This was an appeal against the 22 September 1997 decision of the District Consumer Commission, Varanasi, which partially allowed the complaint of Uma Export (Uma) against the appellants, Samrat Shipping Co Pvt Ltd (Samrat), and Neptune Orient Lines Ltd (NOL).

Uma exported carpets from India. Uma engaged Hindustan Shipping Services (Hindustan) as its agent to arrange their transport. Hindustan dealt with Samrat, a freight forwarder. Uma's carpets, which were intended to be delivered to the USA, were loaded onto a ship at Bombay on 29 December 1991. They were misplaced. Uma alleged that Hindustan and Samrat had loaded the goods onto a ship owned by NOL. Uma filed a complaint with the District Consumer Commission (the Commission) against the appellants.

The appellants objected that there was no privity of contract between Uma and the appellants, Uma did not come within the definition of 'consumer', and the appellants were not 'service providers' under the Consumer Protection Act 1986 (the Act). They argued that the Commission had no jurisdiction to entertain the complaint, as the appellants did not carry out any business or have any office within the jurisdiction of the Commission. The appellants also alleged that no cause of action accrued against them, or alternatively that the complaint was time-barred, as any cause of action had accrued on 28 November 1991 when the consignment was booked, or finally on 24 June 1992 when the consignment was delivered to the consignee. The alleged transaction did not fall within the meaning of 'service' in s 2 of the Act.

The Commission partially allowed Uma's complaint. The appellants appealed, arguing that any service provided was for commercial use, and commercial transactions did not fall under the Act. The Commission also did not appreciate that the Carriage of Goods Act 1925 (COGSA) provided that a complaint could only be instituted within one year of the default. Therefore, the complaint was time-barred.

Held: Appeal allowed. Complaint dismissed.

Regarding the appellants' jurisdiction argument, the transaction in question took place in December 1991, and the goods were intended to be delivered in the USA in February 1992. Therefore, the Act as originally worded was applicable. The Act originally excluded a person from the ambit of the term 'consumer' where goods were purchased for commercial purposes, but a similar exclusion was not provided in the original Act for services, and a person availing services for commercial purposes was not excluded from the ambit of the definition of a 'consumer'. The Act was only amended in 2002 to exclude commercial services. Therefore, the original Act applied to this transaction, and the Commission had jurisdiction to hear the complaint.

COGSA is squarely applicable to this transaction of carriage of goods to the USA. Article 1.a defines 'carrier' as including 'the owner or the charterer who enters into a contract of carriage with a shipper'. In this transaction, the owner of the goods, Uma, engaged Hindustan, who ultimately contacted Samrat, the shipper. Under COGSA, the carrier as well as the shipper carries liability for the goods to be transported towards the owner of the goods. Article 3.5 provides for the shipper's liability as follows:

The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnity the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.

Looking into the provisions of COGSA, it is apparent that, as a shipper, Samrat has liability towards Uma.

According to art 3.6 of COGSA, any action against the shipper or carrier can be taken for non-delivery or damage to the goods shipped within one year of the date of delivery or from the date when the goods should have been delivered. The complaint was brought in 1994, almost two years after the statutory period provided in COGSA.

The complaint may have been within the limitation period of s 24A of the Act, but it is settled law that the provisions of a special Act overshadow a general Act. In this case, the Act is overshadowed by COGSA. Therefore, the complaint should have been instituted within one year of the agreed date of delivery. An argument may be raised that art 3.6 of COGSA is meant for a suit in a civil matter only, but the judgment of the Supreme Court in Economic Transport Organisation Delhi v Charan Spinning Mills (P) Ltd 2010 (4) SCC 114 provides the answer. The Supreme Court held in that case that filing a complaint before the Consumer Commission is also to be treated as a suit for the purpose of COGSA [sic: the case actually involved carriage of goods by road under the Carriers Act 1865]. Therefore, in light of art 3.6 of COGSA and the Supreme Court judgment, it may be concluded that the complaint should have been brought within one year of the agreed date of delivery.