Sri Shyamal Gupta, Member

Present Appeal arises out of the Order dated 23-06-2017, passed by the Ld. District Forum, Birbhum whereby the complaint case has been allowed.

Facts of the complaint case, in short, are that the Complainants sent three pieces cement and bronze made sculptures to Goa through the OPs after paying due charges on 27-03-2014.  However, the OPs delivered the same in broken condition.  The Complainants served legal notice upon the OPs through their Ld. Advocate on 14-08-2014 claiming compensation from them.  However, as the OPs did not redress their grievance, feeling dejected, they filed the complaint case.

Counter case of the OPs was that at the time of booking, Complainant No. 2 was asked to insure the goods, but she ignored such advice. The OPs disputed and denied all the allegations contained in the petition of complaint.

Decision with reasons

Heard both sides and gone through the documents on record.

Ld. Advocate for the Appellants contended that since no notice was issued u/s 10 of the Carriers Act, the complaint case was not maintainable in the first place.  Ld. Advocate for the Appellants further argued that in accordance with the terms and conditions of the consignment note, their liability stood confined to Rs. 100/- and accordingly, he prayed for setting aside the impugned order. 

There is no dispute as to the fact that the goods were delivered in a broken condition by the Appellants.  While the broken goods were delivered on 04-04-2014, the Respondents claimed compensation from the Appellants through their Ld. Advocate on 14-08-2014 and the same reached the end of the Appellants on 16-08-2014 as it transpires from endorsement on the postal AD Card.  Thus, while due claim was lodged with the Appellants within the threshold limit contained u/s 10 of the Carriers Act, we do not find any infirmity with the complaint case being lodged before the Ld. District Forum.

Now, let us decide whether the award given by the Ld. District Forum is tenable in law or not. 

It was submitted by the Ld. Advocate for the Appellants that the value of goods, contained in the parcels, was not given by the Respondents.  In any case, in accordance with the terms and conditions contained in the reverse of the consignment note, liability of the Appellant stood limited to Rs. 100/-. 

Terms and conditions being printed in fine print on the back side of the consignment note, it remains doubtful, whether the same was duly explained to the Respondents properly. 

In Sudhir Deshpande v. Elbee Services Ltd., Bombay, I (1994) CPJ 140 (NC), the Hon’ble National Commission observed thus,

“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 the 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. v. Consumer Education and Research Society, I (1992) CPJ 316 (320-21) (NC), the Hon’ble National Commission has been pleased to held as below:

“the objection of the courier 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 anybody nor there was any evidence to show that the terms printed therein were shown to the consignor or that the same was agreed upon by the consignor”.

In this regard, reference may also be drawn to the decision of Hon’ble National Commission in Airstar Express Courier v. Inder Medical Store, II (2012) CPJ 167 (NC).

On perusal of the photocopy of consignment note it appears that the front side of the same contained the signature of the consignor.  However, no such evidence is put forth from the side of the Appellants to show that similar signature was made on the reverse of the consignment note as well.  Since detail terms and conditions were printed on the back side of the consignment note, to which the Respondents were not signatories and furthermore, in absence of any tangible proof to show that the relevant clause was read over and explained to the Respondents, to our mind, the Appellants cannot evade due liability taking shelter under such an unexplained clause.

The amount, as awarded by the Ld. District Forum appears to be quite reasonable in the facts and circumstances of the case and as such, we are not inclined to tinker with the same in any manner whatsoever.

The Appeal, accordingly, fails.

Hence,

O R D E R E D

The Appeal stands dismissed on contest against the Respondents.  The impugned order is hereby affirmed.