This revision petition has been filed by the petitioner Narainsons Overseas against the order dated 01.12.2017 of the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission’) passed in First Appeal No.531 of 2011.
2. Brief facts of the case are that the complainant/petitioner is running a business of cotton handloom. He got an order for supply of 30 bales of cotton handloom on 10.5.2000. Total value of the goods was US$ 3082. Payment was to be made within 60 days of bill of lading. Goods were sent to France. Complainant was advised to take services of opposite party No.1/respondent (shipping agent). On 20.12.2000, the respondent sent e-mail to complainant confirming delivery of consignment. On 8.1.2001 complainant got letter from Allahabad Bank that the bill of lading and other documents were with the banker without assigning any reason to him. The bill was sent to foreign bank, for the payment from the buyer but the same was returned without any reason.
3. The complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum New Delhi, (in short the ‘District Forum’), which was allowed vide its order dated 27.07.2011 as follows:-
“We direct OP-1 to make good the loss of money to complainant by:
(i) Paying to complainant Rs.1,50,000/- (equivalent of 3082 US $), with interest @ 12% from the date of 9.11.2000 till repayment.
(ii) Pay Rs.50,000/- towards harassment, anxiety, mental tension and deficiency of service including litigation expenses.
(iii) The order shall be complied with within 30 days of the receipt of the copy of the order; otherwise action can be taken under Section 25/27 of the Consumer Protection Act.”
4. Aggrieved with the above order of the District Forum, the respondent/opposite party filed an appeal before the State Commission, which was allowed vide its order dated 01.12.2017.
5. Hence the present revision petition.
6. Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner stated that the State Commission has allowed the appeal filed by the respondent/opposite party and dismissed the complaint mainly on the ground that the complaint was filed beyond period of one year from the date of delivery, which is in contravention of the Clause 3 of Para 6 of Article III of Schedule II of the Indian Carriage of Goods by Sea Act, 1925. Learned counsel stated that Consumer Protection Act, 1986 is an independent Act and has been enacted after the Indian Carriage of Goods by Sea Act and therefore, the provisions of Consumer Protection Act, 1986 will only be applicable in consumer dispute cases. It is not the case of the opposite party that the complainant is not a consumer and if the complainant is a consumer, then complaint can be filed under Consumer Protection Act, 1986 within the period of two years from the date of cause of action. Therefore, the complaint filed before the District Forum was well within time and that is why the District Forum allowed the complaint. Thus, the order of the State Commission is totally illegal and cannot be sustained.
7. Learned counsel for the respondent/opposite party stated that the Clause 3 of Para 6 of Article III of Schedule II of the Indian Carriage of Goods by Sea Act, 1925 clearly states that the liability of the Carrier and the Shipper will be fully discharged if no suit is filed within one year from the date of delivery or the due date of delivery. Thus, the present complaint clearly violates this law and therefore, cannot be accepted. It was further stated that Section 3 of the Consumer Protection Act, 1986 allows the additional remedy to a consumer in accordance with law for the time being inforce, however, it should not be in violation of any other law. Clearly, the complaint is in violation of aforesaid law. In support of his argument, learned counsel referred to following judgments:-
(1) Sri Meenakshi Vs. American President Lines Ltd. & Anr., III (2005) CPJ 82 (NC). It has been held that:-
“3. Having heard Mr. Sudarshan Rajan for petitioner and Mr. A.K. Matta for respondents the issues which rise for decision are (i) whether complaint was barred under Clause 3 of para 6 of Article III of Schedule II of the Act and (ii) if delivery of consignment in question could not have been given by the respondents to Al-Ketab Stationery on 15.3.1993 without production of original bill of lading, etc. and ensuring payment of the value of consignment. Similar points were formulated by the State Commission in appeal. Said Clause 3 reads as under:
"In any event, the carrier and the shipper shall be discharged from all liabilities in respect of loss or damage unless it is brought within one year after delivery of the goods or the date when the goods should have been delivered."
As can be seen from the order of State Commission the complaint was filed on 13.10.1995. In our view, said limitation provided under the Indian Carriage of Goods by Sea Act, 1925, is applicable before Consumer Fora it being a Special Act. Since complaint was admittedly filed beyond the period of one year from date of delivery of consignment, it was barred by time as rightly held by the State Commission.”
(2) Mariamma Narendranathan Vs. Shipping Corporation of India & anr., III (1998) CPJ 259. It has been held that:-
“10. Learned counsel appearing for the complainant would contend that under Section 24(A) of the Consumer Protection Act, the complainant has two years period from the date of cause of action. The cause of action arose only when the damaged car was delivered and the complaint was filed within two years from that date. This takes us to the question whether the provisions of Clause 6 Article 3 Schedule to the Indian Carriage of Goods by Sea Act or Section 24(A) of the Consumer Protection Act is applicable to the present case. Consumer Protection Act is a general law in the sense that it applies to all consumers while the Indian Carriage of Goods by Sea Act is a special law governing Carriage of Goods by Sea. Since Indian Carriage of Goods by Sea Act is a special law in our view it is the provision contained in the Indian Carriage of Goods by Sea Act, 1925 that would apply to the present case. Clause 6 specifically states that carrier or ship shall be discharged from all liability unless suit is filed within one year from the date of delivery of the goods or the date when the goods should have been delivered. The Supreme Court had occasion to consider this provision in East and West Steamship Co., George Town, Madras V. S.K.Ramalingam Chettiar, AIR 1960 Supreme Court 1958. It considered whether Clause 3 Paragraph 6 or Article 3 to the Schedule of the Indian Carriage of Goods by Sea Act provides for extinction of a right to compensation and whether it is merely a rule of limitation and it held that in view of the international character of the rules the right is extinguished and the provision is not merely a rule of limitation. The question was again considered by the Supreme Court in American Export Isbrant and Incorporated V. Joe Lopes and Another, AIR 1972 Supreme Court 1405, and the Supreme Court quoted with approval the earlier decision. A Division bench of the Kerala High Court also considered the matter and it was held that in view of the provisions, contained in Clause 3,para 6 of the Article the Suit shall be brought within one year from the specified date and if suit is not brought within the time specified, the carrier and ship shall be discharged from liability and that once the liability of the carrier or ship terminates there is no survival of cause of action against them. Sitting as Single Judge of the Kerala High Court, the President of this Commission again considered the legal effect of this provision in K.B. Jacob and Sons, Stevedors, Cochin V. Shipping Corporation of India Ltd. , Bombay, AIR 1990 Kerala 256, and it was held three years’ period is not available and the suit filed beyond period of one year is barred.”
8. Learned counsel further contended that the period of one year given in the aforesaid provision of law does not only prescribe a limitation, rather it discharges the shipper from any liability if the suit is not filed within one year and thus extinguishes the right of the complainant to file any complaint after expiry of this period. In support of his contention, learned counsel relied upon the judgment of the Hon’ble Supreme Court in The East and West Steamship Company, Georgetown, Madras Vs. S.K.Ramalingam Chettiar, (1960) 3 SCR 820, it has observed that:-
“25. On the next question whether this clause prescribes only a rule of limitation or provides for the extinction of a right to compensation, it will be observed that the Bombay High- Court has not discussed it at all, apparently because on the facts of the case before it would have mattered little whether the provision was one of limitation or of extinction of right. The question is however of some importance in the facts of the Madras Case. For if the provision is one of limitation there would be some scope for argument in the facts of that case that the period was extended by acknowledgments of liability within the meaning of Art. 19 of the Limitation Act. The question we have to decide is whether in saying that the ship or the carrier will be " discharged from liability ", only the remedy of the shipper or the consignee was being barred or the right was also being terminated. It is useful to remember in this connection the international character of these rules, as has been already emphasised above. Rules of limitation are likely to vary from country to country. Provisions for extension of periods prescribes for limitation would similarly vary.836 We should be slow therefore to put on the word " discharged from liability " an interpretation which would produce results varying in different countries and thus keeping the position uncertain for both the shipper and the shipowner. Quite apart from this consideration, however, we think that the ordinary grammatical sense of "discharged from liability" does not connote " freed from the remedy as regards liability " but are more apt to mean a total extinction of the liability following upon an extinction of the right. We find it difficult to draw any reasonable distinction between the words "absolved from liability" and " discharged from liability " and think that these words " discharged from liability " were intended to mean and do mean that the liability has totally disappeared and not only that the remedy as regards the liability has disappeared. We are unable to agree with the learned Judge of the Madras High Court that these words merely mean that " that even though the right may inhere in the person who is entitled to the benefits, still the liability in the opposite party is discharged by the impossibility of enforcement." The distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right, though fine, is of great importance. The Legislature could not but have been conscious of this distinction when using the words " discharged from all liability " in an article purporting to prescribe rights and immunities of the shipowners. The words are apt to express an intention of total extinction of the liability and should, specially in view of the international character of the legislation, be construed in that sense.”
9. I have carefully considered the arguments advanced by both the sides and have examined the record. It is admitted that the complaint has been filed after a period of one year from the date of delivery. Section 3 of the Consumer Protection Act, 1986 provides for an alternative remedy to a consumer and reads as under:-
“3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
10. It is clear from the above provision given in Section 3 of the Consumer Protection Act, 1986 that the provisions of the Consumer Protection Act, 1986 are available to a consumer provided the same are not in derogation of any other law for the time being in force. Clause 3 of Para 6 of Article III of Schedule II of the Indian Carriage of Goods by Sea Act, 1925 prescribes that in any event the carrier and the shipper shall stand discharged from all liabilities in respect of loss or damage unless the suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. The Hon’ble Supreme in The East and West Steamship Company, Georgetown, Madras Vs. S.K.Ramalingam Chettiar, (supra) has interpreted this clause thoroughly and has observed that this clause does not only prescribes limitation period, but also discharges the carrier and the shipper from any liabilities if the matter is not taken up within a period of one year from the date of delivery. So, if the carrier and shipper are discharged from all liabilities, and if a complaint case is brought after one year, this will be only a case which is filed when there is no liability on the carrier and the shipper. There is no doubt that even in such cases, the applicability of Consumer Protection Act, 1986 cannot be questioned as held by Hon’ble Supreme Court in Trans Mediterranean Airways Vs. Universal Exports &Anr., (2011) 10 SCC 316, wherein following has been held by the Hon’ble Supreme Court:-
“A. Consumer Protection –Consumer Forums- Jurisdiction and Powers of Consumer Forum-Concurrent Jurisdiction- Jurisdiction of Consumer Forums vis--vis specific remedies under other statues- Proceedings before Consumer Forum for compensation for deficiency of service by international air carrier- Maintainability- Held, protection provided under 1986 Act is in addition to remedies available under other statues and is not in derogation of any other remedy available under any other law- Hence, Carriage by Air Act, 1972 (CA Act) and related international conventions (Warsaw Convention as amended at Hague in 1955 and Montreal Convention of 1999), though exclusively governing liabilities of air carrier towards passengers and goods by air, do not exclude applicability of CP Act, 1986
* National Commission allowed complaint claiming compensation for deficiency of service against appellant international air carrier and its agent for not delivering consignment- Contention that National Commission not being “court”, had no jurisdiction to decide matter and exercise its jurisdiction was contravention of international law and that action for damages can be brought only at places mentioned in Sch.II R.29, CA Act, 1972 (at Bombay, where contract was made and Beirut, principal place of business and Madrid, place of destination) but not at Delhi- Held, 1986 Act provides additional or alternative remedy to consumers- Further, under CA Act and Warsaw Convention, Consumer forums fall within meaning of expression “court”- Hence, there was no legal infirmity in National Commission exercising its jurisdiction, since same can be considered as “court” within territory of a High Contracting Party under CA Act, 1972- Carriage by Air Act, 1972-S.7, Sch. IR.28, Sch.II r.29 and Sch. III R. 33- “Court- Held, Consumer forums are “Co
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urts’ under 1972 Act- Consumer Protection Act, 1986, Ss. 3,11,17,21 and 23” 11. The Consumer Protection Act, 1986 provides for a period of two years from the cause of action for filing a complaint. As per Clause 3 of Para 6 of Article III of Schedule II of the Indian Carriage of Goods by Sea Act, 1925 the complaint can be brought within one year against the carrier and shipper from the date of delivery. Even though a complaint case can be filed against the carrier and shipper for the deficiency of service before the consumer forum, however, if the carrier and shipper stand discharged from any liability after a period of one year from the date of delivery, the consumer will not be able to fix any liability on the carrier or the shipper. However, if the complaint is brought within one year from the date of delivery, the consumer forum could be able to fasten liability on the carrier and the shipper in accordance with the Consumer Protection Act, 1986. This Commission in Sri Meenakshi Vs. American President Lines Ltd. & Anr. (supra) has extensively discussed this issue and has concluded that the complaint filed beyond one year from the date of delivery was not maintainable in a consumer forum. This judgment of this Commission is squarely applicable in the facts and circumstances of the case in hand. 12. From the above discussion, it is brought out that the State Commission has rightly appreciated the provisions of law and therefore, I do not find any illegality, material irregularity or jurisdictional error in the order dated 01.12.2017 of the State Commission which calls for any interference from this Commission. Consequently, the revision petition No.787 of 2018 is dismissed.