IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 366/09 DATED 09.12.2009<br /> ORDER<br /> <br /> Complainant Gowda Sharath S/o Halagur Ramachandra Gowda, Major, A Doctor by Profession, 659, Lake Harbor Drive, Marion, Illinois, 62959 United States of America.<br /> <br /> (By Sri. A.K., Advocate)<br /> <br /> Vs. <br /> Opposite Party 1. The Managing Director, Blue Dart Express Ltd., Registered Office, Blue Dart Centre, Sahar Airport Road, Andheri (E), Mumbai-400099.<br /> 2. Managing Director, Blue Dart Express Limited, No.370, J.L.B. Road, Near Ramaswamy Circle, Mysore-570005.<br /> ( By Sri. B.N.S. for O.P.1 & O.P.2. is exparte)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 03.10.2009<br /> Date of appearance of O.P. : 29.10.2009<br /> Date of order : 09.12.2009<br /> Duration of Proceeding : 1 Month 10 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite parties, seeking a compensation of Rs.17,90,312.50/- towards non deliver of consignment including cost of the proceedings etc.,.<br /> <br /> 2. In the complaint it is alleged that, the complainant is a doctor by profession. He is non resident Indian. He is residing at USA. First opposite party is the company and the second opposite party is the branch engaged in courier business. The complainant studied at Mysore, Belgaum and Manipal. To get western exposure, the complainant left to USA. He persuaded in internal medicine and fellowship in Geriatrics. After specialization, the complainant intended to become a licensed physician and Surgeon and start the practice on his own. He approached the concerned department in USA to get enrolled and obtain license. The department informed the complainant to produce certain documents including certificate verifying the credentials from his PU, Medical colleges. Complainant requested his brother in India to arrange the certificate by coordinating with Mahajana Pre-University College, Mysore, where complainant studied PUC. Request was made to send the certificate within 10.07.2008, so that same can be submitted to the department to obtain the license at the earliest. In pursuance of the said request, the Maharaja PU College after verifying with the various courier companies decided to send through the opposite parties as they claimed that they are No.1 in the courier Industry with 25 years of service and assured that they will take only 4 days to deliver the consignment to the complainant in USA and with assurance and promise of the opposite parties, consignment was interested to the opposite parties on 05.07.2008, paying a sum of Rs.2,239/-. The consignment contained important documents, which was to be delivered on 09.07.2008 and on the said date, complainant did not receive the consignment. Frequently, the complainant called upon the opposite parties to know status of the delivery. The complainant was forced to undergo great mental agony. Brother of the complainant informed the opposite parties that, the consignment was not delivered to the complainant. The first opposite party assured to look into the matter. It wrote a mail dated 22.07.2008, addressed to the brother of the complainant stating that, the consignment has been misplaced in transit. Due to non delivery of the consignment, the complainant faced lot of hardship and difficulties. He was forced to make other arrangements to get the certificate through another courier company. Due to non delivery of consignment by the opposite parties, there was delay of 1 ½ months in obtaining the medical license by the complainant. As a result, the complainant was job-less for 1 ½ months. After obtaining license, the complainant joined a medical group and earning 1,50,000/- Dollars per annum and per month. During the said period, the complainant could have earned more than 18,750/- Dollars. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party despite the service of notice, has remained exparte. (in the order sheet through oversight second opposite party is mentioned as exparte).<br /> <br /> 4. The second opposite party has appeared through advocate and filed version contended that, the complaint is not maintainable. In respect of certain allegations in the complaint, it is submitted that, the opposite party is not aware and as such, the complainant may put to strict proof of the same. Entrustment of consignment for delivery to the complainant, is admitted. It is contended that, the opposite party took care and caution to deliver the consignment to the complainant but seldom due to some unavoidable circumstances, the goods may loss in transit and this opposite party regrets for the inconvenience caused and ready to settle the claim in accordance with the terms and conditions mentioned in the way bill and the opposite party is liable to pay only Rs.5,000/-. Other allegations of the complainant are denied. Hence, it is prayed to dismiss the complaint.<br /> <br /> 5. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, the Executive Accountant of the second opposite party has filed his affidavit and produced two documents. We have heard the arguments of the learned advocates for the complainant, as well as of the second opposite party. For the second opposite party written arguments are also filed. For both the parties certain decisions are relied upon. We have gone through the entire records.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of both or any one of the opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> 7. Our findings are as under:-<br /> Point no.1 : Partly affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 8. Point no. 1:- The fact that, envelop containing certificate was entrusted to the opposite party courier service for deliver to the complainant and that is lost in transit and not delivered to the complainant, is admitted.<br /> <br /> 9. The grievance of the complainant is that, because the opposite party courier service did not deliver consignment containing the certificate, he could not apply and obtain medical license for practice, for a period of above 1 ½ months and thereby, sustained loss to the extent of 7,90,312/- and so also he claims compensation towards mental agony and cost of the proceedings. On the other hand, the main contention of the opposite party is that, according to the terms and conditions mentioned in the waybill, for loss of consignment, the liability is restricted to Rs.5,000/- only and the opposite party is ready to pay that amount. Hence, the question will be whether the complainant irrespective of said terms and conditions in the waybill is entitled for more amount, if the loss or damage is proved?<br /> <br /> 10. Learned advocate for the second opposite party, in support of his contention that the liability is restricted as per the terms and conditions, relied upon the ruling reported in (1996) 4 Supreme Court Cases 704, in Bharathi Knitting Company V/s DHL World Wide Express Ltd.,. In the said ruling upholding the order of the Hon’ble National Consumer Forum, the Hon’ble Apex Court has held that, award of damages beyond the limit stipulated in the contract, when complainant signs the contract document he would be bound by its terms. In the case on hand, the advocate for the opposite party along with memo dated 02.12.2009, has produced two shipment airway bills. The one pertains to the consignment in question bearing No.1391390862 and another blank shipment airway bill No.1333713183. On the blank airway bill, in the reverse 6th term reads as under <br /> <br /> “DHL contracts with shipper on the basis that DHL’s liability is strictly limited to direct loss only and to the per kilo/lb limits in this Section 6. All other types of loss or damage are excluded (including but not limited to lost profits, income, interest, future business), whether such loss or damage is special or indirect, and event if the risk of such loss or damage was brought to DHL’s attention before or after acceptance of the Shipment since special risks can be insured by Shipper. If a Shipment combines carriage by air, road or other mode of transport, it shall be presumed that any loss or damage occurred during the air period of such carriage unless proven otherwise. DHL’s liability in respect of any one Shipment transported, without prejudice to Section 7-11, is limited to its actual cash value and shall not exceed the greater of $US 100 on $US 20.oo/Kiligram or $US 4.54/lb for Shipments transported by road (not applicable to the US).<br /> <br /> Claims are limited to one claim per Shipment settlement of which will be full and final settlement for all loss or damage in connection therewith. If Shipper regards these limits as insufficient it must make a special declaration of value and request insurance as described in Clause 8 (Shipment Insurance) or make its own insurance arrangements, failing which Shipper assumes all risks of loss damage”.<br /> <br /> 11. The Hon’ble Apex Court, in the ruling relied upon by the learned advocate for the opposite party, has specifically referred to signed contract between the parties. In the case on hand, in the waybill pertaining to the complainant on the reverse no terms and conditions are printed. On the blank waybill, the condition regarding liability noted above on the reverse is printed. At the outset, we can conclude that, there is no signed agreement or contract between the parties in respect of the liability of the opposite party quoted above. Hence, the ruling relied upon by the learned advocate will not help the opposite party.<br /> <br /> 12. On more ruling reported in I (1994) CPJ 52 of the Hon’ble National Commission is relied upon by the learned advocate for the opposite party where in also with reference to the terms of the service the liability was restricted, but in the case on hand, as noted above, in the waybill, which pertains to the complainant there is no terms and conditions regarding the liability of the opposite party where as the terms or conditions regarding liability of the opposite party is printed on the reverse of the blank waybill, which does not pertains to the complainant or the consignment in question.<br /> <br /> 13. Even otherwise, the learned advocate for the complainant relied on the order of the Hon’ble National Commission in TATA Chemical Ltd., V/s Skypak Couriers Pvt. Ltd., in original Petition No. 66/1992 dated 14.12.2001, the Hon’ble National Commission has dealt with the point in detail and some of the portions needs to be quoted for better understanding the legal position.<br /> <br /> “It cannot be disputed that the Consignment Note issued by the opposite party is in standard printed form and that the Clause limiting the carrier’s liability, though appearing on the face of it, is in a very small and fine print. Even witness Jagdish Chittara examined by the opposite party, whose evidence I am inclined to disbelieve, does not say that the said clause or term was brought to the notice of the Complainant’s representative, much less discussed with him when he issued the Note and collected the consignment for transportation nor is there any correspondence exchanged between the parties indicating that the said clause was the subject of negotiations or bargain between the parties. In the circumstances, it is difficult to hold that the said clause would bind the complainant and as such I conclude that the said clause cannot be availed of by the opposite party for limiting its liability and it will have to make good the full value of the consignment to the complainant.<br /> <br /> Though the arbitrator referred to Terms of Servicing appearing on the back of the consignment note but it would appear that these were not on the back of the consignment note and were separately mentioned on the reverse of the Consignment Receipt. On this aspect learned arbitrator held as under:<br /> <br /> “Relying on this term Counsel for the opposite party urged that since the value of the consignment was far in excess of the maximum limited liability indicated, the Complainant ought to have taken a transit insurance cover, but it did not; he further urged that had the value which was far in excess of the limited liability been disclosed, the opposite party may not have accepted the consignment for transportation without transit insurance cover. The contention is based on a little misreading of term no.7. It is not obligatory upon the consignor to obtain a transit insurance cover and all that term no.7 says is that if consignments have higher values than the indicated limited liabilities it would be advisable for the Consignor/Consignee to have a transit insurance cover. In this case the opposite party without any inquiry about the value accepted the consignment for transportation without such insurance cover and having accepted the same in this manner cannot make any grievance on that account. In any event, neither term No.7 appearing on the back side of the Consignment Note nor the clause limiting the liability appearing on the face of the Note was brought to the notice of the Complainant at the time of entrustment of the consignment nor was the same subject of negotiations or bargain between the parties and as such the opposite party cannot avail of the same and will have to make good the full value of the consignment to the complainant”.<br /> <br /> From the conspectus of views taken in the decisions of different High Courts noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision of Section 9, in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortuous liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time and have been crystallized into an accepted position of law. No good reason has been bought to our notice to persuade us to make a departure from the accepted position. Therefore, we reiterate the position of law noticed above. The consequential position. Therefore, we reiterate the position of law noticed above. The consequential position that follows is that the contention of Shri Ashok Desai, learned senior counsel that the respondents herein having failed to establish negligence on the part of the appellant, their claim for damages should be rejected, cannot be accepted.<br /> <br /> Standard Forum Contracts: “12-007 Contracts in standard from. A different problem may arise in proving the terms of the agreement where it is sought to show that they are contained in a contract in standard from i.e., in some ticket, receipt, or standard form document. The other party may have signed the document, in which case he is bound by its terms. More often, however, it is simply handed to him at the time of making the contract and the question will then arise whether the printed conditions which it contains have become terms of the contract. The party receiving the documents will probably not trouble to read it, and may even be ignorant that it contains any conditions at all. Yet standard form contracts very frequently embody clauses which purport to impose obligations on him or to exclude or restrict the liability of the person supplying the document. Thus, it becomes important to determine whether these clauses should be given contractual effect.<br /> <br /> 12-008 Contractual document. The document must be of a class which either the party receiving it knows, or which a reasonable man would expect to contain contractual conditions. Thus a cheque book, a ticket for a deck chair, a ticket handed to a person at a public bath house and a parking ticket issued by an automatic machine have been held to be cases “where it would be quite reasonable that the party receiving it should assume that the writing contained no condition and should put it in his pocket unread.” On the other hand, a railway or ship ticket or a receipt for goods deposited has been held to be contractual document.<br /> <br /> 12-009 Time of notice The conditions must be brought to the notice of the party to be bound before or at the time when the contract is made. If they are not communicated to him until after the contract is concluded, they will be of no effect. In Olley V. Marlborough Court Ltd., certain property of the plaintiff was stolen from his hotel bedroom owing to the negligence of the hotel management. On arrival at the hotel he had signed the hotel register which contained no mention of any exemption clauses, but in the bedroom there was a notice disclaiming liability for articles lost or stolen. It was held that the notice was ineffective as he had not been made aware of it until after the contract was made.<br /> <br /> 12-010 Course of dealing. Conditions will not necessarily be incorporated into a contract by reason of the fact that the parties have, on previous occasions, dealt with each other subject to those conditions. But they may be incorporated by a “course of dealing” between the parties where each party has led the other reasonably to believe that he intended that their rights and liabilities should be ascertained by reference to the terms of a document which had been consistently used by them in previous transactions. Conditions usual in a particular trade may likewise be incorporated where both parties are in the trade and are award that conditions are habitually imposed and of the substance of those conditions, even if they are not referred to at the time of contracting.<br /> <br /> 12-011 Meaning of notice. It is not necessary that the conditions contained in the standard form document should have been read by the person receiving it, or that he should have been made subjectively award of their import or effect. The rules which have been laid down by the courts regarding notice in such circumstances are three in number:<br /> <br /> (1) If the person receiving the document did not know that there was writing or printing on it, he is not bound.<br /> <br /> (2) If he knew that the writing or printing contained or referred to conditions, he is bound.<br /> <br /> (3) If the party tendering the document did what was reasonably sufficient to give the other party notice of the conditions, and if the other party knew that there was writing or printing on the document, but did not know it contained conditions, then the conditions will become the terms of the contract between them.<br /> <br /> 12-012 Reasonable sufficiency of notice. It is the third of these rules which has most often to be considered by the courts. The question whether the party tendering the document has done all that was reasonably sufficient to give the other notice of the conditions is a question of fact in each case, in answering which the tribunal must look at all the circumstances and the situation of the parties. But it is for the court, as a matter of law, to decide whether there is evidence for holding that the notice is reasonably sufficient. Cases in which the notice has been held to be insufficient have been those where the conditions were printed on the back of the document, without any reference, or any adequate reference, on its fact, such as, “For conditions, see back”, or where the conditions were obliterated by a printed stamp. In many situations, however, the tender of printed conditions will in itself be sufficient. It is not necessary that the conditions themselves should be set out in the document tendered: they may be incorporated by reference, provided that reasonable notice of them has been given.<br /> <br /> 12-013 Onerous or unusual terms. Although the party receiving the document knows it contains conditions, if the particular condition relied on is one which is particularly onerous or unusual term, or is one which involves the abrogation of a right given by statute, the party tendering the document must show that it has been brought fairly and reasonably to the other’s attention. “Some clauses, which I have seen”, “said Denning L.J., “would need to be printed in the red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient”.<br /> <br /> 12-014 Personal disability. It is immaterial that the party receiving the document is under some personal, but non-legal, disability, such as blindness, illiteracy, or an inability to read our language. Provided the notice is reasonably sufficient for the class of persons to which the party belongs e.g. passengers on a ship or railway) he will be bound by the conditions.<br /> <br /> 12-015 Printed notices. Where printed notices are exhibited, it may be sufficient if the party to be bound has, before or at the time of making the contract, had his attention drawn to the notices, or received a printed document which refers him to the notices, in circumstances which make it clear to him that the contract is subject to the conditions contained in the notices. The reference may be circuitous provided it is clear. It has, however, been stated by Denning L.J. that: “ The party who is liable at law cannot escape liability by simply putting up a printed notice, or issuing a printed catalogue, containing exempting conditions. He must go further and show affirmatively that it is a contractual document and accepted as such by the party affected”. In many situations it will be sufficient to display a prominent public notice which can be plainly seen at the time of making the contract. But the issue of a catalogue or brochure which states that the contract to be concluded will be subject to exempting conditions may not be sufficient to make the conditions terms of the contract if further steps to incorporate the conditions are not taken at the time the contract is concluded.<br /> <br /> 12-016 Statue. Certain additional requirements of form have been imposed by statute on some classes of contract; for example, by the Carriers Act 1830, s.4 common carriers cannot limit their liability by publication of notices alone, but only by special contract. <br /> <br /> Statement of law as contained in the Chitty’s law of Contract and reproduced above is based on various judgements of English Courts. When there is a condition in a contract signed by both the parties that condition printed in small and fine prints is meant to limit the liability of one of the parties. It should be construed strictly. Small and fine print should be clearly discernible and should draw the pointed attention of the consumer. Directives of the European Commission provide that a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer. An English Court has been empowered to override a contract term if it appears it to be unreasonable. United Kingdom has enacted the law called the Unfair Contract Terms Act, 1977 which provides certain conditions which must be satisfied to judge the requirement of reasonableness in a contract term. If, however, there is no such contract entered into by both the parties, there must be proof that the terms which are printed on the reverse are otherwise notified elsewhere have been brought to the notice of the consumer or at least that all could be reasonably done in that regard has been done by the opposite party to bring the same to the notice of the consumer. Such a term could be in bold print and it should be easily so that a consumer cannot miss reading it and understand it. A condition in small print would amount to a communication only when attention of consumer could be specifically drawn to it.<br /> <br /> In Sudhir Deshpande V/s Elbee Services Ltd., Bombay,-1768 (NS) National Commission & SC on Consumer Cases 1986-96, this Commission said:<br /> <br /> “We may make an observation here that the mention of the 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 dispatch 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”.<br /> <br /> In Skypak Couriers Pvt. Ltd., V/s Consumer Education and Research Society- 1788 (NS) National Commission & SC on Consumer Cases 1986-96, this Commission upheld the observation of the State Commission as under: <br /> <br /> “(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 neigher 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”.<br /> <br /> 14. Considering the law extracted and quoted in the above paragraphs from the judgement of the Hon’ble National Commission regarding “small print”, liability of the opposite party courier service as a common courier is that of insured, standard form contracts, we are of the opinion that, the terms or conditions mentioned on the over leaf of the blank waybill, is not at all pending on the complainant and hence, the contention of the opposite party that, the liability is only to extent of Rs.5,000/- cannot accepted. <br /> <br /> 15. In 1986-2005 consumer 9311 the National Commission has held that, the terms and conditions printed on back leafing liability is small print, the sender or representative having not informing about such condition, the courier service cannot rely upon it. In that case enabling the daughter application for medical college was entrusted to the courier paying charges of Rs.100/- and compensation of Rs.20,000/- and cost of Rs.1,000/- has been awarded.<br /> <br /> 16. In II (2009) CPJ 30 Hon’ble Andra Pradesh State Commission, the courier service having not delivered certificate of the wife of the complainant regarding interview for job, awarded Rs.20,000/- and Rs.10,000 as well as cost.<br /> <br /> 17. In II (2009) CPJ 268 Hon’ble Rajasthan State Commission, the cover entrusted to the courier was not delivered at its destination, for which Rs.14,500/- + 3,000/- was awarded.<br /> <br /> 18. In II (2009) CPJ 462, for medical test prospectus entrusted to the courier was not delivered, for which charges of Rs.63/- collected and Hon’ble Delhi State Commission awarded Rs.25,000/-.<br /> <br /> 19. In III (2009) CPJ 8, the Hon’ble National Commission awarded Rs.20,000/- and cost to the complainant against the courier service, which did not deliver the MBBS admission application form.<br /> <br /> 20. For the complainant, order of the Hon’ble National Commission in first appeal No.92/97 dated 02.06.2006 and I (2008) CPJ 452, are relied upon.<br /> <br /> 21. In the case on hand, opposite party had collected charges of Rs.2,239/- for delivering the consignment in question to the complainant at USA. Taking into consideration of the amount that, the opposite parties charged and collected, as well as, the charges claimed by other courier services in the rulings cited supra and the facts of those case and of the present case, we are of the opinion that, awarding of Rs.50,000/- towards loss of income, a sum of Rs.25,000/- towards mental agony and inconvenience caused, and Rs.5,000/- towards cost of the proceedings is just and reasonable.<br /> <br /> 22. The second opposite party has contended that, the consignment was entrusted by the college to the opposite parties to be delivered to the complainant at USA and it was not by the complainant himself, but the fact remains that, the complainant is the beneficiary and hence, he is a consumer and entitled for the compensation.<br /> <br /> 23. Hence, from the facts and the evidence on record, admittedly the consignment having not being delivered to the complainant there is deficiency of service on the part of the opposite parties and the opposite parties are liable to pay the amount as noted above. <br /> <br /> 24. Accordingly, our finding on the point is partly in affirmative.<br /> <br /> 25. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. The opposite parties jointly and severally are hereby directed to pay a sum of Rs.50,000/- towards loss of income or earnings and Rs.25,000/- towards mental agony and inconvenience caused, within a month from the date of the order, failing which the amount will carry interest at the rate of 10% p.a.<br /> 3. Further, the opposite parties shall pay cost of Rs.5,000/- to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 9th December 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />