellant  the goods were handed over to the respective parties and there is no deficiency in service on the part of the O.P./respondent herein. Therefore,  the District Consumer Forum, dismissed  the complaint.

6.         As observed above, this appeal is filed by the original complainant feeling aggrieved  by the said order.

7.         The learned advocate of the appellant /original complainant submitted that the Forum erred in dismissing the complaint. According to him the  provisions  of Carriers Act are not attracted in the present case and  that  there is no evidence on record to prove that  on oral instruction  of the appellant   the  goods were delivered  to  M/s . Roshni Tyres. He therefore, urged  that as the impugned order is illegal, it may  be set  aside and relief sought  in the complaint may be granted in   as much as  the deficiency in service rendered by the respondent  is  proved  by  the appellant.

8.         On the other hand, the learned advocate of the respondent/original O.P. relied on the decision  of the Hon’ble Supreme  Court in the case of  Arvind Mills Ltd. Vs. Associated Roadways,  reported in 2006 ACJ 441. In that case the Hon’ble Supreme Court  clearly laid down  that  the complaint filed before the  District Consumer Forum  under Consumer Protection  Act, against  the transporter  is not maintainable  in the  absence of the notice  required  under Carriers Act, 1865. Thus she submitted that there is no reason to interfere with the impugned order and hence, the appeal may be dismissed.

9.         We find that section 16 of the Carriers Act, 1865 provides that no suit or other legal proceeding shall be instituted against a common carrier for any loss, or damage to, the consignment, unless notice in writing for  the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceeding and within 180 days from the date of booking of the consignment by the consignor.

10.       In the instant case, according to the  appellant/original complainant   loss is caused to  him as goods have been delivered without instruction from the appellant.   The Hon’ble  Supreme Court in above  referred case  held that  no  proceeding  under the Consumer Protection Act, 1986 can be initiated  for loss  of consignment without prior  service of notice  as required under the  Carriers Act, 1865. We find that  when  compensation is sought   on account of  loss caused  to the appellant , it was incumbent upon the appellant/complainant   to serve  prior notice  to respondent  as required  under Carriers Act, before filing of the complaint.  Hence, the impugned order cannot  be said to be illegal by which  it is held that  the complaint is not maintainable.

11.       As regards the merit of the case, we find that  the goods were  assigned from 06/10/1998  till 22/12/1998  to respondent  by appellant . It is not made clear  in the complaint  as to for what  period  or time  the assigned goods  were  be retained  by respondent  ad  what amount  of demurrages were to be  paid  by the  appellant/original  complainant to the  respondent  if  the goods are not delivered  to the consignee.  The Forum  has thus rightly observed  that  in the absence of any such   written  instructions, the defence  of the  respondent  can be accepted that  the goods were delivered  the M/s. Roshni Tyres  as per oral  instruction  of the  appellant/original complainant.  

12.       We find  under  the facts and circumstances of present  case that  the impugned  order can be said  to be  just and legal and needs no interference  in this appeal.  Hence, on merit  also the appeal deserves to be dismissed.           

ORDER

i.          The appeal is dismissed.

ii.          No order as to cost in appeal.

iii.         Copy of  order be furnished to both the parties, free of cost.