Sri.G.V.Balasubramanya,<br /> Member<br /> <br /> Common order in CC 297 & 298/06<br /> <br /> 1. These complaints are by the same complainant and are directed against the same Opposite party. The complainant is a craftsman. He was invited by the Ministry of Textiles, Government of India to participate in All India Shilpi Bazar organized at Siliguri in West Bengal from 11.05.2006 to 20.05.2006.<br /> 2. The complainant approached the 1st Opposite party who is a transporter and booked handicraft articles worth Rs.1,05,000/- (5 packets worth Rs.65,000/- + 6 packages worth Rs.10,000/- + 11 packages worth Rs.30,000/-) to be transported to Siliguri. He paid Rs.5,575/- in all. The 1st consignment was booked on 01.05.2006 the 2nd consignment on 02.05.2006 and the last consignment was booked on 04.05.2006. The 1st opponent assured the complainant that all packages would reach the destination before the commencement of the fair.<br /> 3. The complainant reached Siliguri by Train on 10.05.2006 and enquired at the office of the Opposite parties there. But none of the packages had reached. He stayed at Siliguri till 21.05.2006 waiting for the consignment to reach. In the meantime, he made several calls to the first Opposite party enquiring about the fate of his consignments. Finally, the consignments arrived at Siliguri on 18.05.2006 and 20.05.2006.<br /> 4. The fair authorities not only did not permit the complainant to display the articles but, also, advised him to approach this Forum seeking redressal of his grievance. The complainant therefore, rebooked all the packages. After reaching Myosre, he got issued legal notices on the opponents who sought 20 days’ time to settle the matter. Since, there was no settlement, the dispute is before us.<br /> 5. The complainant has stated that he would have earned more than Rs.1,75,000/- of profit, if the consignment had reached him in time. He says he has, also, suffered mental agony and loss of reputation quantified at Rs.50,000/-. His total claim against the Opposite parties from both the complaints is Rs.2,98,260/-.<br /> 6. The 1st Opposite party is the local office of the transporter and the 2nd Opposite party is the Mumbai office. They in their common version have blamed the complainant for the delay in transporting the consignments. They say that the complainant did not furnish the statutory form No.42; the way bill; without which they could not have transported the packages. They say that they had a tough time transporting the consignments. They have, also, averred that the complainant has not paid for the return journey of the consignment and that at no point of time they assured him that the consignment would be delivered within a specific period. They have prayed for dismissal of the complaints.<br /> 7. From the above contentions, the following points arise for our consideration.<br /> I. Whether the complainant proves that the Opposite parties have rendered deficient service by not delivering the consignments in time?<br /> II. Whether the Opposite parties prove that the consignments could not be delivered due to the complainant’s mistake?<br /> III. Whether the complainant proves that he has suffered loss to the extent narrated in the complaints? <br /> IV. What order or relief?<br /> <br /> 8. After hearing both parties and perusing the documents we have answered the points as under:-<br /> Point No.I : In the affirmative<br /> Point No.II : In the negative.<br /> Point No.III : Partly in the affirmative.<br /> Point No.IV : As per final order.<br /> REASONS<br /> 9. Point Nos.I & II:- The booking of the consignments is not in dispute. From the consignment dockets it is seen that the consignments were booked on 01.05.2006, 02.05.2006 & 04.05.2006. It is also not in dispute that the consignments reached Siliguri on 18.05.2006 and 20.05.2006. This delay is according to the Opposite parties, due to complainant’s failure to provide the way bill in Form No.42. The 1st Opposite party does not appear to have raised the question of non-submission of way bill at the time of accepting the consignments. We do not find any note on the consignment docket that the consignments have been accepted subject to furnishing of the way bill. Hence, only natural that the Opposite parties cannot raise a contention that the consignments could not be transported for want of way bills. The complainant has produced a certificate dated 24.04.2006 issued by the Officer of the Development Commissioner (Handicrafts) which is apparently meant to give the complainant the benefit of exemption from Octroi / Entry Tax. The complainant has shown this to the 1st Opposite party also as the consignment docket mentions that the certificate is enclosed. It may be because of this certificate the Opposite party did not deem it necessary to insist on production of way bill. In any case, the Opposite parties who claim that theirs is a big transport company ought to have obtained necessary statutory forms from the consigner (complainant). They had the choice of refusing the consignments at the time of booking itself for non-furnishing of the way bills, which they did not do. There is no doubt that after having booked the consignments through the Opposite parties, the complainant was under an impression that he would receive them at Siliguri in time and would be able to participate in the fair. The delay in transporting consignments did inconvenience him. The urgency with which he booked the consignments is apparent from the fact that the consignment dockets contained a special instruction that the goods have to reach the destination urgently. <br /> 10. The Opposite parties cannot take shelter under the contention that the complainant did not furnish the way bills. He cannot be imputed with the knowledge of various statutory forms required for transporting goods from one state to another state. The Opposite parties being transporters ought to have educated the complainant on this.<br /> 11. The Opposite parties have also contended that they made no promise to the complainant regarding the date of delivery of the consignments. We are sure the complainant who booked the consignments with a clear intention to receive them at Siliguri on or before the commencement of the fair would have enquired with the Opposite parties about the probable date of delivery and would have also explained the urgency. This is reflected in the consignment docket where it is mentioned “most urgent”. It is, therefore, our conclusion that the Opposite parties are responsible for the delay in transporting the consignments. Therefore, we answer point no.1 in the affirmative and point no.2 in the negative.<br /> 12. The consignment docket bears a condition which limits the liability of the Opposite parties in case of delay. Condition 11(c) states that delay in delivery due to any Act, default, omission on the part of the consignor/consignee or any other interested third party who claim an interest ------------------- Condition No.10 restricts such liability to Rs.1,000/- only. We have 3 sets of decisions in this matter. The Hon’ble Supreme Court of India in Bharthi Knitting Co. -Vs- DHL Worldwide Express Courier, upheld the limited liability clause on the ground that when the consigner and the consignee have entered into a contract limiting the liability, the Forum cannot go behind the terms of the contract. The Hon’ble National Commission in The Blue Dark Express Ltd., -Vs- Stephen Livera made a distinction by observing that clauses in small and fine print in a document in a standard form on the back side of the document cannot be deemed to have been read particularly when he did not bear the signature of the consigner. The 3rd decision rendered by the Hon’ble National Commission in Desk to Desk Courier and Cargo -Vs- Kerala State Electronics Development Corporation Ltd., ((2004) CTJ 442 (CP) (NCDRC)) made another distinction that where the value of the goods contained in the parcel is not disclosed. The liability of the Courier Company is limited to the amount mentioned on the consignment docket. <br /> 13. In the instant cases, the complainant has disclosed the value of the goods he was consigning. In fact, he has also disclosed the nature of goods with a special instruction to handle them with care. The Opposite Parties had several options including declining to accept the consignment for transportation or insisting for insuring the consigned goods. Hence, using the ratio given in the Desk to Desk Courier and Cargo case, we conclude that the Opposite Parties are liable to compensate the loss not withstanding the limited liability clause printed on the back of the consignment docket. <br /> 14. Point No.III:- It is the contention of the complainant that had the consignments reached him in time and had he participated in the fair he would have earned Rs.1,75,000/-. Compensation or damages cannot be awarded based on speculative losses. At the time of booking the consignments the complainant has given the value of the consignments as Rs.1,05,000/-. Assuming that Rs.70,000/- was his profit he would have earned only this amount even if he had sold all the goods. It is obviously speculative because he says that he could have sold all his goods. He has produced a bill of Biswanath Guest House, Siliguri to show that he stayed there from 10.05.2006 to 21.05.2006 awaiting the goods. In any case, he was required to stay during that period at Siliguri as the fair was also from 11.05.2006 to 20.05.2006. The complainant has paid Rs.5,575/- to the Opposite parties as transportation cost. In our view, the ends of justice would be met if Rs.15,000/- is awarded towards loss of opportunity and mental agony. We therefore answer the point partly in the affirmative and proceed to pass the following order:- <br /> <br /> ORDER<br /> <br /> A. Complaints are partly allowed.<br /> B. The Opposite parties are directed to the complainant compensation of Rs.15,000/- within two months from the date of this order, failing which the said amounts shall carry interest at the rate of 10% p.a. thereafter until the date of payment. <br /> C. The Opposite parties are directed to pay the complainant cost of Rs.1,000/-.<br /> D. Keep original order copy in C.C.297/06 and Xerox copy in C.C.298/06.<br /> E. Give a copy of this order to each party according to Rules.<br />