This First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), is directed against order dated 06.08.2007 passed by the Delhi Consumer Disputes Redressal Commission (for short “the State Commission”) in Complaint No. C-175 of 1998.

2.     The Appellant is a “Common Carrier” as defined in the Carriers Act, 1865.  The Respondent entrusted to the Appellant, a consignment, comprising 296 cases of pesticides, a seasonal commodity, vide GR No. 608281 dated 20.09.1997, for transportation from Delhi to Salem (Tamil Nadu).  The declared value of the consignment was Rs.3,79,458/-.  The Appellant assured the Respondent that the consignment would reach Salem by 25.09.1997.  However, the said consignment was neither transported to the place of its destination nor returned to the Appellant. Having learnt that the consignment had not reached Salem, the Respondent served a legal notice,  calling upon the Appellant to deliver the consignment at its place of destination with damages, quantified at Rs.2,00,000/-, which the Respondent claimed to have suffered on account of non-delivery.  Having failed to receive any response from the Appellant, the Respondent filed a complaint in the State Commission against the Appellant alleging deficiency of service on their part and inter alia, praying for a direction to the Appellant to pay sums of Rs.3,79,958/-, Rs.2,00,000/-  and Rs.94,880/- towards the cost of the consignment, compensation for mental tension, harassment and profit on the consignment, respectively.

3.     In their Written Statement to the complaint, while admitting that the said consignment was booked but not transported to the place of its destination and was kept in their go-down, the claim was resisted on three grounds: (i) The consignment, in question, being for commercial purpose and not for personal use, the Respondent was not a “consumer” under the Act; (ii) the Respondent had failed to make payment of a sum of Rs.25,215/- towards freight in respect of its earlier consignments and (iii)  notice under Section 10 of the Carriers Act, was not issued and, therefore, the complaint was barred.

4.     While allowing the complaint, the State Commission has observed that the Appellant had indulged in most unfair act by treating the consignment as a ransom for recovery of past arrears and after taking possession of the consignment, they started using arm twisting methods to extract the said amount, which according to the Respondent was not at all due, knowing fully well that the consignment was of perishable nature.  The State Commission has held that the complaint was not barred under Section 10 of the Carriers Act,  as it was not a case where any loss or injury had been caused on account of non-delivery of the goods. Holding that the failure of the Appellant to deliver the consignment amounted to deficiency in service, the State Commission has directed it to pay to the Respondent a sum of Rs.3,79,458/- with interest @ 12% p.a. from the date of the booking of the consignment till payment along with punitive damages of Rs.25,000/- for  illegal and highly unscrupulous act on its part.  Hence the present Appeal.

5.     We have heard Ld. Counsel for the parties. The only ground on which the impugned order is sought to be challenged is the alleged non-compliance with the requirement of notice under Section 10 of the Carriers Act.  The Section reads as follows:-

“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.”

6.     The said provision envisages that no suit/proceedings can be initiated against a Common Carrier for the loss of, or injury to the goods entrusted to him for carriage unless a notice in writing is given to him within six months of the time the loss or injury first comes to the knowledge of the party suing the Carrier.  It is clear that notice under Section 10 of the Carriers Act postulates a notice in a case where there is loss or injury to the goods.  It is therefore, manifest that when the goods are not transported by the Common Carrier and are intentionally kept with themselves for whatever reason, the provision would not be attracted. Moreover, there is no specific format in which a notice under the said Section is required to be issued.  Information about the loss or injury of the goods to the Carrier is sufficient compliance with the said requirement. 

7.     The scope and purport of Section 10 of the Carriers Act has been succinctly explained by the Hon’ble Supreme Court in Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd.  (2007) 3 SCC 142 as follows:-    

Section 10 requires a notice in the manner set out therein, for initiation of a proceedings against a common carrier for loss of goods or injury to goods entrusted for carriage. The notice need not say specifically that it is issued under Section 10 of Carriers Act, 1865. It is sufficient if the notice fulfils the requirement of Section 10,  that is to inform the carrier about the loss or injury of the goods. Such notice under Section 10 will certainly be required where the common carrier delivers the goods in a damaged condition, or where the common carrier loses the goods entrusted for carriage and informs about such loss to the consignor/consignee/owner. The object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. But where there is no loss or injury to the goods, but the common carrier wrongly or illegally refuses to deliver goods and the person entitled to delivery initiates action for non-delivery, obviously Section 10 will not apply. Similarly, where the common carrier informs the person entitled to delivery (consignor/consignee/ owner) that the consignment is being traced and process of tracing it is still going on and requests him to wait for the consignment to be traced and delivered, but does not subsequently inform him either about the loss of the consignment, or about its inability to trace and deliver the consignment, the claim by the consignor/consignee, will not be for loss or injury to goods but for non-delivery of goods. The requirement relating to notice within six months in Section 10 will not apply to a claim based on such non-delivery.  In fact Section 10 does not use words “non-delivery” of goods, but uses the words “loss of” or “injury to, goods”. A case of “non-delivery” will become a case of “loss” of consignment, only when the common carrier informs the consignor/ consignee about the loss of the consignment. (Emphasis added).

8.     In our opinion, the afore-extracted observations of the Supreme Court apply on all fours on facts at hand. Admittedly, in the instant case, the consignment in question did not leave the premises of the Appellant and therefore, the occasion for loss of or injury to the goods, as contemplated in Section 10 of the Carriers Act, did not arise at all.  Furthermore, we also find that in the legal notice dated 24.04.1998, a reference was made to two earlier letters dated 19.02.1998 and 02.04.1998, (available on record), whereby the Appellant was requested  to look into the matter and arrange for delivery of consignment at the destination immediately, otherwise they were to bear the losses of the Respondent on account of non-delivery.  Therefore, even assuming that a prior notice in terms of Section 10 of the Carriers Act before filing the complaint was required to be issued, on facts, that requirement is also met.  The decision of the Supreme Court in Arvind Mills Ltd. Vs. Associated Roadways (2004) 11 SCC 545, strongly relied upon by learned counsel for the Appellant, is clearly distinguishable on facts inasmuch as that case did not relate to a claim regarding non-delivery of the consignment, as in the present case. No other point was urged at the time of hearing.

9.     For the aforegoing reasons, we do not find any infirmity in the impugned order.  The appeal is bereft of any merit and is dismissed accordingly with no order as to costs in so far as the Respondent is concerned. However, the Appellant shall deposit a sum of Rs.25,000/- in the Consumer Welfare Fund within four weeks from today, which shall be in addition to the statutory deposit already made.    

ar/yd