Consumer Complaint Against A Common Carrier Not Maintainable Without Serving It A Prior Notice: Supreme Court

The Supreme Court observed that a consumer complaint against a common carrier is not maintainable if prior notice under Section 6 of Carriers Act, 1865, is not served on it.

Notice is required to be served prior to initiation of proceedings and not the proceedings itself, the bench of Justices Hemant Gupta and AS Bopanna observed.

In this case, the National Consumer Disputes Redressal Commission upheld the order of Himachal Pradesh Consumer Disputes Redressal Commission allowing a consumer complaint against the Associated Road Carriers. Before the Apex Court, in appeal, the Career contended that, in terms of Section 10 of Carriers Act, 1865, no prior notice was served upon it and thus the complaint before the Consumer Fora was not maintainable.

The Carriers Act is a law which deals with the rights and liabilities of Common Carriers. The Act defines 'common carrier" as a person, other than the Government, engaged in the business of transporting property under multi nodal transport document or of  transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately.

Section 10 of the said Act provides that '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'.

The court noted that in Arvind Mills Ltd. Vs. Associated Roadways, (2004) 11 SCC 545, it was held that merely because the procedure under the Consumer Protection Act is summary in nature, it 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 4 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.", the court said.

However, taking note of the fact that the complaint pertains to a consignment was booked in the year 1997, the court said it is not interfering with the impugned order.

Arvind Mills Ltd. Case

In Delhi Assam Roadways Corporation v. B.L. Sharma case, the NCDRC held that in the absence of a notice under Section 10 of the Carriers Act, 1865, the complaint cannot be entertained under the Consumer Protection Act against a common carrier. SLP filed against this order was dismissed by the Apex Court. In Arvind Mills Ltd case, the contention of the appellant was that B.L. Sharma case pertained to Section 9 and not Section 10 of the Carriers Act and thus prior notice is not required.

"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.. 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. Sections 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 court had held dismissing the appeal.

Case: Associated Road Carriers vs. Kamlender Kashyap [CA 4412-4413/2010]

Citation : LL 2021 SC 394

Coram: Justices Hemant Gupta and AS Bopanna

Counsel: Adv Ajay Garg for appellant, Adv R. K. Kapoor , Adv Satendra Sharma for respondents.

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