M/S. NAGPUR GOLDEN TRANSPORT COMPANY (REGD.)versusM/S. NATH TRADERS & ORS.

                [2011] 13 {ADDL.) S.C.R. 481


    MIS. NAGPUR GOLDEN TRANSPORT COMPANY                          A
                    {REGO.)
                              v.
               MIS. NATH TRADERS & ORS.
              {Civil Appeal No. 3546 of 2006)
                                                                  B
                   DECEMBER, 07, 2011

        [P. SATHASIVAM AND A.K. PATNAIK, JJ.]

     CONSUMER PROTECTION ACT, 1986:
                                                                  c
     Restitution - Complaint against the carrier company for
the goods damaged in transit - District forum holding the
carrier company liable to the consignees for negligence -
Held: If the amount determined by District Forum covered the
price of damaged goods and the carrier had returned the said      0
goods to the consigner and the latter having received the
price of said consignment from the consignees, also retained
the consignment or disposed it of but has not paid the realized
amount to the carrier, the consigner would stand unjustly
enriched - Matter remitted to District Forum to order the         E
consigner to return the damaged goods or its value to the
carrier - Unjust enrichment.

     Respondent No.3 booked a consignment of
monoblock pumps with the appellant for transportation
from Coimbatore to respondents No.1 and 2 at Gwalior. F
The truck transporting the consignment met with an
accident and the monoblock pumps were damaged.
Respondents No.1 and 2, therefore, did not take delivery
of 198 damaged monoblock pumps. The appellant
returned the said articles to respondent No.3. G
Respondents No.1 and 2 filed a complaint before the
District Consumer Disputes Redressal Forum, stating that
they had paid the price of the consignment to respondent
No.3 and were entitled to the same, along with damages.
                            481                          H
   482    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A The District Forum, held that the appellant as a common
  carrier was the insurer of the goods in transit and as the
  goods were damaged, the appellant was liable to
  respondents No.1 and 2 for negligence. It awarded a sum
  of Rs.3,60,131/- along with interest@ 18% per annum
B from 01.04.1997 till the date of payment. On appeal, the
  State Commission, maintained the award but reduced the
  interest to 12%, payable from the date of filing of the
  complaint (2.3.1998) till the date of payment. The revision
  filed by the appellant was dismissed by the National
c Commission.
         Partly allowing the appeal, the Court

       HELD: 1.1 If the amount directed by the District
  Forum to be paid by the appellant to respondents No.1
D and 2 covered the price of the monoblock pumps and this
  price of the monoblock pumps had also been received
  by respondent No.3 from respondents No.1 and 2, the
  appellant was entitled to the return of the damaged 198
  monoblock pumps from respondent No.3, and in case the
E latter has disposed of the articles in the meanwhile, the
  appellant was entitled to the value thereof realized by
  respondent No.3; otherwise, respondent No.3 would
  stand unjustly enriched. [Para 8] [486-8-D]

      Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe
F Barbour Ltd. (1942) 2 ALL ER 122 (HL) - referred to

       1.2 Respondent No.3 was not entitled to any charges
  towards watch and ward etc. as it should not have
  retained the damaged monoblock pumps having received
G the full price thereof. [para 8] [486-G]
       1.3 The matter is, therefore, remanded to the District
  Forum, with the direction to issue notice to the parties and
  after taking evidence, if necessary, order the return of the
H 198 damaged monoblock pumps by respondent No.3 to
NAGPUR GOLDEN TRANSPORT COMPANY (REGO.) 483
         v. NATH TRADERS & ORS.
the appellant and if the said goods are not available with        A
respondent No.3, to find out its value and direct
respondent No.3 to pay the same to the appellant. [Para
9) [486-H; 487-A-B]
                     Case Law Reference:
                                                                  B
    (1942) 2 ALL ER 122 (HL)        referred to      Para 8

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3546 of 2006.

    From the Judgment and Order dated 18.02.2003 of the           C
National Consumer Disputes Redressal Commission, New
Delhi in Revision Petition No. 371 of 2000 and 10.4.2003 in
Misc. Petition No. 98 of 2003.

    Sudarsh Menon for the Appellant.                              D
    Dharam Bir Raj Vohra, P.K. Bajaj, Brahm Singh and Prem
Sunder Jha for the Respondent.

    The Judgment of the Court was delivered by
                                                                  E
    A. K. PATNAIK, J. 1. 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      F
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            G
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.
                                                                  H
    484   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A       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
s 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
c 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
D 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 cost of the case.

       4. Aggrieved, the appellant filed appeal No.202 of 1999
E 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
F 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
G 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
H
NAGPUR GOLDEN TRANSPORT COMPANY (REGO.) 485
  v. NATH TRADERS & ORS. [A.K. PATNAIK, J.]
the District Consumer Disputes Redresal Forum had been               A
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
10.07.2003, however, this Court appears to have recorded a           B
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            c
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.
                                                                     D
     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 menoblock        E
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             F
No.3.

     7. Learned counsel for respondent No.3 relied on the
counter affidavit filed on behalf of the respondent No.3 in this
Court in which it is stated that the 198 damaged monoblock           G
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.
                                                                     H
    486     SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A       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/-
B 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
c 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
D 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 Spo/ka Akcyjna v. Fairbairn
  Lawson Combe Barbour Ltd. [(1942) 2 ALL ER 122 (HL)]:

          "...... Any civilized system of law is bound to provide
E         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
F         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
G 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
H direction to issue notice to the parties and after taking evidence,
NAGPUR GOLDEN TRANSPORT COMPANY (REGO.) 487
  v. NATH TRADERS & ORS. [A.K. PATNAIK, J.]
if necessary, order the return of the 198 damaged monoblock   A
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   B
appeal is allowed to the extent indicated above. No costs.

R.P.                                 Appeal partly allowed.