STATE CONSUMER DISPUTES REDRESSAL COMMISSION,U.T., CHANDIGARH
First Appeal No. | : | 354 of 2013 |
Date of Institution | : | 16.08.2013 |
Date of Decision | : | 03.10.2013 |
DTDC Courier & Cargo SCO 163-164, First Floor, Sector 8-C, Madhya Marg, Chandigarh, its Branch Manager now through attorney Kuldeep Singh Maini.
Appellant/Opposite Party
V e r s u s
Nitin Kohli S/o Sh. M.M. Kohli, prop. of M/s. NTN Minerals and Chemicals, Plot No.23, Phase 2, Industrial Area, Chandigarh.
Respondent/Complainant
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by: Sh. G.L. Aggarwal, Advocate for the appellant.
Sh. Nitin Kohli, respondent in person.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated 26.06.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now appellant) as under:-
“10. Resultantly, in view of the foregoings and entirety of the case, we are of the opinion that the complaint deserves to be allowed. The same is accordingly allowed. The OP is directed to pay Rs.2000/- as declared value of the consignment; refund Rs.1900/- charged towards the booking of the consignment and to pay a compensation of Rs.50,000/- for causing mental tension and physical harassment to the complainant. The OP is also directed to pay litigation cost of Rs.15,000/-.
This order be complied with by the OP within a period of 30 days from the date of receipt of copy of this order, failing which it shall be liable to pay the above awarded total amount of Rs.53,900/- (Rs.2000/- + Rs.1900/- + Rs.50,000/-) along with interest @12% p.a. from the date of filing of this complaint i.e. 14.9.2012 till its actual payment, besides paying litigation cost as aforesaid”.
<!--[if !supportLists]-->2. <!--[endif]-->The facts, in brief, are that the complainant, carrying a small business of providing coolant services, in order to promote the same, was to put up stalls, in various exhibitions at separate venues. For such exhibitions, the complainant got a model of his work prepared, from experts, costing him thousands of rupees. The Opposite Party was given the responsibility of handling and transporting the said model valued at Rs.2000/-, to its final destination i.e. Hyderabad. The complainant paid the full amount of freight charges, sought by Opposite Party, on 18.11.2011 vide Annexure C-1. It was stated that the Opposite Party, was to deliver the model, at the destination, atleast two days, prior to the date of exhibition. It was further stated that the Opposite Party had assured that the cargo/model would reach its destination by 21.11.2011, in a safe and sound condition. The complainant reached Hyderabad, on 20.11.2011, and stayed in a Hotel. He arranged the place in exhibition, for display of his model, and paid the necessary charges, vide Annexure C-2. However, the complainant was surprised, when the said model did not reach the destination, by the due date i.e. 21.11.2011. The complainant requested the Opposite Party, a number of times, on phone, as well as sent an e-mail to deliver the model at the earliest, but it was not received even till the closing day of exhibition. It was further stated that, on account of the aforesaid acts of the Opposite Party, the complainant suffered huge losses.
3. It was further stated that the said model did not reach the destination at all, but even if it had been delivered on 23.11.2011 i.e. on the first day of the exhibition, then also it would have been of no use, because it takes almost two complete days, in order to assemble the same. It was further stated that the whole trip of the complainant, had gone waste, and the complainant could not do business, due to the gross negligence, on the part of the Opposite Party. It was further stated that the complainant had spent an amount of Rs.9300/-, on the return air tickets; an amount of Rs.68,600/- on booth charges, including stand space; registration charges etc. It was further stated that, an amount of Rs.7567/- was also spent on lodging and an amount of Rs.4500/- was spent, on food and miscellaneous items, including local transport, laundry etc. It was further stated that, on account of non-delivery of the aforesaid model, at the destination, on time, the complainant underwent a lot of mental agony and physical harassment. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs.
4. The Opposite Party, in its written version, admitted the booking of consignment, in question. It was stated that the consignment was sealed at the time of booking. It was further stated that all the terms were read to over to the complainant, at the time of booking of the consignment, which were accepted by him. It was further stated that, as such, the liability of the answering Opposite Party, was only to the extent of Rs.100/-, in case of non-delivery of the consignment. It was further stated that the complainant had not declared the value of consignment. It was further stated that neither the address of the addressee given by the complainant, could be located, nor the complainant could be contacted and hence the said consignment could not be delivered. It was further stated that the complainant was informed by the Opposite Party, to collect the consignment, from its office, but he did not give any response and, ultimately, refused to collect it. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
<!--[if !supportLists]-->5. <!--[endif]-->The Parties led evidence, in support of their case.
6. After hearing Ms. Pooja Kohli, wife of the complainant, Counsel for the appellant/opposite party, and, on going through the evidence, and record of the case, the District Forum accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/opposite party.
8. We have heard the Counsel for the appellant, respondent in person, and, have gone through the evidence, and record of the case, carefully.
9. Admittedly, the consignment, in question, was booked with the Opposite Party, by the complainant, vide consignment note, copy of which is Annexure C-1. The weight of the consignment, was mentioned as 16 Kgs. The complainant had paid Rs.1900/- as booking charges of the said consignment to the Opposite Party, vide Annexure C-1. The value of consignment as declared by the complainant and depicted in Annexure C-1 was Rs.2000/-. No doubt, the Counsel for the appellant/Opposite Party, submitted that the address of the consignee, was not correct, and, as such, the consignment could not be delivered, at the destination. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The correct address of the consignee was “MD Farook-16-11-16/g/s/23, Prasant Nager Colony, Malakpat, Hyderabad-36”. No cogent evidence was produced by the Opposite Party, that the address of the consignee was wrong and, therefore, the consignment could not be delivered. The other plea taken by the Counsel for the appellant/Opposite Party was that, thereafter, the consignment was attempted to be returned to the complainant, but he failed to obtain the same. Even, no cogent evidence was also produced, by the Opposite Party, in this regard. Such pleas were taken by the Opposite Party, just with a view to evade its liability, as it failed to deliver the consignment at the destination, at any point of time. By not delivering the consignment, booked with the Opposite Party, by the complainant, at the destination, after receipt of the necessary charges, it (Opposite Party) was deficient, in rendering service, as also indulged into unfair trade practice. The District Forum was right in holding so.
10. The next question, that arises for consideration, is, as to whether, the Opposite Party could take benefit of the limited liability Clause, incorporated in the consignment note, copy whereof is Annexure C-1, that in case of non-delivery of consignment, it shall only be liable to pay a sum of Rs.100/-. It may be stated here, that Annexure C-1 does not bear the signatures of the complainant. There is nothing, on the record, to prove that the terms and conditions of Annexure C-1 were read over and explained to the complainant, and he accepted the same by appending his signatures. The terms and conditions of Annexure C-1 are printed in small print. These terms and conditions, were only unilateral, in nature, and the complainant was not bound by the same. In our considered opinion, the Opposite Party, could not take benefit of the limited liability Clause, incorporated in Annexure C-1, for the reasons aforesaid. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same is rejected.
11. The next question, that falls, for consideration, is, as to whether, the complainant was entitled to the price of the goods contained in the consignment; and the charges paid by him, for booking the same to the Opposite Party. As stated above, the Opposite Party could not claim that its liability was only to the extent of Rs.100/- as mentioned in Annexure C-1. In Sudhir Deshpande Vs. Elbee Services Ltd., Bombay, I (1994) CPJ 140 (NC) = 1986-96 National Commission & SC of Consumer Cases 1968 (NS), it was held by the National Consumer Disputes Redressal Commission, as under:-
“We may make an observation here that the mention of the limited liability is in very small print at the back of consignment note which is not necessarily read by the consignor before he/she entered into the transaction of dispatch of the consignment and hence it cannot be said to be a part of negotiation between the two parties. Further, whatever may be the binding nature of the said clause in an action based on breach of contract we are of the view that it 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.”
In Skypak Couriers Pvt. Ltd. Vs. Consumer Education and Research Society, 1986-96 National Commission & SC on Consumer Cases 1788 (NS), the National Consumer Disputes Redressal Commission held as under:
“(v) The objection of the Couriers that liability of the opposite party was limited to Rs.100/- did not carry any weight as the printed memo containing the above condition was neither signed by any body nor there was any evidence to show that the terms printed therein were shown to the consignor or the consignee or that the same were agreed upon by the consignor.”
In DHL Worldwide Express (A Division of AFL Ltd) and Another Vs. AGG Exports and Another, 2009 CTJ 106 (CP) (SCDRC), the State Consumer Disputes Redressal Commission, Punjab, held as under:-
“Printed terms on the receipts whether binding?- Deficiency in service-Consumer Protection Act 1986-Section 2(1)(g)-Section 2(1)(o)-whether the liability of Appellants restricted to US$100 as printed on the back of receipt? Held No- Appellants not to be absolved from their liability after the deficiency in service found proved-Rather their liability corresponded to the losses suffered by the Consumer and for the harassment and inconvenience suffered.”
The principle of law laid down, in the cases aforesaid, mentioned in this paragraph, is fully applicable to the facts of the instant case. Since, it has been held above, that the complainant was not bound by the limited liability Clause, contained in Annexure C-1, in our considered opinion, he (complainant) was entitled to Rs.2,000/-, being the value of the model, contained in the consignment, which did not reach the destination and Rs.1900/- paid as consignment charges, to the Opposite Party. The findings of the District Forum, in this regard, being correct and affirmed.
11. The next question, that falls for consideration, is, as to whether, the complainant was entitled to compensation for mental agony and physical harassment, caused to him, at the hands of the Opposite Party. The consignment aforesaid, was admittedly booked by the complainant, through the Opposite Party. Thus, the complainant availed the services of the Opposite Party, on payment of the necessary booking charges. It was the duty of the Opposite Party to deliver the consignment, at the destination, safely. However, as stated above, though the address of the addressee was correct, yet the Opposite Party, failed to deliver the consignment at the destination. The complainant had already booked the space, in the exhibition, for the purpose of displaying the model. Since, the model did not reach the destination, it could not be displayed and he suffered financial loss of Rs.68,600/-, paid by him, for booking the space, as is evident from Annexure C-4. Even, the grievance of the complainant was not redressed by the Opposite Party, as a result whereof, he had to file a Consumer Complaint. The complainant, thus, suffered mental agony, physical harassment and also financial loss. In Sudhir Deshpande’s case (Supra), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, one of the questions, which fell for determination, before the National Consumer Disputes Redressal Commission was, as to whether, in such cases, the complainant was entitled to compensation or not. The answer to this question, was given by the National Consumer Disputes Redressal Commission, in the affirmative. Under these circumstances, the District Forum, in our considered opinion, was right, in awarding compensation to the tune of Rs.50,000/- to the complainant, for tremendous mental agony, physical harassment and financial loss, suffered by him, at the hands of the Opposite Party, on account of their acts of omission and commission. The findings of the District Forum, in this regard, being correct are affirmed. The submission of the Counsel of the appellant, in this regard, being devoid of merit, is rejected.
12. No other point, was urged, by the Counsel for the appellant, and the respondent.
13. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission, and the same is liable to be upheld.
14. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion
Pronounced.
3rd October, 2013
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
Gp
