TMI Blog2011 (8) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Commission so that the State Commission could decide it afresh in accordance with law. The appellant, aggrieved by the said order, has preferred this appeal on the ground that a foreign State or its instrumentality cannot be proceeded against under the Act without obtaining prior permission from the Central Government. The appellant contends that a foreign State or its instrumentality can legitimately claim sovereign immunity from being proceeded against under the Act in respect of a civil claim. HELD THAT:- Ethiopian Airlines is not entitled to sovereign immunity with respect to a commercial transaction is also consonant with the holdings of other countries' courts and with the growing International Law principle of restrictive immunity. 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 through these acts, further narrowed a party's ability to successfully plead foreign sovereign immunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint filed by the respondent was not maintainable. The respondent aggrieved by the said order preferred an appeal before the National Consumer Disputes Redressal Commission (hereinafter referred to as `the National Commission'). The National Commission categorically observed in the impugned judgment that Section 86 of the Code of Civil Procedure (for short `C.P.C.') was not applicable since the case in dispute is covered under the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as `the Act'). 6. The National Commission further held that Section 13(4) of the Act makes the CPC applicable only for the limited purpose. As such, the National Commission took the view that the judgment of the High Court of Delhi delivered in the case of Deepak Wadhwa v. Aeroflot 24 (1983) Delhi Law Times 1 had no bearing and application in deciding the complaint filed by the respondent. 7. The National Commission set aside the order passed by the State Commission and remitted it to the State Commission so that the State Commission could decide it afresh in accordance with law. 8. The appellant, aggrieved by the said order, has preferred this appeal on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign State to rely on the doctrine of immunity under International Law, because the municipal Courts in India would be bound by the statutory provisions, such as those contained in the Code of Civil Procedure. In substance, section 86(1) is not merely procedural; it is in a sense a counter-part of section 84. Whereas section 84 confers a right on a foreign State to sue, section 86(1) in substance imposes a liability on foreign States to be sued, though this liability is circumscribed and safeguarded by the limitations prescribed by it. ... ... ... 11. Reliance was also placed on another judgment of this Court in the case of Veb Deutfracht Seereederei Rostock (D.S.R. Lines) a Department of the German Democratic Republic v. New Central Jute Mills Co. Ltd. and Another (1994) 1 SCC 282. In para 5 of the judgment this Court held that: One of the principles of International Law is that sovereign State respects the independence of every other foreign State. This absolute independence and the international comity underlines the relationship between sovereign States. The object of Section 86 of the Code is to give effect to the principles of International Law. But, in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his court delivered in the case of H.H. The Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. State of Rajasthan and Others AIR 1964 SC 444, where an ex-ruler contended that under section 86 of the CPC, a reference made by the Government under the Industrial Disputes Act in respect of employees' wages was not maintainable without the prior consent of the Central Government. This Court in para 5 of the said judgment held: The appellant is recognised under Article 363(22) of the Constitution as a Ruler of an Indian State, but Section 86 in terms protects a Ruler from being sued and not against the institution of any other proceeding which is not in the nature of a suit. A proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of a dispute ordinarily triable in a civil court, would prima facie not be regarded as falling within Section 86 Code of Civil Procedure. ... ... ... 14. The learned counsel for the appellant submitted that the Act specifically states in Section 3 that the provisions of this Act shall be in addition to and not in derogation to any other law for the time being in force. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurious to life and safety. 16. Mr. Presswala also submitted that a Complaint and a Plaint is one and the same thing and a proceeding in the Consumer Court, though not a suit under the Civil Procedure Code, is still a proceeding which is in the nature of a suit and is commenced by a proceeding in the nature of a Plaint (i.e. a Complaint and is in respect of a claim which is ordinarily triable by a Civil Court). It is submitted by Mr. Presswala that Section 86 of the CPC would be squarely applicable to the proceedings under the Act. 17. The learned counsel for the appellant further submitted that the provisions of the CPC are not applicable to the proceedings under the Act. Mr. Presswala also submitted that the District Forums, the State Commission and the National Commission have all the trappings of a Civil Court. Consequently, the proceedings before these fora are legal proceedings. 18. According to the appellant, the interpretation given by the National Commission is totally untenable and cannot be sustained. 19. Mr. Rakesh Kumar Khanna, the learned senior counsel for the respondent submitted that this appeal not only involves the applicability of section 86 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deemed to be a civil court for the purposes of Section 195 and chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (6) Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-section (1) of Section 2, the provisions of rule 8 of Order 1 of the first Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon. 21. This Court in Savita Garg v. Director, National Heart Institute (2004) 8 SCC 56 para 7 has observed that: ... ... ...Therefore, as far as the Commission is concerned, the provisions of the Code of Civil Procedure are applicable to a limited extent and not all the provisions of the Code of Civil Procedure are made applicable to the proceedings of the National Forum.... ... ... 22. In para 10 of the said judgment the Court further observed as under: The Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short-circuit the matter or to defeat the claim on technical ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... United Nations in its General Assembly adopted guidelines for consumer protection. The relevant portion of the guidelines is given as under: 1. Taking into account the interests and needs of consumers in all countries, particularly in developing countries, recognize that consumers often face imbalances in economic terms, educational levels, and bargaining power; and bearing in mind that consumers should have the right of access to non- hazardous products, as well as the right to promote just, equitable and sustainable economic and social development. These guidelines for consumer protection have the following objectives: (a) To assist countries in achieving or maintaining adequate protection for their population as consumers; (b) To facilitate production and distribution patterns responsive to the needs and desires of consumers; (c) To encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers; (d) To assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers; (e) To facilitate the dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available for the trial of a claim of a consumer dispute, yet, in its wisdom, Parliament decided not to apply the procedure provided in the CPC to the proceedings under the Act. Instead, Parliament chose to apply only limited provisions of the Code of Civil Procedure to the complaints to be entertained under the Act. Specifically, in Sections 13 (4), (5) and (6), the Act explicitly provided for limited applicability of the provisions of Code of Civil Procedure. 33. Mr. Khanna further submitted that the Act is a special statute enacted to provide remedies to a special class of litigants, namely the consumers, by a special procedure provided for under the statute, instead of the usual procedure set forth under the Code of Civil Procedure. 34. The learned counsel for the respondent also submitted that the general legal principle of statutory interpretation of generalia specialibus non-derogant and generalibus specialia derogant applied. That is, if a special provision is made on a certain matter, that matter is excluded from the general provision. Mr. Khanna also stated that these principles have been applied by this Court in resolving the disputes between two Acts as well as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later enactment that the provisions of the earlier enactment would continue to apply. 35. Mr. Khanna also submitted that the Act is a special and a later Act which will prevail over the provisions of the CPC, which is a general and previous statute. He submitted that the Act is a complete Code in itself as regards the disputes covered under it. As such, the general statute i.e. CPC can have no applicability and stands excluded after the enactment of the Act. 36. Mr. Khanna further contended that the Carriage by Air Act, 1972 (hereinafter referred to as `Air Act') again is a special Act regarding international carriage. The Air Act was enacted to give effect to the Convention for unification of Rules relating to international carriage by air signed at Warsaw on 12.10.1929, as amended by Hague Protocol dated 28.9.1955 and the Montreal Convention dated 28.9.1999. India enacted this Act as it is a signatory to the Warsaw Convention of 1929 governing the liabilities of air carrier in respect of international carriage of passengers, baggage and cargo by air. The preamble of the Air Act reads as under: An Act to give effect to the convention for the unification of certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a reference to servants of the carrier. (5) The Central Government may, having regard to the objects of this act, and if it considers necessary or expedient so to do, by notification in the official gazette, add to, or, as the case may be, omit from, Part I of the Annexure, any High Contracting Party and on such addition, or as the case may be, omission, such High Contracting Party shall be or shall cease to be, a High Contracting Party. 39. Section 7 of the Air Act 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 to enforce a claim in respect of the carriage undertaken by him be deemed to have submitted to the jurisdiction of that Court and to be a person for purpose of Code of Civil Procedure, 1908. Section 7 reads as under: 7. Provisions regarding suits against High Contracting Parties who undertake carriage by Air: (1) Every High Contracting Party to the Convention or the amended Convention, as the case may be, who has not availed himself of the provisions of the Additional Proto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in rule 1. (2) These rules do not apply to carriage performed under the terms of any International Postal Convention. 42. Rule 18 provides for liability of the carrier for damages and Rule 19 provides for liability of the carrier for damages occasioned by delay. Rule 18 and 19 read as under: 18. (1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, 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 sub-rule (1) comprises the period during which the luggage or goods are in charge of the carrier, whether in any 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, del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted a suit in the Court against the person desiring to sue (it), or (b) by (itself) or another, trades within the local limits of the jurisdiction of the Court, or (c) is in possession of immovable property situated within those limits and is to be sued with reference to such property or for money charged thereon, or (d) has expressly or impliedly waived the privilege accorded to (it) by this section. 47. Thus, the provisions of Section 7 of the Air Act read with Rules in the first schedule makes it clear that there is a consent deemed to be granted by the central government contemplated under Section 86(1) of Code of Civil Procedure for a specified class of suits under the Air Act. 48. Mr. Khanna also referred to Section 3 of the Act and submitted that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other laws for the time being in force. 49. This Court in the case of Patel Roadways Limited (supra) has considered this question and has laid down that the Disputes Redressal Agency provided for in the Act will have jurisdiction to entertain complaints in which the claim for loss or damage of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss 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. 55. The contention of the 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. This Court in Patel Roadways Ltd. (supra) has observed: (SCC pp. 106-07, paras 47, 48 49) The principle regarding the liability of a carrier contained in Section 9 of the Carriers Act, namely, that the liability of a carrier is that of an insurer and that in a case of loss or damage to goods entrusted to the carrier the plaintiff need not prove negligence, are applicable in a proceeding before the Consumer Forum. The term suit has not been defined in the Carriers Act nor is it provided in the said Act that the term suit will have the same meaning as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r forum are not suits within the meaning of Section 9 of CPC and secondly the limitation of two years for filing a case under the Act as provided vide Section 24 (A) of the Act will be applicable instead of Article III, Clause 6 of the schedule of the Indian Carriage of Goods by Sea Act, 1925, which provides for limitation of one year extendable by three months at the discretion of the Court. According to learned counsel for the respondent there is no conflict between the judgments of this Court in the cases of E.I.C.M. Exports (supra) and Patel Roadways Limited (supra). According to him the provisions of Carriage by Air Act, 1972 have to be read into the provisions of the Act. 51. We have heard learned counsel for the parties and carefully perused relevant cases cited at the Bar. The Central Question which requires adjudication is whether the appellant Ethiopian Airlines is entitled to sovereign immunity in this case? 52. The short question which falls for our adjudication is whether the proceedings before the Consumer Forum are suits. 53. The term suit has not been defined in the Carriage by Air Act, 1972 nor is it provided in the said Act that the term suit will hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rights of the parties are fully litigated by an organ of justice. 58. However, notwithstanding the fact that proceedings of the National Commission are suits under the Carriers Act, vide the expressio unius principle, The Consumer Protection Act, 1986 clearly enumerates those provisions of the CPC that are applicable to proceedings before the consumer fora. Such provisions include 13(4), in which the Consumer Protection Act, 1986 vests those powers vested in a civil court under the CPC to the District Forum. However, according to the principle of expressio unius, because the legislature expressly made the aforementioned provisions of the CPC applicable to the consumer proceedings, the legislature is, therefore, deemed to have intentionally excluded all other provisions of the CPC from applying to the said proceedings. This is particularly true since, as explained above, the Consumer Protection Act, 1986 sets forth an exhaustive list of procedures, distinguishable from those required under the CPC, that the consumer redressal fora must follow. Therefore, since the Consumer Protection Act does not state that Section 86 applies to the consumer fora's proceedings, that Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation for loss of life of, or personal injury to, a passenger for loss, destruction, damage, deterioration or non-delivery of animals or goods against a railway administration may be brought. This is very much akin to the fora created by the Consumer Protection Act. Thus, a similar finding should be made here : the Consumer Protection and Carriers Acts must be deemed special Acts bypassing Section 86 of the CPC, with respect to suits covered by those special Acts. 62. That is, the Consumer and Carriage Acts, which came long after the CPC, are more focused and specific statutes, and therefore should be held to exclude Section 86. The Supreme Court has previously found as such, holding that in the fora created by the Consumer Act, the provisions of the Code of Civil Procedure are applicable to a limited extent and not all the provisions of the Code of Civil Procedure are made applicable to the proceedings of the National Forum. Rather, rules created pursuant to the Consumer Act itself govern the procedure to be followed in the consumer fora. Similarly, a Constitutional Bench of this Court, in Economic Transport Organisation (supra) found that even though the consumer redress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 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. 68. In effect, by signing onto the Warsaw Convention, Ethiopia had expressly waived its Airlines' right to immunity in cases such as that sub judice. Therefore, the Central Governments of both India and Ethiopia have waived that right by passing the Carriage by Air Act, 1972 and by signing onto the Warsaw Convention. 69. In accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immunity, a state-owned entity is not entitled to immunity for acts of a commercial nature, jure gestionis. The Court noted that if a government department goes into the market places of the world and buys boots or cement - as a commercial transaction - that government department should be subject to all the rules of the market place. The Court also noted an important practical consideration. stating that foreign sovereign immunity, in protecting sovereign bodies from the indignities and disadvantages of that process, operates to deprive other persons of the benefits and advantages of [the judicial] process in relation to rights which they posses and which would otherwise be susceptible to enforcement. As the court stated, the principle of restrictive immunity is manifestly better in accord with practical good sense and with justice. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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