PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)                     The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, on 30^th October, 2013, the complainant handed over courier of nineteen passports, two demand drafts to the O.P.No.1 for courier and paid the courier charges.  The O.P.No.1 issued bills for the said consignment dated 30^th October, 2013.  The O.P.No.1 was told that the consignment contains passports of the complainant’s guest for tour from 6^th November, 2013.  On 31^st October, 2013, the O.P.No.1 informed the complainant that the consignment is stolen.  The complainant lodged complaint at Mahim Police Station on 31^st October, 2013.  The complainant also issued letter to the O.P.No.1.  Due to negligence of the opponent, the guest of the complainant were in difficulty to attend the scheduled tour.  The opponents are responsible for the expenses incurred by the complainant for fresh passports and also for compensation claimed by the tourists.  On 2^nd November, 2013, the opponents wrote letter to the complainant and admitted that the consignment was handed over to their Mahim office and it was lost by them.  It was also informed that the complaint is lodged with Mahim police station.  The Mahim police station by letter dated 25^th November, 2013, informed the complainant that F.I.R. is registered for theft.  The complainant issued legal notice dated 14^th January, 2014 and called upon the opponents to reimburse the loss suffered by the complainant.  There is no compliance.  Out of 19 tourists who lost their passports, 3 tourists booked other tour.  The Passport Authority are asking for Non traceable Certificate from 3 tourists and 13 tourists still not booked any tour.  The complainant suffered lot of embarrassment and mental agony.  Therefore, it is necessary to direct the opponent to pay compensation of Rs.12,55,430/- with interest to the complainant. Hence, the complainant has filed this complaint for recovery of compensation of Rs.11,55,430/- with interest. The complainant has also claimed compensation of Rs.1 Lakh for physical and mental agony and Rs.1 Lakh for loss of business and reputation. The complainant has claimed litigation expenses of Rs.25,000/-.

2)                The opponents appeared and filed written statement.  It is submitted that the complainant is not the consumer.  The complainant entered into agreement with the opponent on 4^th December, 2008.  As per agreement, maximum liability of the opponent is limited to Rs.5,000/-.  The articles were not insured by the complainant.  On 30^th October, 2013, the entire bag containing various shipments including the consignment of the complainant was stolen.  The complaint was lodged with police station immediately.  The complainant can not claim the relief as prayed as the liability is limited under the agreement.  Therefore, the complaint is liable to be dismissed with cost.

3)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No.1 :- There is no dispute that the consignment was booked with the opponent and the same was lost.  According to the opponent, it is commercial transaction therefore, the complainant is not the consumer as defined under the Consumer Protection Act.  On the other hand, it is submitted by the learned advocate for the complainant that the services of the opponent were hired by the complainant on payment of charges.  Therefore, the complaint is a consumer.  For this purpose, the complainant has placed reliance on the judgment of Hon’ble National Commission in First Appeal No.63 of 1993, in the case of Express Goods Services –Versus- Standard Textile Mills, decided on 19^th January, 1995.  Identical facts are before us.  Therefore, we hold that the complainant is the consumer. 

5) As to Point No. 2 & 3 :- According to the opponent, the complainant executed agreement dated 4^th December, 2008 with the opponent.  Copy of the agreement is produced on record.  Under said agreement, the liability of the opponent is limited to Rs.5,000/-.  The complainant has not denied that the said agreement was signed by the complainant.  The complainant has raised technical objection i.e. the agreement is not registered and each page of the agreement is not signed.  It is submitted by the learned advocate for the opponent that once the signature is admitted, the complainant is bound by the agreement.  For this purpose, he has placed reliance on the judgment of Hon’ble Supreme Court, in Civil Appeal No.9057 of 1996, in the case of Bharathi Knitting Company –Versus- DHL Worldwide Express Courier Division of Airfreight Limited, decided on 9^th May, 1996. In para 6 of the judgment, the Hon’ble Supreme Court has held has under :

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 contracts 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 rational 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 fits 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.

In the instant complaint before us also, the complainant has not denied that the agreement is signed by the complainant.  The complainant can challenge the agreement on technical ground before the civil court.  The procedure under the Consumer Protection Act is summary procedure.  The complainant has not challenged the signature on the agreement therefore, the agreement is binding on it.  The Hon’ble Supreme Court in the abovecited judgment has categorically laid down that the liability is limited under the agreement.  Identical facts are before us.  In the instant complaint before us, liability of the opponent is limited to Rs.5,000/-.  Therefore, the complainant is entitled only for Rs.5,000/-. Besides this, the complainant is entitled for the cost of this litigation of Rs.10,000/-.  The complainant is not entitled for the other claim as prayed. Hence, we proceed to pass the following order.

ORDER

1. Complaint is partly allowed.
2. The opponent is directed to pay Rs.5,000/- (Rs.Five Thousand Only) to the complainant with interest at the rate of 9% per annum from the date of filing of complaint i.e. 29^th May, 2014   till its realization.
3. The opponent is further directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant as cost of this litigation.
4. The above order shall be complied with within a period of one month from today.
5. Copies of this order be sent to the parties free of cost.

Pronounced on 19^th January, 2016