STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.     M/s DTDC Courier & Cargo Limited, Regional Office B-10, Phase-1, Industrial Area, Naraina, New Delhi – 110 028, through its Authorized Representative (Opposite Party No.1)

2.      M/s DTDC Courier & Cargo Limited, Having its Branch     Office at SCO No.267, Sector 35-D, through its Branch        Incharge/Manager(Opposite Party No.2)

……Appellants

V e r s u s

1. Daman Preet Singh S/o Sardar Bhupinder Singh, House No.242, Sector 123-A, (infact 12-A) Panchkula (complainant).

….Respondent No.1

2. M/s. Bag it Today, Khasra No.371, Fatehpur Beri, Bhati Village, New Delhi- 10 074 (infact 110074), through its Managing Director/Chairman (Opposite Party No.3)

              .... Respondent No.2

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 for the applicants/appellants.

PER  JUSTICE SHAM SUNDER (RETD.), PRESIDENT

1.             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, and directed  Opposite Parties No.1 and 2, as under:-

“As a result of the above discussion, this complaint is allowed with a direction to the OPs No.1 and 2 to refund the amount of Rs.39,998/- to the complainant. OPs No.1 and 2 are also directed to pay a sum of Rs.10,000/- 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 No.1 and 2 within one month from the date of receipt of its certified copy, failing which, OPs No.1 and 2 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”.

2.              The facts, in brief, are that the complainant purchased two consignments, from Opposite Party No.3 (now respondent no.2), for a sum Rs.39,998/-, vide Annexures C-1 and  C-2, respectively.  The complainant was not satisfied, with the quality and material of said consignments, delivered to him, by Opposite Party No.3. On 25.05.2011, the complainant started communicating with Opposite Party No.3, through email, for the return of consignments, and refund of the price thereof. Opposite Party No.3, vide email dated 06.06.2011, instructed the complainant, to send the consignments, at its address. The complainant, thus, booked the said consignments, in favour of Opposite Party No.3, through Opposite Party No.2 (now appellant no.2), vide receipts Annexure C-5 and C-6, respectively. Opposite Party No.3, was informed, accordingly, about the dispatch of the consignments, through Opposite Parties No.1 and 2. The scanned copy of the courier receipts, invoice, and Booking ID, were also sent to Opposite Party No.3, vide Annexure C-7 (colly).  However, Opposite Party No.3, informed the complainant, about non-receiptreceipt of the consignments, vide e-mail dated 17.10.2011 (Annexure C-8). The complainant, brought this matter, to the notice of Opposite Parties No.1 and  2, vide e-mails Annexures C-9 to C-11, whereupon, it was replied by Opposite Party No.1, that since the consignments, were very old, so it did not have the details thereof, as they kept the record, only for one month.  The complainant, sent e-mails to Opposite Parties No.1 and 2, on 23^rd and 27^th Nov., 2011 (Annexures C-12 to C-14), but to no avail.  Opposite Party No. 3, again confirmed the non-receipt of consignments, in question, vide e-mails dated 12.12.2011 and 15.12.2011. It was further stated that the aforesaid acts of Opposite Parties No.1 and 2, 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), directing Opposite Parties No.1 and 2, to pay Rs.39,998/-, towards the cost of consignments, alongwith interest @18% P.A., w.e.f. 11.08.2011 i.e. from the date of its booking; pay compensation for mental agony and physical harassment, to the tune of Rs.1 lac; and pay cost of litigation, to the tune of Rs.20,000/-, was filed.

3.             Opposite Parties No.1 & 2, in their joint written version, stated that the sealed consignments were booked by the complainant, with them. It was further stated that all the terms & conditions, of booking of consignments, were read over by the complainant, and he accepted the same. It was further stated that, no doubt, the consignments could not be delivered, to Opposite Party No.3, yet, Opposite Parties no.1 and 2, were only liable, to pay a sum of Rs.100/-, as mentioned in the terms and conditions, referred to above. It was further stated that the consignments, in question, were under search and presumed to be lost during transit. It was further stated that there was neither any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.             Opposite Party No.3, was duly served, but no authorized representative, on its behalf, put in appearance. Accordingly, Opposite Party No.3, was proceeded against exparte vide order dated 12.03.2012.

5.             The complainant, as also Opposite Parties No.1 and 2, led evidence, in support of their case.

6.             After hearing the Counsel for the complainant, Opposite Parties No.1 and 2, 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 appellants/Opposite Parties No.1 and 2.

8.             Alongwith the appeal, an application for condonation of delay of 61 days, as per the applicants/appellants (as per the office report 59 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, where also, it was to be dealt with, by different persons.  It was further stated that the file was received back by the Administrative Office, on 07.08.2012, and, as such, the appeal was filed.  It was further stated that, as such, the delay of 61 days, in filing the appeal, was neither intentional nor deliberate.  It was further sated that there was a sufficient cause, to condone the delay. Accordingly, a prayer, for condonation of delay of 61 days, in filing the appeal, was made.

9.             We have heard the Counsel for the applicants/appellants, 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.            The question, that arises, for consideration, is, as to whether, there is sufficient cause for condonation of delay of 61 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.”

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.”

11.              Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicants/appellants, have  been able to establish that it was, on account of the circumstances, beyond their control, that they  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 case of the applicants/appellants, 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, on 07.08.2012, is not prima-facie established, from any document, on record. The delay of 61 days, which is about 2 months, 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 applicants/appellants. The cause, set up, by the applicants/appellants, in the application, for condonation of delay, could not be said to be such, as was beyond their control, which prevented them, from filing the appeal, in time. The delay in filing the appeal was, thus, intentional and deliberate. The applicants/appellants, therefore, failed to prove any sufficient cause, in filing the appeal, after the delay of 61 days. Since, no sufficient cause is constituted, from the averments, contained, in the application, the delay of 61 days cannot be condoned. The application is, thus, liable to be dismissed. 

12.               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.”

13.              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 or its bonafides, may fall for consideration. In the instant case, right from the very beginning, the conduct of the applicants/appellants/Opposite Parties No.1 and 2, was blameworthy. They were out and out, to harass the complainant, right from the very beginning, by resorting to dubious means. The order dated 15.05.2012, has not so far been executed and the complainant has been suffering a lot. The conduct of the applicants/appellants, right from the very beginning, is not aboveboard.  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 applicants/appellants, in condoning the delay.

14.           Now, coming to the main appeal, it may be stated here that there is, no dispute, that the consignments, valued at Rs.39,998/-, were booked with the appellants/Opposite Parties No.1 and 2, for consideration, vide receipts Annexure C-5 and C-6, for delivering the same to Opposite Party No.3.  There is also, no dispute, about the factum, that these consignments were not delivered at the destination, but, on the other hand, were presumed to have been lost, in transit. The copies of the goods/consignments notes are Annexures C-1 and C-2. The value of the goods, contained in the consignments, is duly mentioned therein. The question, thus, arises, as to whether, the complainant was entitled to the amount of Rs.39,998/-, being the cost of the consignments, or not. No doubt, as per one of the conditions in Annexure C-5 and C-6, copies of the courier receipts, the liability of Opposite Parties No.1 and 2, in the event of loss of the consignments, was limited to Rs.100/- only. However, it may be stated here, that Annexures C-5 and C-6, do not bear the signatures of the complainant. There is nothing, on the record, to prove that the terms and conditions of Annexures C-5 and C-6, were read over and explained to the complainant. Under these circumstances, the complainant was not bound, by these terms and conditions, which besides being printed in fine print, were not signed by him, nor the same were read over and explained to him. 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, held as under:- 

“printed terms on the receipts whether binding?- Deficiency in service-Consumer Protection Act 1986-Section 2(1)(g)-Section 2(1)(o)-whether the liability of Appellants restricted to US$100 as printed on the back of receipt? Held No- Appellants not to be absolved from their liability after the deficiency in service found proved-Rather their liability corresponded to the losses suffered by the Consumer and for the harassment and inconvenience suffered.”

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 Annexures C-5 and C-6, 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 Opposite Parties No.1 and 2, that the said clause was read over and explained to him. The District Forum was right in holding that the complainants were entitled to the refund of Rs.39,998/-, the value of the goods, contained in the consignments, booked with Opposite Parties No.1 and 2, as the same was lost by them, in transit. The findings of the District Forum, in this regard, being correct are affirmed.

15.           The next question, that falls, for consideration, is, as to whether, the complainant was entitled to compensation, for mental agony and physical harassment, caused to him, at the hands of Opposite Parties No.1 and 2. One could imagine the plight of a person, who had booked the consignments, containing the goods, worth Rs.39,998/-, with Opposite Parties No.1 and 2, but the same were not delivered to the addressee, at the destination. It was the duty of Opposite Parties No.1 and 2, to immediately refund the value of the goods, contained in the consignments, to the complainant, the moment  they came to know that the same, had been lost, in transit. However, Opposite Parties No.1 and 2, took up the plea, that they were only liable to pay a sum of Rs.100/-, as mentioned in the terms and conditions, referred to above. A lot of mental agony and physical harassment, thus, was caused to the complainant, on account of the acts of omission and commission, at the hands of Opposite Parties No.1 and 2. The District Forum was, thus, right, in awarding compensation, to the tune of Rs.10,000/-, to the complainant. The compensation awarded, could not be said to be, in any way, unfair, unreasonable or unjust. On the other hand, it could be said to be fair, reasonable and just. The findings of the District Forum, in this regard, being correct are affirmed.

16.           No other point, was urged, by the Counsel for the applicants/appellants.

17.           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.

18.           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.

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

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

Pronounced

September 4, 2012

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg