Chandigarh

StateCommission

A/293/2015

DTDC Courier & Cargo Ltd. - Complainant(s)

Versus

M.R.Gupta - Opp.Party(s)

Ashutosh Gupta, Adv.

16 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	293 of 2015
Date of Institution	:	06.11.2015
Date of Decision	:	16.11.2015

 

1. DTDC Courier & Cargo Limited, Regional Office, SCO 267, Sector 35-D, Chandigarh, through its Assistant General Manager.
2. DTDC Courier & Cargo Limited, Head Office: 3, Victoria Road, Bangalore, through its Director.

……Appellants/Opposite Parties

V e r s u s

M.R. Gupta, C-76, Kendriya Vihar, Sector 48-B, Chandigarh– 160047.

              ....Respondent/Complainant

 

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

 

BEFORE:          JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.M.P. Singh, Advocate proxy for Sh.Ashutosh                     Gupta, Advocate for the applicants/appellants.      

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            This appeal has been filed against an order dated 09.07.2015, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the Forum only) vide which, it accepted complaint, filed by the complainant (now respondent), against the Opposite Parties (now appellants).

2.       As per facts on record, the respondent hired services of Opposite Party No.2/appellant No.1, to send certain important documents, through courier, to Gurgaon, on 22.04.2013. Admittedly, those documents were not delivered to the consignee. When efforts made by the respondent to know about fate of his documents failed, he filed a complaint with the Opposite Parties, on 07.05.2013. Through an email dated 12.06.2013, the appellants informed the respondent that the consignment had been returned to their booking office at Chandigarh, on 30.04.2013. It is an admitted fact that the packet/consignment neither reached the consignee, nor it was handed over to the respondent. The respondent went to Gurgaon, to convince the consignee, regarding dispatch of the documents, through the appellants, in order to save his business ties with it. It was case of the respondent that besides facing mental agony and physical harassment, he had to suffer financial loss to the extent of Rs.5,000/-, which he had spent on his journey to Gurgaon, taxi charges, stay etc.. For loss of consignment, the respondent claimed compensation, to the extent of Rs.75,000/-, which included compensation for mental agony and physical harassment. He also claimed an amount of Rs.5,000/- towards financial loss suffered by him, to undertake journey to Gurgaon. Over and above Rs.15,000/- were also claimed towards litigation expenses.
3.       Upon notice, joint reply was filed by the Opposite Parties/appellants. The appellants took a stand that the packet/consignment was returned to the booking office on 30.04.2013. It is also an admitted fact that as per scheme under which the documents were further booked, those were to be delivered within 48 hrs. It was stated that it was duty of the respondent to approach appellant No.1, to collect his documents and know reasons for non-delivery of the same to the consignee. However, it was not done. For loss of documents, liability was accepted to the extent of Rs.100/-, as per terms and conditions of the receipt. The remaining averments were denied, being wrong.
4.        In the rejoinder filed by the respondent, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the joint written version of the appellants.
5.       The parties led evidence, by filing their affidavits and also brought on record numerous documents.
6.       The Forum on analysis of evidence on record, and after hearing arguments of Counsel for the parties, accepted the complaint, as stated above.
7.       Feeling aggrieved, the instant appeal, has been filed by the appellants, alongwith an application for condonation of delay of 87 days (as per office report 103) days, in filing the same (appeal).
8.       We have heard Counsel for the appellants, on the application for condonation of delay aforesaid, as also in the main appeal, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully. 
9.       Perusal of the record shows that the Forum rightly came to a conclusion that there was deficiency in rendering service to the respondent, by the appellants. It was noticed that the consignment note, on the basis of which Rs.100/- as compensation was offered, in a case of loss or damage caused, was not signed by the respondent. It was further rightly noticed by the Forum that the terms and conditions mentioned on the receipt, were in very fine print, which a common man cannot read easily with naked eyes. On the other hand, there is nothing on record, that the terms and conditions mentioned in small print on the receipt were ever explained or read over, to the respondent. In a similar case, in Osuri Devendra Phanikar Vs. Desk to Desk Couriers and Cargo Limited, III (2003) CPJ 160 (NJC), it was held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (in short the National Commission), that since the consignment note is not signed by the complainant and the terms and conditions on the reverse of it, are in a small print, which were not explained to him, as such, the same could not be made applicable upon him. Such act on the part of the Opposite Party was held to be deficient in rendering service. Not only this, in Sudhir Deshpande Vs. Elbee Services Ltd.,Bombay, I (1994) CPJ 140 (NC) = 1986-96 National Commission & SC of Consumer Cases 1968 (NS), it was held by the National 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 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.”

In Skypak Couriers Pvt. Ltd. Vs. Consumer Education and Research Society, 1986-96 National Commission & SC on Consumer Cases 1788 (NS), the National 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.”

10.       The principle of law laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since, it has been held above, that the complainant was not bound by the terms and conditions of the limited liability Clause to the extent of Rs.100/- towards loss or damage of the consignment, mentioned in the receipt aforesaid, in our considered opinion, the Forum was right in not placing reliance on the same. Taking note of the above facts, following relief was granted to the respondent, by the Forum:-

“[a]  To pay Rs.10,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[c] To pay Rs.7,500/- as cost of litigation;

The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the amount mentioned in per sub-para [a] above, apart from cost of litigation of Rs.7,500/-, from the date of institution of this complaint, till it is paid.”

11.       Towards loss of consignment, nothing was granted by the Forum, to the respondent. However, for deficiency in rendering service and for causing mental agony and physical harassment to the respondent, an amount of Rs.10,000/- as compensation, was granted by the Forum and Rs.7,500/- towards litigation expenses. The view taken by the Forum being inconformity to the law laid down in the judgments, referred to, in preceding part of this order, is perfectly correct and needs no interference. 
12.       At the time of arguments, a specific question was put to Counsel for the appellants, as to what was the reason for non-delivery of documents to the consignee, he failed to give any answer.
13.       No other point, was urged, by Counsel for the appellants.
14.       In view of the above discussion, it is held that the order passed by the 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.
15.       For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the Forum is upheld.
16.       Since the appeal filed by the appellants has been dismissed, at the preliminary stage, as such, the application filed by them for condonation of delay of 87 days (as per office report 103 days), in filing the same (appeal) is also dismissed, being rendered infructuous. The application is disposed off, accordingly. 
17.       Certified copies of this order, be sent to the parties, free of charge.
18.       The file be consigned to Record Room, after completion.

Pronounced.

16.11.2015

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

Rg