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Showing 41 to 60 of 875 Records
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2010 (2) TMI 1283 - MADRAS HIGH COURT
Use of Partnership firm name after discontinuing as partners - writ of certiorarified mandamus to quash the certificate of incorporation issued by the third respondent for registration of similar name -Memorandum of agreement for non-compete and usage of trade mark registration was entered into between the petitioner and his wife as parties of the first part, the partnership firm as party of the second part and the fourth respondent as party of the third party - claim of the petitioner is that the fourth respondent has no right to use the name of "Accura Weldrods" which according to the petitioner is the trade mark of the partnership firm and an application of the registration of the mark is pending before the trademark registry -
Correctness of the impugned certificate of incorporation on the ground that the official respondents have a legal obligation to hold that the company cannot be registered in the said name, as within the meaning of Section 20 of the Companies Act, the name too nearly resembles the trademark of the writ petitioner that on coming to know about the incorporation of the 7th respondent company, the petitioner had and issued a legal notice to the second respondent, the firm represented by the petitioner as Managing Partner issued a legal notice to effect the change of name of the company - ensure that the change of name is not registered with an undesirable name - whether third respondent ought not to have decided the application of change of name without hearing the aggrieved parties? -
HELD THAT:- Application for change of name has to be considered in the light of Section 20 and the procedure to be adopted is given in the guidelines issued by the department of company affairs, which has spelt out detailed guidelines to be followed.
This Court has come to a conclusion that there has been violation of principles of natural justice and the decision making process which ultimately culminated in the impugned certificate of incorporation is erroneous and the proper and necessary parties were not afforded an opportunity by the third respondent and that there is no record to show that while effecting the change of name and granting approval u/s 20 of the Act that the third respondent had considered the aspects as to whether the change of name is "undesirable" within the scope of Section 20(2) (ii) of the Companies Act. In view of the same, I am inclined to interfere in the impugned certificate of incorporation.
For reasons recorded, the petitioner is entitled to succeed and accordingly, the writ petition is allowed, the impugned certificate of incorporation is set aside and the matter is remanded back for fresh consideration of the third respondent on merits and in accordance with law, after issuing notice to the partners of the firm M/s.Accura Weldrods, the seventh respondent as well as the respondents four and five, Directors of the seventh respondent company, which was formally incorporated under the name and style of the sixth respondent company. The third respondent shall issue notice to the parties above mentioned within a period of four weeks from the date of receipt of a copy of this order and thereafter consider the objections placed by all the parties and decide the application for change of name submitted by the erstwhile sixth respondent company u/s 21 and in doing so the third respondent shall also decide as to whether the proposed change of name is not undesirable u/s 20(2) (ii) of the Companies Act 1956 and pass orders on merits and in accordance with law within a period of four weeks from the date of the objections submitted by the parties.
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2010 (2) TMI 1282 - KERALA HIGH COURT
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... ... ..... his writ petition is allowed. (b) The stipulation in Sec.10A(1) of the Divorce Act that the spouses must "have been living separately for a period of two years or more" is declared to be unconstitutional as the stipulation of the period of "two years" therein violates the fundamental rights to equality and the right to life under Arts.14 and 21 of the Constitution. (c) To save the provision and to avoid the vice of unconstitutionality the period of "two years" stipulated in Sec.10A of the Divorce Act is read down to a period of "one year". (d) The common impugned order passed by the court below is set aside. It is found that the petitioners are entitled to a decree for divorce under Sec.10A of the Divorce Act. (e) Invoking the powers of the Family Court under Sec.10A of the Divorce Act as so read down, the marriage between the petitioner and the second respondent solemnized on 6/4/08 is hereby dissolved under Sec.10A of the Divorce Act.
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2010 (2) TMI 1281 - ITAT PUNE
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... ... ..... he other income . In the light of above, the claim of the assessee to treat ₹ 15.00 lakhs as eligible expenditure incurred for earning the interest income or eligible expenditure u/s 57()iii) cannot be sustained and hence the appeal of the assessee is liable to be dismissed. I.T.A. No. 681/PUN//2017 and 1313/PUN/2018 7. As the grounds raised by the assessee in those appeals are similar to that of the appeal for the assessment year 2010-11 therefore, respectfully following the decision in appeal No. 1312/PUN//2018 these two appeals are also dismissed. 8. As regards the additional grounds raised by the assessee in ITA No. 681/PUN/2017, the same are not admitted and as such are liable to be dismissed. 9. As regards the additional grounds raised by the assessee in ITA No. 681/PUN/2017, the same are not admitted and as such are liable to be dismissed. In the result, all the three appeals of the assessee are dismissed. Order pronounced in the open court on 6th February, 2020.
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2010 (2) TMI 1280 - ITAT BANGALORE
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... ... ..... lained. 8. In the present case, in spite of a lot of argumentative materials placed by the learned representative before us, we are of the considered view that the credit balances objected to by the Assessing Officer still stand unproved. Therefore, in the facts and circumstances of the case, we do not have any option, but to confirm the order of the Commissioner of Income-tax(A) on this point. 9. Now regarding the question of enhancement of the addition made by the Commissioner of Income-tax(A), we find that the assessee deserves leniency. The remand report came long after the closure of the concerned previous year and the indiction made by the assessing authority in his remand report has been made on the basis of logical presumptions. Therefore, we do not approve the enhancement made by the Commissioner of Income-tax(A). It is deleted. 10. In result, this appeal filed by the assessee is partly allowed. Order pronounced on Friday, the 26th day of February, 2010, at Bangalore
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2010 (2) TMI 1279 - BOMBAY HIGH COURT
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... ... ..... record in the facts and circumstances of the case. I find the respondent/accused guilty of offence punishable under Section 138 of the Negotiable Instruments Act and convict him thereunder. 14. On the question of sentence, it is not necessary to insist upon incarceration of the accused having regard to nature of offence. The accused is sentenced to undergo imprisonment till rising of the Court and to pay compensation in the sum of ₹ 45,000/-, the amount covered by cheque in question plus ₹ 10.000/- as cost for prosecuting the accused payable under Section 357 (3) Cr.P.C to the complainant, within two months from the date of this judgment. In default of payment of compensation, the accused shall undergo simple imprisonment for three months. The accused shall appear before the learned Judicial Magistrate, First Class (Special Court under Section 138 of the Act) at Akola and his surety to produce him on 2.3.2010 Compensation, if not paid, shall be recovered as fine.
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2010 (2) TMI 1278 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... any functionary of University or any institute. Reliance could be had on Ashok Chand Singhvi Versus University of Jodhpur-(1989) 1 SCC 399 when a person, who was admitted by the University could not suffer by any default by the Vice Chancellor or the Dean of the particular faculty. In Shri Krishnan v. Kurukshetra University, Kurukshetra(1976) 1 SCC 311, if a student had been allowed to take examination, the University would not have any jurisdiction to cancel the candidature. The above two decisions are not directly on the point but they address the concern of the Court that a student shall not be penalized or put to any hardship, when he or she is not guilty of any separation or has taken any advantage. VII. Conclusion 13. The petitioners are entitled to have the degrees registered by the 1 respondent and there shall be a mandamus in the manner sought for by the petitioners. The writ petition is allowed on the above terms, but there shall be however no direction as to costs.
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2010 (2) TMI 1277 - SUPREME COURT
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... ... ..... parate but concurring judgment in Triloki Nath's case (supra) "........The dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of "special qualifications" measured by expensive and exotic degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive within the leading strings of egalitarian constitutionalism and correct, by judicial review, episodes of subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people have given to themselves." 14. In the result we find no merit in these appeals which fail and are hereby dismissed but without any order as to costs.
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2010 (2) TMI 1276 - ITAT MUMBAI
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... ... ..... hich was separately kept to be handed over to the society being formed and for the amount collected the assessee acts as Trustee for the cooperative societies till the societies are formed. Since the assessee is following the provisions of the Maharashtra Ownership of Flats Act, 1963, the Corpus Fund cannot be treated as income of the assessee. Accordingly order of the ld. CIT(A) on this issue is upheld.” In the absence of any distinguishing feature brought on record by the revenue we respectfully following the order of the Tribunal(supra), hold that the Corpus Fund of ₹ 6,17,050/- collected by the assessee following the provisions of Maharashtra Ownership of Flats Act, 1963, is not the income of the assessee and accordingly we are inclined to uphold the finding of the ld. CIT(A) in deleting the same. The grounds taken by the revenue are therefore rejected. 5. In the result, revenue’s appeal stands dismissed. Order pronounced in the open court on 01.02.2010.
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2010 (2) TMI 1275 - SUPREME COURT
Petition for divorce by mutual consent - Petition filed under Article 136 - Whether petitioner right to approach this Court against the order of the Family Court? - waiver of statutory period of six months in filing the second petition - waiver was permissible - HELD THAT:- Parties got married and as they could not bear each other, started living separately. There had been claims and counter claims, allegations and criminal prosecution between them. Petitioner approached the Competent Court at Gurgaon for dissolution of marriage. Admittedly, that case is still pending consideration. Parties filed the petition for divorce by mutual consent only in November 2009 before the Family Court. Learned counsel for the petitioner could not explain as to how the case for divorce could be filed before the Family Court, during the pendency of the case for divorce before the Gurgaon Court.
Such a procedure adopted by the petitioner amounts to abuse of process of the court. Petitioner has approached the different forums for the same relief merely because he is very much eager and keen to get the marriage dissolved immediately even by abusing the process of the Court. In Jai Singh v. Union of India [1976 (11) TMI 195 - SUPREME COURT], this Court while dealing with a similar issue held that a litigant cannot pursue two parallel remedies in respect of the same matter at the same time. This judgment has subsequently been approved by this Court in principle but distinguished on facts in Awadh Bihari Yadav v. State of Bihar [1995 (8) TMI 320 - SUPREME COURT] and Arunima Baruah v. Union of India [2007 (4) TMI 695 - SUPREME COURT].
Even otherwise, the statutory period of six months for filing the second petition u/s 13-B(2) of the Act has been prescribed for providing an opportunity to parties to reconcile and withdraw petition for dissolution of marriage. Learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed u/s 13-B(1) of the Act is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.
Thus, this is not a case where there has been any obstruction to the stream of justice or there has been injustice to the parties, which is required to be eradicated, and this Court may grant equitable relief. Petition does not raise any question of general public importance. None of contingencies, which may require this Court to exercise its extraordinary jurisdiction under Article 142 of the Constitution, has been brought to our notice in the case at hand.
Thus, in view of the above, we do not find any justification to entertain this petition. It is accordingly dismissed.
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2010 (2) TMI 1274 - ITAT DELHI
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... ... ..... lso, the AO should examine as to whether the expenses incurred by the assessee can be said to be for the purpose of the charitable objects of the assessee and if not then the AO should reexamine and decide afresh as to whether these expenses are capital or revenue. If the AO finds that the same is capital, he should also decide as to whether any depreciation is allowable as per law. We order accordingly in both years.” 5. As the facts and circumstances during all the years under consideration are same, respectfully following the order of the Tribunal, we restore all the appeals to the AO for deciding afresh in terms of directions given in the order of the Tribunal dated 12.6.2009, stated hereinabove. Learned DR has no objection for the same. We therefore direct the AO to decide the issue in terms indicated hereinabove. 6. In the result, all the appeals and cross-objections are allowed for statistical purposes. Decision pronounced in the open Court on 1st February, 2010.
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2010 (2) TMI 1273 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... 002-03. More interestingly, the company’s net worth (total assets minus external liabilities) are on an upswing as would be evident from the table below As on 31.3.2001 Rs. As on 31.3.2002 Rs. As on 31.3.2003 Rs. As on 31.3.2004 Rs. Net Worth 1,53,80,682 1,70,85,959 2,55,27,086 3,18,23,848 From the financial fundamentals as indicated above, it is unlikely that an informed investor would perceive any red flag in the company. The appellant, however, contends that in his perception the scrip of the company was worth making an investment in and that the fundamentals of the company were good. His perception was not unfounded. Be that as it may, it was not pointed out in the show cause notice that the company was a loss making one. 6. For the reasons recorded above, we are satisfied that the charge of manipulating the price of the scrip by the appellant has not been established. In the result, the appeals are allowed and the impugned order set aside with no order as to costs.
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2010 (2) TMI 1272 - ITAT AHMEDABAD
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... ... ..... nt was framed ex parte u/s.144 of the Act and no opportunity was provided by the Assessing Officer. Even the CIT(A) has also not provided the opportunity as the appellate order is not at all a speaking order. Accordingly, he urged the Bench that the matter be restored before the CIT(A) on merits. He fairly conceded that he will not raise the legal issues. On going through the case records and on hearing the Ld. CIT-DR we find that none of the authorities below have decided the issues on merits and also made addition without providing reasonable opportunity of being heard. Keeping in view the principles of natural justice in mind, we set aside the two issues on merits to the file of the CIT(A). Accordingly, the CIT(A) after taking a remand report from the Assessing Officer, will decide after providing reasonable opportunity of being heard to the assessee. 5. In the result, assessee’s appeal is allowed for statistical purposes. Order pronounced in Open Court on 01/02/2010
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2010 (2) TMI 1271 - GUJARAT HIGH COURT
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... ... ..... tribunal has taken the view that it cannot be said that the Modvat credit was availed in respect of the capital goods which were exclusively used in the manufacture of exempted products. The Tribunal has also recorded the fact that the period involved in the appeal is from July, 2004 to March, 2005. The capital goods in question were used for the manufacture of excisable goods which were cleared on payment of duty prior to 9.7.2004. It was only after 9.7.2004 upto 31.3.2005 that the respondent had opted option of Notification No. 30/2004 and after satisfying the condition of the said notification has not paid the duty on its manufactured goods. In June 2005, the said machines were again used for the manufacture of excisable goods which were cleared on payment of duty. This being the finding of fact recorded by the Tribunal, we are of the view that no substantial question of law arises out of the order of the Tribunal. We, therefore, dismiss this appeal. Notice is discharged.
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2010 (2) TMI 1270 - ITAT MUMBAI
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... ... ..... re, there is no scope for reducing interest or any other overheads. Here also TPO has at top of the chart where average rate was calculated at page 2 of his order refers to OP/TC%. Therefore, it is not clear whether this margin is net profit or not. Similarly how the cost etc. was distributed by ld. CIT(A) is not clear because detailed figures are not available. Therefore, in the interest of justice we set aside the order of ld. CIT(A) and remit the matter back to the file of AO with a direction to follow TNMM by working out the average net profit. Further, the adjustment should be worked out on a very simple basis by reducing the net profit declared by the assessee from the gross sales and then divide the same in the controlled and uncontrolled sale and apply the net profit rate. Needless to say that assessee should be given adequate opportunity of hearing. 14. In the result, all the appeals are allowed for statistical purposes. Order pronounced on the 23rd day of Feb.2010.
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2010 (2) TMI 1269 - DELHI HIGH COURT
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... ... ..... ants, that whether the inclusive method is followed or the exclusive method is followed, would not make any impact on the profit and loss. In this context, the learned counsel for the respondent submits that any question that the revenue proposes to raise in this appeal would be merely of academic interest and would not have any effect on the tax liability of the assessee. When we asked the learned counsel for the revenue / appellant to point out as to whether there would be any tax effect as a result of following a different method of accounting, the learned counsel for the revenue submitted that she would require some time to go through the Tax Audit Report in which the figures are set out. Renotify on 11.03.2010.
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2010 (2) TMI 1268 - PUNJAB & HARYANA HIGH COURT
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... ... ..... ilty and guilt of the offender is proved beyond doubt and admitted by the offender, whether he can be let off for the reason of absence of specific provisions for the penalty on the date of commission of offence which are inserted on later date.” The aforesaid substantial question of law has been subsequently answered against the revenue in case Commissioner of C.Ex., Jalandhar v. Satish Metal Co. - 2007 (210) E.L.T. 341 (P & H), wherein it has been held by this Court that “when transactions in questions were not liable to penal action during relevant period, no reason for levying penalty thereon by placing reliance on amendment which has been effected later on.” In this case, as the transactions had taken place prior to the amendment, hence no penalty could be imposed upon the respondent. In view of the above, no interference is called for in the finding recorded by the Appellate Tribunal. Hence, the present appeal being without any merit is dismissed.
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2010 (2) TMI 1267 - MADRAS HIGH COURT
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... ... ..... s Counter Claim as well as Respondent's O.A. the Bank has chosen to issue the impugned notice. In such circumstances, the action of the Respondent in having issued the present notice, cannot be faulted. The Petitioner also relied upon a decision of a Division Bench of the Orissa High Court in Krushna Chandra Sahoo v. Bank Of India AIR 2009 ORI 35 The facts involved in that case are totally unconnected to the issue involved in this case. In that case, the challenge was to the notice under Section 13(4) of the SARFAESI Act, on the ground that the objections raised by the borrower to the notice under Section 13(2) of the SARFAESI Act was not considered in the notice under Section 13(4) of the SARFAESI Act. Such is not the case here. We therefore, do not find any support to the Petitioner on that decision. In any event, we do not find any merit in the writ petition. The writ petition fails and the same is dismissed. No costs. Consequently, miscellaneous petitions are closed.
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2010 (2) TMI 1266 - CESTAT BANGALORE
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... ... ..... on, non-issuance of show cause notice to M/s. Max Rubber Company, whose clearances were proposed to be clubbed alleging them as dummy unit, clubbing of the clearances merely on the basis of blood relationship. It is also seen from the records that the appellant had been seeking cross-examination of the witnesses which was denied without giving any acceptable reasons. In view of the shortcoming in the impugned order(as indicated hereinabove), we are of the considered view that the impugned order passed by the adjudicating authority is liable to be set aside and we do so. Keeping all the issues open and without expressing any views on the merits of the case, we set aside the impugned order and remand the matter back to the adjudicating authority to re-consider the issue afresh after following the principles of natural justice. 5. All the appeals are allowed by way of remand to the adjudicating authority. (Operative portion of this order pronounced on conclusion of the hearing)
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2010 (2) TMI 1265 - BOMBAY HIGH COURT
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... ... ..... r by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done". It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case." (underlining supplied) 58.The facts shown in the evidence, which are not even contested, the construction and interpretation of the contract of the parties, followed by the correspondence that ensued, requires to be parsed within the ambit of the applicable law, hitherto not considered. 59.Consequently, the judgment of the Learned Co-operative Court as well as the Learned Co-operative Appellate Court are required to be set aside. The award passed under the judgment dated 10th September 2003 and confirmed in appeal under the judgment dated 28th October 2003 are set aside. Rule is made absolute accordingly with costs of ₹ 10,000/-.
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2010 (2) TMI 1264 - SUPREME COURT
Term `Subrogation' - Principles of Subrogation - Claimed compensation - damage to the consignment was due to the negligence on the part of the appellant and its servants - settlement of the claim and the letter of subrogation-cum- special power of attorney executed by the Assured - distinction between `assignment' and `subrogation '-
first respondent (`Assured' or the `consignor') is a manufacturer of the cotton yarn - policy of insurance from the second respondent (National Insurance Co. Ltd, as the `Insurer') - covering transit risks in respect of cotton yarn sent by it to various consignees through rail or road against theft, pilferage, non-delivery and/or damage -
HELD THAT:- An `assignment' on the other hand, refers to a transfer of a right by an instrument for consideration. When there is an absolute assignment, the assignor is left with no title or interest in the property or right, which is the subject matter of the assignment. The difference between `subrogation' and `assignment' was stated in Insurance Law by MacGillivray & Parkington.
The difference between assignment and subrogation was also explained by the Madras High Court in Vasudeva Mudaliar vs. Caledonian Insurance Co.
To avoid any dispute with the assured as to the right of subrogation and extent of its rights, the insurers usually reduce the terms of subrogation into writing in the form of a Letter of Subrogation which enables and authorizes the insurer to recover the amount settled and paid by the insurer, from the third party wrong-doer as a Subrogee-cum- Attorney. When the insurer obtains an instrument from the assured on settlement of the claim, whether it will be a deed of subrogation, or subrogation-cum-assignment, would depend upon the intention of parties as evidenced by the wording of the document. The title or caption of the document, by itself, may not be conclusive. It is possible that the document may be styled as `subrogation' but may contain in addition an assignment in regard to the balance of the claim, in which event it will be a deed of subrogation-cum-assignment.
It may be a pure and simple subrogation but may inadvertently or by way of excessive caution use words more appropriate to an assignment. If the terms clearly show that the intention was to have only a subrogation, use of the words "assign, transfer and abandon in favour of" would in the context be construed as referring to subrogation and nothing more.
If a letter of subrogation containing terms of assignment is to be treated only as an assignment by ignoring the subrogation, there may be the danger of document itself becoming invalid and unenforceable, having regard to the bar contained in section 6 of the Transfer of Property Act, 1882 (`TP Act' for short). Section 6 of Transport of Property Act, 1882, provides that property of any kind may be transferred except as otherwise provided by that Act or by any other law for the time being in force. Clause (e) of the said section provides that mere right to sue cannot be transferred. Section 130 provides the manner of transfer of actionable claims.
Principles relating to Subrogation can be summarized thus :
(i) Equitable right of subrogation arises when the insurer settles the claim of the assured, for the entire loss. When there is an equitable subrogation in favour of the insurer, the insurer is allowed to stand in the shoes of the assured and enforce the rights of the assured against the wrong- doer.
(ii) Subrogation does not terminate nor puts an end to the right of the assured to sue the wrong-doer and recover the damages for the loss. Subrogation only entitles the insurer to receive back the amount paid to the assured, in terms of the principles of subrogation.
(iii) Where the assured executes a Letter of Subrogation, reducing the terms of subrogation, the rights of the insurer vis-`-vis the assured will be governed by the terms of the Letter of Subrogation.
(iv) A subrogation enables the insurer to exercise the rights of the assured against third parties in the name of the assured. Consequently, any plaint, complaint or petition for recovery of compensation can be filed in the name of the assured, or by the assured represented by the insurer as subrogee-cum-attorney, or by the assured and the insurer as co-plaintiffs or co-complainants.
(v) Where the assured executed a subrogation-cum- assignment in favour of the insurer (as contrasted from a subrogation), the assured is left with no right or interest. Consequently, the assured will no longer be entitled to sue the wrongdoer on its own account and for its own benefit. But as the instrument is a subrogation- cum-assignment, and not a mere assignment, the insurer has the choice of suing in its own name, or in the name of the assured, if the instrument so provides. The insured becomes entitled to the entire amount recovered from the wrong- doer, that is, not only the amount that the insured had paid to the assured, but also any amount received in excess of what was paid by it to the assured, if the instrument so provides.
(a) Where the letter of subrogation executed by an assured in favour of the insurer contains, in addition to words referring to subrogation, terms which may amount to an assignment, whether the document ceases to be a subrogation and becomes an assignment? - The insurer, as subrogee, can file a complaint under the Act either in the name of the assured (as his attorney holder) or in the joint names of the assured and the insurer for recovery of the amount due from the service provider. The insurer may also request the assured to sue the wrong doer (service provider).
(b) Where the insurer pays the amount of loss to the assured, whether the insurer as subrogee, can lodge a complaint under the Act, either in the name of the assured, or in the joint names of the insurer and assured as co- complainants? - Even if the letter of subrogation executed by the assured in favour of the insurer contains in addition to the words of subrogation, any words of assignment, the complaint would be maintainable so long as the complaint is in the name of the assured and insurer figures in the complaint only as an attorney holder or subrogee of the assured.
(c) Where the rights of the assured in regard to the claim against the carrier/service provider are assigned in favour of the insurer under a letter of subrogation-cum- assignment, whether the insurer as the assignee can file a complaint either in its own name, or in the name of the assured, or by joining the assured as a co-complainant? - The insurer cannot in its own name maintain a complaint before a consumer forum under the Act, even if its right is traced to the terms of a Letter of subrogation-cum-assignment executed by the assured.
(d) Whether relief could be granted in a complaint against the carrier/service provider, in the absence of any proof of negligence? - Oberai is not good law insofar as it construes a Letter of subrogation-cum-assignment, as a pure and simple assignment. But to the extent it holds that an insurer alone cannot file a complaint under the Act, the decision is correct.
We may also notice that section 2(d) of Act was amended by Amendment Act 62 of 2002 with effect from 15.3.2003, by adding the words "but does not include a person who avails of such services for any commercial purpose" in the definition of `consumer'. After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a `consumer' and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.
It is no doubt true that Section 14(1)(d) of the Act contemplates award of compensation to the consumer for any loss suffered by consumer due to the negligence of the opposite party (Carrier). Section 9 of Carriers Act does not lay down a preposition that a carrier will be liable even if there was no negligence on its part. On the other hand, it merely raises a presumption that when there is loss or damage or non-delivery of goods entrusted to a carrier, such loss, damage or non-delivery was due to the negligence of the carrier, its servant and agents. Thus where the consignor establishes loss or damage or non- delivery of goods, it is deemed that negligence on the part of the carrier is established. The carrier may avoid liability if it establishes that the loss, damage or non- delivery was due to an act of God or circumstances beyond its control. Section 14(1)(d) of the Act does not operate to relieve the carrier against the presumption of negligence created under Section 9 of the Carriers Act.
Contention of appellant that the presumption under section 9 of the Carriers Act is available only in suits filed before civil courts and not in other civil proceedings under other Acts, is not tenable - We reiterate the said settled position and reject the contention of the appellant that the presumption under section 9 of Carriers Act is not available in a proceeding under the Consumer Protection Act and that therefore, in the absence of proof of negligence, it is not liable to compensate the respondents for the loss. Conclusion
The loss of consignment by the assured and settlement of claim by the insurer by paying ₹ 4,47,436/- is established by evidence. Having regard to the presumption regarding negligence under section 9 of Carriers Act, it was not necessary for the complainants to prove further that the loss/damage was due to the negligence of the appellant or its driver. The presumption regarding negligence was not rebutted. Therefore, the District Forum was justified in allowing the complaint brought by the assured (first respondent) represented by the insurer and the insurer for recovery of ₹ 447,436. The said order was affirmed by the State Forum and the National Forum.
We find no reason to interfere with the same. The appeal is, therefore, dismissed.
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