A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

 AT HYDERABAD.

F.A. 265/2009 against C.D. 16/2008, Dist. Forum, Tirupathi

Between:

Balaji Vaccine House

Rep. by its Proprietrix

Smt. K. Lakshmibai

W/o. Late  K. N. Chari

Age: 70 years, 206

K.K. Layout, Tirupathi

Chittoor District.                                         ***                         Appellant/

                                                                                                Complainant

                                                                   And

1) DTDC Courier & Cargo Ltd.

Rep. by Regional Manager

1-10-74/B, Techno Polis Building

Beside Pantaloon  Show Room

Begumpet, Hyderabad.

2)  M/s. Swathi Enterprises

Super Franchisee

D.T.D.C. Courier & Cargo Ltd.

245, GN Mada Street

Tirupathi.                                                   ***                         Respondents/                                                                                                       Opposite Parties.  

Counsel for the Appellant:                          M/s. K. Kondala Rao.

Counsel for the Respondent:                       M/s. S. Pramod Kumar.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT  

                                                          &

                                    SMT. M. SHREESHA, MEMBER

TUESDAY, THIS SEVENTH DAY OF DECEMBER TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                 Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that  she  booked three consignments  of vaccine   on 2.8.2007  to Dr.  Nagamohan,  Devi Medicals,  and Kiran Medicals of Anathapur value of which was Rs. 1,063/-, Rs. 4,651/- and  Rs. 4,622/- respectively in all Rs. 10,366/-  and entrusted to the respondent.     When non-delivery of  these parcels to the consignees  was intimated to the  respondent courier service they gave reply stating that  the consignments were lost in transit and were not traced out.   Alleging deficiency in service  she filed the complaint claiming  Rs. 10,366/- towards loss of goods in transit, Rs. 10,000/- towards compensation  and Rs. 5,000/- towards costs.

3)                 Op2  resisted the case  by filing counter  which was adopted by Op1.    It alleged  that the complainant being a wholesale stockist of  various  vaccines used to supply  them to various  places in Andhra Pradesh and that she was availing the services for commercial purpose and therefore not a consumer.    While admitting that the vaccines were  booked, it alleged that the complainant did not declare the value of consignments nor  it  had produced any invoice.    It has forwarded the consignments  through  a bus   however the bag was missed.    The complaint is liable to be dismissed for want of jurisdiction, and therefore prayed for dismissal of the complaint with costs.

4)                 The complainant filed the affidavit evidence of its proprietrix  and got Exs. A1 to A4 marked while the proprietor of Op2 filed his affidavit evidence and did not file any documents.

5)                 The Dist. Forum after considering the evidence placed on record opined that the complainant did not mention the value of the consignments  and in the light of terms of  Ex. A2 consignment notes the liability was limited to Rs. 100/- each of the parcel and directed the opposite parties to pay Rs. 300/- together with compensation of Rs. 2,000/- and costs of Rs. 500/-.

6)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.     It ought to have awarded the value of the consignments instead of awarding an amount of Rs. 100/-  per consignment.    It had proved that the value of the consignments was Rs. 25,366/- vide Ex. A1 credit bills. 

7)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                 It is an undisputed fact that the complainant a wholesale stockist of  various  vaccines booked three consignment notes  through OP2  evidenced under Ex. A2 courier receipts  on 2.8.2007.  It is also not in  dispute that while  booking the  said consignments  the complainant did not note their value.  Ex. A2 shows  that  the complainant did not declare the contents or  its value.      Ex. A2  specifically mentions that  in case   of any loss or damage its liability would not exceed Rs. 100/-.   The complainant  could not explain as to why  she did not declare  the value of the consignment.  Unfortunately  the Carriers Act throws the burden on the consignor  to make a note of value of the consignment.    The complainant had paid the courier charges vide Ex. A2 agreeing  the respondent’s limited liability at Rs. 100/-. 

9)                As early as in 1996  in  Bharati Knitting Company Vs. DHL Worldwide & Express Courier of  Air Freight Ltd.  reported in (1996) 4 SCC 704  their Lordships had an occasion  to consider deficiency in service  by  a courier.   That was a case where the complainant claimed loss of certain goods with documents sent in a cover equivalent to Rs. 4,29,392-60.  The Supreme Court while observing the scope and ambit of Consumer Protection Act  opined

“It is true that the Act is a protective legislation to make available inexpensive and expeditious summary remedy. There must be a finding that the respondent was responsible for the deficiency in service, the consequence of which would be that the appellant had incurred the liability for loss or damages suffered by the consumer due to deficiency in service thereof. When the parties have contracted and limited their liabilities, the question arises: whether the State Commission or the National Commission under the Act could give relief for damages in excess of the limits prescribed under the contract ?

          The  Supreme Court had considered the terms of the contract  in such a case.   It held 

“It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Anson’s Laws of Contract, 24th Edn. at page 152, on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arises : whether the terms of the contract were adequately brought to his notice ? The terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is : whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract. The National Commission in the impugned order pointed out as under:

“We have considered the submissions of the Counsel for the parties on the facts of the case and having regard the earlier decisions of this Commission. The consignment containing the documents sent in the rover had been accepted by the Appellant and was subject to the terms and conditions mentioned on the consignment note. The complainant had signed the said note at the time of entrusting the consignment and had agreed to and accepted the terms and conditions mentioned therein. Clauses 5 and 7 of the terms and conditions as also the important notice mentioned on the consignment note are reproduced below :

Clause 6—”Limitation of liability: Without prejudice to Clause 7 the liability of DHL for any loss or damage to the shipment, which term shall include all documents or parcels consigned to DHL under this Air bill and shall not mean any one document or envelope included in the shipment is limited to the lesser of —

(a)  US $100

(b)  The amount of loss or damage to a document or parcel actually sustained; or

(c)  The actual value of the document or parcel as determined under Section 6 hereof, without regard to the commercial utility or special value to the shipper.

Clause 7—Consequent damages excluded: DHL shall not be liable in any event for any consequential or special damages or other indirect loss however arising whether or not DHL had knowledge that such damage might be incurred including but not limited to loss of income, profits, interest, utility or loss of market.

Important Notice—By the conditions set out below DHL and its servants and agents are firstly not to be liable at all for certain losses and damages and secondly wherever they are to be liable the amount of liability strictly limited to the amount stated in condition and customers are therefore advised to purchase insurance cover to ensure that their interests are fully protected in all event.”

Under Clause 5 of the terms and conditions of the contract, the liability of the appellant for any loss or damage to the consignment was limited to US $ 100. Clause 7 of the contract specifically provided that the liability of the appellant for any consequential or special damages or any other indirect loss, that may occur including the loss of market or profits etc. was excluded. It is also pertinent to note that despite the advice in the important notice, the complainant did not disclose at the time of consignment the contents of the cover and also not purchased the insurance cover to ensure that their interests are fully protected in all events.”

10)               The Supreme Court finally opined that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent.

11)               Had the complainant declared its entire value  she would have got an order  in her favour.    She was aware that if  she declares the value she has to pay higher amount towards transportation charges.    In order to obviate  payment of a higher transportation charges  the complainant omitted to mention  the value of the consignment knowing that it would go against  them.    The complainant equally did not insure the consignment.    The Dist. Forum in the light of terms of the contract awarded Rs. 100/-  per parcel besides Rs. 2,000/- towards compensation and costs.   The opposite parties did not prefer  any cross-appeal  against the said order.    In the light of terms of contract, we are unable to allow the complaint directing the opposite parties to pay the value  of the consignment, when the complainant herself did not choose to mention  its value.    We do not see any mis-appreciation of fact  or law  by the Dist. Forum in this regard.   We do not see any merits in the appeal.

12)                         In the result the appeal is dismissed.  No costs.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.  07. 12.  2010.

*pnr

“UP LOAD – O.K.”