Punjab

StateCommission

A/11/1269

Hanish Kumar - Complainant(s)

Versus

DTDC Courier and Cargo Ltd. - Opp.Party(s)

Sherry K. Singla

04 Mar 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.1269 of 2011

 

                                                          Date of Institution: 23.08.2011  

                                                          Date of Decision :  04.03.2015

 

1.       Hanish Kumar S/o Vijay Kumar R/o Street No.6, Thales Bagh    Colony, Opposite Kishanpura, Sangrur.

 

2.       Parveen Kumar Singla S/o Gian Chand Singla R/o Ajit Nagar,    Circular Road, Nabha, District Patiala

 

                                                                                                                                                                …..Appellants/Complainants

              

                                      Versus

 

1.       DTDC Courier and Cargo Limited, Regd Office : DTDC House No.3,    Victoria Road, Banglore 560047

2.       DTDC Courier Service, Office at 1/16, West Patel Nagar, Metro          Pillar No.197-198, Delhi 110008

3.       Unique Enterprises, DTDC Courier and Cargo Limited, 4,Parkash        Market, Opposite HDFC Bank, Dharampura Bazar, Patiala, through   its Prop. Mr.S.P Singla.

 

 

                                                                                                                                               ….Respondents/Opposite parties

         

First Appeal against order dated 07.07.2011 passed by the District Consumer Disputes Redressal Forum, Patiala

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellants            :         Sh.Sunny Kumar Singla Advocate

          For the respondents        :         None

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                  

           The appellants (the complainants in the complaint) have directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging the order dated 07.07.2011 of District Consumer Disputes Redressal Forum Patiala, dismissing the complaint of the complainants. The instant appeal has been preferred by the complainants now appellants against the same.

2.      The complainants have filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant availed the services of the OPs for sending the document viz., the agreement of sale through the courier. That on account of urgent nature of the document of agreement of sale entered into by the complainant with Parveen Kumar complainant no.2, the complainant had no time to send it to Parveen Kumar in person and hence he expedited it by sending the document of the agreement of sale in original by availing the courier services of the OPs on 11.10.2010, to Parveen Kumar at his official address at Patiala. That importance of the document was brought to the notice of OP No.2 at the time of booking of consignment through the courier service. That the original agreement of sale did not reach the destination, as Parveen Kumar could not receive it. That OP No.3 assured the complainant to locate the courier in the morning on 15.10.2010 for collecting it. That OP No.3 intimated the complainant that original document sent through courier i.e. agreement of sale has been rather  lost. That resultantly, complainant no.1 and 2 failed to produce agreement of sale in original at the appointed time, which was the prior condition for the execution of the sale deed and as such, the amount of Rs.1,50,000/- as earnest stood forfeited. The complainants have filed the complaint against the OPs directing them to pay the forfeited amount of Rs.1,50,000/- to the complainant along with interest @18% p.a, besides compensation of Rs.15,000/-  for mental harassment and Rs.5500/- as costs of litigation.

3.      The OPs were set exparte before the District Forum, vide order dated 29.11.2010.

4.      The complainant tendered in evidence his affidavit Exx.C-1, copy of the agreement Ex.C-2 and photocopy of courier receipt Ex.C-3 and closed the evidence.  On conclusion of exparte evidence and arguments, the District Forum, Patiala dismissed the complaint of the complainant, primarily on the ground that photocopy of receipt Ex.C-3 is illegible. The terms and conditions thereof could not be deciphered. Dissatisfied with the order-dated 07.07.2011 District Forum, Patiala, the complainants now appellants have preferred this appeal against the same.

5.      We have heard learned counsel for the appellants as none has appeared on behalf of respondents in this appeal before us. Respondents of this appeal were set exparte before the District Forum and hence, we proceed to settle the controversy on the basis of the evidence on the record.

6.      The plea of the complainant is that agreement of sale was entered into by the complainant along with Parveen Kumar for an amount of Rs.1,50,000/- by Jasmeet Singh S/o Davinderpal Singh. The stipulated date of sale deed was 15.10.2010. That the complainant had to go to Delhi and as such, complainant could not come in connection with this sale deed due to medical ground in propria persona. That the original agreement of sale was sent through courier service of OP No.2 on 11.10.2010 to Parveen Kumar, complainant no.2. That Parveen Kumar complainant no.2 contacted OP No.1, but the consignment of the original agreement of sale was not delivered to him at the destination. That it was misplaced somewhere in the transit and resultantly, the earnest money of Rs.1,50,000/- stood forfeited in this case. The complainants have sought the amount of the loss of Rs.1,50,000/- towards forfeiture of the earnest money with interest from the OPs for their negligence in not delivering the consignment in the shape of original agreement of sale at the destination.  

7.      We have carefully heard the submissions of the appellants in this case. The District Forum primarily dismissed the complaint of the complainant on the ground that photocopy of the receipt is placed on the record and the term thereof is not legible. Original receipt has been placed on record by the appellants in the appeal before us and we have examined it.  The terms and conditions, which are printed on the overleaf of this receipt, are an agreement between the parties. Clause 5 is dealing with the limitation of liberty, laying down that law of DTDC for any loss or damage to the shipment will be strictly limited to Rs.100/- for each shipment, which items include all documents or parcels consigned through DTDC by the shipper. Clause 5 of the terms and conditions of this receipt, which constitute an agreement between the parties clearly lays down that the liability of the DTDC for any loss or shipment or for any loss or damage of the shipment will be strictly limited to Rs.100/- only for each shipment, which item includes all documents or parcels consigned through DTDC by the shipper.

8.      The matter is not res-integra. The Apex Court held in "Bharti Knitting Co. Versus.. DHL Worldwide Express Courier Division of Airfrieght Ltd.", II(1996) CPJ-25 (SC) that when the complainant sent the documents through a courier, even to his foreign customer, the document did not reach the destination, the consignee instead of paying the fixed value of invoice agreed to pay less amount. The Apex Court held authoritatively that when there is specific term in the contract, the parties are bound by the same. When a party to the contract disputes the binding nature of the signed contract, It is for him to prove the terms of contract or the circumstances, in which he signed the document, needs to the established. The Apex Court mandatarily held in the above authority that the Tribunals and Foras would follow this settled law in the country. The liability of the courier in the presence of an express contract, entered with the terms and conditions, the liability is limited and the deficiency in service is to the extent of liability as undertaken by the opposite parties in the agreement. In view of the unambiguous position of law laid down by the Apex Court in the above authority, we are respectfully bound by the same. The law laid down by the Apex Court has binding force throughout the country.

9.      In view of the law laid down by the Apex Court in Bharti Knitting Co. Versus.. DHL Worldwide Express Courier Division of Airfrieght Ltd. (supra), we are of this opinion that the terms and conditions of the receipt Ex.C-3, whereof has been produced in the appeal, are signed by the complainant and complainant is bound by the same. Consequently, we hold that the liability of the OPs for the loss of the shipment is expressly limited to Rs.100/- only in this case. The District Forum outrightly dismissed the complaint of the complainant and order the District Forum is substituted in this appeal by holding that liability of the OPs now respondents in this appeal is expressly confined to Rs.100/-, as per Clause 5 of the terms and conditions of this receipt. In addition to the amount of Rs.100/- as per the terms and conditions, we also further award the costs of litigation of Rs.25,00/- to the complainant because the OPs by not paying even Rs.100/- to complainant led him to file this Consumer Complaint against them.

10.    As a result of our above discussion, the order of the District Forum under appeal in this case is set aside and it is ordered in the appeal that complainant is entitled to recover Rs.100/- for loss of shipment, as per Clause 5 of the terms and conditions, as contained in receipt Ex.C-3. The complainant is also awarded the cost of litigation of Rs.2500/- in addition thereto and the appeal is disposed of in this way. The OPs shall pay the above-said amount to the complainants within 45 days after receipt of this order, failing which the complainants shall be entitled to recover this amount from the OPs in the execution proceeding.

11.    Arguments in this appeal were heard on 26.02.2015 and the order was reserved. Now the copy of order be communicated to the parties.

12.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

March 4  2015.                                                               

(ravi)