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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3546 OF 2006

M/s Nagpur Golden Transport  Company (Regd.)                    …     Appellant

Versus

M/s Nath Traders & Ors.                …  Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article 136  

of the Constitution against the order dated 18.02.2003 of the  

National  Consumers  Disputes  Redressal  Commission  in  

Revision Petition No.371 of 2000.

2. The facts very briefly are that the respondent No.3 booked a  

consignment  of  monoblock  pumps  with  the  appellant  for  

transportation from Coimbatore to respondents No.1 and 2 at  

Gwalior in March, 1997.  While the appellant was transporting  

the  consignment  in  a  truck,  there  was an accident  and the  

monoblock pumps were damaged.  The respondents No.1 and

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2,  therefore,  did  not  take  delivery  of  the  198  damaged  

monoblock  pumps  at  Gwalior.   In  the  circumstances,  the  

appellant returned the 198 damaged monoblock pumps to the  

respondent No.3.

3. The respondents No.1 and 2 then filed Complaint No.101 of  

1998 before the Consumer Disputes Redressal Forum, Gwalior,  

and their  case in the complaint  was that  they had paid the  

price of the consignment to respondent No.3 and were entitled  

to Rs.3,61,131/- towards the price  of  the monoblock pumps  

and damages of Rs.70,000/-, loss of profit Rs.14,000/- as well  

as cost of Rs.5,000/- and interest @ 18% per annum on the  

amount  claimed by  them.   The  appellant  resisted  the  claim  

contending  that  the  claim  was  not  maintainable  under  the  

Consumer  Protection  Act,  1986  (for  short  ‘the  Act’).   The  

District  Consumer  Disputes  Redressal  Forum,  in  its  order  

dated 27.01.1999, held that the appellant as a common carrier  

was the insurer of the goods in transit and if the goods have  

been damaged, the appellant  was liable  to respondents No.1  

and 2 for negligence.  The District Consumer Disputes Forum,  

therefore, awarded a sum of Rs.3,60,131/- along with interest  

@ 18% per annum from 01.04.1997 till  the date of  payment  

and Rs.500/- as counsel fee and further sum of Rs.500/- as

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cost of the case.

4. Aggrieved, the appellant filed appeal No.202 of 1999 before  

the  Madhya  Pradesh  State  Consumer  Disputes  Redressal  

Commission,  Bhopal,  and  the  State  Consumer  Disputes  

Redressal Commission in its order dated 07.10.1999 held that  

there  was  no  legal  infirmity  in  the  order  of  the  District  

Consumer Disputes  Redressal  Forum, Gwalior,  awarding  the  

sum of Rs.3,60,131/- but took the view that levy of interest @  

18% per annum was penal and instead directed the appellant  

to  pay  interest  @  12%  per  annum  on  the  amount  of  

Rs.3,60,131/-  from  the  date  of  filing  of  the  complaint  

(02.03.1998)  till  the  date  of  payment.   The  appellant  filed a  

revision  but  by  the  impugned  order  dated  18.02.2003  the  

National Consumer Disputes Redressal Commission dismissed  

the revision.

5. On 10.07.2003, this Court took note of the fact that the  

amount awarded in favour of the respondents No.1 and 2 by  

the  District  Consumer  Disputes  Redresal  Forum  had  been  

deposited and the counsel for the appellant had no objection to  

the amount to be paid to respondents No.1 and 2.  This Court  

in  its  order  dated  10.07.2003  issued  notice  limited  to  the  

question of  law raised before  the Court.   In the order dated

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10.07.2003,  however,  this Court  appears to have  recorded a  

different question of law and hence the appellant has filed an  

application I.A. No.2 of 2003 for clarification of the aforesaid  

order dated 10.07.2003.  On reading the application I.A. No.2  

of 2003, we find that the question of law raised was whether  

the  appellant  was  entitled  to  receive  198 monoblock  pumps  

from respondent No.3 when he is held to be liable to pay the  

price of the monoblock pumps to respondents No.1 and 2.  We,  

accordingly, correct the order dated 10.07.2003 as prayed by  

the appellant in the application for clarification in I.A. No.2 of  

2003.

6. At  the  hearing  of  the  appeal,  learned  counsel  for  the  

appellant  submitted  that  the  District  Consumer  Disputes  

Redressal Forum should have directed the respondent No.3 to  

return the 198 monoblock pumps to the appellant when the  

appellant has been held liable for the price of the monoblock  

pumps to the respondents No.1 and 2, who had paid for the  

same  to  respondent  No.3.   He  submitted  that  the  appellant  

cannot be held liable to pay the price of the monoblock pumps  

to respondents No.1 and 2 and at the same time not entitled to  

the return of the 198 monoblock pumps from respondent No.3.

7. Learned counsel for respondent No.3 relied on the counter

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affidavit filed on behalf of the respondent No.3 in this Court in  

which it is stated that the 198 damaged monoblock pumps had  

no value and the same have been kept in the godown of the  

respondent  No.3  under  the  watch  and  ward  of  extra  staff  

engaged  by  the  respondent  No.3  and  that  due  to  delay  the  

monoblock pumps have become useless and have no value at  

all.

8. We have considered the submissions of learned counsel for  

the  appellant  and  the  respondent  No.3  and  we  are  of  the  

considered  opinion  that  if  the  District  Consumer  Disputes  

Redressal Forum directed the appellant to pay Rs.3,60,131/- to  

respondents  No.1  and  2  and  this  sum of  Rs.  Rs.3,60,131/-  

covered the price of the monoblock pumps and this price of the  

monoblock pumps had also received by respondent No.3 from  

the respondents No.1 and 2, the appellant was entitled to the  

return of the damaged 198 monoblock pumps from respondent  

No.1.  We are also of the view that in case the respondent No.3  

has disposed of the 198 monoblock pumps in the meanwhile,  

the  appellant  was entitled  to  the  value  of  the  198 damaged  

monoblock  pumps  realized  by  the  respondent  No.3.   If  the  

damaged monoblock  pumps are  not  returned  by  respondent  

No.3 to the appellant or if the value of the damaged monoblock

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pumps  realized  by  respondent  No.3  are  not  paid  to  the  

appellant, respondent No.3 would stand unjustly enriched.  To  

quote  Lord  Wright  in  Fibrosa  Spolka  Akcyjna v.  Fairbairn  

Lawson Combe Barbour Ltd. [(1942) 2 ALL ER 122 (HL)]:

“……Any civilized system of  law is bound to provide  remedies  for  cases  of  what  has  been  called  unjust  enrichment or unjust benefit, that is, to prevent a man  from retaining the money of, or some benefit derived  from, another which it is against conscience that he  should  keep.   Such  remedies  in  English  law  are  generically  different  from remedies in  contract  or  in  tort,  and  are  now  recognized  to  fall  within  a  third  category  of  the  common law which  has  been called  quasi-contract or restitution.”

We are also of the considered opinion that the respondent No.3  

was not entitled to any charges towards watch and ward etc. as  

respondent  No.3  should  not  have  retained  the  damaged  

monoblock pumps having received the full price of the pumps.

9. We, therefore, remand the matter to the District Consumer  

Disputes Redressal Forum, Gwalior, with the direction to issue  

notice  to  the  parties  and after  taking  evidence,  if  necessary,  

order  the  return  of  the  198  damaged  monoblock  pumps  by  

respondent  No.3  to  the  appellant  and  if  the  198  damaged  

monoblock pumps are not available with respondent No.3, to  

find  out  the  value  of  the  198  damaged  monoblock  pumps  

realized by the respondent No.3 and direct the respondent No.3  

to pay the said value to the appellant.  The appeal is allowed to

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the extent indicated above.  No costs.

.……………………….J.                                                                           (P. Sathasivam)

………………………..J.                                                                           (A. K. Patnaik) New Delhi, December 07, 2011.