AT HYDERABAD.

FA 112 of 2011 against CD  4/2010, Dist. Forum, Nellore

Between:

1)  XPS  Courier

(Domestic & International)

Branch Office at GT Road

Near Magunta Statute

Dargamitta, Nellore

Rep. by its  Branch Manager.

2) XPS  Courier

(Domestic & International)

Administrative Office

Gola No. 75, Industrial Estate

Sahara Road, Andheri

Mumbai.

3) XPS  Courier

(Domestic & International)

Administrative Office

No. 10, Rambagh

Old Rothak Road

Delhi-110 007

Rep. by its  Administrative Manager            ***                         Appellants/                                                                                                           Opposite Parties.  

                                                                   And

M/s. Priyanka Fashions

Santhi Apartments

GNT Road, Dargamitta

Nellore-524 003

Rep. by its  Proprietrix

Subhadra Thripati

W/o. Rajeev  Thripati                                  ***                         Respondent/

                                                                                                Complainant.

Counsel for the Appellants:                         M/s. S. Harshavardhan Lal

Counsel for the Respondent:                       M/s.  S. Nagesh Reddy

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT  

                                   SMT. M. SHREESHA, MEMBER

&

                                   SRI S. BHUJANGA RAO, MEMBER

THURSDAY, THE TWENTY SIXTH DAY OF JULY TWO THOUSAND TWELVE

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. 90,000/-  with interest  @ 12% p.a., from 31.7.2008 till the date of payment together with costs of Rs. 2,000/-

2)                The case of the complainant in brief is that   it is a firm  doing business  in readymade garments, saries  and other   dress material  under the name and style of   M/s. Priyanka Fashions.    It was returning unsold material to the concerned manufacturers.    She booked a consignment worth Rs. 90,000/- through Op1 courier branch office for which administrative offices are Ops 2 & 3 to M/s. Roopsree, Varanasi on 31.7.2008 by paying Rs. 200/- towards transport charges.   However, the consignment did not reach the consignee.  She got issued a legal notice for which they did not give any reply.  Therefore she claimed Rs. 90,000/- the value of the goods together with interest @ 24% p.a., from 31.7.2008 till the date of payment together with compensation of Rs.  4 lakhs towards mental agony and costs. 

3)                Op1 filed counter adopted by Ops 2 & 3 resisting the case.   While admitting that the consignment was booked on 31.7.2008, however the complainant did not inform that the consignment contained clothes.   She did not mention the value of the consignment.   Instead of mentioning Rs. 90,000/- against the coloumn declared value she put ‘dash’.    She herself got prepared AWB column.  The consignment would not be worth Rs. 90,000/-.   As per the terms and conditions of the contract of consignment the liability is limited to Rs. 100/- or the cost of reconstruction whichever is lower.   They were not liable to pay any amount.  Therefore, it prayed for dismissal of the complaint with costs.

4)                The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A8 marked while the appellant courier service filed the affidavit evidence of Op1 and got Exs. B1 & B2 marked. 

5)                The Dist. Forum after considering the evidence placed on record opined the fact that  Rs. 90,000/- was mentioned in Ex. A1 would clearly prove the value of the consignment, and therefore directed the same to be paid with interest @ 12% p.a., from 31.7.2008 till the date of payment together with costs of Rs. 2,000/-

6)                Aggrieved by the said decision, the appellant courier service preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   It ought to have seen that the complainant did not declare the value in the coloumn meant for it in Ex. A1.    She got  interpolated later evident from Ex. B1.  The amount of Rs. 90,000/- could not have been awarded basing on a false entry.  At any rate by virtue of decision of Hon’ble Supreme Court in Bharati Knitting Company Vs. DHL Worldwide & Express Courier of  Air Freight Ltd.  reported in (1996) 4 SCC 704  its liability  is limited to Rs. 100/- mentioned in Ex. A5, and therefore prayed for dismissal of the complaint with costs. 

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is not in dispute that the consignment was booked on 31.7.2008 and sent the same to   Varanasi vide Ex. A1.    It is also not in dispute that  the said consignment was not delivered.   No explanation was made as to what  happened to the consignment.    The appellant  contends on the ground that  its liability is  limited to Rs. 100/-  as mentioned in the terms and conditions  of the consignment and condition No. 7 stipulates that : “XPS  is not liable  for  any loss, mis-delivery, delay or damage  to any article to the extent first mentioned  at the front of AWB.”   Yet another contention is that  in the column declared value  an amount of  Rs. 90,000/- was introduced where originally there was  a ‘dash’.    In proof of it  the appellant filed Ex. B2, obviously a photostat copy of  Ex. A1 duplicate  maintained by the appellant. 

9)                 In regard to first contention that  its liability is limited to Rs. 100/- we may mention that the signature of the consignor was not obtained in the consignment note.    The learned counsel for the appellant relied  a decision of the Hon’ble Supreme Court in Bharati Knitting Company Vs. DHL Worldwide & Express Courier of  Air Freight Ltd.  reported in (1996) 4 SCC 704  where their Lordships opined that :  “where  the liability  of courier is limited to particular  amount as per contract, the party signing  the document is bound by the terms of it, and he is entitled only subject to the maximum amount mentioned therein.”

          When the complainant did not sign it nor the courier service  insisted the consignor to sign, the National Commission in Road Wings International Vs.  Hindustan Copper Ltd. reported in  1999 (3) CPJ  23 (NC) held that the receipt did not constitute a special contract  and that the liability  need not be limited to the sum specified  therein. 

          In fact in Skypack Couriers Pvt. Ltd., Vs. Consumer Education and Research  Society reported in 1986-96 (cons) 1788 (NS)  it was held that  the printed memo containing the conditions restricting the liability  was neither signed by anybody nor there was any evidence to show that the terms printed  thereon were shown to the consignor  or that the same were agreed upon by the consignor, the condition would not apply.

10)               Ex. A1  is in the standard form.  Where contract is  in standard form  the conditions must be brought to the notice of the party to be bound before  or at the time when the contract is made.  If they are not  communicated  to him until after the contract is concluded, they will be of no effect.  It is necessary that  the condition  in the standard form document should  have been  read by the person receiving it, or that he should have been made  subjectively aware of their  import or effect.      The term in our present case is also in fine print.   There was no correspondence between the parties  indicating that the said clause was the subject of negotiation or bargain between  the parties, and hence the said clause  could not be availed of by the courier for limiting its liability.  It was observed that it was not obligatory  upon the consignor  to obtain transit insurance coverage and that the opposite party without any  enquiry about the  value accepted the consignment for  transportation  without such insurance cover and having accepted the same cannot make any grievance  on  that account.

11)               The National Commission distinguished the Bharathi Knittings’ case supra  observing that it did not deal with the question of small and fine print.   Therefore the National Commission observed that “mention of the limited liability   in very small print on the back of the consignment note  is not necessarily read by the consignor  before he entered into the transaction and hence it cannot be said  to be part of negotiation between the two parties.    In cannot restrict the liability of the  courier for the  consequences  flowing out of its negligence  and  deficiency  in the performance of the service undertaken by it.           Printing a note  of caution  in small letters in an inconspicuous space  that the courier’s liability  is limited to just Rs. 100/- only does not allow him to escape  his liability  to pay damages. 

12)               In the light above, proposition since the signature of the consignor was not obtained, it cannot be said that said condition even binds the complainant. 

13)                 In regard to  second contention of the appellant that  the complainant has tampered the declared  value  of the consignment   in Ex. A1 no affidavit of the employee who had prepared Ex. A1/Ex. B2 was filed.   The Dist. Forum after perusing the same opined that “ Ex. B2  is not a carbon copy of the original.    It was a photostat copy or  the carbon copy.  The learned counsel for  the complainant contended that  since Ex. B2 is not a carbon copy of the original, no reliance can be  placed upon it.   Since the declared value  is

shown as Rs. 90,000/- in shipper copy which was issued by Op1, we are of the view that the value of the goods  was Rs. 90,000/-The appellant ought to have  filed the book containing all the receipts that were maintained in order to find out whether  such a tampering was there.    We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard.  We do not see any merits in the appeal.

14)               In the result the appeal is dismissed with costs computed at Rs. 5,000/-.  Time for compliance four weeks. 

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

3)      ________________________________

 MEMBER           

                                                                                      26/07/2012.

*pnr

UP LOAD  - O.K.