ITM UNIVERSITY GWALIOR

MOOT COURT PROJECT

Before
The Court of India

ARVIND MILLS
LIMITED
(Plaintiff) V.
Associated Roadways (Defendant)

Case concerning with………

SUBMITTED IN THE SCHOOL OF MANAGEMENT

Memorial on behalf of Plaintiff/ Defendant

Submitted by –
Group Members’ Name & Roll No.
Harsh Shrivastava BBAN1MG23041
Aman Kushwah BBAN1MG23013
Rudrakash Singh Tomar BBAN1MG23272
Aman BBAN1MG23012
Aditya Singh Tomar BBAN1MG23005
Himanshu Sharma BBAN1MG23179
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 TABLE OF CONTENT

INDEX OF AUTHORITIES...............................................................
STATEMENT OF JURISDICTION...................................................
STATEMENT OF FACTS..................................................................
ISSUES RAISED.................................................................................
SUMMARY OF ARGUEMENTS.......................................................
ARGUMENTS ADVANCED...........................................................

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 LIST OF ABBREVIATIONS

1. Hon’ble - honorable
2. i.e.– that is
3. SC–Supreme Court
4. Dtd .-dated
5. ICA-Indian Contract Act 1872
6. SLG-Sale of Goods Act 1930
7. u/s-under section
8. S/d-signed
9. ………

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 INDEX OF AUTHORITIES

PRECEDENTS:-
1. Mam Trading Co.Ltd.v.Adamjee Jute Mills Ltd.24BLD (HCD)2004
2. ChitranjiLalRamPartnershipfirmv.ChandgiRamKundanLalandCo.AIR1967 del 158
3. Bengal Corporation Pvt.Ltd.v.TheComissionersfortheportofCalcuttaAIR1971
Cal 357.
4.........such list of cases referred to defend the case.

BOOKS:-
1. Avtar Singh– Sale of Goods Act
2. Partnership Act & Sale of Goods Act–Dr.S.K. Kapoor
3. ……

STATUTES:-
1. The Indian Contract Act 1872
2. The Sale of Goods Act 1930

WEBSITES:-

1. Indiankanoon.org
2. Legalcrystal.com
3. Manupatra.com

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 Subject: Consumer Protection - Carriers Act and Consumer Protection Act

Delay condoned - Appeal admitted - Recovery of money - Consumer

Protection Act, 1986 - National Consumer Disputes Redressal Commission
- Common carrier - Liability for loss of goods - Notice under Section 10 of
the Carriers Act, 1865 - Earlier decisions of Supreme Court - Distinction
between Section 9 and Section 10 of the Carriers Act - Procedural and
substantive rights - Additional remedies under the Consumer Protection
Act - Integral scheme of Sections 9 and 10 of the Carriers Act - Summary
procedure under the Consumer Protection Act - Requirement of notice
under Section 10 of the Carriers Act - Appeal dismissed

Act Referred :
CARRIERS ACT : S.9, S.10
CONSUMER PROTECTION ACT : S.12, S.21
Consumer Protection Act, 1986, Section 12 - Carriers Act, 1865, Section 10
-
Common carrier - A complaint filed for recovery of Rs. 21,04,835.83 p. by
the
appellant under the Act of1986, before the National Commission - It was
alleged that the respondent was a common carrier and was liable to
compensate the appellant for the loss suffered because the appellant
effected delivery of goods without obtaining the original lorry receipts
from the consignee- The National Commission rightly held that in the
absence of a notice under Section 10 of the Act of, 1865, the complaint
could not be entertained under Act of 1986- Sections 9 and 10 form an
integral scheme by which a common carrier is fastened with liability
irrespective of proof of negligence- Merely because the procedure under
the Consumer Protection Act is summary in nature did not in any way
warrant the abrogation of the requirement to serve notice under Section
10 of the Carriers Act before fastening any liability under that Act on the
carriers- Appeal dismissed
[Paras 5 to 8]
Cases Referred: REFERRED TO : Patel Roadways Ltd. v. Birla Yamaha Ltd., , 2000 0
AIR(SCW) 1047

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( 1 ) DELAY condoned.

( 2 ) APPEAL admitted.

( 3 ) A complaint was filed for recovery of Rs. 21,04,835. 83 p. by the

appellant against the respondent under the Consumer Protection Act, 1986,
before the National Consumer Disputes Redressal Commission (for short, the
national Commission ). According to the complaint, the respondent was a
common carrier and was liable to compensate the appellant for the loss
suffered because the appellant had effected delivery of goods entrusted to it by
the appellant without obtaining the original lorry receipts from the consignee.

( 4 ) THE National Commission followed its earlier decision in the case of

delhi Assam Roadways Corporation v. B. L. Sharma (First Appeal No. 107 of
2001) decided on 12th December, 2002 and held that in the absence of a notice
under Section 10 of the Carriers Act, 1865, the complaint cannot be entertained
under the Consumer Protection Act against a common carrier. The special
leave petition filed against the decision in the case of B. L. Sharma (supra) was
dismissed by recording that the Court saw no reason to interfere with the
reasoning of the National Commission.

( 5 ) BEFORE us, the learned counsel for the appellant has contended that the
order of this Court in B. L. Sharma (supra) should not be followed as it was not
in fact, a decision on an appeal. The earlier decisions of this Court relied upon
by the National Commission, all pertained to Section 9 and not Section 10 of
the Carriers Act. It is further submitted that the National Commission had
wrongly extended the principles which this Court had applied to section 9 of
the Carriers Act to Section 10 thereof without noticing that section 9 created
substantive rights whereas Section 10 was merely procedural. According to the
appellant, because the right available under Section 9 of the Carriers Act to a
consignor was also available under the common law, this Court had held that
Section 9 of the Carriers Act applied to the consumer Protection Act. It is
further submitted that to make a proceeding under the Consumer Protection
Act subject to the pre-condition of notice under Section 10 of the Carriers Act
would be to place an unnecessary impediment on the rights of consumers to
have expeditious and summary disposal of their complaints which was the
object of the framing of the consumer Protection Act. It is pointed out that
Section 3 of the Consumer protection Act clarifies that the remedy available
under the Consumer protection Act was an additional remedy and not in
derogation of any other law.

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( 6 ) THE decision of this Court, which has been relied upon by the National
Commission in B. L. Sharma (supra) and which is sought to be distinguished
by the appellant, is Patel Roadways limited v. Birla Yamaha Limited (2000 (4)
SCC 91 ). That case is an authority for two propositions; one, that the law
relating to common carriers was crystallised under the statute and second, that
the word suit in Section 9 of the Carriers Act would have to be defined to
include proceedings under the Consumer Protection Act.

( 7 ) SINCE the word suit has been used both in Section 9 and Section 10 of
the
Carriers Act, there is no reason why we should not construe the said word as
far as Section 10 is concerned in the same manner as it was done in patel
Roadways Limited (supra) qua Section 9. The distinction that has been sought
to be drawn between Section 9 and Section 10, namely, that the former creates
a substantive right whereas the latter only provides for procedure is
unacceptable. Section 9 deals with the rule of evidence to be followed in
dealing with cases under the Carriers Act and rules of evidence are rules of
procedure. Besides, the construction of the word suit in Patel Roadways limited
(supra) did not turn on whether Section 9 was either procedural or substantive.

( 8 ) THE fact that the remedies under the Consumer Protection Act are in
addition to and not in derogation of any other law does not mean that the rights
under the Carriers Act can be exercised, except in accordance with the manner
provided under the Act. Sections 9 and 10 form an integral scheme by which a
common carrier is fastened with liability irrespective of proof of negligence.
Merely because the procedure under the Consumer Protection act is summary
in nature does not in any way warrant the abrogation of the requirement to
serve notice under Section 10 of the Carriers Act before fastening any liability
under that Act on the carriers.

( 9 ) THE civil appeal is, accordingly, dismissed.

( 10 ) NO costs. Appeal dismissed.