STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1]    On Dot Couriers and Cargo Limited, 8/42, Kirti Nagar, Industrial  Area, New Delhi.

2]    On Dot Couriers and Cargo Limited, SCO No. 68-70, Sector 17A, Chandigarh.

3]    M/s Kuber Enterprises, Booth No. 21, Sector 38-C, Chandigarh.

       All through Sh. Sanjeev Puri, Administrative Manager, SCO No.68-70, Sector 17A, Chandigarh.

……Appellants

V e r s u s

1]    M/s Nano Biotech, SCO No.164, First Floor, Sector 38-C, Chandigarh, through its Proprietor Rakesh Ranjan Singh.

2]    Rakesh Ranjan Singh s/o  Sh. Rameshwar Singh,  r/o House No. 600, Preet Colony, Zirakpur, District SAS Nagar (Mohali) and also Sole Proprietor of M/s Nano Biotech, SCO No. 164, 1st Floor, Sector 38-C, Chandigarh.

              ....Respondent

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

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

              SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by:  Sh.Tarun Gupta, Advocate for the appellants.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the order dated 03.02.2012, rendered by the District Consumer Disputes Redressal Forum- I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, and directed Opposite Parties No.1 and 3 (now appellants no.1 and 3), jointly and severally, as under:-

“The OPs No.1 to 3 are, jointly & severally, directed to pay Rs.91,800/- to the complainant as the actual cost of the lost article/parcel.  They are also directed to pay Rs.20,000/- as compensation to the complainant for causing him mental agony & physical harassment, apart from Rs.10,000/- as litigation cost.

This order be complied with by OPs , jointly & severally, within a period of 30 days, from the date of receipt of its copy, failing which it would be jointly & severally, liable to pay the above awarded amount, alongwith interest @ 12% p.a. from the date of filing of the present complaint i.e. 26.09.2011, till the amount is actually paid to the complainant, besides paying the litigation cost of Rs.10,000/-``.

2.             The facts, in brief, are that complainant no.2, as sole Proprietor of complainant no.1 (now respondents no.1 and 2),  who had been running  the business of  medicines, under the name & style of M/s Nano Biotech, availed the services of the Opposite Parties on 21.01.2011, for consideration, by booking a parcel, containing medicines worth Rs.91,800/-, through Opposite Party No.3. The parcel was to be delivered to M/s J.K. Pharmaceuticals, Chennai. The said parcel did not reach the destination. When the said parcel did not reach the destination, Opposite Party No.2, was contacted by the complainants. Thereafter, the complainants were told that the parcel was misplaced during transit. It was assured that the matter would be resolved soon. It was stated that, on the contrary, the Opposite Parties, did nothing. Rather, in that process, the complainants had been made a shuttle cock, between Opposite Parties No.2 and 3. The complainants, then sent a request letter dated 14.02.2011, to Opposite Parties No.2 & 3,  to refund the value of the goods of parcel, which was misplaced by them, in transit, as also, to pay compensation for physical harassment and mental agony caused to them, at their hands, but to no avail. The complainants, then again sent a reminder Annexure C-5 dated 31.01.2011, to Opposite Party No.3, but to no avail.  It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.             Opposite Parties No. 1 & 2, in their joint written version, admitted that the parcel was booked, by the complainants. It was, however, denied that the parcel contained the articles/medicines worth Rs.91,800/-. It was stated that the said parcel was duly delivered at the destination. It was denied that the complainant ever contacted Opposite Party No.2. It was denied that Opposite Party No.1, admitted that the parcel had been misplaced, during transit. It was further stated that neither the complainants, ever declared the value of the consignment, nor got the consignment insured, and, under these circumstances, they were not entitled to claim the alleged value of the goods contained in the parcel. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.             Opposite Party No.3, was duly served, but no authorized representative, on its behalf, put in appearance, as a result whereof, it was proceeded against exparte, vide order dated 17.11.2011.

5.             The complainants and Opposite Parties No.1 and 2, led evidence, in support of their case.

6.             After hearing the Counsel for the complainants, as also Opposite Parties No.1 and 2, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.             Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

8.             We have heard the Counsel for the appellants, and have gone through the evidence and record of the case, carefully. 

9.             The Counsel for the appellants, submitted that, no doubt, the parcel was booked with the Opposite Parties. He further submitted that, at the time of booking the parcel, the value of the goods, contained therein, was not declared by the complainants. He further submitted that the retail invoice of Rs.91,800/-, Annexure C-2, dated 21.01.2011, later on provided by the complainant, was a forged and fabricated document. He further submitted that,  as per the terms and conditions of the courier receipt,  Annexure C-4, in case of misplacement of the parcel, the Opposite Parties, were liable to pay only a sum of Rs.100/-. He further submitted that, even the parcel was delivered at the destination and it was not misplaced. He further submitted that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

10.           After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Admittedly, the parcel, in question, was booked with the Opposite Parties, and receipt Annexure C-1 dated 21.01.2011, was issued by their Authorized signatory. In case, the value of the goods, contained in this parcel, had not been declared, by the complainant, then, it was the duty of the Opposite Parties, to seek such declaration, and, in the absence of furnishing the same, they could refuse to book the parcel, but they did not do so. Now, at a later stage, it does not lie, in the mouth of the appellants/opposite parties, to say that the value of the goods, contained in the parcel, was not declared, by the complainants. On the other hand, Annexure C-2, is the retail invoice dated 21.11.2011, in the name of M/s J.K. Pharmaceuticals, the addressee, in the name of which, the parcel was booked. The parcel, which was booked, was to reach this Company (M/s J.K. Pharmaceuticals). Annexure C-2, the retail invoice clearly shows that the value of the goods, contained in the parcel was Rs.91,800/-. The mere averment, in the written version, that this invoice was a forged and fabricated document, does not prove this factum. No tangible evidence, was produced, by the appellants/Opposite Parties, regarding the fabrication of Annexure C-2. It is, therefore, held that Annexure C-2, is a genuine document. It is also held that the price of the medicines, contained in  the parcel, which was booked through the Opposite Parties, was Rs.91,800/-. This fact was also reiterated by the complainant, in the letter written to Mr. Saurabh Dixit, Regional Manager, On Dot Couriers, Chandigarh (Opposite Party No.2). In support of the averments contained, in the complaint, a brief affidavit by way of evidence, was also filed by complainant No.2.

11.           Annexure C-4, is also the receipt, stated to have been issued by the Opposite Parties. By relying upon this receipt, the Counsel for the appellants, submitted that it was in the form of contract, entered into between the parties, and the maximum amount, which was payable, in the event of loss of the parcel was Rs.100/-. It may be stated here, that Annexure C-4, does not bear the signatures of the complainant. There is nothing, on the record, to prove that the terms and conditions of Annexure C-4, were read over and explained to the complainant, and, he accepted the same, by appending his signatures. Annexure C-4, is a unilateral document, which was created by the Opposite Parties, and the terms and conditions thereof were not binding upon the complainant. Since, no concluded contract came into existence, between the parties, the complainant could not be held bound by the same. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected.

12.           The next question, that falls, for consideration, is, as to whether, the parcel was delivered, at the destination, or not. In case, the parcel, as stated by the Opposite Parties, in their written version, was delivered, at the destination, then the courier receipt, regarding the delivery thereof, could be produced on record. The affidavit of the messenger, who delivered the parcel aforesaid, at the destination, could also be placed on record, by way of evidence, to reveal, as to who was the person, who received the said parcel. However, the Opposite Parties, only placed, on record, the affidavit of Sh.Sanjiv Puri, Administrative Manager, M/s On Dot Couriers & Cargo Ltd., SCO No.68-70, Sukhmani Chambers, Sector 17A, Chandigarh. He was not the person, who allegedly delivered the parcel at the destination. He, therefore, could not say, as to whether,  the parcel was delivered or not. On the other hand, it was the definite case of the complainants, that the parcel was not delivered, to the addressee, at the destination. In the absence of production of any tangible evidence, in possession of the Opposite Parties, regarding the alleged delivery of the parcel, to the addressee, at the destination, the version set up by the Opposite Parties, in their written reply, in this regard, could not be held to be correct. It is, therefore, held that the parcel containing medicines valued at Rs.91,800/-, was not delivered to the addressee, at the destination.

13.              The next question, that falls, for consideration, is, as to whether, the complainants/respondents were entitled to Rs.91,800/-, being the value of the goods contained in the parcel, as is evident from Annexure C-2, the retail invoice. Since the Opposite Parties, failed to prove that the parcel containing the goods/articles/medicines worth Rs.91,800/- was delivered to the addressee at the destination, the complainant suffered loss of Rs.91,800/-. The Opposite Parties could not claim that their liability was only to the extent of Rs.100/- as per Annexure C-4. In Sudhir Deshpande Vs. Elbee Services Ltd., Bombay, I (1994) CPJ 140 (NC)= 1986-96 National Commission & SC on Consumer Cases 1968 (NS), it was held by the National Consumer Disputes Redressal 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 despatch 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 Consumer Disputes Redressal 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.”

In DHL Worldwide Express (A Division of AFL Ltd) and Another Vs. AGG Exports and Another, 2009 CTJ 106 (CP) (SCDRC), the State Consumer Disputes Redressal Commission, Punjab, held as under:- 

“printed terms on the receipts whether binding?- Deficiency in service-Consumer Protection Act 1986-Section 2(1)(g)-Section 2(1)(o)-whether the liability of Appellants restricted to US$100 as printed on the back of receipt? Held No- Appellants not to be absolved from their liability after the deficiency in service found proved-Rather their liability corresponded to the losses suffered by the Consumer and for the harassment and inconvenience suffered.”

              The principle of law laid down, in the cases aforesaid, mentioned in this paragraph, is fully applicable to the facts of the instant case, as Annexure C-4, containing the limited liability clause of the Courier, was not binding on the complainants, as they were neither signatory to the same, nor any evidence was led by the Opposite Parties that the said clause was read over and explained to the complainants. The District Forum was right in holding that the complainants were entitled to the refund of Rs.91,800/-, the value of the medicines, contained in the parcel, booked with the Opposite Parties, as the same was lost by them, in the transit. The findings of the District Forum, in this regard, being correct are affirmed.

14.           The next question, that falls, for consideration, is as to whether, the complainants were entitled to compensation for mental agony and physical harassment, caused to complainant no.2, at the hands of the Opposite Parties. The parcel aforesaid, was admittedly booked by the complainants through the Opposite Parties. The booking charges were paid by the complainants. It was the duty of the Opposite Parties, to deliver the parcel, at the destination, safely. However, they failed to do so. One could imagine the plight of a person, who had booked the parcel, containing medicines worth Rs.91,800/- with the Opposite Parties, but the same was not delivered to the addressee, at the destination. Even, the grievance of the complainants, was not redressed by the Opposite Parties.  Complainant No.2 was made a shuttle cock, between Opposite Parties No.2 and No.3. The complainants, thus, suffered a tremendous mental agony and physical harassment. The District Forum was right, in awarding compensation, to the tune of Rs.20,000/-. The compensation awarded could not be said to be, in any way, unfair, unreasonable or unjust. On the other hand, it could be said to be fair, reasonable and just. 

15.           No other point was urged by the Counsel for the appellants.

16.           The District Forum was, thus, right, in holding that the Opposite Parties were deficient, in rendering service. The order of the District Forum, being legal and valid, is liable to be upheld.

17.           The order passed by the District 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.

18.           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 District Forum is upheld.

19.           Certified Copies of this order be sent to the parties, free of charge.

20.           The file be consigned to Record Room, after completion

Pronounced.

27.03.2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg