STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

M/s DTDC Courier & Cargo Limited, Corporate office: DTDC House, House No.3, Victoria Road, Bangalore.

……Appellant/Opposite Party No.1

V e r s u s

1. Amrit Lal Satija, son of Late Jiwan Dass, Resident of House No.3078, Sector 38-D, Chandigarh (complainant/respondent no.1)

2. M/s. Vishwas Enterprises, DTDC Delivery Service, Shop No.3, Double Storey Mini Market, Near Main Market, Sector 38-C & D, Chandigarh, through its Proprietor S. P. S. Pasricha. (Opposite Party No.2/ respondent no.2)

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. G. L. Aggarwal, Advocate of the applicant/  appellant.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 15.05.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent no.1) and directed the Opposite Parties, as under:-

“As a result of the above discussion, this complaint is allowed and OPs are directed to pay a sum of Rs.15,000/- to the complainant as compensation for mental agony and harassment and Rs.5,000/- as litigation costs. 

This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the complaint, till its realization, besides costs of litigation”.

2.             The facts, in brief, are that the complainant, on 23.09.2011, booked a consignment, containing the Pen Drive, with Opposite Party No.2 (now respondent no.2), vide receipt Annexure C-1, to be delivered to the consignee, at Gurgaon.  It was stated that the said Pen Drive, was containing a very important data, and it was required to be delivered urgently, not later than 25.9.2011, to the consignee. It was further stated that, however, Opposite Party No.2, failed to deliver the said consignment, to the consignee. The matter was taken up with Opposite Party No.2, but, it, ultimately, returned the consignment, to the complainant, on 4.10.2011, without any remarks. It was further stated that the complainant had to send the said consignment, through a special messenger. It was further stated that the complainant had mentioned the complete address of the addressee/consignee, on the consignment, but despite that the consignment was not delivered, by Opposite Party No.2, to the consignee. Thereafter, a notice (Annexure C-3) through registered A.D., vide receipt dated 27.10.2011, followed by reminder dated 21.11.2011 (Annexure C-4) was sent to Opposite Party No.2, claiming the loss suffered by him, but Opposite Party No.2, by sending reply dated 29.11.2011 (Annexure C-5), tried to wash off its liability, on the ground of non-declaration of the contents of the consignment and  value thereof, non filling up the declaration form, and giving incomplete address of the addressee. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.             Opposite Party No.1, in its written version, admitted the booking, and return of the consignment to the complainant. It was stated that the terms and conditions of booking were read over and explained to the complainant, at the time of booking the consignment, which he accepted. It was further stated that the liability of Opposite Party No.1, in case of any damage to the consignment, during the course of business, was to the extent of Rs.100/- only.  It was further stated that the consignment could not be delivered, to the consignee, on account of non-availability of his correct address. It was further stated that, under these circumstances, there was no other option with the Opposite Parties, than to return the same (consignment) to the consignor.  It was further stated that the notice, sent by the complainant was duly replied to by Opposite Party No.2. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.             Opposite Party No.2, in its written version, admitted the booking of consignment, by the complainant, but denied that it ever promised to deliver the same, by 25.9.2011. It was stated that the consignment could not be delivered to the consignee, due to incomplete/insufficient address. It was further stated that the complainant did not disclose the contents contained in the consignment, as also the value thereof. It was further stated that the complainant, did not fill-up the declaration form. It was further stated that no loss, as alleged, was caused to the complainant. It was further stated that, on the other hand, the complainant himself was guilty of providing insufficient information. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.             The Parties led evidence, in support of their contentions.

6.              After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No. 1.

8.             Alongwith the appeal, an application for condonation of delay of 100 days, as per the applicant/appellant (as per the office report 98 days), was also filed, wherein, it was stated that M/s D.T.D.C. Courier and Cargo Limited, is a big establishment, having its different branches, throughout India, with its head office at Bangalore and Administrative Office at Chandigarh. It was further stated that copy of the order of the District Forum, alongwith complete case file was sent to the Head Office, at Bangalore, for seeking approval, to file an appeal. It was further stated that the file had to go to different hands, and, ultimately, reached the Administrative Office, at Chandigarh, on 03.09.2012, where also, it was to be dealt with, by different persons. It was further stated that, as such, the delay of 100 days, in filing the appeal, occurred which was neither intentional nor deliberate. It was further sated that there is sufficient cause, to condone the delay. Accordingly, the prayer, for condonation of delay of 100 days, in filing the appeal, was made.

9.             We have heard the Counsel for the appellant, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, and record of the case, carefully.

10.           First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 100 days, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court   held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

11.                In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

12.           In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

13.           Recently, Supreme Court in Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down that:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

14.           Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was, on account of the circumstances, beyond its control, that it could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The ground set up, by the applicant/appellant, in the application, for condonation of delay, is that the delay aforesaid, in filing the appeal, occurred on account of the reason that after receiving the impugned order, the complete case file was sent to the Head Office at Bangalore, for seeking approval, to file an appeal, and there the file had to go to different hands, which, ultimately, reached the Administrative Office, at Chandigarh, only on 03.09.2012, is not prima-facie established, from any document, on record. The averments, contained in the application, are only vague and indefinite. The delay of 100 days, which is more than three times, beyond the normal period of filing an appeal U/s 15 of the Act, was on account of  the complete inaction, and lack of bonafides, attributable to the applicant/appellant. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond its control, which prevented it, from filing the appeal, in time. Had the Officers/Officials of the Head Office and the Administrative Office, shown due diligence, in processing the case promptly, the decision for filing the appeal would not have been delayed. The mere fact that the concerned Officers/Officials of the Head Office and the Administrative Office of the applicant/appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of the appeal, within the stipulated period, provided under Section 15 of the Act, does not mean that it could be shown undue indulgence. The applicant/appellant, therefore, failed to prove, any sufficient cause, in filing the appeal, after a delay of 100 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 100 days cannot be condoned. The application is, thus, liable to be dismissed.

15.           The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under:-

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

16.               It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory upon the applicant/appellant, to take immediate steps, to ensure that the appeal, could be filed within the stipulated period, as envisaged under Section 15 of the Act.  However, the Officers/Officials of the Head Office and the Administrative Office of the applicant/appellant, just slept over the matter and did not take decision promptly, as to whether, appeal was to be filed or not. It was, thus, a case of complete lack of bonafides and inaction, on the part of Opposite Party No.1. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case.   This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/ appellant, in condoning the delay.

17.           Now coming to the main appeal, the Counsel for the appellant, submitted that, no deficiency, against Opposite Party No.1, was alleged by the complainant. He further submitted that the consignment was booked with Opposite Party No.2, and, as such, no liability could be fastened upon Opposite Party No.1. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In paragraph number 1 of the complaint, it was, in clear-cut terms, stated by the complainant, that Opposite Party No.2, was engaged in the business of Courier Services, being a franchisee of Opposite Party No.1. Thus, the appellant/Opposite Party No.1, had given franchise to Opposite Party No.2. Opposite Party No.2, was, thus, working as Courier Agent, on behalf of Opposite Party No.1. Even, in the written version, as also in the grounds of appeal, it was nowhere stated by the appellant, that no liability could be fastened upon it. Under these circumstances, by no stretch of imagination, it could be said that on account of non-delivery of consignment, which was booked with Opposite Party No.2, a franchisee of Opposite Party No.1, the latter could not  be fastened with any liability. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected

18.           It was next submitted by the Counsel for the appellant, that no declaration was submitted by the complainant/respondent no.1, at the time of booking the consignment with Opposite Party No.2, with regard the contents of the same, as also the value thereof. He further submitted that, under these circumstances, the appellant/Opposite Parties were not at all liable to pay any amount. It may be stated here, that in the complaint, it was, in clear-cut terms, stated by the complainant that the consignment contained the Pen Drive. It was also stated, in the complaint, by the complainant, that the said Pen Drive was containing very important information. This fact was duly proved by him, by way of his affidavit, which was submitted, in the shape of evidence. In case, the declaration had not been submitted by the complainant, at the time of booking the consignment, then Opposite Party No.2, could insist for the submission of the same, and, in the event of non-submission of the same, it could refuse to book the same (consignment), for delivery to the consignee. At that time, it did not insist upon the complainant, that he should give declaration, with regard to the contents of the consignment and value thereof. Opposite Party No.2, accepted the consignment, as it is, by obtaining necessary charges. Later on, it could not turn round and say that, on account of non-furnishing of declaration, with regard to the contents of the consignment and value of the same, the Opposite Parties were not liable to pay any damages, to the complainant. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected.

19.           It was next submitted by the Counsel for the appellant, that the consignment could not be delivered to the consignee, for want of complete address. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Annexure C-2, the document which is attached with the consignment booking receipt Annexure C-1, bears the address of the consignee. It is evident, from this document that the correct address of the consignee was mentioned therein. There was no insufficiency of the particulars of address of the consignee in Annexure C-2. In case, there was any difficulty, the Opposite Parties could also contact the complainant, to get the correct address of the consignee, but they did not do so. Under these circumstances, the submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected.

20.           It was next submitted by the Counsel for the appellant, that, as per the terms and conditions of Annexure C-1, the receipt issued at the time of booking the consignment, to the complainant, the liability of the Opposite Parties, was limited to Rs.100/- only. However, it may be stated here, that Annexure C-1, does not bear the signatures of the complainant. There is nothing, on the record, to prove that the terms and conditions of Annexure C-1, were read over and explained to the complainant and the same were accepted by him. Under these circumstances, the complainant was not bound, by these terms and conditions, contained in Annexure C-1. In Sudhir Deshpande Vs. Elbee Services Ltd., Bombay, I (1994) CPJ 140 (NC)= 1986-96 National Commission & SC on Consumer Cases 1968 (NS), it was held by the National Consumer Disputes Redressal Commission, as under:-

“We may make an observation here that the mention of the limited liability is in very small print at the back of consignment note which is not necessarily read by the consignor before he/she entered into the transaction of despatch of the consignment and hence it cannot be said to be a part of negotiation between the two parties. Further, whatever may be the binding nature of the said clause in an action based on breach of contract we are of the view that it cannot restrict the liability of the courier for the consequences flowing out of its negligence and deficiency in the performance of the service undertaken by it.”

In Skypak Couriers Pvt. Ltd. Vs. Consumer Education and Research Society, 1986-96 National Commission & SC on Consumer Cases 1788 (NS), the National Consumer Disputes Redressal Commission held as under:

“(v) The objection of the Couriers that liability of the opposite party was limited to Rs. 100/- did not carry any weight as the printed memo containing the above condition was neither signed by any body nor there was any evidence to show that the terms printed therein were shown to the consignor or the consignee or that the same were agreed upon by the consignor.”

In DHL Worldwide Express (A Division of AFL Ltd) and Another Vs. AGG Exports and Another, 2009 CTJ 106 (CP) (SCDRC), the State Consumer Disputes Redressal Commission, Punjab, observed that the printed terms on the courier receipts are not binding on the complainant, and the appellants, are not to be absolved of their liability after the deficiency in service is proved. Rather their liability corresponded to the losses suffered by the Consumer and the harassment and inconvenience caused to him at the hands of the service provider.

The principle of law, laid down, in the cases aforesaid, mentioned in this paragraph, is fully applicable to the facts of the instant case, as Annexure C-1, containing the limited liability clause of the Courier, was not binding on the complainant, as he was neither signatory to the same, nor any evidence was led by the Opposite Parties, that the said clause was read over and explained to him These were the unilateral terms and conditions, and, as such, the complainant was not bound by the same.

22.           The Counsel for the appellant, however, placed reliance on Airpak Couriers (India) Pvt. Ltd. Vs. S.Suresh, I (1994) CPJ 52 (NC),  a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, to contend that the complainant was bound by the limited liability clause, contained in consignment receipt Annexure C-1. The perusal of the facts of Airpak Couriers (India) Pvt. Ltd.`s case (supra), clearly goes to reveal that the consignor therein had agreed to the terms and conditions of the consignment note that the liability of the courier shall be limited to Rs.100/- only. In the instant case, as stated above, neither the consignor signed the consignment note, admitting the terms and conditions thereof, nor he was read over and explained the same nor he agreed to the same. Thus, the terms and conditions contained in Annexure C-1, being unilateral, in nature, were not binding on the complainant. The facts of the said case, being distinguishable from the facts of the instant case, no help can be drawn by the Counsel for the appellant therefrom. The submission of the Counsel for the appellant, being devoid of merit, is rejected.

23.           It was next submitted by the Counsel for the appellant, that it was only a Pen Drive, which was sent through the consignment, by the complainant, but the District Forum granted excessive compensation for mental agony and physical harassment. In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, IV (2010) CPJ 199 (N.C.), the principle of law, laid down, by the National Consumer Disputes Redressal Commission, New Delhi, was to the effect that the compensation should be commensurate with loss and injury, suffered by the complainant. It may be stated here, that it was in clear-cut terms stated by the complainant, in the complaint, that the Pen Drive, contained very material information, which was to be delivered to the consignee. On account on non-delivery of the consignment, to the consignee, by the Opposite Parties, the complainant had to send a special messenger, for delivery of the same. One could imagine the plight of a person, who had booked the consignment to be delivered on a particular date, but the same was not delivered to the consignee. On account of this reason, a lot of mental agony and physical harassment was suffered by the complainant. The principle of law, laid down, in Surendra Kumar Tyagi`s case (supra), is fully applicable to the facts of the instant case. In our considered opinion, it could not be said that the compensation, granted by the District Forum, to the complainant, was, in any way excessive. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected.

24.          No other point, was urged, by the Counsel for the appellant.

25.          In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

26.          For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, the appeal, being barred by time, and devoid of merit, is also dismissed, at the preliminary stage, with no order, as to costs. The order of the District Forum is upheld.

27.           Certified copies of this order, be sent to the parties, free of charge.

28.          The file be consigned to Record Room, after completion

Pronounced.

05.10.2012

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg