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CASE NO.: Appeal (civil) 9071  of  1996

PETITIONER: PATEL ROADWAYS LIMITED

       Vs.

RESPONDENT: BIRLA YAMAHA LIMITED

DATE OF JUDGMENT:       28/03/2000

BENCH: D.P.Mohapatro

JUDGMENT:

D.P.MOHAPATRA,J.

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     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 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  M/s  Birla  Yamaha Limited  booked  237 consignments containing  267  generator sets  at  Ghaziabad in the State of Uttar Pradesh, with  the appellant  M/s  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  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   registered  as  Original   Petiition No.43/1994.   The  respondent claimed  Rs.56,00,799/-  along with  interest.  The said sum comprised of Rs.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 responsibility  of  transportation of the  consignments  and safe  delivery  of goods failed to deliver the  same.   Thus there  was  deficiency in the service to be rendered by  the appellant as carrier.

     On  being noticed by Commission the appellant appeared

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and  filed  their counter affidavit.  Therein the  appellant did  not  deny  the entrustment of the  goods,  the  booking particulars  and  issue of lorry receipt, as averred 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 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. 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  reliance  on  the  provision in  section  9  of  the Carriers Act to hold that the appellant are deficient in the performance of their service as common carrier, as the goods entrusted  have not been at all delivered in accordance with the  contract of carriage for consideration evidenced by the receipts.   The Commission 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.

     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 forums under  the Consumer  Protection  Act  which 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.

     Shri  Shanti  Bhushan, learned senior counsel for  the respondent, on the other hand, 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  Bhushan, was  right  in  applying the provision of section 9  in  the proceeding.   The  further 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.

     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

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protective  of the interest of the common 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 in the business of  property  under  multinodal  transport  document  or  of transporting  for hire property from place to place, by land or inland navigation, for all persons indiscriminately.

     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 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 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, 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.

     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 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.

     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 carriage, it  shall not  be necessary for the plaintiff to prove that such loss, damage  or  non-delivery  was  owing to  the  negligence  or criminal act of the carrier, his servants or agents.

     In Section 10 provision is made regarding prior notice

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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.   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 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 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 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.

     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  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.

     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.   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 Commissions 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.   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  (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 call 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  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

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illegally  or with material irregularity.  Section 22 of the Act  which provides for power of and procedure 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

     (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) to (I) of sub-section (1) of section 14,

     and  follow such procedure as may be prescribed by the Central 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 conferred by sub-clause  (I)  of clause (a) of section 21 to the Supreme Court.

     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 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  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 (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 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 Commission  are vested  with powers of adjudication of all types of consumer disputes.  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 relevant to state here  that  on  perusal of the provisions of the Act  it  is clear that the scheme of the statute is to provide heirarchy of  redressal  forums  for attending to  the  grievances  of consumers  regarding deficiency in service promptly and give

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finality  to the orders passed by the agencies.   Therefore, it  is  difficult to accept the contention that the  dispute redressal  agencies provided in the Consumer Protection  Act are  not  forums  which have jurisdiction to  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.

     Coming  to the question of liability of Common Carrier for  loss of or damage 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.

     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 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 Vs.  India  General Navigation  and Railway Co.  [ Vol XXI (1915) Cal LJ 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 arises 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 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.   Vs.   Assam  Bengal  Railway  Co.   Ltd.   [AIR  1920 Calcutta  758]  considered  a case where a  railway  company entered  into  a  contract with the plaintiff-firm  for  the 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  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:  "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

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carrier liable to the owner of the goods as such, though not as  an insurer.  This English Act is very carefully  worded; it refers to the person or persons sending or delivering the goods  (Ss.1 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 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.   The Indian  section  not only puts negligence and crime  on  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 think, no doubt that the  clause  of  the Indian  Act  must be taken to mean advisedly what  it  says: "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  the intention.   The  word  "owner" in S.8 is the product  of  a reforming zeal which found the corresponding English section to stand in need of drastic alteration."

     The  Madhya  Pradesh  High Court in the  case  of  M/s Mooljee  Sicka and Co.  Vs.  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, under circumstances such as the present is evidence of negligence, the  truck  with  the coal-gas plant on it being  under  the management  of  the defendant No.1’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."

     The  Court  also quoted the following  observation  of Rankin  ,J.  in I.G.N.  and Ry.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 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."

     In  P.K.Kalasami Nadar vs.  K.Ponnuswami Mudaliar  and ors.   [AIR  1962 Madras 44] a Division Bench of the  Madras High Court relying on the Privy Council decision in Irrawady case  (supra)  held that where loss has occurred  to  cotton bales  in  transit  ’cotton’  being one  of  the  goods  not mentioned  in Carriers Act, 1965 and in respect of which the liability  of the common carrier (in that case the owner  of the lorry) is not limited by a special contract the owner of the  goods  in  a  suit   against  the  common  carrier  for loss/damages  or non-delivery of articles or goods entrusted

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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  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, which is  not the result of any human intervention and which could not  be avoided by any amount of foresight and care, e.g.  a fire  caused by lightning;  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.  Ltd.  Vs.  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  was  no special  contract as to the time for delivery and the  goods suffered  deterioration due to delay caused by abnornal time taken  for  transit.   The  Court held  that  the  plaintiff consignee  who claimed damages need not prove negligence  on the  part  of  the carrier.  Relying on the  principle  that there  was  an obligation on the carrier to carry the  goods safely  and in the absence of any 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 Bom 208].   In the  case of Vidya Ratan vs.  Kota Transport Co.  Ltd.  [AIR 1965  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 sufficient  if  the  carrier  has  accepted  the  goods  for transmit  and  has  failed to deliver them.   Thereafter  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 Mohanlal and  others  vs. Rivers  Steam  Navigation  Co.  Ltd.  [ 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  Irrawady Flotilla V.  Bugwandas (1891)  ILR  18 Cal.   620  ] in which the legal position was stated in  the following words :

     A common carrier 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 Queens enemies or  from the fault of the consignor, or inherent vice in the goods  themselves.  He is, therefore, liable even 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 Queens enemies and if there has been an   unjustifiable   deviation  or   negligence   or   other fundamental  breach  of  contract on his part,  he  will  be

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liable for loss or injury due to the Queerns enemies or, it would seem, due to act of God.

     This  responsibiloity 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.  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 the contract may limit the carriers 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 carriers barge runs against  an anchor  wrongfully left in the water by a stranger, or where the  goods which he is carrying are destroyed 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 carry   the  goods  safely   whatever  happens  renders   it unnecessary  to  import  into 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 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.

     A similar view was taken in the case of The Associated Traders  & Engineers Pvt.  Ltd.  Vs.  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.

     Similar  view has also been taken by Bombay High Court in  M/s Road Transport Corporation and others vs.  Kirloskar Brothers  Ltd.   [AIR  1981 Bom 299].  In  Kerala  Transport Company Vs.  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;  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 an answer to claim for absolute liability.  The Court  further  held  that if the defendant  was  trying  to answer  the  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 Vs.  Narayana, [AIR 1971 Kerala 197] .

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     A  similar view was also taken by the Patna High Court in  the  case  of  Banwari Lal  Podar  vs.   Road  Transport Corporation  (AIR 1989 Patna 303).  Therein it was held that from  a perusal of the section 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 part of the carrier or its agents or servants is upon the plaintiff.

     Our  attention  was also drawn to a decision  of  this Court  in  Bharathi  Knitting  Company  vs.   DHL  Worldwide Express  Courier Division of Airfreight Ltd.  [ (1996) 4 SCC 704]  wherein this Court considered thequestion when parties have  contracted and limited their liabilities, whether  the State/National  Commission could go behind the terms of  the contract  and give relief for damages in excess of the limit prescribed  under the contract.  This Court interpreting the provisions  of  section 2(1)(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 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 give relief for damages  in excess of the limits prescribed under the contract ?

     xxxxxxxxx xxxxxxxx xxxxxxxxx

     It is true, as contended by Mr.M.N.  Krishnamani, that in  an appropriate 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  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.

     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 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 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

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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 follows is that the  contention of  Shri  Ashok  Desai  learned  senior  counsel,  that  the respondents  herein having failed to establish negligence on the part of the 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 preceeding 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 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 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 same meaning as  in the   Civil  Procedure  Code.    Therefore,   the   ordinary dictionary  meaning  of the term will have to be  taken  for ascertaining  its  meaning.   In   P.Ramanatha  Aiyars  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 an end or 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 recovery  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  claim;   the mode and 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  Wards  Act, does not mean only what is usually called  a regular  suit. It embraces all contentious proceedings  of an  ordinary  civil  kind, whether they arise in a  suit  or miscelleneous proceedings.

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

     (Emphasis supplied)

     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 turn,  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 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

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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 as defined  in  the said  Act.   Accepting  such a contention would  defeat  the object  and  purpose for which the Consumers Protection  Act was  enacted.  A proceeding 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.

     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  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, confined the amount of damages  to  the  value of the  consignment  destroyed/  not delivered.   This  contention in our view needs no  in-depth consideration  for  the  reason that there  is  no  material placed  before us to show that at the time of booking of the consignment  any representation as stated by Shri Desai  was given  by  the  respondent to the  appellant.   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 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 in question is concerned.  It follows that this contention  raised by Shri Desai is also to be rejected.  On the   discussion  in  the   foregoing  paragraphs  all   the contentions  raised  on behalf of the appellant having  been negatived  the appeal is dismissed.  There will, however, be no order as to costs.  .J (S.SAGHIR AHMAD)