SUPREME COURT HOLDS SERVICE OF PRIOR NOTICE IS MANDATORY FOR A CONSUMER COMPLAINT AGAINST A CARRIER

A Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices Hemant Gupta and A.S. Bopanna passed an Order dated 17-08-2021 in the case of M/s Associated Road Carriers Ltd. v. M/s Kamlender Kashyap & Ors. Civil Appeal Nos. 4412-4413 of 2010 and held that that a #consumercomplaint against a carrier is not maintainable if prior Notice under Section 10 of the #CarriersAct, 1865, (Act) is not served on it.

In the present case, an Order dated 10.01.2008 was passed by the National Consumer Disputes Redressal Commission (NCDRC) whereby an Order of the Himachal Pradesh Consumer Disputes Redressal Commission directing Associated Road Carriers Ltd. (Appellant) to pay a sum of Rs.4,29,445/- along with interest at the rate of 8% and costs of Rs.5000/- was upheld by the NCDRC.

Aggrieved, the Appellant filed an Appeal in the Hon’ble Supreme Court of India contending that as per Section 10 of the Act no prior Notice was served upon it and therefore, the Complaint before the Consumer Fora was not maintainable.

The Carriers Act, 1865 is legislation which deals with rights and liabilities of Common Carriers. In the Act, “Common Carriers” has been defined as “a person, other than the Government, engaged in the business of transporting property under multimodal 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 Carriers Act, 1865 is reproduced as below:

“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.”

The Appellant placed reliance on the case of Arvind Mills Ltd. v. Associated Roadways (2004) 11 SCC 545. In this case, the Apex Court had made the following observation regarding the requirement to serve Notice under Section 10 of the Act.

“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 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 Bench after taking into consideration the arguments advanced by the Parties to the dispute held that since the consignment was booked in the year 1997, it will not interfere with impugned Order dated 10.01.2008 passed by the NCDRC. In this regard, the Apex Court observed as follows:

“…keeping in view the fact that the consignment was booked in the year 1997, it is too late in the day to relegate the parties to meet out the requirement of notice under Section 10 of the Carriers Act. The parties have contested the proceedings on merits and the State Commission as well as the NCDRC have returned a finding of fact that the appellant was deficient in providing service.”

Thus, while observing that a prior Notice is mandatory under Section 10 of the Act, the Court did not interfere with the Order passed by the NCDRC and dismissed the Appeal. The Court probably balanced the equities by dismissing the Appeal as too much time had passed since initiation of the litigation since 1997.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services