Rajasthan

StateCommission

A/29/2018

M/s Fedex Express Transporation and Supply Chain Services Pvt. Ltd. - Complainant(s)

Versus

M/s Electronic Arena - Opp.Party(s)

Manvendar Singh

04 Dec 2018

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 29 /2018

 

M/s.Fedex Express Transportation and Supply Chain Services Pvt.Ltd. Boomerang Unit no. 801 W.Wing AV 1 8^th floor, Chhandiwali Road, Chandiwali Studio, Andheri Mumbai & ors.

Vs.

M/s.Electronic Arena through Prop., Balaji Market, Kashipuri, Bhilwara.

 

Date of Order 4.12.2018

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Hon'ble Mr.Kamal Kumar Bagri- Member

 

Mr.M.S.Shekhawat counsel for the appellant

 

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

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The appeal is filed against the order dated 16.11.2017 passed by the District Forum, Bhilwara whereby the claim is allowed against the appellant.

 

The contention of the appellant is that liability was limited to Rs. 5000/- which was sent to the complainant but it was not accepted. Hence, the claim should have been dismissed. His further contention is that transaction was commercial one hence, the claim should not have been allowed.

 

Heard the counsel for the appellant and perused the impugned judgment as well as original record of the case. None appeared on behalf of the respondent inspite of service.

 

The fact is not in dispute that complainant booked seven shipments to deliver it on particular place and only six shipments were delivered and one shipment was found missing.

 

The first contention of the appellant is that the transaction is commercial one hence, the claim should not have

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been allowed and reliance has been placed on 1995 AIR 1428 Laxmi Engineering Works Vs. PSG Industrial Institute and judgment passed by this Commission in First Appeal No. 621/2016 New India Assurance Co. Ltd. Vs. Delhi Haryana Transport Company but here in the present case admittedly the appellant is carrier hence, this contention is not available against the carrier.

 

The other contention of the appellant is that as per condition of carriage Anx. A 4 the liability is limited one. The Forum below has held that no such conditions were placed before the Forum below and record of the case also shows that conditions were not placed before the Forum below and it is not the case of the appellant that conditions were ever intimated to the consumer.

 

The appellant has relied upon II (1996) CPJ 25 (SC) Bharati Knitting Co. Vs. DHL Worldwide Express Courier and II (2004) CPJ 39 (NC) Desk to Sesk Courior Vs. Kerala State Electronic where the contract was signed between the parties and limit of damage was considered upon the terms of the contract. In Bharati Knitting Co. (supra) the note was signed

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by the complainant and so also the facts in Desk to Desk Courior's case but here in the present case conditions were never made known to the respondent and no written contract was entered between the parties. Further more it may also be noted that consignment was booked on 5.12.2014 whereas the conditions of carriage Anx. A 4 are effective from 1.6.2015 hence, could not govern the liability of the party in the present case.

 

The contention of the appellant is that conditions were printed on the consignment form. The consignment form is submitted by the appellant as Ex. A 2 and also by the respondent as Ex. P 2 and the bare perusal of Anx. A 2 and P 2 clearly shows that the conditions as are written on the form could not be read and it may be noted that conditions printed on Ex. A 2 clearly established a case of illegal trade practice that appellants has purposely printed the conditions in the manner that could not be read by human eyes and the appellant could not take the benefit of this.

 

Further as considered earlier conditions were never been

 

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agreed between the parties and even not made known to the respondent.

 

In view of the above, there is no merit in this appeal and stands dismissed.

 

(K.K.Bagri) (Nisha Gupta)

Member President

 

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