Sri Shyamal Gupta, Member
Both these Appeals arise out of the same Order dated 30-06-2016 passed by the Ld. District Forum, North 24 Parganas in C.C. No. 612/2014 whereof the complaint has been allowed in part. Feeling aggrieved by such order, both sides has preferred their respective Appeals.
Facts of the complaint case are that the Complainant booked products worth Rs. 60,676/- with the OP Courier Company on 04-03-2014 for delivering the same to Guwahati. However, the parcel did not reach its destination as the OPs misplaced the same. Hence, the complaint.
By filing a WV, it is contended by the OPs that at the time of booking, the booking person requested the Complainant to book those goods in a secure pack as those were valuable goods, but the Complainant booked the same on ‘D’ series. It is the further case of the Complainant that the consignment was booked by Rashmi Enterprise which is a Private Company and as such, it cannot be a consumer. Also, the goods were meant for another Private company. Thus, it is clear that the consignment was sent purely for commercial purpose. Accordingly, they prayed for dismissal of the complaint.
Decision with reasons
According to DTDC Courier, the consignment was booked by Rashmi Enterprise, which is a Private Company and also the material was sent to another Private Company situated in Guwahati. Therefore, it is clear that the consignment was sent for commercial purpose. According to the DTDC Courier, for this very reason, the instant complaint is not maintainable.
There is nothing to show that M/s Rashmi Enterprise is either a Limited or Private Ltd. Company. Therefore, even if it is assumed for the sake of argument that the consignment was indeed booked for commercial purpose, it is to be kept in mind that mere commercial nature of a transaction does not outrightly exiles the jurisdiction of Consumer Fora to adjudicate a consumer dispute. The Act clearly stipulates that “commercial purpose” does not include services availed by a person exclusively for the purposes of earning his livelihood by means of self-employment. The name of the organization, Rashmi Enterprise itself is suggestive of the fact that it is a Proprietorship concern. Therefore, to my mind, it leaves no scope for any kind of speculation that the instant dispute has rightly been filed before the Ld. District Forum by the Complainant. Objection of the OP Courier does not hold any water. The citations relied upon by the Ld. Advocate appearing on behalf of the OP Courier has got no bearing in the present context given that the facts and circumstances of the present case is totally different.
It is further argued by the OP Courier that no Court or Tribunal Court can go into or re-write the terms of a valid and enforceable agreement. Therefore, even if it is held liable for any sort of deficiency in service, compensation amount cannot go beyond what is stipulated in the Consignment Note.
It is more often than not seen that in order to avoid computable liability for negligent services, Courier Companies draft highly unfair, one-sided terms and conditions. It is done for the ostensible purpose of restricting the compensation amount, in case of non-delivery, to a ridiculously meagre sum that is totally disproportionate to the actual loss sufferred by the consumer. I afraid, this is totally against public policy.
The Hon’ble Supreme Court in its celebrity authority in Central Inland Water Transportation Ltd. & Anr. vs. Brojo Nath Ganguly & Anr., reported in 1986 SCR (2) 278 observed thus -
“Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. This principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract entered into between parties who are not equal in bargaining power. The above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creating of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however, unfair unreasonable or unconscionable a clause in that contract or form or rules may be. This principle will not apply when the bargaining power of the contracting parties is equal or almost equal. this principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. The Court must judge each case on its own facts and circumstances when called upon to do so by a party under section 31(1) of the Specific Relief Act, 1963. [370 A-G] 290.
In the vast majority of cases, however, such contracts with unconscionable term are entered into by the weaker party under pressure of circumstances, generally economic, which results in inequality of bargaining power. Such contracts will not fall within the four corners of the definition of "undue influence" as defined by section 16(1) of the Indian Contract Act. The majority of such contracts are in a standard or prescribed form or consist of a set of rules. They are not contracts between individuals containing terms meant for those individuals alone. Contracts in prescribed or standard forms or which embody a set of rules as part of the contract are entered into by the party with superior bargaining power with a large number of persons who have far less bargaining power or no bargaining power at all. Such contracts which affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and unreasonable are injurious to the public interest. To say such a contract is only voidable would be to compel each person with whom the party with superior bargaining power had contracted to go to Court to have the contract adjudged voidable. This would only result in multiplicity of litigation which no Court should encourage and also would not be in public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged void under section 23 of the Indian Contract Act, as opposed to public policy. [371 C-H].
The Indian Contract Act does not define the expression "public policy" or "opposed to public policy". From the very nature of things, such expressions are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well-recognized head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. The principles governing public policy must be and are capable on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become abnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declares such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority, Indian Courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution. [372 A-D; 373 C-E].
The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The types of contracts to which the principle formulated in this case applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the Court. They are opposed to public policy and required to be adjudged void. [373 F; 374 D-E]”.
Be that as it may, it appears that the Consignment Note on record does not bear any signature of the Complainant. Therefore, it cannot be ascertained with certainty as to whether or not terms and conditions as stipulated in the Consignment Note was duly apprised to the Complainant before sending the consignment. It is the settled position of law that where there is no conscious agreement between the parties, the unilateral conditions incorporated in the Consignment Note will not be binding on the parties. Accordingly, the plea that the OP Courier Company cannot be held liable beyond the scope of terms and conditions as contained in the Consignment Note, is totally a misnomer.
The case of the Complainant, on the other hand, is that the Ld. District Forum while computing the liability of the OP Courier Company, did not take into consideration the loss suffered by her due to gross negligent act of the Courier concerned.
The essence of the bone of contention, i.e., non-delivery of consignment is not in dispute. It appears from the copy of Tax Invoice that the Complainant sent goods worth Rs. 60,676/- through the OP Courier after paying due service charge for this purpose. As a carrier, the OP Courier Company was duty bound to ensure safe and timely delivery of the consignment to the addressee, which it could not ensure. Therefore, there is no reason, why a hapless consumer should bear the brunt of laxity on the part of the service provider for which they charge a consumer through the roof. Accountability can only be restored if we show zero tolerance towards acts of laxity. In my considered view that the OP should be held liable to make good every penny of the loss suffered by the Complainant.
It is alleged by the OP Courier that its official asked the Complainant to book those goods in a secure pack, but the Complainant ignoring such advice booked the article on ‘D’ series. I afraid, to buttress such claim, the OP did not submit any affidavit from the said of the concerned booking personnel. Mere allegation does not prove anything. The onus of proving an allegation rests with the one who makes such allegation. That being not done, hardly any cognizance can be taken of such allegation.
The Appeals are accordingly disposed of.
Hence,
O R D E R E D
that A/638/2016 and A/703/2016 be and the same are dismissed and allowed on contest, respectively. The impugned order is modified as under:
The OPs shall pay the entire cost of goods, i.e., Rs. 60,676/- to the Complainant together with compensation for a sum of Rs. 20,000/- and litigation cost amounting to Rs. 1,000/- within 45 days hence. In default, OPs shall be liable to pay simple interest @ 9% on Rs. 60,676/- from the date of filing of the complaint, i.e., 11-11-2014 till full and final payment is made.
