STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

M/s. Track on Courier Private Limited, C-114, Naraina Industrial Area, Phase I, New Delhi-110020, through its Assistant General Manager.

……Appellant/Opposite Party No.1

V e r s u s

1.  Rajneesh Gupta, Prop. M/s S. K. Enterprises, 639, Industrial Area, Phase-IX, Mohali (Punjab).

....Respondent/complainant

2.  M/s Sambhav Enterprises, through its Proprietor, S.C.O. No.87, Ground Floor, Sector 44-C, Chandigarh.

....Proforma Respondent           

Appeal under Section 17 (infact 15) of the Consumer Protection Act, 1986.

BEFORE:    MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh.Hoshiar Singh, Advocate for the appellant.

              Ms.Anju Bansal, Advocate proxy for Sh.Madan                  Gopali, Advocate for respondent no.1.

              Proforma Respondent no.2 already exparte.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 19.12.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, and directed the Opposite Parties, as under:-

“(i)   to refund a sum of Rs.70,516/- to the        complainant;

(ii)     to pay a sum of Rs.20,000/- to the complainant as compensation for mental agony and physical harassment;

(iii)  to pay a sum of Rs.7,000/- to the complainant as costs of litigation. 

This order be complied with by the OPs, jointly and severally, within 30 days from the date of receipt of its certified copy, failing which the amount of Rs.90,516/- i.e. (Rs.70,516 + ?Rs.20,000) would attract an interest @18% per annum from the date of filing the complaint i.e.06.08.2010 till actual payment besides payment of Rs.7,000/- as costs of litigation”.

2.               The facts,  in   brief,   are   that   Rajneesh Gupta, complainant, Proprietor of M/s S. K. Enterprises, 639, Industrial Area, Phase-IX, Mohali (Punjab), hired the services of the Opposite Parties (Courier Service Agency at Chandigarh), and handed over to them, the sealed packets, containing the articles,  the value whereof,  was Rs.1,02,006/-, for delivery at the destination. When the parcels did not reach the destination, the complainant, approached Opposite Party No.2 at Chandigarh (now Proforma respondent no.2), about the status of the same. He  was told that the parcels were in transit and   would   be   reaching   the   destination very soon. The complainant also wrote letter to Opposite Party No.1, on 09.12.2009, which, in turn, informed him, vide letter dated 14.04.2010, that the parcels, in question, were lost in transit. The complainant served a legal notice dated 31.05.2010 (Annexure C-6), upon the Opposite Parties. The same was replied vide letter dated 08.07.2010 (Annexure C-7), whereby he was informed that they (Opposite Parties) were not liable to reimburse the full amount of loss, to the complainant. It was stated that the aforesaid acts of the Opposite Parties, 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.

3.               The Opposite Parties, in their written version, admitted that four packets, containing the articles,  were booked with them, for delivery at different destinations, on payment of necessary courier charges, by the complainant. It was stated that at the time of booking the packets, neither their contents, nor the value of the articles, contained therein, were declared by the complainant. It was also admitted that the bag containing the packets, in question, alongwith various other packets, was lost by an employee of the Opposite Parties on 16.12.2009, and a DDR to this effect, bearing No.12 dated 16.12.2009 was also got registered, at Police Post, 61, Chandigarh, on the same day. It was further stated that intimation with regard to the loss of the packets, was sent to the complainant on 14.04.2010. It was further stated that the Opposite Parties, offered to pay four times of the courier charges,  as per Clause IV (infact clause 2),  of the terms and conditions, of the courier receipts, but the same was refused by the complainant.  It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.               The Parties led evidence, in support of their case.

5.               After hearing the Counsel for the parties, 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. 

6.               Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.  

7.               We have heard the Counsel for the appellant, respondent no.1, and, have gone through the evidence and record of the case, carefully.

8.               Despite service, no legally authorized representative, appeared on behalf of Proforma Respondent No.2. Accordingly, it was proceeded against exparte, vide order dated 30.03.2012.

9.               The Counsel for the appellant, at the very outset, submitted that the District Forum, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint, as according to Clause 7, of the terms and conditions of the Courier receipts, all disputes were subject to the jurisdiction of Courts at Delhi.  He further submitted that since the District Forum, at Chandigarh, lacked territorial jurisdiction, the impugned order, being without jurisdiction, is illegal, and liable to be set aside. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The District Forum, was governed by the provisions of Section 11 of the Act, for the purpose of determining, as to whether, it was having territorial jurisdiction, to entertain and decide the complaint or not. The parties, by agreement, could not oust the territorial jurisdiction of the District Forum, where the cause of action arose, to the complainant. In the instant case, the parcels were booked with Opposite Party No.2, based at Chandigarh. The courier charges were paid to Opposite Party No.2, at Chandigarh. Under these circumstances, cause of action arose to the complainant, within the territorial jurisdiction of Chandigarh. Any Clause, in the courier receipts, contrary to the provisions of Section 11 of the Act, was not binding upon the complainant. In Blaze Flash Couriers (P) Ltd. Vs. Rohit J. Poladiya & Anr. I(2008) CPJ 452 (NC), it was held by the National Consumer Disputes Redressal Commission, New Delhi, that if the jurisdiction was sought to be conferred, by an alleged agreement , on the basis of some mention,  in some bills or some consignment notes, etc., on a particular District Forum, then it would be against the public policy, to make an attempt to confer jurisdiction on a Court or Fora, where the cause of action, had not arisen. No cause of action, in this case, whatsoever, arose to the complainant, within the territorial jurisdiction of Delhi. Under these circumstances, since, the cause of action, arose to the complainant, within the territorial jurisdiction of Chandigarh, the District Forum, at Chandigarh, in view of the principle of law, laid down, in the aforesaid case, had jurisdiction, to entertain and decide the complaint. The submission of the Counsel for the appellant, being devoid of merit is rejected.

10.            It was next submitted by the Counsel for the appellant, that respondent no.1/complainant, did not fall within the definition of a consumer, according to Section 2(1)(d)(ii) of the Act, as the parcels, in question, containing the articles, were booked with the Opposite Parties, for commercial purpose. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The complainant, in this case, was running a Proprietorship concern. There is nothing, on the record, that the complainant was running a manufacturing unit, and manufacturing parts of tractors, on a large scale, by employing a number of persons, with an intent to earn profits. There is also, nothing, on record, that the complainant was doing any other business, wherefrom, he was getting handsome returns. From the facts and circumstances of the case, it is evident, that the complainant, being a Proprietor of the Proprietorship concern, was running his business, by way of self-employment, with a view to earn his livelihood. Under these circumstances, the submission of the Counsel for the appellant, that the complainant did not fall within the definition of a consumer, being without merit, must fail, and the same stands rejected.

11.            The Counsel for the appellant,  however, placed reliance on Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd., 2011(1)SCC 525, and Economic Transport Organization Vs. M/s Charan Spinning Mills (P) Ltd. & Anr., 2010(4) SCC 114 (Civil Appeal No.5611 of 2010. D/d. 17.02.2010), in support of his contention, that since the complainant was running a commercial activity, he did not fall within the definition of a consumer. In both the aforesaid cases, the complainants were Limited Companies, running their commercial activities, on a large scale, by employing  a number of persons. Since, the complainants, being the Limited Companies were engaged in   manufacturing activities, on a large scale, with an intent, to earn profits, it was held by the Hon`ble Supreme Court, that the complaints having been filed after 15.03.2003, after the amendment of Section 2(d) of the Act, the same were not maintainable, as the complainants did not fall within the definition of consumers. The facts of the aforesaid cases, being completely distinguishable, from the facts of the instant case, no help, could be drawn, by the Counsel for the appellant, therefrom.

12.             It was next submitted by the Counsel for the appellant,  that the description of the goods, contained in the parcels, was not given by the complainant, at the time of booking the same, with the courier agency. He further submitted that, even, the value of the articles, contained in each parcel, was not declared by the complainant, at the time of booking, and, as such, the liability of the Opposite Parties was only to the extent of  four times of the courier charges,  as per the terms and conditions, mentioned on the courier receipts Annexure C-1 to C-4, originals whereof, are attached at page 123 to 129 of the District Forum file. It may be stated here, that, at the time of booking the parcels, with the courier agency, the value of the goods/articles, contained in each parcel, was mentioned in the courier receipts, referred to above. The total value of the parcels was declared by the complainant as Rs.70,516/-. No doubt, on the reverse of the courier receipts, terms and conditions, in fine print are printed. However, these courier receipts did not bear the signatures of the complainant. In the absence of the signatures of the complainant, admitting the terms and conditions mentioned, on the back of these receipts, it could not be said that he (complainant) agreed to the same. These terms and conditions are not binding, on the complainant. Under these circumstances, it could not be said that the liability of the courier agency, was only to the extent of four times of the courier charges.  

13.            In Sudhir Deshpande Vs. Elbee Services Ltd., Bombay, I (1994) CPJ 140 (NC)= 1986-96 National Commission & SC on 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 despatch 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), 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.”

14.         In Airstar Express Courier Vs. Inder Medical Store, II (2012) CPJ 167 (NC), the parcel of medicines was booked through courier, by the complainant, but the same was not delivered to the consignee. The value of medicines was Rs.26,137/-. The courier receipt contained a condition of limited liability of Rs.100/-, in case of damage to the parcel, or non- delivery of the same. These conditions were mentioned, in fine print, on the courier receipt. When the grievance of the consumer was not redressed, he filed a complaint, in the District Forum, which was allowed, and he was refunded Rs.26,137/-, being the price of the goods, contained in the parcel, which was booked with the courier agency, alongwith interest.  The appeal, filed before the State Consumer Disputes Redressal Commission, was dismissed, and the Revision Petition filed before the National Consumer Disputes Redressal Commission, was also dismissed, holding that the complainant,  being not a signatory to the terms and conditions of the courier receipt, and there was nothing, on record, to prove, that the same were explained to him, he was not bound by the same, and, was rightly granted the relief of refund of the amount of the value of the goods, booked with the courier agency. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. As stated above, the limited liability Clause, mentioned on the back of the courier receipts, to which the complainant, was not a signatory nor any evidence,  was produced by the Opposite Parties,  that the said Clause was read over and  explained to the complainant, no help  could be drawn by the Opposite Parties, therefrom. The submission of the Counsel for the appellant, therefore, being without merit, must fail, and the same stands rejected.  

15.            Undisputedly, the value of the goods, which were  contained,  in the parcels, booked with the courier agency, was Rs.70,516/-,  (as is evident from the courier receipts aforesaid). The parcels were not delivered at the destination, as was admitted by the Opposite Parties, and, a D.D.R. was also lodged with regard to the loss of the same. It means that the Officials of the courier agency were completely negligent, in performing their duties. Due to their negligence,  loss to the tune of Rs. 70,516/-, was caused to the complainant, on account of non-delivery of the parcels.  The District Forum was, thus, right in directing the Opposite Parties, to refund a sum of Rs.70,516/-, being the value of the goods/articles, which were not delivered, to the consignee, at the destination, but, on the other hand, were misplaced. The findings of the District Forum, in this regard, being correct, are affirmed.

16.            The District Forum, keeping in view the totality of facts and circumstances of the case, and the evidence, on record was right, in coming to the conclusion, that a lot of mental agony and physical harassment, was caused to the complainant, on account of the loss of parcels, at the hands of the Opposite Parties, which contained the valuable articles. One can very well imagine the condition of a person, whose goods worth  Rs.70,516/-,  are lost at the hands of the Courier Agency, the services whereof were hired by him/her, for consideration. The District Forum, thus, granted Rs.20,000/-,  as compensation, on account of mental agony and physical harassment, which had to be undergone by the complainant, on account of the acts of omission and commission, on the part of the courier agency. The compensation awarded by the District Forum, could be said to be fair, reasonable and adequate. The order of the District Forum, granting compensation to the tune of Rs.20,000/-,  is legal and valid.

17.            The District Forum, no doubt, granted penal interest @18% p.a., on failure of compliance of the order, within 30 days from the date of receipt of a copy thereof. In our considered opinion, the District Forum was wrong, in granting penal interest @18% p.a., which is certainly excessive. In our considered opinion, penal interest @12% p.a., if granted, would meet the ends of justice. Accordingly, the penal interest, granted, by the District Forum @18% p.a. is scaled down to 12% p.a.

18.            For the reasons recorded above, the appeal is partly accepted, with no order as to costs, with the modification, in the following manner:_

                              i.   The penal interest, awarded by the District Forum @18% p.a., is reduced to 12% p.a.

                            ii.   The other reliefs granted and directions given by the District Forum, shall remain intact.

19.            Certified Copies of this order be sent to the parties, free of charge.

20.            The file be consigned to Record Room, after completion

Pronounced.

May 01, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg