Holding

Section 9 of the Carriers Act applies to consumer‑forum proceedings, making the carrier liable for loss of goods without proof of negligence, and an accidental fire is not an act of God.

Summary

Birla Yamaha Ltd. booked Patel Roadways Ltd. to transport 267 generator sets, which were destroyed in a fire at the carrier's godown. The complainant filed a petition before the National Consumer Disputes Redressal Commission alleging deficiency in service and seeking compensation. The Commission held the carrier liable under the Carriers Act, applied Section 9 to dispense with a proof of negligence, and awarded the value of the goods and freight, rejecting additional damages. The carrier appealed to the Supreme Court, contending that Section 9 does not apply to consumer‑forum proceedings and that the fire was an act of God. The Court held that the term "suit" in Section 9 includes proceedings before consumer redressal agencies, that accidental fire is not an act of God, and that a common carrier is liable without the plaintiff proving negligence. Consequently, the appeal was dismissed and the Commission's order affirmed.

Issues considered

The applicability of Section 9 of the Carriers Act, 1865 to proceedings under the Consumer Protection Act, 1986.
Whether a common carrier is liable for loss of goods without the plaintiff proving negligence.
Whether the fire that destroyed the goods constitutes an 'act of God' exempting the carrier from liability.

Legislation cited

Carriers Act, 1865s. 2(d), s. 2(g), s. 2(o), s. 3, s. 4, s. 6, s. 8, s. 9
Consumer Protection Act, 1986s. 21, s. 22, s. 23, s. 25, s. 2(d), s. 2(g), s. 2(o)

Subjects

consumer protectioncommon carrier liabilityCarriers ActSection 9act of Godnegligenceconsumer forum jurisdictionloss of goodstransportation contract

Judgment

PATEL ROADWAYS LTD. A
v.
BIRLA YAMAHA LTD.

MARCH 28, 2000

[S. SAGHIR AHMAD AND D.P. MOHAPATRA, JJ.] B

Consumer Protection Act, 1986:

Sections 21 and 22: Consumer Disputes Redressal Agencies-Jurisdic-
tion of-Complaint against common carrier against loss or damage to goodf C
entrusted for transpo11ation-Held, maintainable.

Sections 2(d), (g), (o), 21, 22 and 25-Deficiency in sen1ice-Liability of
common carrier-Goods entrusted for transpo11ation-Consignment destroyed
by fire in godown of carrier-Held, carrier liable for the loss-Liability is that
of insurer but subject to act of God and accidental fire is not an act of God- D
Further, negligence on the part of the carrier need not be established by
complainant-Carriers Act, section 9.

Carriers Act, 1865-Section 9-Applicability of-Proceedings before
consumer dispute redressal agencies-Held, word 'Suit' in Carriers Act in- E
eludes proceedings before consumerforum.

Words and Phrases :

Suit-Act of God-Meaning o.f

Respondent booked consignments with appellant for transporta- F
tion. Goods booked were destroyed in a fire which took place in appel-
lant's godown. Respondent filed a complaint before National Consumer
Forum. Appellant was held deficient in performance of service as com-
mon carrier. Hence, this appeal.
G
It was contended for the appellant that Section 9 of the Carriers Act
does not apply to the proceedings under the Consumer Protection Act but
only to suits filed in civil court; and as the respondent failed to discharge
the burden to prove negligence, the complaint should be dismissed.

Dismissing the appeal, the Court H
665
666 SUPREME COURT REPORTS [2000] 2 S.C.R.
A HELD : 1.1. The Consumer Disputes Redressal Agencies provided in
the Consumer Protection Act are forums vested with powers of adjudica-
tion of all types of consumer disputes and also complaints for loss or
damage to goods entrusted to a carrier for transportation. Finality is
attached to the orders of the redressal agencies and provision is made for
execution and implementation of the orders passed by them treating such
B
orders as decree of the coqrt. Further, the scheme of the statute is to
provide hierarchy of redressal forums for attending to the grievances of
consumers regarding deficiency in service. [673-H; 674-A]

2.1. The liability of a common carrier under the Carriers Act is that
c of an insurer. In a case of claim of damage for loss to or deterioration of
goods entrusted to a carrier is not necessary for the plaintiff to establish
negligence. Even though the general principle in cases of tortious liability is
that the party who alleges negligence against the other must prove the same
but this principle has no application to a case covered under the Carriers
Act. This is also the position notwithstanding a special contract between the
D parties. [680-G] 11

2.2. The absolute liability of the carrier is subject to exception of
loss or damage caused .due to act of God. An act of God will be an
extraordinary occurrence due to natural causes, which is not the result of ..
E any human intervention a.nd which could not be avoided by any amount
of foresight and care but an accidental fire though it might not have
resulted from any act of or omission of the common carrier, cannot be
said to be an act of God. [676-H]

Ross v. Hill, 2 CB 890; Akhil Chandra Saha & Ors. v. Indian General
F Navigation and Railway Co. Vol.XX!, (1915) Cal. LJ 565; Dekhari Tea Co. •
Ltd. v. Assam Bengal Railway Co. Ltd., AIR (1920) Cal. 758; MIS. Mooljee
Sicka & Co. v. Sardar Naharsingh, AIR (1959) MP·351; l.G.N.& Rly. Co. Ltd.
v. Eastern Assam Co. Ltd., AIR (1921) Cal. 315; P.K. Kalasami Nadar v. K.
Ponnuswami Mudaliar & Ors., AIR (1962) Mad. 44; Rivers Steam Navigatioh
G Co. Ltd. v. State ofAssam, AIR (1962) Assam 110; D. V. Patel v. G. Wagle, AIR
(1963) Born. 208; Vidya Ratan v. Kota Transport Co. Ltd., AIR (1965) Raj.
200; Muralidhar Mohanlal & Ors. v. Rivers Steam Navigation Co. Ltd., AIR
(1967) Assam 79; The AssociaJed Traders & Engineers Pvt. Ltd. v. Delhi Cloth
& General Mills Ltd. & Ors., ILR (1974) 1 Delhi 790; Mis. Road Transport
Corporation & Ors. v. Kirloskar Bros. Ltd., AIR (1981) Born. 299; Kerala
H
PATEL ROADWAYS LTD. v. BIRLA YAMAHA LTD. (D.P. MOHAPATRA, J.] 667
Transport Co. v. Kunnath Textiles, (1983) KLT 480; R.R.N. Ramalinga v. A
Narayana, AIR (1971) Kerala 197 and Banwari Lal Podar v. Road Transport
Corporation, AIR (1989) Patna 303, approved.

Bharathi Knitting Co. v. DHL Worldwide Express Courier Division of
Airfreight Ltd., (1996) 4 SCC 704, distinguished.
B
Jrrawady Flotilla v. Bugwandas, (1891) ILR 18 Cal. 620, cited.

Sarkar on Evidence, 15th Edri. (1999) pg.1724; P. Ramanatha Aiyar's
Law Lexicon (1997) Edn., referred to.

3.1. A proceeding before the National Commission comes within the c
term 'suit'. The term 'suit' is a generic term taking within its sweep all
proceedings initiated by a party for realisation of a right vested in him
under law. Even though the proceedings before National Commission is
ordinarily a summary proceeding hut that does not mean that the proceed-
ing before the Commission is to he decided ignoring the express statutory
provisions of the Carriers Act in a proceeding in which a claim is made
D
against a common carrier. [682-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9071of1996.

From the Judgment and Order dated 26.4.96 of the National Consumer
Disputes Redressal Commission, New Delhi in O.P. No. 43 of 1994. E

Harish N. Salve, Ashok H. Desai, Shanti Bhushan, R.K. Jain, Prakash
Shah, Jay Savla, J.K. Das, R.K. Vnmani, Ravinder Zadoo, C.S. Ashri, N.
Menon, Ms. M. Ogra, Ms. Renna Bagga and Rabindra Singh for the appearing
~~ F
The Judgment of the Court was delivered by

D.P. MOHAPATRA, J. The core question that arises for determination
in this appeal is whether Section 9 of the Carriers Act, 1865 (Act 3 of 1865)
is applicable to a proceeding under the Consumer Protection Act, 1986 (68 of
G
1986). The answer to this question depends on the interpretation of Section
9 of the Carriers Act and its inter-action with the relevant provisions of the
Consumer Protection Act.

The factual matrix of the case relevant for determination of the issue
may be stated thus: The respondent Mis Birla Yamaha Limited booked 237 H
668 SUPREME COURT REPORTS [2000] 2 S.C.R.
A consignments containing 267 generator sets at Ghaziabad in the State of Uttar
Pradesh, with the appellant Mis Patel Roadways Limited for transportation.
The freight charges were duly paid by the consignor to the carrier and
necessary lorrY receipt was issued by the latter in favour of the former. The
goods booked by the respondent were destroyed in a fire which took place in
the godown of the appellant shortly after booking of the consignments. The
B
respondent made a claim for the value of the goods, for refund of freight
charged and compensation for the loss. Some correspondence between the
parties followed. Since no satisfactory solution was arrived at between them
the respondent filed a petition before the National Consumers Disputes
Redressal Commission ('the Commission' for short) in 1994 which was
c registered as Original Petiition No.43/1994. The respondent claimed
Rs.56,00,799 along with interest. The said sum comprised ofRs.50,78,231 as
....
cost of 267 generator sets, Rs.22,568 as freight charged and Rs.5,00,000 as
general and special damages on account of harassment and undue loss of time.
It was alleged in the complaint, inter alia, that the carrier having accepted the
D responsibility of transportation of the consignments and safe delivery of goods
failed to deliver the same. Tims there was deficiency in the service to be
rendered by the appellant as carrier.

On being noticed by Commission the appellant appeared and filed their
counter affidavit. Tl1erein the appellant did not deny the entrustment of the
E goods, the booking particulars and issue of lorry receipt, as avened in the
complaint. The appellant, pleaded that the consignments were lost in fire
which was an accident beyond their control, and therefore, there was no
deficiency in service and the complaint was not maintainable. It was further
pleaded by the appellant that the loss having taken place for reasons and in
F circumstances beyond their control they were not liable to make good the loss
either under the contract between the parties or under general law.

Both the parties filed affidavits and documents in support of their case.
The Commission on assessment of the materials on record held inter alia, that
the respondent was entitled to receive from the appellant Rs.51,00,799 i.e.
G Rs.50,78,231 towards cost of the generator sets and Rs.22,568 being the
refund of freight charges. The Commission rejected the claim of Rs.5,00,000
towards general and special damages. The Commission in its order placed
i;eiiance on the provision in Section 9 of the Carriers Act to hold that the
appellant are deficient in the perfonnance of their service as common carrier,
H as the goods entrusted have not been at all delivered in accordance with the
PATEL ROADWAYS LTD. v. BIRLA YAMAHA LTD. [D.P. MOHAPATRA, J.] 669
contract of carriage for consideration evidenced by the receipts. The Commis- A
sion also held that Section 9 relieves the complainant from the burden of
showing that the loss or non-delivery was owing to any negligence or criminal
act; and that the loss to the goods sent is prima facie evidence of negligence.
Feeling aggrieved by the said order the appellant filed this appeal under
Section 23 of the Consumers Protection Act.
B
The main thrust of the submissions of Shri Ashok Desai, learned senior
counsel appearing for the appellant was that Section 9 of the Carriers Act in
terms does not apply to a proceeding under the Consumer Protection Act.
According to Shri Desai the provision applies only to suits filed in civil court
and not to redressal fomms under the Consumer Protection Act which C
adjudicate disputes in a summary manner. The further submission of Shri
Desai was that since Section 9 is not applicable in this case the general law
that the burden to prove negligence lies on the party who alleges it, is
applicable in the case. Since the respondent has failed to discharge the burden
the complaint should have been dismissed. D

.. other hand,
Shri Shanti Bhushan, learned senior counsel for the respondent, on the
contended that the expression 'suit' in Section 9 of the Carriers
Act should be understood in its generic sense and should not be given a
restrictive meaning. The Commissison, submitted Shri Shanti Bhush~. was
right in applying the pro\fi.sion of Section 9 in the proceeding. The· further E
contention raised by Shri Shanti Bhushan was that a common carrier is also
an insurer under general law, and therefore, even keeping aside the provision
of Section 9 its liability for making good the loss of the goods in its custody
squarely lies on the carrier.
F
The Carriers Act is intended not only to enable common carriers to limit
their liability for loss of or damage to property delivered to them to be carried
but also to declare their liability for loss of or damage to such property
occasioned by the negligence or criminal acts of themselves, their servants or
agents. Therefore, the Act is not only protective of the interest of the common G
carriers but also enhances the credibility of the business with general public.

In Section 2 of the said Act 'common carrier' denotes a person other
than the Government, engaged ii:J. the business of property under multinodal
transport document or of transporting for hire property from place to place,
b'y \and or inland navigation, for all persons indiscriminately. H
670 SUPREME COURT REPORTS [2000] 2 S.C.R.
A In Section 3 of the said Act it is declared that no common carrier shall
be liable for the loss of or damage to property delivered to him to be carried
exceeding in value one hundred rupees and of the description contained in the
Schedule to this Act, unless the person delivering such property to be carried,
or some person duly authorised in that behalf, shall have expressly declared
B to such carrier or his agent the value and description thereof.

In Section 4 of the said Act it is laid down that such carrier may require
payment for the risk undertaken in carrying property exceeding in value one
hundred rupees and of the description aforesaid, at such rate of charge as he
may fix. In the proviso the carrier is required to give notice of the rate of
C charge by exhibiting it in the place where he carries on the business of
receiving property to be carried.

In Section 6 of the said Act it is laid down that the liability of any
common carrier for the loss of or damage to any property delivered to him to
be carried, not being of the description contained in the Schedule to the Act,
D shall not be deemed to be limited or affected by any public notice; but any
such carrier, not being the owner, by special contract signed by the owner of
such property so delivered or by some person duly authorised on that behalf ..
by such owner, limit his liability in respect of the same.

E Section 8 of the said Act provides, inter alia, that notwithstanding
anything hereinbefore contained, every common "carrier shall be liable to the
owner for loss of or damage to any property (including container, pallet or
similar article of transport used to consolidate goods) delivered to such carrier
· to be carried where such loss or damage shall have arisen from the criminal
act or any of his agents or servants and shall also be liable to the owner for
F loss or damage to any such property other than property to which the
provisions of Section 3 apply and in respect of which the declaration required
by that section has not been made, where such loss or damage has arisen from
the negligence of the carrier or any of his agents or servants.

G Section 9 of the said Act on which reliance has particularly been placed
by the appellant reads :

"9. In any suit brought against a common carrier for the loss, damage
. or non delivery of "goods (including containers, pallets or similar
article of transport used to consolidate goods) entrusted to him for
H c~age, it shall not be necessary for the plaintiff to prove that such
PATEL ROADWAYS LTD. v. BIRLA YAMAHA LTD. [D.P. MOHAPATRA, J.] 671
loss, damage or non-delivery was owing to the negligence or criminal A
act of the carrier, his servants or agents."

In Section 10 provision is made regarding prior notice of loss or injury
to be given within six month of the time when the loss or injury first came
to the knowledge of the plaintiff beore filing of the suit.
B
Coming to the provisions of the Consumers Protection Act, 1986 - In
Section 2(d) thereof "consumer" is defined to mean any person who ........ (ii)
hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred
payment and include any beneficiary of such services other than the person c
who hires or avails of the services for consideration paid or promised, or partly
paid and partly promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned person."

In Section 2(g) "deficiency" is defined to mean any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of performance D
which is required to be maintained by or under any law for the time being in
force or has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service;

Section 2(o) defines "service" to mean service of any description which
E
is made available to potential users and includes the provision of facilities in
connection with banking, financing, insurance, transport, processing, supply
of electrical or other energy, board or lodging or both, housing, construction,
entertainment, amusement or the purveying of news or other information, but
does not include the rendering of any service free of charge or under a contract
of personal service. F

In section 3 of the Act it is declared that the provisions of the Act shall

-
be in addition to and not in derogation of the provisions of any other law for
the time being in force.

Chapter III of the Act contains the provisions regarding "Consumer
G
Disputes Redressal Agencies".

In section 9 establishment of three agencies i.e. District Forum, State
Commission and National Consumer Disputes Redressal Commission is
provided for. H
672 SUPREME COURT REPORTS [2000] 2 S.C.R.
A In Section 13 the procedure to be followed by the District Forum on
receipt of a complaint is laid down.

In Section 15 provision is made for appeal by any person aggrieved by
an order made by the District Forum to the State Commission.

B
In Section 17 the jurisdiction of the State Commission is laid down and
in Section 18 it is laid down that the provisions applicable to State Commis-
sions are akin to the same as provided in sections 13 and 14 and the rules made
thereunder for disposal of complaint by the District Forum.

·c In Section 19 it is provided that any person aggrieved by an order made
by the State Commission may prefer an appeal to the National Commission.

Section 21 which contains the provisions regarding jurisdiction of the
National Commission lays down inter alia, that subject to the other provisions
of the Act the National Commission shall have jurisdiction - (a) to entertain
D
- (i) complaints where the value of the goods or services and compensation,
if any, claimed exceeds rupees twenty lakhs and (ii) appeals against the orders
of any State Commission; and (b) to cail for the records and pass appropriate
orders in any consumer dispute which is pending before or has been decided
by any State Commission where it appears to the National Commission that
E such State Commission has exercised jurisdiction not vested in it by law or
has failed to exercise jurisdiction so vested or has acted in the exercise of its
jurisdiction illegally or with material irregularity.

Section 22 of the Act which provides for power of and procedure
F applicable to the National Commission reads:·

"22. Power of and procedure applicable to the National Commission

-
- The National Commission shall, in the disposal of any complaints
or any proceedings before it, have

G (a) the powers of a civil court as specified in sub- sections (4), (5)
and (6) of section 13;

(b) the power to issue an order to the opposite party directing him
to do any one or more of the things referred to ,in clauses (a)
H to (I) of sub-section (1) of section 14,
PATEL ROADWAYS LTD. v. BIRLA YAMAHA LTD. [D.P. MOHAPATRA, J.] 673
and follow such procedure as may be prescribed by the Central A
Government"

In Section 23 provision is made for an appeal by any person aggrieved
by an order made by the National Commission in exercise of its powers
confen-ed by sub-clause (I) of clause (a) of section 21 to the Supreme Court.
B
In section 24 a declaration is made that every order of a District Forum,
the State Commission or the National Commission shall, if no appeal has been
preferred against such order under the provisions, of this Act, be final.

Section 25 makes provision regarding enforcement of orders by the
forum, the State Commission or the National Commission. Therein it is laid
c
down, inter alia, that every order made by the District Forum, the State
Commission or the National Commission may be enforced by the District
Forum, the State Commission or National Commission, as the case may be in
the same manner as if it were decree or order made by a Court in a suit pending
therein and it shall be lawful for the District Forum, the State Commission or D
the National Commission to send, in the event of its inability to execute it,
such order to the court within the local limits of whose jurisdiction

(a) in the case of an order against a company, the registered office
of the company is situated, or E

(b) in the case of an order against any other person, the place where
the person concerned voluntarily resides or carries on business
or personally works for gain, is situated.

And thereupon, the court to which the order is so sent, shall execute the order F
as if it were a decree or order sent to it for execution."

From the provisions of the Consumer Protection Act noted in the
foregoing paragraph the position is clear that the consumer disputes redressal
;. agencies, i.e., District Forums, State Commissions and the National Commis-
sion are vested with powers of adjudication of all types of consumer disputes. G
No exception is made in case of consumer disputes in which the allegations
made in the complaint regarding deficiency of service causing damage to or
loss of the goods are contested. Indeed finality is attached to the orders of the
redressal agencies and provision is made for executon and implementation of
the orders passed by them treating such orders as decree of the court. It is H
674 . SUPREME COURT REPORTS [2000] 2 S.C.R.
A relevant to state here that on perusal of the provisions of the Act it is clear
that the scheme of th\! statute is to provide heirarchy of redressal forums for
attending t9 the grievances of consumers regarding deficiency in service
promptly and give finality to the orders passed by the agencies. Therefore, it
is difi1cult to accept the contention that the dispute redressal agencies provided
in the Consumer Protection Act are not forums which have jurisdiction to
B
entertain the complaints in which claims for loss or damage to goods entrusted
to a carrier for transportation is seriously disputed. The contention raised by
Shri Desai in this regard is accordingly rejected.

Corning to the question of liability of Common Carrier for loss of or
C daµiage to goods, the position of law has to be taken as fairly well settled that
the liability of a carrier in India, as in England, is more extensive and the
liability is that of an insurer. The absolute liability of the carrier is subject to
two exceptions; an act of God and a special contract which the carrier may
choose to enter with the customer.
D
In Sarkar on Evidence (Fifteenth Edition 1999) at page 1724 under the
heading "Negligence" it is stated "As a rule negligence is not to be presumed;
it is rather to be presumed that ordinary care has been used. The rule does not
apply in the case of common carriers, who, on grounds of public policy, are
presumed to have been negligent if goods entrusted to their care have been
E lost or damaged or delayed in delivery" (Ross v. Hill, 2 CB 890; Jones s 15).
The law will conclusively presume that the carrier has been guilty of a
negligence unless he can show that the loss or damage was occasioned by what
is technically called the "act of God", or by King's enemies."

In Akhil Chandra Saha and Others v. Indian General Navig.ation and
F
Railway Co., Vol XXI (1915) Cal. LI 565 a Division Bench of the Calcutta
High Court held that a common carrier in this country is liable as an insurer
i.e;, he is responsible for the safety of the goods entrusted to him in all events
except when loss or damage arise~ from act of God or king's enemies; but his
liability for loss or injury in respect of the goods carried may be varied by the
G contract. The Court further held that the burden of proof on absence of
negligence is upon the common carrier, on the theory that the loss or damage
to the goods is prima facie proof of negligence.

The same High Court in the case of Dekhari Tea Co. Ltd. v. Assam
H Bengal Railway Co. Ltd., AIR (1920) Calcutta 758 considered a case where
PATEL ROADWAYS LTD. v. BIRLA YAMAHA LTD. [D.P. MOHAPATRA, J.] 675
a railway company entered into a contract with the plaintiff-firm for the A
carriage of certain goods to a port and thence to England. Owing to a breach
on the railway line, the goods had to be transported by river and in steamers
and· flats belonging to a steamship company under an agreement with the
railway company. While the goods were in a vessel of the steamship company,
a fire broke out and about one-fourth of the goods were destroyed. The
B
plaintiff instituted the suit to recover from both the railway company and the
steamship company the value of the goods destroyed. The High Court held that
although there was no contract between the steamship company and the
plaintiff the company was nevertheless liable as a common carrier for the loss
incurred by the plaintiff. Comparing the provisions of the Indian Carriers Act,
1865 with the English Act of 1830 the Court observed: c
"However this may be, the Indian Carriers Act, 1865 when compared
carefully with the English Act of 1830, does I think purport and intend
to make a common carrier liable to the owner of the goods as such,
though not as an insurer. This English Act is very carefully worded;
D
it refers to the person or persons sending or delivering the goods (Ss. l
and 2) as the party entitled to recover damages in respect of such loss
(s.7) S.8 of the Indian Act was undoubtedly drawn with S.8 of the
English Act before the draftsman. The changes are conspicuous and
intentional. The English Act says that nothing in that Act shall protect
the carrier from liability for loss or injury to goods arising from E
felonious acts of the carrier's servants. The Indian Act says that
notwithstanding anything in that Act contained every common carrier
shall be liable to the owner where the loss has arisen from the
negligence or criminal act of the carrier or any of his agents or
servants. TI1e Indian section not only puts negligence and crime on F
the same footing; the whole structure of the clause is different: it
affirms or creates a liability and gives the benefit of it to the owner.
The English section makes the carrier in no case liable where he was
not liable before. There can be, I tlunk, no doubt that the clause of
the Indian Act must be taken to mean advisedly what it says:
G
"The person entitled to recover in respect of such loss" is the phrase
taken from the English Act and used in S.5, by the Legislature when
that phrase is adequate to tlle intention. The word "owner" in S.8 is
tlle product of a reforming zeal which found the corresponding
English section to stand in need of drastic alteration." H
676 SUPREME COURT REPORTS [2000] 2 S.C.R.
A The Madhya Pradesh High Court in the case of Mis Mooljee Sicka and
Co. v. Sardar Narharsingh, AIR (1959) MP 351 considering the scope of
sections 8 and 9 of the Carriers Act held :

"The mere occurrence of the fire, Wlder 6ircumstances such as the
present is evidence of negligence, the truck with the coal-gas plant
B
on it being under the management of the defendant No. I's servants;
and as they have not been produced to show how the fire originated
and no explanation offered, the respondent has not discharged the
onus cast upon him by law of showing that there was no negligence
and that being so, the plaintiff was entitled to recover."
c
The Court also quoted the following observation of Rankin ,J. in I. G.N. and
Rly. Co. Ltd. v. Eastern Assam Co. Ltd., 33 Cal LJ 71 =AIR (1921) Cal 315:

"When a defendant is called upon to prove that he was not negligent
D he is not really called upon to prove a negative. He is called upon to
prove that he took reasonable care... The task is burdensome not
because the thing to be proved is a negative but because the field
within which care has to be proved is quite indefinite and the
presumption being against the carrier the defendant's positive proof
must cover the whole field."
E
In P.K. Kalasami Nadar v. K.Ponnuswami Mudaliar and Ors., AIR
(1962) Madras 44 a Division Bench of the Madras High Court relying on the
Privy CoWlcil decision in lrrawady case (supra) held that where loss has
occurred to cotton bales in transit 'cotton' being one of the goods not
F mentioned in Carriers Act, 1965 and in respect of which the liability of the
common carrier (in that case tl1e owner of the lony) is not limited by a special
contract the owner of the goods in a suit against tlle common carrier for loss/
damages or non-delivery of articles or goods entrusted to the carrier is not
required to prove negligence; the reason being that the liability of a common
carrier is that of an insurer; it therefore follows that, notwithstanding the fact
G
that there is no negligence on the part of the comon carrier he is liable to
compensate, the owner of the goods for loss of the goods that occurred during
transit. In the said decision the Court considered the question whether loss of
goods by accidental fire can be said to be an act of God. The Court observed
that an act of God will be an extraordinary occurrence due to natural causes,
H which is not the result of any human intervention and which could not be
PATEL ROADWAYS LTD. v. BIRLA YAMAHA LTD. [D.P. MOHAPATRA, J.] 677
avoided by any amount of foresight and care, e.g. a fire caused by lightning; A
but an accidental fire though it might not have resulted from any act of or
omission of the common carrier, cannot be said to be an act of God.

- In Rivers Steam Navigation Co. l..Jd. v. State of Assam, [AIR 1962
Assam 110] a Division Bench of the Assam High Court considered the case
of consignment of goods not perishable by nature in respect of which there B
was no special contract as to the time for delivery and the goods suffered
deterioration due to delay caused by abnormal time taken for tran·sit. The Court
held that the plaintiff consignee who claimed damages need not prove
negligence on the part of the canier. Relying on the principle that there was .
an obligation on the caffier to CaffY the goods safely and in the absence of any c
special contract the goods must be delivered within a reasonable time.

A similar view was taken by a Division Bench of the Bombay High
Court in the case of D. V. Patel v. G. Wagle, AIR (1963) Born 208.

In the case of Vidya Ratan v. Kata Transport Co. l..Jd., AIR (1965) D
Rajasthan 200 interpreting sections 8 and 9 it was held by the Rajasthan High
Court that in a suit against common carrier in respect of loss of goods
delivered to him for transportation there need not be any privity of contract
between the owner of the goods and the carrier. It is sutlicient if the carrier
has accepted the goods for transmit and has failed to deliver them. Thereafter E
to escape his liability which is normally absolute, he has to show that there
was a special contract made by the owner of the goods or his duly authorised
agent, even if, the necessity of having the contract in writing is thought to be
a technical provision .

In the case of Muralidhar Mohan/al and Others v. Rivers Steam F
Navigation Co. l..Jd., AIR (1967) Assam and Nagaland 79] considering the
provisions of sections 6,8 and 9 of the Carriers Act, the High Court held that
these sections are based on English common law and also the common
Carriers Act of England. The Court placed reliance on Privy Council in
lrrawady FlotiLLa v. Bugwandas, (1891) ILR 18 Cal. 620] in which the legal G
position was stated in the following words :

"A common canier is responsible for the safety of the goods entrusted
to him in all events, except when loss or injury arises solely from act
of God or the Queen's enemies or from the fault of th~ consignor, or
inherent vice in the goods themselves. He is, therefore, liable even H
678 SUPREME COURT REPORTS [2000] 2 S.C.R.
A when he is overwhelmed and robbed by an irresistible number of
persons. He is an insurer of the safety of the goods against everything
extraneous which may cause loss or injury except the act of God or
the Queen's enemies and if there has been an unjustifiable deviation
or negligence or other fundamental breach of contract on his part, he
will be liable for loss or injury due to the Queem's enemies or, it
B
would seem, due to act of God.

This responsibility as an insurer is imposed upon a common carrier
by the custom of realm, and it is not necessary to prove a contract
between him and the owner of the goods in order to establish liability.
c Failure on the part of the carrier to deliver the goods safely is a breach
of the duty placed upon him by the common law; and therefore an
action of tort lies against him for such breach, the owner not being
bound to prove any contract. Where, however, there is a contract,
liability may arise either at common law or under the contract, and
D the contract may limit the carrier's responsibility.

A common carrier is liable for loss or injury caused wholly by the
negligence of other persons over whom he has no control; as where
the carrier's barge runs against an anchor wrongfully left in the water .
by a stranger, or where the goods which he is carrying are destroyed
E by accidental fire or by rats, or where they are stolen from him, even
though taken by force.

The general obligation of a common carrier of goods to cany the
goods safely whatever happens renders it unnecessary to import into
F the contract for carriage a special warranty of the roadworthiness of
the vehicle or the seaworthiness of the vessel, for if the goods are
carried safely the condition of the vehicle or vessel is immaterial, and,
if they are lost or damaged it is unnecessary to inquire how the loss
or damage occurred; where however,. a common carrier of goods is
seeking relief from liability by reason of one of the excepted perils
G the condition of the vehicle or vessel is material in determining the
question of negligence, and if the carrier fails to prove a sufficient and
proper conveyance and loss or damage results therefrom he will be
liable.."

H A similar view was taken in the case of The Associated Traders &
PATEL ROADWAYS LID. v. BIRLA YAMAHA LTD. [D.P. MOHAPATRA, J.] 679

-- .......
Engineers Pvt. Ltd. v. Delhi Cloth & General Mills Ltd. & Ors., ILR (1974)
1 Delhi 790] in which the Court took note of the position that in common law
the liability of a common carrier is equivalent to that of an insurer.
A

Similar view has also been taken by Bombay High Court in Mis Road
Transporl Gorporation and Others v. Kirloskar Brothers Ltd., AIR (1981)
B
Born 299.
~
In Kerala Transport Company v. Kunnath Textiles, (1983) Kerala Law
Times 480 a Division Bench of the High Court of Kerala considering the
question whether, if the defendant has ·failed to deliver the goods not on
account of any negligence or carelessness, would the defendant be liable; c
answered the question in the affirmative. The Court reiterating the position of
a carrier in India as noted above held that it is only those causes which can
be traced to natural causes as opposed to human agency that can be said to
be acts of God and that can therefore be ail answer to claim for absolute
liability. The Court further held that if the defendant was trying to answer the D
liability on the basis of the terms of the special contract he would have to show
what reasonable protection he took against the fire. The Court placed reliance
on the decision in R.R.N. Ramalinga v. Narayana, AIR (1971) Kerala 197 .

A ~imilar view was also taken by the Patna High Court in the case of
Banwari Lal Podar v. Road Transporl Corporation, AIR (1989) Patna 303. E
Therein it was held that from a pernsal of the sections 8 and 9 of the Carriers
Act, 1965 it is clear that the burden of proof that there was no criminal act
or negligence on the patt of the carrier or its agents or servants is upon the
plaintiff.
F
-- Our attention was also drawn to a decision of this Court in Bharathi
Knitting Company v. DHL Worldwide Express Courier Division of Airfreight
' Ltd., [1996] 4 SCC 704 wherein this Court considered the question when
parties have contracted and limited their liabilities, whether the State/National
Commission could go behind the terms of the conuact and give relief for
G
damages in excess of the limit prescribed under the contract. This Court
interpreting the provisions of sections 2(l)(g), 19 and 23 of the Consumers

--
Protection Act, 1986 held :

"It is true that the Act is a protective legislation to make available
inexpensive and expeditious summary remedy. There must be a H
680 SUPREME COURT REPORTS [2000] 2 S.C.R.
A finding that the respondent was responsible for the deficiency in
service, the consequence of which would be that the appellant
had incurred the liability for loss or damages suffered by the
consumer due to deficiency in service thereof. When the parties have
contracted and limited their liabilities, the question arises: whether the
State Commission or the National Commission under the Act could
B
give relief for damages in excess of the limits prescribed under the
contract?"

xxxxx xxxxx xxxxx

c It is true, as contended by Mr.M.N. Krishnamani, that in an appro-
priate case, the Tribunal without trenching upon acute disputed
question of facts may decide the validity of the terms of the contract
based upon the fact situation and may grant remedy. But each case
depends upon its own facts. In an appropriate case where there is an
acute dispute of facts necessarily the tribunal has to refer the parties
D to original civil court established under the CPC or appropriate State
law to have the claims decided between the parties. But when there
is a specific term in the contract, the parties are bound by the terms
in the contract."

E This decision is of little assistance to the appellant since the contentions
raised by them before us herein were not considered by this Court therein.

From the conspectus of views taken in the decisions of different High -'

Courts noted above it is clear that the liability of a common carrier under the
Carriers Act is that of an insurer. This position is made further clear by the
F provision in section 9, in which it is specifically laid down that in a case of
claim of damage for loss to or deterioration of goods entrusted to a carrier it
is not necessary for the plaintiff to establish negligence. Even assuming that
the general principle in cases of tortious liability is that the party who alleges
negligence against the other must prove the same, the said principle has no
application to a case covered under the Carriers Act. This is also the position
G
notwithstanding a special contract between the parties. These principles have
held the field over a considerable length of time and have been crystallized
into accepted position of law. No good reason has been brought to our notice
to persuade us to make a departure from the accepted position. Therefore we
reiterate the position of law noticed above. The consequential position that
H follows is that the contention of Shri Ashok Desai learned senior counsel, that
-
PATEL ROADWAYS LTD. v. BIRLA YAMAHA LTD. [D.P. MOHAPATRA, J.] 681
the respondents herein having failed to establish negligence on the part of the A
appellant, their claim for damages should be rejected, cannot be accepted.

The question that remains to be considered is whether the principles of
law discussed in the preceding paragraph is applicable in a proceeding before
the consumer disputes redressal agency, particularly the National Commission.
In this regard the contention of Shri Desai is that the use of the term 'suit' in B
section 9 of the Carriers Act shows that the provision is applicable only to
cases filed in civil court and does not extend to proceedings before the
National Commission which is a forum which is to decide complaints by
consumers following a summary procedure. Elucidating the point Shri Desai
submitted that in a proceeding before the National Commission the general c
principle that the burden to prove negligence lies on the party alleging
negligence should be applicable though the position may be different in a suit
filed in a civil court. The term "suit" has not been defined in the Carriers Act
nor _is it provided in the said Act that the term "suit" will have the sani.e
meaning as in the Civil Procedure Code. Therefore, the ordinary dictionary
0
meaning of the term will have to be taken for ascertaining its meaning. In P.
Ramanatha Aiyar's Law Lexicon 1997 Edition some of the references of the
term are:

"Suit - Prosecution of pursuit of some claim, demand or request; the
act of suing, the process by which one endeavours to gain a~ end or E
object; attempt to attain a certain result; the act of suing; the process
by which one gains an end or object, an action or process for the
recove1y of a right or claim; the prosecution of some demand in a
Court of Justice; any proceeding in a Court of Justice in which
plaintiff pursues his remedy to recover a right or cl~im; the mode and
p,
· manner adopted by law to redress Civil injuries; a proceeding in a
Court of Justice for the enforcement of a right.

The word "suit" in Ss.51 to 55 Act IX. of 1879, Court of Wan:ls Act,
does not mean only what is usually called a "regular suit.''. It
embraces all contentious proceedings of an ordinary civil kind, G
whether they arise in a suit or miscelleneous proceedings. "

Suit Action. "Suit" is a term ofwider signification than action; it may
include proceedings on a petition. "

(Emphasis supplied) H
682 SUPREME COURT REPORTS [2000] 2 S.C.R.
A From the above it is clear that the term "suit" is a generic term taking
within its sweep all proceedings initiated by a party for realisation of a right
-
vested in him under law. The meaning of the term "suit" also depends on the
context of its user which in tum, amongst other things, depends on the Act
or the Rule in which it is used. No doubt the proceeding before a National
Commission is ordinarily a summary proceeding and in an appropriate case
B
. where the Commission feels that the issues raised by the parties are too
contentious to be decided in a summary proceeding it may refer the parties to
a civil court. That does not mean that the proceeding before the Commission
is to be decided ignoring the express statutory provisions of the Carriers Act
(section 9) in a proceeding in which a claim is made against a common carrier
c as defined in the said AcL Accepting such a contention would defeat the object
and purpose for which the Consumers Protection Act was enacted. A proceed-
ing before the National Commission, in our considered view, comes within the
term "suit". Accordingly we reject the contention raised by Shri Ashok Desai
in this regard.
D
Shri Desai also raised a contention on the amount awarded by the
National Commission under the impugned order. He urged that the respondent
by its conduct led the appellant to believe that the goods entrusted for
transportation are insured and having been led by such representation the
E appellant had not insured the goods. This, according to Shri Desai is a
circumstance which should be taken as a mitigating factor for quantification
of the damage. In the impugned order the National Commission taking note
of the stipulations in the delivery receipt which was signed by both the parties,
confmed the amount of damages to the value of the consignment destroyed/
not delivered. This contention in our view needs no in-depth consideration for
F the reason that there is no material placed before us to show that at tlie time
of booking of the consignment any representation as stated by Shri Desai was
given by the respondent to the app.ellant. Shri Shanti Bhushan pointed out that
the question regarding insuring the consignment was raised after the incident
of non-delivery or loss of the consignment took place when the respondent
G asked the appellant to issue a certificate of non-delivery of the consignments.
Then the respondent ascertained though it had insured all its consignments in
bulk the amount stated in the policy had been exceeded by the date the
consignments in question were booked, and therefore the insurance policy was
not of any avail so far as non-delivery/loss of the consignments l.n question
H is concerned. It follows that this contention raised by Sllri Desai is also to be
PATEL ROADWAYS LTD. v. BIRLA YAMAHA LTD. [D.P. MOHAPATRA, J .] 683

*~ A
On the discussion in the foregoing paragraphs a11 the contentions raised
on behalf of the appellant having bSI negatived the appea1 is dismissed.
There will, however, be no order as to costs.

N.J. I Appea1 dismissed. B