REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1909 OF 2004

Trans Mediterranean Airways               ………….. Appellant

versus

M/s Universal Exports & Anr.        ………..Respondents

J U D G M E N T

H.L. DATTU, J.

1) This appeal is filed under Section 23 of the Consumer Protection Act,  

1986 [hereinafter referred to as “the C P Act”] against the order in  

Original Petition No. 161 of 1994 of the National Consumer Disputes  

Redressal Commission, New Delhi   [“the National Commission” for  

short]  dated 15th January,  2004,  whereby the National  Commission  

has directed the appellant to pay a sum equivalent to US $71,615.75  

with 5% interest from the date of the complaint, till its realization, and  

imposed costs of `1 lakh for deficiency of service.  

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2) The  appellant  before  us  is  an  International  Cargo  carrier,  with  its  

principal place of business at Beirut, Lebanon. Respondent No.1 is a  

garment exporter and respondent No.2 is an accredited International  

Air Transport Association agent.  By this appeal, we are called upon  

to examine and reconcile the area of operation of the C P Act on the  

one hand, and the Carriage by Air Act, 1972 [hereinafter referred to as  

“the  CA  Act”]  along  with  the  Warsaw  Convention  of  1929  

[hereinafter  referred to as  “the Warsaw Convention”]  on the other.  

The appellant, respondent No. 1 and respondent No. 2, hereinafter, for  

the sake of brevity, referred to as “appellant carrier”, “the consignor”  

and “agent” respectively.    

3) The core issues that arise for our consideration and decision in this  

appeal are:   

1. Whether the National Commission under the CP Act  has the jurisdiction to entertain and decide a complaint  filed  by  the  consignor  claiming  compensation  for  deficiency  of  service  by  the  carrier,  in  view  of  the  provisions of the CA Act and the Warsaw Convention.  Or whether domestic laws can be added to or substituted  for the provisions of the conventions.

2. Whether the appellant can be directed to compensate  the consignor for deficiency of service in the facts and  circumstances of the case.

Brief Facts

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4)     The facts leading to this appeal are as follows:  

The agent made out three airway bills for shipping of garments  

to Spain on behalf of the consignor through the appellant-carrier. In  

the consignee column, the consignment was addressed as :  

“BB SAE MADRID, SPAIN NOTIFY: M/S LIWE ESPANOLA S.A., MAYOR S/N, 30006 PUENTE TOCINOR APARTADO, 741, MORCIA, SPAIN, L.C. No. C. 1036-92-00276”

In  the  box  titled  ‘Handling  Information’,  the  following  

information was recorded:

“MARKS: SPAIN N/C NOS: 1027-1185 TOTAL  ONE  HUNDRED  FIFTY  NINE  CARTONS  ONLY/PLS  INF  CNEE  IMM  ON  ARR/DOCUMENTS  ATTACHED”

The  airway  bills  from  Bombay  to  Amsterdam  were  dated  

25-08-1992 and the consignment through the appellant-carrier reached  

Amsterdam  on  30-08-1992.   From  Amsterdam,  the  consignments  

were sent to Madrid by road on the following day, and they reached  

Madrid on 03-09-1992 and were cleared by the Customs Authorities.  

The  appellant-carrier  delivered  the  consignment  to  M/s  Liwe  

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Espanola,  as  according  to  them,  that  was  the  only  recognizable  

address available from the documents furnished by the consignor.  

5) After nine months from the date of shipment, the agent made enquiry  

regarding two of the three airway bills.  Since there was no response,  

the agent made further enquiry again after four months. In response to  

the query, the appellant-carrier informed the consigner that on finding  

the full  name and complete postal address of the consignee as M/s  

Liwe Espanola, the appellant-carrier has delivered the goods to it.  It  

was at this stage, the consignor claimed that the consignee of the said  

consignment was Barclays Bank, Madrid, which had only one branch  

in Madrid and since the appellant carrier had wrongly delivered the  

consignment to the address mentioned in the Block column instead of  

routing it through Barclays Bank and, therefore, there is deficiency of  

service.   Accordingly,  the  consignor  instituted  a  complaint  under  

Section 12 of the CP Act before the National Commission, inter alia,  

claiming compensation for the alleged deficiency of service by the  

appellant-carrier and the agent for not delivering the said consignment  

to  the  consignee.   The National  Commission,  after  considering the  

entire evidence on record, has come to the conclusion that the services  

rendered by the  appellant-carrier  was  deficient  and thereby,  it  was  

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liable  to  pay  compensation  equivalent  to  US  $71,615.75  with  5%  

interest from the date of the Complaint till its realization, and imposed  

costs of `1 lakh.  It is the correctness or otherwise of this order, which  

is called in question in this appeal.

6) Since this is the first appeal under Section 23 of the CP Act, we are  

required to consider both the questions of facts as well as questions of  

law.  

Impugned Order of the National Commission

7) The  appellant-carrier  before  the  National  Commission,  by  way  of  

preliminary  objection,  had  raised  jurisdiction  of  the  National  

Commission in entertaining the complaint filed by the complainant.  It  

was the contention of the appellant-carrier that in view of Rule 29 and  

Rule  33  of  the  Second  Schedule  to  the  CA  Act,  the  National  

Commission in Delhi has no jurisdiction to entertain and decide the  

complaint.  It was contended that only the Courts at the four places  

mentioned  in  the  said  provision  have  jurisdiction  to  adjudicate  the  

complaint and, therefore, no other courts, Tribunal or Commission has  

jurisdiction to decide the complaint filed by the complainant.  It was  

also contended that in view of the Warsaw Convention, the National  

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Commission had no jurisdiction to decide the dispute.  The National  

Commission, after a detailed analysis of the provisions of the CP Act  

and carrier laws, has negatived the contention by holding that the CP  

Act has vested jurisdiction to the Consumer Courts to adjudicate upon  

a claim for compensation in cases of deficiency of service.  It was also  

held  that  due  to  the  pecuniary  jurisdiction  of  the  National  

Commission, even a matter that arose in Mumbai of value of more  

than  `20 lakhs,  could be filed for adjudication before the National  

Commission (prior to the 2002 amendment).  

8) On  merits,  it  was  the  case  of  the  consignor  before  the  National  

Commission that the services offered by the appellant-carrier and the  

agent were deficient and the consignment meant for the consignee was  

not  delivered  to  the  notified  person.   It  was  also  the  case  of  the  

consignor that in view of the conditions of contract on the reverse of  

the  airway  bill,  it  was  required  for  the  appellant-carrier  to  have  

delivered the consignment to the consignee only, and in case of any  

doubt  regarding  the  address  of  delivery,  the  appellant-carrier  was  

required  to  enquire  with  the  consignor  and  not  deliver  the  

consignment to any other person than the notified party. Therefore, it  

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was contended that there is a deficiency of service by the appellant-

carrier.  

9) The appellant-carrier has taken the defense that the address given by  

the agent of the consignor was incorrect and incomplete, and the only  

address  that  was  properly  given  was  that  of  the  notified  party,  to  

which address they have delivered the said consignment. Further, it  

was contended that at no point of time, the appellant-carrier was made  

known that  the  “BBE SAE,  MADRID SPAIN” stood for  Barclays  

Bank, Madrid.  Further, it was contended that the consignor had to file  

a suit within 120 days by relying on Rule 12 and the complaint was  

barred by limitation. It  was further contended that if there was any  

damage  that  was  suffered  by  the  consignor,  it  was  due  to  the  

negligence of the agent.  It was also contended that the consignor has  

received payment from the notified party. The appellant-carrier also  

made reference to the CA Act, Warsaw Convention and several other  

authorities in support of its claim.    

10) The National Commission, in the impugned order, has concluded that  

the agent was not only the agent of the consignor, but also of the agent  

of  the  appellant-carrier,  and  hence  any  mistake  committed  by  the  

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agent  would  make  the  principal  (appellant-carrier)  liable  for  such  

damages.  Further,  it  is  held  by  the  National  Commission  that  the  

appellant-carrier was duty bound to have contacted the consignor in  

case it was not able to locate the address of the consignee or in the  

event, the consignee refused to accept the consignment. It is held that  

it  is  not  open  to  the  appellant-carrier  to  have  delivered  the  

consignment to the notified party without informing the consignor. On  

the point of limitation, the National Commission has observed that by  

virtue of Rule 30 of the Second Schedule,  a  suit  could be brought  

within two years, and hence Rule 12 is not applicable in the facts of  

the case.  In the light of the above findings, the National Commission  

has  held  that  the  services  provided  by  the  appellant-carrier  were  

deficient and ordered payment of the compensation to the consignor.  

11) Shri. Vinoo Bhagat, learned counsel, appears for the appellant-carrier,  

Shri. Jaideep Gupta, learned senior counsel, appears for the consignor  

(Respondent  No.1)  and  Shri.  Siddhartha  Dave,  learned  counsel,  

appears  for  the  agent  (Respondent  No.2).  On  the  question  of  

jurisdiction  of  the  National  Commission,  we  were  assisted  by  

Shri. Shyam Divan, learned senior counsel, as the  amicus curie. For  

the sake of convenience, we will deal with the submissions made by  

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the learned counsel on the issue of jurisdiction first and then, on the  

factual matrix.    

Issue of Jurisdiction of the National Commission

12) Shri.  Vinoo  Bhagat,  learned  counsel,  submits  that  the  Warsaw  

Convention  exclusively  governs  any  claims  arising  under  it,  and  

domestic law cannot be applied for deciding such claims. The learned  

counsel relies on Rule 29 of  the Second Schedule to the CA Act, to  

contend that it was only at the places mentioned in this Rule, the claim  

for compensation could have been filed.  He further submits that the  

appellant-carrier  could  be  sued  at  a  court  in  Mumbai  (where  the  

contract was made), or at Beirut (where it has its principal place of  

business), or at Madrid (place of destination), and no where else.  He  

further submits that the Court in Delhi has no jurisdiction to entertain  

any claim against the appellant-carrier and that the provisions of the  

CP  Act  could  not  alter  the  jurisdiction  vested  on  Courts  by  the  

Warsaw  Convention.  By  pointing  out  to  Rule  33  of  the  Second  

Schedule, the learned counsel submits that this provision fortifies his  

contention of the exclusive operation of Rule 29 and states that not  

only  are  the  places  where  the  appellant-carrier  can  be  sued  are  

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mentioned, but also the places where arbitration can take place, are  

expressly stated.  The learned counsel also states that there is no cause  

of action under the CP Act, to invoke the jurisdiction of the National  

Commission. He further contends that the National Commission is not  

a  Court  and  that  a  suit  is  maintainable  only  in  a  Court  having  

jurisdiction.   He  states  that  it  is  not  permissible  to  read  the  word  

“Court” to include quasi-judicial authorities and Tribunals.  He places  

reliance  on  some  decisions  of  this  Court,  the  House  of  Lords,  

Supreme Court of the United States and the National Commission.

13) Shri.  Jaideep  Gupta,  learned  senior  counsel,  appearing  for  the  

consignor  supports  the  finding  of  the  National  Commission.   He  

submits that even assuming that Rule 29 of the Second Schedule to  

the  CA  Act  was  applicable,  the  jurisdiction  of  the  National  

Commission  is  not  ousted  in  any  manner  whatsoever.  He  further  

submits that the word “Court” is not used in the strict sense of the  

term,  thereby  it  cannot  be  said  that  a  quasi-judicial  Tribunal  is  

excluded.  He submits that the Warsaw Convention was reproduced in  

two languages (being English and French), and that the term “Court”  

seems to be used in a sense to indicate a body that resolves disputes  

and  cannot  be  restricted  to  the  meaning  accorded  by  our  judicial  

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system.  Shri. Gupta further submits that the Warsaw Convention does  

not contemplate the situation of alternate Tribunals replacing Courts  

of Law.  He relies on Rule 29(2) of the Second Schedule to the CA  

Act and submits that the procedural law of the country, in which the  

suit is filed, is what is applicable, and in India, the CP Act was the  

legislation that lays down the remedy and procedure for the deficiency  

of service. He would further state that the CP Act was brought into  

force to expedite the justice delivery system for matters relating to  

deficiency of service, and the CP Act not only prescribes territorial  

jurisdiction, but also the pecuniary jurisdiction of the various Forums.  

The learned senior counsel would contend that since the State Forum  

did  not  have  the  pecuniary  jurisdiction,  the  National  Commission  

could and, in fact, has entertained the complaint.  He would further  

submit that since deficiency of service was computed in more than  

twenty  lakh  rupees  at  the  relevant  time  (it  is  presently  one  crore  

rupees after the 2002 amendment) or more, the National Commission  

would have jurisdiction by virtue of Section 29 of the CP Act.  He  

also  cited  some  judgments  in  support  of  his  submissions  and  

differentiated those cited by Shri. Vinoo Bhagat.  

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14) Shri.  Siddhartha  Dave,  learned  counsel  appearing  for  the  agent  

submits that the provisions of the CP Act can co-exist with those of  

other  Statutes  and  the  option  is  given  to  the  parties  as  to  which  

remedy they would like to pursue and would support this argument by  

referring to decisions of this Court.     

15) Due to the importance of the question of law involved,             Shri.  

Shyam Divan,  learned  senior  counsel,  was  requested  to  assist  the  

Court.  The learned  amicus has submitted a note on the question of  

jurisdiction  raised by the  appellant-carrier.  The learned  amicus has  

stated that it  is clear from Section 3 of the CP Act that Consumer  

Courts  are  additional  Forums to  ensure  that  consumers  get  speedy  

disposal of their cases/complaints with regard to deficiency of service.  

He  lays  emphasis  on  the  phrase  “An action  for  damages  must  be   

brought” at the beginning of Rule 29 and states that this Rule gives an  

option to the plaintiff to sue in the Courts on any one of the places  

mentioned.  He  further  states  that  Rule  33  provides  an  alternate  

remedy to parties  to resort  to proceedings of arbitration in case of  

disputes between the parties. He concludes that there is no express bar  

in the CA Act to oust the jurisdiction of the Forums under the CP Act.  

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16) To  appreciate  the  rival  contentions,  it  is  necessary  to  notice  the  

scheme of the CA Act.  The Statement of Objects and Reasons of the  

CA Act reads:

“India is a signatory to the Warsaw Convention of 1929,   which  is  an  International  Agreement  governing  the   liability  of  the  air  carrier  in  respect  of  international   carriage  of  passengers,  baggage  and  cargo  by  air.   Under  that  convention  ‘international  carriage’  means  any carriage in which according to the contract made by   the  parties,  the  place  of  departure  and  the  place  of   destination,  whether  or  not  there  be  a  break  in  the   carriage or transshipment, are situated either within the   territories of two High Contracting Parties, or within the   territories of a single High Contracting Party, if there is   an agreed stopping place within a territory subject to the   sovereignty, suzerainty, mandate or authority of another   Power,  even  though  that  Power  is  not  a  party  to  the  Convention.  The  Convention  provides  that  when  an  accident occurring during international carriage by air  causes damage to a passenger, or a shipper or cargo,   there  is  a  presumption  of  liability  of  the  carrier.  The   carrier, however, is not liable if he proves that he or his   agent  had  taken  all  necessary  measures  to  avoid  the   damage or that it was impossible for him or them to take  such measures. The Convention balances the imposition  of a presumption of liability on the carrier by limiting his   liability  for  each  passenger  to  1,25,000  gold  francs.   There is no limitation of liability if the damage is caused   by  the  willful  misconduct  of  the  carrier,  or  by  such  default, on his part as, in accordance with the law of the   Court  ceased  of  the  case,  is  equivalent  to  willful   misconduct.  The  Convention  also  contains  detailed  provisions regarding documents of carriage.

2. The Warsaw Convention has been given effect  to in   India  by the  enactment  of  the  Indian Carriage By Air   

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Act,  1934  (20  of  1934)  in  regard  to  international   carriage  and  the  provisions  of  that  Act  have  been  extended  to  domestic  carriage,  subject  to  certain   exception, adaptations and modifications, by means of a  notification issued in 1964.

3.  A  diplomatic  conference  under  the  auspices  of   International  Civil  Aviation  Organization  was  held  at   Hague in September, 1955 which adopted a protocol to  amend  the  provisions  of  the  Warsaw Convention.  The  Hague  protocol  was  opened  for  signature  on  28th  September, 1955 and more than the required number of   States have ratified the protocol which came into force   between the ratifying States on 1st August, 1963.  

4.  Some  of  the  amendments  effected  by  the  Hague   protocol  to  the  Warsaw  Convention  are  –  (a)  simplification of documents of carriage; (b) an increase  in the amount specified as the maximum sum for which   the carrier may be liable to a passenger, that is to say,   the limits  of the liability  of  the carrier  in respect  of  a  passenger has been doubled, and unless a higher figure  is agreed to by a special contract, the liability is raised  from  1,25,000  gold  francs  per  passenger  to  2,50,000  gold  francs;  (c)  making  the  carrier  liable  where  the   damage  was  caused  by  an  error  in  piloting  or  in  the   handling of the air craft or in navigation.  

5.  Acceptance  of  the  Hague  Protocol  would  put  our   national  carrier  on  the  same  footing  as  many  of  its   international  competitors,  since the  passengers will  be   able  to  avail  the  limit  of  liability  guaranteed  by  the  Hague  Protocol  the  limit  being  double  than  that   stipulated under the Warsaw Convention.  

6. Fifty seven countries have already ratified the Hague  Protocol  and  passengers  traveling  between  those  countries  would  be  ensured  of  the  higher  limit  of   compensation.

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7. It is, therefore, proposed to enact a law, in place of the   existing Indian Carriage By Air Act, 1934, to apply the   existing provisions based on the Warsaw Convention to  countries  which  would  choose  to  be  governed  by  that   Convention  and  also  to  apply  the  provisions  of  the  Warsaw Convention as amended by the Hague Protocol   to  countries  which  may  accept  the  provisions  thereof.   Under Section 4 of the Indian Carriage By Air Act, 1934,   the rules contained in Warsaw Convention have already  been  applied  to  non-international  carriages  subject  to   certain exceptions,  adaptations and modifications.  It  is   now proposed to take power to apply the rules contained  in  the  Warsaw Convention  as  amended  by  the  Hague  Protocol  also to non-international carriages subject  to   exceptions, adoptions and modifications.  

8. The Bill seeks to give effect to the above objectives.”

17) The preamble to The Carriage by AIR Act, 1972 reads as follows:

“An  Act  to  give  effect  to  the  Convention  for  the   unification of certain rules of international carriage by   air signed at Warsaw on the 12th day of October, 1929  and to the said Convention as amended by the Hague   Protocol on the 28th day of September, 1955 and to make  provision  for  applying  the  rules  contained  in  the  said  Convention in its original form and in the amended form  (subject  to  the  exceptions,  adaptations  and  modifications) to non-international carriage by air and  for matters connected therewith.”

18) The  CA  Act  was  enacted  to  give  effect  to  the  convention  for  

unification of rules relating to international carriage by air signed at  

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Warsaw as amended at Hague in 1995 and the Montreal Convention  

of 1999.

19) Section 2 of the CA Act is the definition clause.  Section 2(ii) of the  

CA Act  defines  convention  to  mean  convention  for  unification  of  

certain rules relating to international carriage by air signed at Warsaw  

on 12.10.1929.  Section 3 provides for the application of the Warsaw  

Convention  to  India.   It  says  that  the  rules  contained  in  the  First  

Schedule being the provisions of the convention relating to the rights  

and  liabilities  of  carriers,  passengers,  consignors,  consignees  and  

other persons, shall have the force of law in India in relation to any  

carriage  by  air  to  which  those  rules  apply  irrespective  of  the  

nationality  of  the  aircraft  performing  the  carriage,  subject  to  the  

provisions of the Act.  Section 4 provides for application of amended  

convention  to  India  and  also  provides  for  Second  Schedule  in  

consonance with the amended convention.  This Schedule applies to  

the claim made in the present case as it is a dispute that occurred in  

1994 before the Montreal Convention in 1999.  Section 4A provides  

for the application of the Montreal Convention to India and provides  

for the Third Schedule.  Section 5 sets out the liability in case of death  

of  a  passenger  as  being  those  governed  by  the  First  and  Second  

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Schedules. Sections 6 and 6A provide for conversion of francs and  

conversion of special drawing rights.    Section 7 provides that every  

high contracting party to the convention shall, for the purpose of any  

suit brought in a Court in India in accordance with the provisions of  

Rule 28 of the First Schedule or of the Second Schedule, as the case  

may be, enforce a claim in respect of the carriage undertaken by him.  

Section 8 enables the application of the Act to carriages which are not  

international.  

20) The First  Schedule to the Act,  vide Rule 1, provides that the rules  

under this Schedule shall apply to all international carriage of persons,  

luggage  or  goods  performed  by  aircraft  for  reward.  Sub-Rule  2  

defines “the High Contracting Party” to the convention.  Sub-Rule 3  

defines international carriage.   Rule 18 provides for liability of the  

carrier for damages.  Rule 19 provides for liability of the carrier for  

damages  occasioned  by  delay  and  Rule  28  provides  for  territorial  

jurisdiction for suing for damages.  The Second Schedule of the CA  

Act provides for rules for the purpose of the Act.  Chapter I of the  

Second Schedule gives the definitions and the scope of the Schedule.  

Chapter II deals with the documents of carriage, viz. passenger ticket  

(Part I), baggage check (Part II), airway bill  (Part III).  Chapter III  

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enumerates the provisions regarding the liability of the carrier with  

regard  to  the  acts  which  the  carrier  will  be  held  liable  for,  the  

jurisdiction of the Court at which the carrier can be sued, the limit of  

the  liability,  limitation  for  bringing  a  suit,  etc.   Chapter  IV  and  

Chapter  V deal  with  provisions  relating  to  combined  carriage  and  

general provisions respectively.  Part III of Chapter II of the Second  

Schedule is relevant for the purpose, of the case.  Therefore, omitting  

what is not necessary, relevant rules are extracted as :

“5. (1) Every carrier of cargo has the right to require   the consignor to make out  and hand over to him a   document called as "air waybill"; every consignor has   the  right  to  require  the  carrier  to  accept  this   document.

(2) The absence, irregularity or loss of this document   does  not  affect  the  existence  or  the  validity  of  the   contract  of  carnage  which  shall,  subject  to  the  provisions of rule 9, be nonetheless governed by these  rules.

6. (1)  The  air  waybill  shall  be  made  out  by  the   consignor in the three original parts and be handed   over with the cargo.

(2) The first  part shall  be marked "for the carrier",   and shall be signed by the consignor. The second part   shall be marked "for the consignee"; it shall be signed  by  the  consignor  and  by  the  carrier  and  shall   accompany the cargo. The third part shall be signed  by the carrier  and handed by him to the consignor  after the cargo has been accepted.

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(3) The carrier shall sign prior to the loading of the   cargo on board the aircraft.

(4) The signature of the carrier may be stamped; that   of the consignor may be printed or stamped.

(5)  If,  at  the  request  of  the  consignor,  the  carrier   makes out the air waybill, he shall be deemed, subject   to proof to the contrary, to have done so on behalf of   the consignor.

10. (1)  The  consignor  is  responsible  for  the  correctness of the particulars and statements relating   to the cargo which he inserts in the air waybill.

(2) The consignor shall indemnify the carrier against   all damage suffered by him, or by any other person to   whom  the  carrier  is  liable,  by  reason  of  the   irregularity,  incorrectness  or  incompletness  of  the   particulars  and  statements  furnished  by  the  consignor.”

12.   (1) Subject to his liability to carry out all his   obligations  under  the  contract  of  carriage,  the  consignor  has  the  right  to  dispose  of  the  cargo  by   withdrawing  it  at  the  aerodrome  of  departure  or   destination,  or  by  stopping  it  in  the  course  of  the   journey  on  any  landing,  or  by  calling  for  it  to  be   delivered at the place of destination or in the course of   the  journey  to  a  person  other  than  the  consignee  named  in  the  air  waybill,  or  by  requiring  it  to  be   returned to the aerodrome of departure.  He must not   exercise this right of disposition in such a way as to   prejudice the carrier or other consignors and he must   repay any expenses occasioned by the exercise of this   right.

(2) If it is impossible to carry out the orders of the   consignor the carrier must so inform him forthwith.

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(3) If the carrier obeys the orders of the consignor   for the disposition of the cargo without requiring the   production of the part of the air waybill delivered to   the latter, he will be liable, without prejudice to his   right of recovery from the consignor, for any damage  which may be caused thereby to any person who is   lawfully in possession of that part of the air waybill.

(4) The right conferred on the consignor ceases at   the  moment  when  that  of  the  consignee  begins  in  accordance  with  rule  13.   Nevertheless,  if  the   consignee declines to accept the waybill or the cargo,   or if he cannot be communicated with, the consignor   resumes his right of disposition.

13.       ...

14.      The  consignor  and  the  consignee  can  respectively  enforce  all  the  rights  given to  them by   rules 12 and 13, each in his own name, whether he is   acting  in  his  sown  interest  or  in  the  interest  of   another, provided that he carries out the obligations  imposed by the contract.

15.  (1) Rules 12, 13 and 14 do not affect either the   relations of the consignor or the consignee with each  other or the mutual relations of third parties whose   rights are derived either from the consignor or from  the consignee.    

(2) The provisions of rules 12, 13 and 14 can only  be varied by express provision in the air waybill.

(3) Nothing in these rules prevents the issue of a   negotiable air waybill.

16.   (1) The  consignor  must  furnish  such  information  and  attach  to  the  air  waybill  such  documents as are necessary to meet the formalities of   customs,  octroi  or  police  before  the  cargo  can  be   delivered to the consignee.  The consignor is liable to  

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the  carrier  for  any  damage  occasioned  by  the   absence,  insufficiency  or  irregularity  of  any  such  information or documents, unless the damage is due to   the fault of the carrier or his servants or agents.

(2) The carrier  is under no obligation to enquire   into the correctness or sufficiency of such information   or documents.”

21) We also need to notice Rule 17, 18, 20, 29, 30 and 33 of Chapter III  

and V of the Second Schedule.  These are :

“17. The carrier is liable for damage sustained in   the event of the death or wounding of a passenger   or any other bodily injury suffered by a passenger if   the accident which caused the damage so sustained  took place on board the aircraft or in the course of   any  of  the  operations  of  embarking  or  disembarking.

18. (1) The carrier is liable for damage sustained in  the event of the destruction or loss of, or of damage   to,  any  registered  baggage  or  any  cargo,  if  the   occurrence which caused the damage so sustained   took place during the carriage by air.

(2) The carriage by air within the meaning of the   preceding  sub-rule  comprises  the  period  during  which  the  baggage  or  cargo  is  in  charge  of  the  carrier,  whether in an aerodrome or on board an  aircraft,  or  in  the  case  of  a  landing  outside  an   aerodrome, in any place whatsoever.

(3) The period of the carriage by air does not extend  to  any  carriage  by  land,  by  sea  or  by  river  performed outside an aerodrome. If, however, such   a  carriage  takes  place  in  the  performance  of  a  contract  for  carriage  by  air  for  the  purpose  of   loading delivery or transshipment,  any damage is   

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presumed, subject to proof to the contrary, to have  been the result of an event which took place during  the carriage by air.

20.  The carrier is not liable if he proves that he and   his  servants  or  agents  have  taken  all  necessary   measures  to  avoid  the  damage  or  that  it  was   impossible for him or them to take such measures.

29. (1) An action for damages must be brought, at   the option of the plaintiff, in the territory of one of   the  High  Contracting  Parties,  either  before  the   Court  having  jurisdiction  where  the  carrier  is   ordinarily  resident,  or  has  his  principal  place  of   business,  or  has  an  establishment  by  which  the   contract has been made or before the Court having  jurisdiction at the place of destination.

(2) Questions of procedure shall be governed by the  law of the Court seized of the case.

30. (1) The right to damages shall be extinguished if   an action is not brought within two years, reckoned   from the date of arrival at the destination, or from  the date on which the aircraft ought to have arrived,   or from the date on which the carriage stopped.

(2)  The  method  of  calculating  the  period  of   limitation  shall  be  determined  by  the  law  of  the   Court seized of the case.

33. Any  clause  contained  in  the  contract  and  all   special agreements entered into before the damage  occurred by which the parties  purport  to infringe  the  rules  laid  down by  this  Schedule,  whether  by  deciding the law to be applied, or by altering the   rules  as  to  jurisdiction,  shall  be  null  and  void.   Nevertheless for the carriage of  cargo arbitration  clauses  are  allowed,  subject  to  these rules,  if  the   arbitration  is  to  take  place  within  one  of  the  jurisdictions referred to in sub-rule (1) of rule 29.”

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22) The CP Act aims to protect the interests of the consumers and provide  

for speedy resolutions of their disputes with regard to defective goods  

or deficiency of service.  The Statement of Objects and Reasons of the  

CP Act are as under:

“The Consumer Protection Bill,  1986 seeks to provide  for better protection of the interests of consumers and for   the purpose, to make provision for the establishment of   Consumer  councils  and  other  authorities  for  the   settlement  of  consumer  disputes  and  for  matter   connected therewith.  

2. It seeks, inter alia, to promote and protect the rights of   consumers such as –  

(a)  the  right  to  be  protected  against  marketing  of   goods which are hazardous to life and property;

(b)  the  right  to  be  informed  about  the  quality,   quantity,  potency,  purity,  standard  and  price  of   goods to protect the consumer against unfair trade   practices;

(c) the right to be assured, wherever possible, access  to an authority of goods at competitive prices;

(d)  the  right  to  be  heard  and  to  be  assured  that   consumers interest will receive due consideration at   appropriate forums;

(e)  the right  to seek redressal  against  unfair  trade   practices  or  unscrupulous  exploitations  of   consumers; and  

(f) right to consumer education.

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3. These objects are sought to be promoted and protected   by the Consumer Protection Council to be established at   the Central and State level.

4. To provide speedy and simple redressal to consumer   disputes, a quasi-judicial machinery is sought to be set   up at the district, State and Central levels. These quasi- judicial  bodies  will  observe  the  principles  of  natural   justice  and  have  been  empowered  to  give  relief  of  a   specific  nature  and  to  award,  wherever  appropriate,   compensation  to  consumers.  Penalties  for  non- compliance  of  the  orders  given  by  the  quasi-judicial   bodies have also been provided.  

5. The Bills seeks to achieve the above objects.”

23) The relevant provisions of the CP Act that are required to be noticed  

for resolving the issues before us are Sections 3 and 21.  They are as  

under:

“3.  Act  not  in  derogation  of  any  other  laws.  –  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.  

……

21. Jurisdiction of the National Commission. – Subject to   the other provisions of this 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 one crore; and  

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(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  a  jurisdiction  not   vested in it by law, or has failed to exercise a   jurisdiction  so  vested,  or  has  acted  in  the   exercise  of  its  jurisdiction  illegally  or  with   material irregularity.”

It  is  to  be  noted  that  at  the  relevant  time,  the  pecuniary  

jurisdiction was twenty lakh rupees for the National Commission.

Jurisdiction of the National Commission

24) It was rightly argued by learned counsel Sri Vinoo Bhagat that the  

primary  question  that  arises  for  our  consideration in  this  appeal  is  

whether  the  CA  Act  and  the  three  international  conventions  in  it  

constitute all the law governing liabilities of international air carriers  

arising out of international carriage of passengers and goods by air or  

whether domestic law can be added or substituted for the provisions  

of  the  conventions.   In  a  nutshell,  the  submission  of  the  learned  

counsel  for  the  appellant-carrier  is  that  conventions,  viz.  Warsaw  

Convention,  as  amended  at  Hague  in  1955  and  the  Montreal  

Convention  of  1999  exclusively  govern  carrier  liabilities  and,  

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therefore,  a  remedy  under  domestic  law  cannot  be  invoked.  

 The frame work for the CP Act was provided by a Resolution  

dated  09.04.1985  of  the  General  Assembly  of  the  United  Nations  

Organization,  which  is  commonly  known  as  Consumer  Protection  

Resolution No.39/248.   India is  a signatory to the said Resolution.  

The Act was enacted in view of the aforementioned Resolution of the  

General Assembly of the United Nations.  The preamble to the Act  

suggests that it is to provide better protection for the consumers and  

their  interests.   By this  Act,  the  Legislature  has  constituted  quasi-

judicial  Tribunals/Commissions  as  an  alternative  system  of  

adjudicating consumer disputes.   

Section  3  of  the  CP  Act  gives  an  additional  remedy  for  

deficiency of service and that remedy is not in derogation of any other  

remedy under any other law.   

25) In  Proprietor, Jabalpur Tractors vs. Sedmal Jainrain and Anr.  1995  

Supp. (4) SCC 107, it is held:

      “The Consumer Protection Act is not in derogation of any law.”

26) In Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi (1996) 6 SCC  

385, it is held:

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 “15. Accordingly, it must be held that the provisions   

of the Act are to be construed widely to give effect   to  the  object  and  purpose  of  the  Act.  It  is  seen  that   Section 3 envisages that the provisions of the Act are in   addition to and are not in derogation of any other law in  force. It is true, as rightly contended by Shri Suri, that   the words “in derogation of the provisions of any other  law for the time being in force”  would  be  given  proper  meaning and effect and if the complaint  is  not  stayed  and the parties are not relegated to the arbitration, the   Act purports to operate in derogation of the provisions  of  the  Arbitration  Act.  Prima  facie,  the  contention  appears  to  be  plausible  but  on  construction  and  conspectus of the provisions of the Act  we  think  that   the  contention  is  not  well  founded.  Parliament  is   

aware of the provisions of the Arbitration Act   and  the  Contract  Act,  1872  and  the  consequential   remedy available under Section 9 of the Code of Civil   Procedure, i.e., to avail  of  right  of  civil  action  in  a   competent court of civil jurisdiction. Nonetheless, the Act   provides the additional remedy.”

27) In  State  of  Karnataka  vs.  Vishwa  Bharathi  House  Building  Co-

operative Society and Others (2003) 2 SCC 412, a three Judge Bench  

of this Court observed:

“16. ...in asmuch as the provisions of the said Act are in  addition to the provisions of any  other law for  the time  

being in force and not in derogation thereof as is   evident from Section 3 thereof.”

28) In the case of Secy., Thirumurugan Coop. Agricultural Credit Society   

v. Ma. Lalitha, (2004) 1 SCC 305, this Court took the view:

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“12. As per Section 3 of the Act,  as already stated   above, the provisions of the Act shall be in addition to  and not in derogation of any other provisions of any   other law for the time being in force. Having due regard  to the scheme of the Act and purpose sought  to  be  achieved to protect the interest of the consumers better,   the provisions are to be interpreted broadly, positively   and purposefully  in the context of the present case to  give meaning to additional/extended  jurisdiction,   particularly  when  Section  3  seeks  to  provide  remedy  under the Act in addition to other remedies provided  under other Acts unless there is a clear bar.”

29) This Court, in the case of Kishore Lal v. Chairman, Employees’ State   

Insurance Corpn. (2007) 4 SCC 579, took the view:

“7. The  definition of  “consumer”  in  the  CP  Act  is   apparently wide enough and encompasses within its fold   not only the goods but also the services, bought or hired,   for consideration. Such consideration may be paid  or promised or partly paid or partly promised under  any  system  of  deferredpayment  and  includes  any   beneficiary  of  such  person other  than the  person who  hires  the  service  for  consideration.  The  Act  being  a  beneficial legislation, aims to protect the interests of a   consumer as understood in the business parlance.  The  important  characteristics  of  goods  and  services  under  the Act are that they are supplied at a price to cover the   costs  and  generate  profit  or  income  for  the  seller  of   goods  or  provider  of  services.  The  comprehensive   definition aims at covering every man who pays money   as the price or cost of goods and services. However, by   virtue of the definition, the person who obtains goods for   resale or for any commercial  purpose is excluded, but   

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the services hired for consideration even for commercial   purposes  are  not  excluded.  The  term  “service”  unambiguously indicates in the definition  that  the  definition is not restrictive and includes within its ambit   such  services  as  well  which  are  specified  therein.   However, a service hired or availed, which does not cost   anything or can be  said  free  of  charge,  or  under  a   contract of personal service, is not included within the   meaning of “service” for the purposes of the CP Act.”

30) In Skypak Couriers Ltd. v. Tata Chemicals Ltd., (2000) 5 SCC  

294, this Court observed:

“2. With the industrial revolution and development in the   international  trade  and  commerce,  there  has  been  a  substantial  increase  of  business  and  trade,  which   resulted in a variety of consumer goods appearing in the  market  to  cater  to  the  needs  of  the  consumers.  The   modern methods of advertisement in media, influence the   mind  of  the  consumers  and  notwithstanding  the   manufacturing  defect  or  imperfection  in  the  quality,  a  consumer is tempted to purchase the goods. There has   been possibility  of  deficiency  in the  services  rendered.   For  the  welfare  of  such  consumer  and  to  protect  the   consumers from the exploitation to provide protection of   the  interest  of  the  consumers,  Parliament  enacted  the   Consumer  Protection  Act,  and  the  Act  itself  makes   provision  for  the  establishment  of  Commissions  for   settlement  of  the  consumer  disputes  and  matters   connected  therewith.  The Commissions,  under  the  Act,   are  quasi-judicial  bodies  and  they  are  supposed  to  provide  speedy  and  simple  redressal  to  consumer   disputes and for that purpose, they have been empowered   to give relief of a specified nature and in an appropriate   way, to award compensation…”

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31). This  Court  in  the  case  of  Patel  Roadways  Limited  v.  Birla   

Yamaha Ltd., (2000) 4 SCC 91, has considered this question and has  

laid down that the Disputes Redressal Agency provided for in the Act  

will have the jurisdiction to entertain complaints in which the claim  

for loss or damage of goods entrusted to a carrier for transportation is  

in dispute.

32). In  our  view,  the  protection  provided  under  the  CP  Act  to  

consumers is  in addition to the remedies available under any other  

Statute.  It does not extinguish the remedies under another Statute but  

provides an additional or alternative remedy.  In the instant case, at  

the relevant point of time, the value of the subject matter was more  

than  `20  lakhs,  by  which  the  National  Commission  is  conferred  

jurisdiction for any cause of action that arises under the Act. Further,  

we are not inclined to agree with the argument of Shri. Bhagat that  

exercising of jurisdiction was in contravention of International Law,  

as  the  Warsaw  Convention  and  the  Hague  Protocol  have  been  

incorporated into  the domestic law by the passage of  the  CA Act.  

Therefore,  we  do  not  find  any  legal  infirmity  in  the  National  

Commission exercising its jurisdiction, as the same can be considered  

a  Court  within  the  territory  of  a  High  Contracting  Party  for  the  

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purpose of Rule 29 of the Second Schedule to the CA Act and the  

Warsaw  Convention.   Before  we  conclude  on  this  issue,  we  may  

usefully notice a three Judge Bench decision of this Court in the case  

of  Ethiopian  Airlines vs.  Ganesh  Narain  Saboo (Civil  Appeal   

No.7037 of 2004) which view is binding on us.  It is held:

“67.    Similarly,  the  Carriage  by  Air  Act,  1972   explicitly  provides  that  its  rules  apply  to  carriage  performed by the State or by legally constituted public   bodies  under  Chapter  1,  Section  2,  Sub-section  1.   Thus,  it  is  clear  that  according  to  the  Indian  Law,   Ethiopian Airlines can be subjected to suit under the   Carriage Act,  1972.   It  may be pertinent  to mention  that the Carriage by Air Act, 1972 (69 of 1972) is an   Act to give effect to the Convention for the unification   of  certain rules relating to international  carriage by  air signed at Warsaw on the 12th day of October, 1929  and to the said Convention as amended by the Hague  Protocol  on the  28th day of  September,  1955 and to  make provision for applying the rules contained in the   said  Convention  in  its  original  form  and  in  the   amended form (subject to exceptions, adaptations and  modification) to non-international carriage by air and  for matters connected therewith.”

33). However,  Shri.  Vinoo Bhagat,  learned counsel  appearing for  

the appellant-carrier has placed reliance on the decisions of foreign  

courts to contend conventions exclusively govern carriers’ liabilities.  

We do not wish to refer to all those decisions, since in our view, this  

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issue is no more res integra in view of the decisions of this Court in  

Ethiopian Airlines, wherein this Court has observed:

“72. On careful analysis of the American, English and  Indian cases,  it  is  abundantly  clear  that  the  appellant   Ethiopian  Airlines  must  be  held  accountable  for  the   contractual  and  commercial  activities  and  obligations   that it undertakes in India.

73. It may be pertinent to mention that the Parliament   has   recognized  this  fact  while  passing  the  Consumer  Protection Act, 1986 and the Carriage by Air Act, 1972.   Section 86 was itself,  a modification and restriction of   the principle of foreign sovereign immunity and thus, by  limiting  Section  86’s  applicability,  the  Parliament   though these incorrect acts, further narrowed a party’s   ability to successfully plead foreign sovereign immunity.   In the modern era, where there is close interconnection  between  different  countries  as  far  as  trade,  commerce   and business are concerned, the principle of sovereign   immunity can no longer be absolute in the way that it   much earlier was.  Countries who participated in trade,   commerce and business with different countries ought to   be subjected to normal rules of the market.  State owned   entities would be able to operate with impunity, the rule   of  law  would  be  degraded  and  international  trade,   commerce  and  business  will  come  to  a  grinding  halt.   Therefore,  we  have  no  hesitation  in  coming  to  the   conclusion  that  the  appellant  cannot  claim  sovereign   immunity.”

National Commission is a ‘Court’?

34) Shri. Bhagat has cited several decisions of this Court in which  

this Court has taken the view that Consumer Forums are not Courts  

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but are quasi-judicial bodies or authorities or agencies, in furtherance  

of his contention that only a Court in Mumbai has the jurisdiction to  

try  a  suit  against  the  appellant-carrier  and  that  the  National  

Commission is not a Court. [See Laxmi Engineering Works v. P.S.G.   

Industrial  Institute,  (1995)  3  SCC  583;  Charan  Singh  v.  Healing  

Touch  Hospital,  (2000)  7  SCC  668;  State  of  Karnataka  v.   

Vishwabharathi House Building Coop. Society,  (2003) 2 SCC 412].  

This  position  has  been  fortified  recently  by  a  decision  of  a  

Constitution Bench of this Court in the case of  Union of India v. R.   

Gandhi, President, Madras Bar Association, (2010) 11 SCC 1, where  

this Court has observed:  

“38. The term “courts” refers to places where justice is   administered or refers  to Judges who exercise  judicial   functions.  Courts  are  established  by  the  State  for   administration  of  justice  that  is  for  exercise  of  the   judicial power of the State to maintain and uphold the  rights, to punish wrongs and to adjudicate upon disputes.   Tribunals  on  the  other  hand  are  special  alternative   institutional mechanisms, usually brought into existence   by  or  under  a  statute  to  decide  disputes  arising  with   reference  to  that  particular  statute,  or  to  determine  controversies  arising  out  of  any  administrative  law.  Courts refer to civil courts, criminal courts and the High  Courts.  Tribunals  can  be  either  private  tribunals   (Arbitral  Tribunals),  or tribunals constituted under the  Constitution  (Speaker  or  the  Chairman  acting  under   Para 6(1) of the Tenth Schedule) or tribunals authorised   by  the  Constitution  (Administrative  Tribunals  under   

33

Article  323-A  and  tribunals  for  other  matters  under   Article 323-B) or statutory tribunals which are created  under a statute (Motor Accidents Claims Tribunal, Debt  Recovery  Tribunals  and  Consumer  Fora).  Some  Tribunals  are  manned  exclusively  by  Judicial  Officers   (Rent  Tribunals,  Motor  Accidents  Claims  Tribunal,   Labour Courts and Industrial Tribunals). Other statutory   tribunals  have  judicial  and  technical  members   (Administrative  Tribunals,  TDSAT,  Competition  Appellate  Tribunal,  Consumer  Fora,  Cyber  Appellate   Tribunal, etc.)

……

45. Though both courts and tribunals exercise judicial   power and discharge similar functions, there are certain  well-recognised  differences  between  courts  and  tribunals. They are:

(i)  Courts  are  established  by  the  State  and  are  entrusted with the State's inherent judicial power for   administration  of  justice  in  general.  Tribunals  are   established  under  a  statute  to  adjudicate  upon  disputes arising under the said statute, or disputes of a   specified  nature.  Therefore,  all  courts  are tribunals.   But all tribunals are not courts.

(ii)  Courts  are  exclusively  manned  by  Judges.   Tribunals can have a Judge as the sole member, or   can have a combination of a judicial member and a  technical member who is an “expert” in the field to  which  the  tribunal  relates.  Some  highly  specialised  fact-finding  tribunals  may  have  only  technical   members, but they are rare and are exceptions.

(iii) While courts are governed by detailed statutory   procedural  rules,  in  particular  the  Code  of  Civil   Procedure  and  the  Evidence  Act,  requiring  an   elaborate  procedure  in  decision  making,  tribunals   generally regulate their own procedure applying the   provisions of the Code of Civil Procedure only where  

34

it is required, and without being restricted by the strict   rules of the Evidence Act.”

35) In the case of  Bharat Bank Ltd. v. Employees, 1950 SCR 459,  

this Court took the view that to be a court, the person or persons who  

constitute  it,  must  be  entrusted  with  judicial  functions,  that  is,  of  

deciding  litigated  questions  according  to  law.   This  Court  further  

observed that before a person or persons can be said to constitute a  

court, it must be held that they derive their powers from the State and  

are exercising the judicial powers of the State. In State of Bombay v.   

Narottamdas Jethabhai, 1951 SCR 51, this Court held that the word  

“Court”  denoted a  place where  justice  was  judicially  administered,  

having been vested the jurisdiction for this purpose by the State.  In  

the case of  Brajnandan Sinha v. Jyoti Narain, (1955) 2 SCR 955, it  

was held that in order to constitute a “Court” in the strict sense of the  

term, an essential condition is that the Court should have, apart from  

having some trappings of a judicial tribunal, power to give decision or  

a definitive judgment which has finality and authoritativeness which  

are the essential  tests  of a judicial  pronouncement.   This  Court,  in  

Ram Narain v. The Simla Banking and Industrial Co. Ltd., AIR 1956  

SC  614,  held  that  a  Tribunal  which  exercised  jurisdiction  for  

35

executing a decree would be a “court” for the purpose of the Banking  

Companies Act.  

36) While  examining  the  Contempt  of  Courts  Act,  1971,  a  

Constitution Bench of this Court in Baradakanta Mishra v. Registrar   

of Orissa High Court, (1974) 1 SCC 374, observed:

“68. What then is a court? It is

“an agency of the sovereign created by it directly or   indirectly  under  its  authority,  consisting  of  one  or  more  officers,  established  and  maintained  for  the   purposes of hearing and determining issues of law and   fact  regarding  legal  rights  and  alleged  violations   thereof,  and  of  applying  the  sanctions  of  the  law,   authorised to exercise its powers in due course of law  at times and places previously determined by lawful   authority.”  Isbill v.  Stovall, Rex. Civ. App. 92 SW 2d  1057, 1070.”…”

37) In  State of Tamil Nadu v. G.N. Venkataswamy, (1994) 5 SCC  

314, this Court observed that the primary function of a Court was to  

adjudicate  disputes,  while  holding  that  a  Collector  constitutes  a  

Revenue Court within the meaning of Entry 11-A of the List III of the  

Seventh  Schedule  of  the  Constitution.  In  Canara  Bank v.  Nuclear  

Power Corpn. of India, (1995) Supp 3 SCC 81, this Court observed:

36

“26. In our view, the word ‘court’ must be read in the   context in which it is used in a statute. It is permissible,   given the context, to read it as comprehending the courts   of  civil  judicature  and  courts  or  some  tribunals   exercising curial, or judicial powers…”

This Court also quoted, with approval, the Halsbury’s Laws of   

England and observed thus:

“29. In  Halsbury's Laws of England (4th Edn., Vol. 10,   paras 701 and 702), this is observed:

“701. Meaning of ‘court’. Originally the term ‘court’   meant, among other things, the Sovereign's palace. It   has acquired the meaning of the place where justice is   administered  and,  further,  has  come  to  mean  the  persons  who  exercise  judicial  functions  under  authority derived either directly or indirectly from the  Sovereign. All  tribunals, however,  are not courts,  in   the sense in which the term is here employed. Courts   are tribunals which exercise jurisdiction over persons  by reason of the sanction of the law, and not merely by  reason of  voluntary  submission to  their  jurisdiction.   Thus,  arbitrators,  committees  of  clubs  and  the  like,   although  they  may  be  tribunals  exercising  judicial   functions, are not ‘courts’ in this sense of that term.   On the other hand, a tribunal may be a court in the   strict sense of the term even though the chief part of its   duties is not judicial. Parliament is a court. Its duties   are  mainly  deliberative  and  legislative;  the  judicial   duties are only part of its functions. A coroner's court   is  a  true  court  although  its  essential  function  is   investigation.

702.  What is a court in law. The question is whether   the  tribunal  is  a court,  not  whether it  is  a  court  of   justice,  for there are courts which are not courts of   

37

justice. In determining whether a tribunal is a judicial   body the facts  that it  has been appointed by a non- judicial authority, that it has no power to administer   an oath, that the chairman has a casting vote, and that   third parties have power to intervene are immaterial,   especially  if  the  statute  setting  it  up  prescribes  a  penalty  for  making  false  statements;  elements  to  be  considered  are  (1)  the  requirement  for  a  public   hearing, subject to a power to exclude the public in a   proper case, and (2) a provision that a member of the   tribunal shall not take part in any decision in which he  is personally interested, or unless he has been present   throughout the proceedings.

A tribunal is not necessarily a court in the strict sense   of  exercising  judicial  power  merely  because  (1)  it   gives a final decision; (2) it hears witnesses on oath;   (3) two or more contending parties appear before it   between whom it has to decide; (4) it gives decisions   which  affect  the  rights  of  subjects;  (5)  there  is  an  appeal  to  a  court;  and (6)  it  is  a  body  to  which  a   matter is referred by another body.

Many bodies are not courts even though they have to   decide  questions,  and  in  so  doing  have  to  act   judicially,  in the sense that the proceedings must be   conducted  with  fairness  and  impartiality.  Examples   are  the  benchers  of  the  Inns  of  Court  when  considering the conduct of one of their members, the  disciplinary  committee  of  the  General  Medical   Council  when  considering  questions  affecting  the   conduct  of  a  medical  man,  a  trade  union  when   exercising  disciplinary  jurisdiction  over  its   members....”

30. These passages, from the earlier edition of Halsbury,   were cited by this Court in  Thakur Jugal Kishore Sinha  v. Sitamarhi Central Coop. Bank Ltd. The question there  was whether the provisions of  the Contempt of  Courts   Act  applied  to  a  Registrar  exercising  powers  under  Section 48 of the Bihar and Orissa Cooperative Societies   

38

Act. It was held that the jurisdiction of the ordinary civil   and revenue courts of the land was ousted in the case of   disputes  that  fell  under  Section  48.  A  Registrar   exercising  powers  under  Section  48,  therefore,   discharged the duties which would otherwise have fallen  on  the  ordinary  civil  and revenue  courts.  He  had  not   merely the trappings of a court but in many respects he   was given the same powers as were given to the ordinary   civil courts of the land by the Code of Civil Procedure,   including the power to summon and examine witnesses  on oath, the power to order inspection of documents, to   hear the parties after framing issues, to review his own   order and to exercise the inherent jurisdiction of courts   mentioned  in  Section  151.  In  adjudicating  a  dispute   under Section 48 of the Bihar Act, the Registrar was held   to be “to all intents and purposes a court discharging the   same functions and duties in the same manner as a court   of law is expected to do”.

38) The  aforesaid  observation  has  been  strongly  relied  upon  by  

Shri. Jaideep Gupta in reply to the contention of Shri. Bhagat that the  

National  Commission  was  not  a  Court,  and  therefore,  lacked  

jurisdiction to decide the complaint filed by the opposite party.  In P.  

Sarathy v. State Bank of India, 2000 (5) SCC 355, this Court took the  

view that the term “Court” in Section 14 of the Limitation Act, 1963,  

meant any authority or tribunal having the trappings of a court.  It may  

also be relevant to notice that a Constitution Bench of this Court in the  

case of Kihoto Hollohon v. Zachillhu, (1992) Supp (2) SCC 651 held  

that all Tribunals may not be Courts, but all Courts are Tribunals.  

39

39) Now  let  us  look  at  the  definition  of  the  term  “Court”  as  

commonly understood.  The Oxford Advanced Learner’s Dictionary  

[8th Edition] defines it as “the place where legal trials take place and  

where crimes, etc. are judged.” The Oxford Thesaurus of English [3rd  

Ed] gives the following synonyms: “court of law, law court, bench,  

bar,  court  of  justice,  judicature,  tribunal,  forum,  chancery,  assizes,  

courtroom”.  The  Chamber’s  Dictionary  [10th Ed.]  has  described  a  

court as “a body of person assembled to decide causes”.  In Stroud’s  

Judicial Dictionary [5th Ed], the word “court” has been described as  

“a place where justice is judicially ministered, and is derived”, and is  

further  observed,  “but such a matter involves  a judicial  act  which   

may be brought up on certiorari”.  

40) The above dictionary meaning and decision of this Court in the  

case  of  Canara  Bank  (Supra.)  and  also  the  observations  of  the  

Constitution Bench decision of this Court in the case of  R. Gandhi  

(Supra.) reveal that word “Court” must be understood in the context  

of  a  body that  is  constituted in order  to  settle  disputes and decide  

rights and liabilities of the parties before it.  “Courts” are those bodies  

that bring about resolutions to disputes between persons. As already  

mentioned, this Court has held that the Tribunal and Commissions do  

40

not fall under the definition of “Court”. However, in some situations,  

the word “Court” may be used in a wide, generic sense and not in a  

narrow and pedantic sense, and must,  in those cases, be interpreted  

thus.

41) In State of Karnataka v. Vishwabharathi House Building Coop.  

Society,  (2003) 2 SCC 412, this Court took the view that there is a  

legal fiction created in giving tribunals like the Consumer Forum the  

powers of a Court.  It was held:

“57. A bare perusal of Section 25 of the Act clearly   shows that thereby a legal  fiction  has  been  created  to the effect that an order made by District Forum/State   Commission or National Commission will be deemed to   be a decree  or order  made by a civil  court  in  a  suit.   Legal fiction so created has a specific purpose i.e. for the   purpose of execution of the order passed by the Forum  or Commission. Only in the  event  the  Forum/State   Commission or the National Commission is unable  to  execute its order, the same may be sent to the civil court   for its execution. The High Court, therefore was not   correct to hold that in  each  and  every  case  the   order  passed  by  the  District  Forum/State   Commission/National  Commission  are  required  to  be  sent to the civil courts for execution thereof.  

58. Furthermore, Section 27 of the Act also confers   an additional power  upon  the  Forum  and  the   Commission to execute its order. The said  provision  is   akin to Order 39 Rule 2-A of the Code of Civil Procedure   or  the  provisions  of  the  Contempt  of  Courts  Act  or   

41

Section 51 read with Order 21 Rule 37 of the Code of   Civil Procedure. Section  25  should  be  read  in   conjunction with Section 27. A parliamentary  statute   indisputably  can create  a  tribunal  and might  say  that   non-compliance with its  order would be punishable by   way of imprisonment or fine, which can be in addition to  any other mode of recovery.”

42) The use of the word “Court” in Rule 29 of the Second Schedule  

of the CA Act has been borrowed from the Warsaw Convention. We  

are of the view that the word “Court” has not been used in the strict  

sense in the Convention as has come to be in our procedural law. The  

word “Court” has been employed to mean a body that adjudicates a  

dispute arising under the provisions of the CP Act. The CP Act gives  

the  District  Forums,  State  Forums  and  National  Commission  the  

power to decide disputes of consumers. The jurisdiction, the power  

and procedure of these Forums are all clearly enumerated by the CP  

Act. Though, these Forums decide matters after following a summary  

procedure, their main function is still to decide disputes, which is the  

main function and purpose of a Court. We are of the view that for the  

purpose of the CA Act and the Warsaw Convention, the Consumer  

Forums can fall within the meaning of the expression “Court”.  

42

43) This view of ours is fortified by the decision of this Court in the  

case of Patel Roadways Ltd. (supra) where this Court has held that a  

complaint before the Consumer Forum is within the meaning of the  

term “suit” as employed by Section 9 of the Carriers Act, 1865.  In  

other words, we are of the view that when it comes to legislations like  

the  CP Act,  there  can be no restricted meaning  given to  the word  

“Court”.   Hence,  we  reject  the  argument  of  Shri.  Bhagat  that  the  

National Commission is not a “Court” within the meaning of Rule 29  

of the Second Schedule of the CA Act.  

Deficiency of Service

44) Shri.  Vinoo  Bhagat,  learned  counsel  appearing  for  the  

appellant-carrier,  would  contend  that  there  was  no  deficiency  of  

service on the part  of the appellants.   He would point  out that the  

appellant-carrier  had delivered  the  consignment  to  the  address  that  

was given by the consignor in the box with the title  “Consignee’s  

Name and Address”. He would further state that the only party in the  

consignee box with a name and an address was that  of M/s.  Liwe  

Espanola  S.A.   He  would  assail  the  findings  of  the  National  

43

Commission that there was a deficiency of service on the part of the  

appellant-carrier  for  not  having  delivered  the  consignment  at  the  

correct address, and state that “BBSAE, MADRID, SPAIN” was not  

identifiable address to which any delivery of goods could be made.  

He would also state that  there was no way of  finding out  that  the  

consignment was to be made to a Bank.   Shri.   Bhagat  would lay  

emphasis on the fact that it was the duty of the consignor to place the  

correct  address  and  particulars  while  making  the  airway  bill,  by  

placing reliance on the Air Cargo Tariff Rules framed and notified by  

IATA.  He states that the entire responsibility for the correct address  

of the consignee falls upon the consignor and there is no obligation on  

the part of the carrier or shipper to ensure that the address is correct.  

The carrier, Shri. Bhagat would submit, is only responsible to ensure  

the contents  of  the consignment  and not  the addressee.   He would  

further submit that it would not be practical for the carrier to check the  

authenticity of the address in the consignee box for each and every  

consignment and that they would only check if there is an address or  

not.

45) The learned counsel, Shri. Bhagat would also contend that the  

consigner did not invoke the rights under the Warsaw Convention for  

44

the  non-arrival  of  goods  in  a  timely  manner  and  as  a  result,  was  

disentitled to later complaining about the lost consignment.  He would  

then refer to Clause 12 of the airway bill and state that if the notice  

was not given by the consignor within a period of 120 days, then the  

claim would get extinguished. He would further contend that neither  

the  consignee  nor  the  consignor  invoked their  rights  under  Article  

13(3)  and  Article  14  at  any  time.   This  fact  sufficiently  proves,  

according to the learned counsel, that the claim made is not genuine.

46) Before the National Commission, appellant-carrier had filed the  

affidavit of Mr. Daulat Kripalani, who was working as Manager of the  

appellant-carrier  in  India.   In  the  affidavit,  it  is  stated  that  the  

consignor  must  provide  all  the  information  of  the  consignee  and  

further, the consignor did not give the address of the consignee even  

when it  is asked for and it was also not informed to them that the  

goods must be released after obtaining appropriate credit.   It  is the  

responsibility of the consignor to give full particulars of the consignee  

as provided in IATA Regulations.  It is also stated that Barclays Bank  

has several offices in Madrid and the Bank did not receive any letters  

of credit (L/C) from Canara Bank, Bangalore.  It is also stated that  

L/C was not attached to the airway bill and, therefore, there was no  

45

way of finding out that the consignment was addressed to the Bank.  It  

is also stated that if the name and address of the Bank was not given  

in full, the custom authorities would not have released the goods.  He  

also states  that  there was delay in approaching the air  carrier  after  

shipment of the goods, which would disentitle them from making any  

claim.   

47) The appellant has also filed the affidavit of Khaled El Tameer,  

Asstt.  Vice President,  Insurance claims,  who has also stated in the  

same lines on that of Mr. Daulat Kripalani.  In his cross-examination,  

he has stated that it is the responsibility of the agent of the consignor  

to furnish all required documents and they would accept the Airway  

bill on the basis of the documents furnished by the agent.   

48) The cargo agent/respondent No.2 has filed the affidavit of Mr.  

Anil Vazirani, who is the partner of the firm.  He has stated that the  

airway bills are prepared as per the instructions of the consignor and  

the abbreviations used in the airway bills are universally known and in  

the dispute between the appellant-carrier and the consignor, it has no  

role  to  play  and they  are  also  not  liable  for  any  damages  for  any  

deficiency of service.

46

49) Mr. Rajendra Hinduja – partner of the consignor, has filed his  

affidavit.  He has stated in his affidavit that the address of BBSAE has  

been given to notify the party, who is the consignee.  The same stands  

for Barclays Bank, Madrid.  It is also stated that since they did not  

receive  the  value  of  the  consignment,  they  had  made  several  oral  

enquires with the appellant-carrier and since they did not get positive  

response, they made written correspondence in the year 1993.

50) All  the  witnesses,  who  had  filed  their  affidavit  by  way  of  

examination-in-chief,  have  been  cross  examined  by  the  contesting  

parties.

51) The learned counsel Sri Vinoo Bhagat would contend that in  

the airway bill, the consignor had indicated the name of the consignee  

as M/s. LIWE ESPANOLA in the consignee box and, therefore, the  

consignor could not have expected the carrier to have delivered the  

consignment to BBSAE, Madrid, Spain.  The airway bill is one of the  

documents produced along with the Memorandum of civil appeal.  A  

perusal of the same would show that the agent of the consignor in the  

consignee’s box specifically mentions the name of the consignee as  

BBSAE, Madrid and immediately thereafter, the name of M/s LIWE  

47

ESPANOLA  is  mentioned.   It  has  come  in  the  evidence  of  the  

consignor  and  his  agent  that  BBSAE,  Madrid  is  Barclays  Bank,  

Madrid and ‘SAE’ is  a Spanish abbreviation  for incorporation  like  

‘limited’.  Therefore, the consignee is only Barclays Bank, Madrid.  It  

is the stand of the appellant-carrier that BBSAE, Madrid is not the  

consignee and further, it was the responsibility of the consignor and  

his agent to have furnished the correct and accurate particulars of the  

consignee and since the name of M/s. LIWE ESPANOLA also finds a  

place  in  the  consignee  box,  the  consignment  is  delivered  to  the  

notified  party  and,  therefore,  it  cannot  be  said  that  there  was  

deficiency of service.  We cannot agree.  The consignor, through his  

agent,  has stated that  in the  airway bill  that  is  handed over to the  

appellant-carrier, in the consignee box, the name of BBSAE, Madrid  

is specifically mentioned.  If, for any reason, the appellant-carrier was  

of the view that the name of the consignee is not forthcoming or if the  

particulars furnished were insufficient for effecting the delivery of the  

consignment, it was expected from the appellant-carrier to have made  

enquiries.   In  our  view,  at  this  belated  stage,  the  appellant-carrier  

cannot shift the burden by contending that it was expected from the  

consignor  and  his  agent  to  have  furnished  the  correct  and  proper  

48

particulars of the consignee in the airway bill.  The appellant is an air  

line carrier of high repute and they effect transportation of goods to  

various parts of the world including Spain and, therefore, it can safely  

be  presumed that  the  carriers  were  fully  aware  of  the  consignee’s  

name, which was indicated in the consignee’s box and they should  

have notified the notified party immediately after the arrival  of the  

consignment.  Since, that has not been done, the National Commission  

was justified in holding that there is deficiency of service on the part  

of the carrier in not effecting the delivery of goods to the consignee.

52) Learned counsel for the appellant-carrier has contended that by  

virtue of Articles 6, 10 and 16 of the Rules, the consignor is required  

to make the airway bill and they are only responsible for correctness  

of the airway bill and consequences of errors in it and the carrier is not  

required  to  check  correctness  of  consignors  documents.   We have  

already  noticed  the  relevant  rules.   Repetition  of  it  may  not  be  

necessary.  Rule 6 of the Rules envisages that the airway bill requires  

to be made by the consignor and handed over the same to the carrier  

with the cargo.  Rule 10 stipulates that the consignor is responsible for  

the correctness of the particulars and statements relating to the cargo  

which  he  inserts  in  the  airway  bill.   Sub-clause  (2)  of  Article  10  

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provides  that  the  consignor  shall  indemnify  the  carrier  against  all  

damages suffered by him or to any other person to whom the carrier is  

liable, by reason of the irregularity, incorrectness or incompleteness of  

the particulars and statements furnished by the consignor.  Rule 16  

provides  that  the  consignor  should  furnish  all  the  information  and  

attach it to the airway bill to meet the requirements of law enforcing  

agencies.   In the present  case,  as  we have already noticed that  the  

consignor had furnished all the relevant information in the airway bill  

which would satisfy the requirements of both Rule 6 and 16 of the  

rules and, therefore, the consignor cannot be accused of not furnishing  

the  correct  particulars  and  information  in  the  airway  bill  which  is  

handed over to the appellant-carrier with the cargo.  In our view, the  

appellant-carrier cannot absolve its responsibilities by contending that  

it would be practically impossible to verify the correctness of all the  

airway  bills  which  are  furnished  with  the  cargo.   The  appellant’s  

contention that the name and address of the consignee was inadequate  

is  difficult  to  accept.   There  is  evidence  on  record  to  show  that  

documents supporting the letter of credit was sent by the consignors  

using the self same name and address and there was no difficulty in  

the same being delivered to the consignee bank.   

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53) The learned counsel also submits that the consignor, having not  

invoked Article 14 of the Rules within a reasonable time, is disentitled  

to  make  any  complaints  before  any  forum,  much  less  National  

Commission.  We are not impressed with the arguments canvassed.  

Rule 14 confers the right on the consignor to make complaint to the  

carrier  if  the  consignment  has  not  reached  its  destination  qua  the  

consignee.   In  the  evidence  of  the  consignor,  it  is  elicited  that  

necessary  oral  enquiries  were  made  with  the  carrier  within  a  

reasonable time, when the consignor did not receive the value of the  

goods from the consignee and since it did not receive any reasonable  

explanation,  it  had  no other  alternative  but  to  correspond with  the  

appellant-carrier by written correspondence.  Though, the witnesses of  

the  consignor  are  cross  examined  by  the  appellant-carrier,  nothing  

worthwhile  is  elicited.   Therefore,  in  the  absence  of  any  contrary  

evidence, the statement made by the consignor and its witness require  

to be accepted.

54) It is also contended that Clause 12 of the Conditions of Contract  

printed on the reverse of airway bill requires that the person entitled to  

delivery must make a complaint to the carrier in writing in the case of  

non delivery of the goods within 120 days from the date of the issue  

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of the airway bill.  If not done within the time stipulated, claim, if any,  

against  the  carrier  extinguishes.   Per  contra,  Shri  Jaideep  Gupta,  

learned senior counsel, submits that under CP Act, the cause of action  

does not depend on any notice in writing being served on the carrier  

unlike  in  certain  other  Statutes.   While  considering  this  issue,  the  

National Commission, in the impugned Judgment, has concluded:  

“In  our  view,  this  submission  cannot  be  accepted.  Firstly, Clause (12) only provides that   the  persons  entitled  to  delivery  must  make  a  complaint to the carrier in writing, in case of non- delivery  of  the  goods  within  120  days  from the  date of issue of airway bill. There is no question of   delivery  of  goods  to  the  shipper/Complainant.   Further, it cannot control the period of limitation  provided under ‘the Act’.  Rule 29(2), upon which  heavy reliance was placed by the Respondent, also  nowhere provides that it should be filed within 120  days.  On  the  contrary,  Rule  29(2)  specifically   provides  that  questions  of  procedure  shall  be  governed  by  the  law  of  the  Court  seized  of  the  case.

In addition, Rule 30 of the second Schedule  leaves no doubt that the right to damages shall be   extinguished  only  if  the  action  is  not  brought   within two years as provided therein. It reads thus:

“30(1). The right to damages shall be  extinguished  if  an  action  is  not   brought  within  two  years,  reckoned  from  the  date  of  arrival  at  the  destination, or from the date on which   

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the aircraft ought to have arrived, or   from the date on which the carriage  stopped. (2)  The  method  of  calculating  the   period  of  limitation  shall  be  determined  by  the  law of  the  Court   seized of the case.”

The Complainant entrusted the goods to the   carrier  on  25th August,  1992  and  the  goods  reached  Madrid  on  3rd September,  1992.   Admittedly, the complaint is filed within a period   of 2 years.

Further,  Rule  33  which  is  quoted  above,   upon  which  heavy  reliance  was  placed  by  the   learned  Counsel  Mr.  Bhagat  for  Opposite  Party   No.1,  in  contending that  this  Commission would  have  no  jurisdiction  to  decide  the  matter,   specifically provides that any clause contained in   the  contract  entered  into  before  the  damage  occurred by which the parties purport to infringe  the rules laid down by the schedule,  whether by   deciding the law to be applied, or by altering the   rules as to the jurisdiction, shall be null and void’.

Hence, Clause 12 of the airway bill would   not be of any ground for holding that petition filed   by the Complainant is barred by period limitation  (sic.).”

55) We are in total agreement with the conclusion reached by the  

National  Commission.   Therefore,  we do not  see  any merit  in  the  

contention canvassed by the learned counsel for the appellant-carrier.   

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56) We conclude that the National Commission has jurisdiction to  

decide the dispute between the parties and it is a Court and that there  

was deficiency in service by the appellant-carrier.   

57) In view of the above discussion, we do not see any merit in this  

appeal.  Accordingly, it is dismissed.  Parties are directed to bear their  

own costs.   

………………………J.                                                                                      [G.S. SINGHVI ]

                                                                       ………………………J.                                                                                       [H.L. DATTU ] New Delhi,  September 15, 2011.  

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