AT HYDERABAD.

F.A. 654/2008 against C.D. 437/2007, Dist. Forum-III, Hyderabad.

Between:

1) DTDC Courier & Cargo Ltd.

Rep. by Regional Manager

1-10-74/B, Techno Polis Building

Beside Pantaloon  Show Room

Begumpet, Hyderabad.

2)  D.T.D.C. Courier & Cargo Ltd.

Rep. by its Manager

Kachiguda, Hyderabad.                               ***                         Appellants/                                                                                                           Opposite Parties.  

                                                                   And

M/s. Oxy Medical  Services

Rep. by its Manager

Sri Kiran Kumar,

S/o.  G. Rajeswara Rao

B-Block, P2, Shop  No. 4

Ground Floor, Amurutha  Arcade

Kachiguda, Hyderabad.                              ***                         Respondent/

                                                                                                Complainant.

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

Counsel for the Respondent:                      M/s. K. B. Ramanna Dora

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT 

                                                          &

                                    SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE TWENTY SIXTH DAY OF JULY TWO THOUSAND TEN

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

                                                          *****

1)                 This is an appeal preferred the  opposite party  a courier  company against the order of the Dist. Forum directing it to pay Rs. 1,15,000/- together with compensation of Rs. 5,000/- and costs of Rs. 1,000/-

2)                The case of the complainant in brief is that  he is engaged in supply of medical equipments  under the name and style  of  M/s. Oxy Aid Medical Services  and entrusted a life surviving equipment worth Rs. 1,15,000/-  to the appellant  on   7.2.2007  on payment of Rs. 550/-  under consignment note Ex. A1  to be delivered  to  Medicare Plus  situated at Agra.  Later he came to know from his customer that the equipment was damaged and it cannot even be repaired.    It was totally damaged.    Immediately he sent a representation on   12.2.2007 followed by legal notice for which the appellants did not even reply and therefore he filed the complaint claiming compensation of Rs. 1, 15,000/- with interest @ 12% p.a., together with compensation and costs. 

3)                The appellant resisted the case.   While admitting that the consignment was booked on  7. 2. 2007 it denied that it was a life surviving equipment.   As per the consignment note, the consignor has to declare the value of  the consignment  etc.   For the fist time,  the complainant mentioned in the complaint  the value of the consignment was  Rs. 1.15 lakhs  and it was a  life surviving equipment.     It did not admit that the equipment was damaged.   Clause-6 of the consignment stipulates that it could not be liable in any event for any consequential  or special damages and that its liability was only to an extent of Rs. 100/- which the complainant would be entitled to  in case of loss.    Therefore it prayed for dismissal of the complaint with costs. 

4)                The complainant examined himself as PW! and got Exs. A1 to A7 marked while the appellants filed  Ex. B1 delivery run sheet to show that it has delivered the consignment.    

5)                The Dist. Forum after considering the evidence placed on record opined that the complainant has categorically mentioned that it was a medical equipment  paid Rs. 550/- towards charges.   Since the complainant could prove that  the value of the equipment was Rs. 1,15,000/-  vide invoice Ex. A2  and later  complained  that  said equipment was damaged by way of letter, and that  the appellants did not give any reply, which amounts to deficiency in service, granted compensation as claimed by the complainant.

6)                Aggrieved by the said decision, the appellants preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   It ought to have seen that  there is no proof that the equipment that was delivered to the customer was  damaged.   When the consignor did not disclose the consignment particulars nor the value of the consignment  and in the light of stipulation in the consignment note,  its liability would not exceed Rs. 100/-.    If really the  equipment was damaged the customer would not have  received the  consignment and  acknowledged under Ex. B1.   Therefore it prayed for dismissal of the complaint.

7)                It is an undisputed fact that the complainant is a dealer in medical equipment entrusted  package  to the courier to deliver the same  to its customer at Agra.    It is not in dispute that the appellant courier   has delivered the said consignment to the customer evidenced under acknowledgement  Ex. B1.  Evidently the customer did not seek open delivery in the sense it did not ask the package to be opened before the delivery agent.    It seems he complained to the complainant  that the equipment  that was sent to it was damaged.   For whatever, reason, the complainant did not choose to  declare the contents, in the sense, that it was medical equipment  and that its value was Rs. 1.15 lakhs.    The complainant could not prove  why it could not disclose  the contents or its value.  Obviously an inference could be drawn that  he wanted  to send costly medical equipment  by paying a minimum amount.   For this the complainant has to blame himself for not declaring either the contents or its value.    Declaration of these particulars  is important in the sense it would  enable him to recover  the amount in case of  damage.    It is not known why the complainant did not file the affidavit of the customer  to show that the equipment was damaged  and the circumstances under which he received it without verifying the package.    The complainant did not file the particulars of  equipment manufacturer, warranty card, instrument book let, packing box etc.    In fact there was no mention  that it was a life saving equipment.    Simply because the complainant  has stated that it is a  life saving  equipment  it cannot be automatically construed that the package that was entrusted to the appellant  was worth Rs. 1.15 lakhs.    Assuming without admitting that he had entrusted the consignment under Ex. A1 no particulars whatsoever  were furnished as to contents or its value instead an amount of Rs. 550/- was mentioned.    Therefore he is estopped from contending that the value of the equipment was Rs. 1.15 lakhs and that it was a life saving equipment. 

8)                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.”

          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.

9)                 In fact this decision has been followed repeatedly by the National Commission by observing that for deficiency in service  on the part of courier is limited to the extent of  the  liability undertaken by the courier. 

10)               Coming to the facts, the complainant could not  expatiate  the reasons for not mentioning the particulars of  equipment or its value.   The complainant is a trading concern  ought to have taken all care and caution  while entrusting the consignment.   In the light of settled law, we do not intend to award  any compensation.  The package  was not even insured.   He supposed to have taken care and insured the package.   Basically there no proof that  consignment was damaged even to award  Rs. 100/- the liability covered under Ex. A1.   

11)              In the result the appeal is allowed setting aside the order of the Dist. Forum, consequently the complaint is dismissed.  No costs. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  26. 07.  2010.

*pnr

“UP LOAD – O.K.”