PER MRS. M. SHREESHA, MEMBER

          Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986, is to the order dated 29.08.2011, passed by the Tamil Nadu State Consumer Disputes Redressal Commission at Chennai (in short the State Commission) in First Appeal No. 682 of 2010.  By the impugned order, the State Commission has allowed the Appeal in part, modifying the order of the District Consumer Disputes Redressal Forum, Coimbatore (in short the District Forum), by reducing the amount awarded from Rs.1,83,600/- to Rs.1,00,000/- and setting aside the interest and the compensation awarded by the District Forum.  The State Commission concurred with the District Forum with respect to the aspect of deficiency of service by the Revision Petitioner (hereinafter referred to as the Courier Company).

2.       The facts, in brief, are that the Complainants in course of rendering services to Medical Practitioners, received an order from Dr. V. Anand, Director of MCV Memorial ENT Trust Hospital, Pollachi and Coimbatore, on 29.07.2008 to supply Mexer 61 DX Single Clip Digital Camera – 1 Set and Sinuscope – 4 mm, 0 Degree – 1 No.  In pursuance of the said order, the Complainants procured the subject items from Surgdent Medicare Pvt. Ltd. at Belgaum.  As per the order received from Dr. Anand, the said two items were dispatched to him vide Delivery Challan dated 10.09.2008, but Dr. Anand returned the Camera Control Unit, Head, Coupler, BNC Cable, S-Video Cable, User Manual and Pin, Power Card-1 Set.  On return of the said items, the Complainants intended to return, the same to the original seller.

3.       The Complainants averred that they had a tie-up with the Courier Company and, therefore, booked the subject consignment to deliver the same to Surgidect, Pune-46 and paid freight charges of Rs.720/-.  It is pleaded that as per the terms and conditions entered into between the Complainants and the Courier Company, the parcel ought to have been sent by Air but it was sent through surface, i.e. by Train, which itself is in violation of their terms and conditions. 

4.       While so, on 11.10.2008, it was stated by the Courier Company that the Railways misplaced a Lot of 3 bags, containing 11 consignments and despite sincere efforts, the consignments could not be traced.  According to the tax invoice of Surgdent Medicare Pvt. Ltd., Belgaum, the value of the aforesaid Camera is Rs.1,83,600/-.  It is pleaded that the act of the Courier Company in not delivering the said consignment to the consignee, namely, Surgdent Medicare Pvt. Ltd. Pune, amounts to deficiency of service, for which act the Courier Company is liable to pay a sum of Rs.1,83,600/- together with compensation of Rs.1,00,000/- and costs.

5.       The Courier Company filed their Written Version, stating that they have three modes of dispatch, i.e. Rail, Road and Air and the mode of dispatch depends on the declared commercial value of the consignment, weight and volume.  The dispatched consignment was booked by the Railways as the commercial value of the same was not declared by the Complainants.  It is averred in the Written Version that the Complainants are barred to raise any such issue in view of the terms and conditions, stipulated in the booking receipt of the Airway Bill.  Clause-4 of the same says that the sender must indicate the actual and correct nature of goods and Clause-6 makes it mandatory that in case of valuable parcel, the consignor should declare the value and pay the godown charges on 1% FOV, for which separate receipts are issued and, in the absence of the same, no claim can be made and there is no deficiency of service.

6.       The District Forum based on the evidence adduced allowed the Complaint.  The District Forum directed the Courier Company to pay Rs.1,83,600/- towards the cost of the consignment booked with interest @ 9% p.a. from the date of Complaint till the date of realization; Rs.25,000/- as compensation and Rs.2,000/- as costs of the proceedings.

7.       Aggrieved by the said order, on an Appeal preferred by the Courier Company, the State Commission modified the order to the extent indicated above.  The State Commission, while concurring with the findings of the District Forum, observed as follows:

“12.    The appellant/opposite party cited the following National Commission judgment I (2008) CPJ 452 (NC).  The complainant may not be entitled for the value of the camera because she has not declared that the consignment is a camera a medical equipment.  The complainant has enclosed a document as to the value of consignment as 1,83,600/- by her invoice Exhibit A5.  We cannot order the value of the article as she has not declared it.  At the same time, the opposite party has not taken sufficient care to send the parcel after receiving a valuable consideration.  The opposite party has not done anything to trace the lost parcel.  Taking into consideration this Commission comes to the following conclusion.  The opposite party is liable for deficiency in service for the loss of the consignment, lost in transit when it was handed over to him for proper delivery.  But we cannot confirm the order of the District Forum since the complainant also has omitted to take precautionary steps.

13.     In the result, the appeal is allowed in part, modifying the order of the District Forum, by reducing the cost of the consignment from Rs.1,83,600/- to Rs.1,00,000/- and setting aside the interest and the compensation awarded by the District Forum.  No order as to costs in this Appeal.” 

8.       Learned Counsel appearing for the Revision Petitioner vehemently contended that as the contents of the parcel were never declared, the State Commission has erred in awarding an amount of Rs.1,00,000/- in favour of the Complainants. 

9.       It is the case of the Revision Petitioner that only when the contents of consignment are declared by the consignor, the question of liability arises.  He argued that based on the nature of the consignment, the mode of transporting it by Air, Rail and Road, is decided by the Revision Petitioner and, therefore sending the consignment by Rail cannot be construed to be deficiency of service.

10.     A brief perusal of the material on record shows that an offer by way of a quotation was given by the Courier Company (Annexure R-3) to the Complainants, which was accepted by the Complainants.  Annexure R-4 evidences that the Complainants have been using the Courier Company and a bill was also raised for Rs.4,022/- for having availed the service for certain period of time.  It is relevant to mention that Airway Bill No. 116372977, by which the subject consignment was sent, is blank with respect to the Weight, No. of Pieces, Air/Surface etc. and the Sender’s Signature is also absent.  In the light of this almost blank Airway Bill, the contention of the Learned Counsel for the Revision Petitioner that the Complainants are bound by the terms and conditions mentioned overleaf is untenable. 

11.     Learned Counsel for the Revision Petitioner has relied upon the judgment of the Hon’ble Supreme Court in the case of Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., AIR 1996 SC 2508, in which the ratio laid down by the Apex Court is that the liability undertaken in contract between the parties should be limited to the extent undertaken.  This judgment does not apply to the facts of the instant case as the Airway Bill itself is not signed, the columns specifying Weight, No. of Pieces etc. were left blank, and further the terms and conditions do not mention any limited liability.

12.     Be that as it may, it is an admitted fact that the Courier Company was being used by the Complainants over a period of time and the Courier Company was in the knowledge of the nature and manner of business being conducted by the Complainants, who were in the business of sale and purchase of medical and surgical equipments.  It is also not in dispute that the subject consignment was sent by Rail and that the entire consignment was lost.  It is also the duty and responsibility of the Courier Company to take the declaration prior to booking any consignment.  It is observed from the Airway Bill that most of the parameters have been left blank.  We are of the considered opinion that Courier Company has not been vigilant in booking the parcel.  The Courier Company ought to have taken the declaration regarding the contents of the parcel prior to booking and, therefore, we hold that there was deficiency of service on the part of the Courier Company in not taking any declaration prior to booking, in accepting the consignment on an almost blank Airway Bill and also in losing the consignment.  We, therefore, do not find any illegality or infirmity in the order of the Fora below in awarding an amount of Rs.1,00,000/- in favour of the Complainants.        

13.     This Revision Petition is dismissed, with costs of Rs.10,000/- to be paid to the Complainants within four weeks from the date of receipt of a copy of this order, failing which the decretal amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till realization.