AT HYDERABAD.

F.A. 748/2006 against C.D. 685/2004, Dist. Forum-III, Hyderabad.

Between:

Praveen Vyapari

S/o. S. N. Vyapari

Age: 46 years, Advocate

H.No. 5-1-234/20/104

Arihant Kunj Apartment

Sunder Bhavan

Jambagh, Hyderabad.                                 ***                         Appellant/                                                                                                             Complainant

                                                                   And

1) M/s. DTDC Courier & Cargo Ltd.

‘DTDC House’ No. 3

Victoria Road,

Bangalore-560 047

Karnataka.

2)  M/s. DTDC Courier & Cargo Ltd.

10A, Taj Mahal Hotel Complex

Bank Street, Koti, Hyderabad

3)  M/s. DTDC Courier & Cargo Ltd.

H.No. 1-8-32/34, Bapubagh Colony

Penderghast Road,

Secunderabad-500 003.

4)  M/s. DTDC Courier & Cargo Ltd.

Marol, Andheri East

Mumbai.                                                    ***                         Respondent/

                                                                                                Opposite Parties

Counsel for the Appellant:                          M/s. Kishore Deshpande

Counsel for the Respondent:                      Mr. S. Pramod Kumar (R1)

QUORUM:                 

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT 

                                                          &

                                    SMT. M. SHREESHA, MEMBER

THURSDAY,  THE  THIRTIETH   DAY OF OCTOBER TWO THOUSAND EIGHT

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

                                                          *****

          Unsuccessful complainant is the appellant.

          The facts giving rise to the present  appeal are that  the complainant’s brother  Dr. Sudeep Vyapari along with his two children were  returning from USA to Hyderabad via  Mumbai.   The complainant had purchased  three air tickets for his brother and his two children to  be travelled  on 13.10.2002 at 5.35 a.m. from Mumbai to Hyderabad by paying Rs. 7,572/-  and given the said envelope to the respondent courier  under Ex. A1 consignment note  by paying Rs. 40/- in order to deliver  it to their family friend  Ms. Benedicta Chettiyar  at  Mumbai so that  she could in turn deliver it to his brother on their landing at the air port at Mumbai.  However the respondent instead of delivering it to her delivered to a wrong address, consequently it made the complainant to purchase Exs. A5 to A7 three tickets by paying Rs. 8,145/-.   When he issued a notice claiming compensation of Rs. 1,20,717/- under Ex. A8, the respondent gave reply Ex. A23  admitting their mistake, however, requested  some time to compensate as the actual loss was under investigation.  Finally as the amount was not settled the complainant  claimed in all Rs. 1,35,717/-  viz., Rs. 15,717/- towards loss of  flight tickets, Rs. 5,000/- towards telephone charges, Rs. 1,00,000/- towards mental agony and Rs. 15,000/- towards legal and other expenses.

          The respondents did not choose to contest despite the fact that the notice was issued to it.

          The complainant filed his affidavit evidence and got marked Exs. A1 to A23.  The Dist. Forum after considering the fact that the contents of the cover and the value thereof  were not noted  in Ex. A1  courier consignment note, awarded an amount of Rs. 100/- being the amount liable as per the terms and conditions together with costs of Rs. 1,000/-.

Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.  It ought to have seen  that the terms and conditions on Ex. A1 were printed in grey colour,  which a common man may not be able to read.  Therefore, it would not bind on him.  At any rate, the said condition was most unreasonable and unilateral.  Therefore he prayed that the compensation as claimed by him may be awarded.

          It is an undisputed fact that the complainant had purchased air tickets for his brother  and his  children for their travel from Mumbai to Hyderabad by paying a fare of Rs. 7,572/-.  The tickets were with the respondent courier under  courier consignment note Ex. A1.  It is also not in dispute  that the said cover was not delivered to the addressee  Ms. Benedicta Cheetiyar, and consequently  the complainant was forced to purchase three new  tickets by paying Rs. 8,145/-.   Since the courier could not deliver the cover, he was forced to part the amount besides suffered untold mental agony etc.

          Admittedly, the complainant himself is an advocate.  He booked the consignment under Ex. A1 without mentioning the contents of  the consignment or its value in the declaration.   He himself signed on Ex. A1.  No reason whatsoever was mentioned as to why he did not declare that the cover contains the air tickets or its value.  Obviously, he intended to pay minimum amount so as to avoid payment at higher tariff.  Naturally  if he declares the same he has to pay the charges as per the value given in the declaration.    Now he cannot turn  round and complain that the stipulation restricting the liability  at Rs. 100/- was in small print and no ordinary person could be able to read the same.  At any rate they were on the front side, and was in bold print.   We reiterate that respondent courier company did not dispute the receipt of cover.  It also admits that  instead of  handing  over  the cover  to the

consignee, it was delivered to a wrong person.   It  intends to explain that instead of delivering it  to  the addressee  Jyothi  Process  wrongly  delivered  to  Jyothi Laboratories.   Whatever  be the reason, the question is whether the complainant was  not bound by the terms and conditions on Ex. A1  courier consignment note. The assessment of compensation could be made if the above question is resolved.

   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.

          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. 

          Coming to the facts, the complainant could not  expatiate  the reasons for not mentioning the particulars of the consignment cover or its value.  As he did not disclose, he cannot claim more than what was stipulated under the terms and conditions of courier consignment note.  He is an educated and an advocate for that matter.   In the light of settled law, we do not intend to award more than  what was agreed to be received under the terms and conditions of Ex. A1 courier consignment note.  The packet was not even insured.   He supposed to have taken care and insured the packet.   We do not see any mis-appreciation of fact or law  in this regard.  We do not see any merits in the appeal.

          In the result the appeal is dismissed.  No costs.

                   PRESIDENT                                     LADY MEMBER

                                                 Dt. 30.10.2008.