Nagaland

StateCommission

A/3/2016

The Manager Blue Dart Ltd - Complainant(s)

Versus

Shri Senti Santi & ors - Opp.Party(s)

06 Aug 2022

ORDER

​            The present appeal is directed against the order dated 24^th June, 2016 passed by the District Consumer Disputes Redressal Forum, Dimapur, Nagaland in Complaint Case no. 2/2015. The appeal is presented under section 15 of the Consumer Protection Act, 1986.

            Facts presented before the District Consumer Disputes Redressal Forum is that the Respondent no 1 on 20.05.2014 availed the services of Respondent no. 2 and Appellant no. 1 for transporting snooker table with its accessories which was contained in 6 (six) boxes vide AWB 50241926884. When the goods reached Dimapur, Respondent no. 2 intimated the Respondent No. 1 to collect the goods. However, it was found that the goods were damaged beyond repair. Alleging that the damage was caused due to the careless handling by the Appellants complaint was presented before the District Consumer Disputes Redressal Forum for compensation claiming that the value of the goods was worth ₹ 80,000/- (Rupees eighty thousand) only. Value of transportation and packaging was placed at ₹ 40,000/- (Rupees forty thousand) only. The District Forum heard the matter and passed the compensation in favour of the Respondent No. 1 which is now in challenge. The operative order is brought out:

“The Forum have examined the case record along with all annexures. And after careful analysis of the facts and matter with supported documents decided the case in favour of the Complainant against the Respondent No. 1 and 2 through whom tickets were booked and the consignments were transported, as such, they are whole and solely liable. Due to their deficiency in services rendered, the Complainant faced harassment, tensions, inconvenience and financial loss.

   The Forum considers the following awards as reasonable under different heads as shown below:

1. Cost of goods                                                     - ₹ 50,000/-
2. Cost of hardship and mental agony                   - ₹ 40,000/-
3. Cost of litigation                                                - ₹ 10,000/-
4. Deficiency of service                                         - ₹ 40,000/-

The Respondent No. 2 being the regional office for the entire North-Eastern states is directed to take steps for the payment.

The compensation amount be deposited by the Opposite Party before this District Forum within a period of 30 days from today. In default, 9% interest per annum shall be added to the awarded amount from the date of the complaint till payment.”

 

            The appellant discontented by the award has raised several grounds to move the present appeal which are discussed below.

1. The Way Bill clearly states that all shipments under the Way Bill are to be carried at the owner’s risk which is contained in clause 1.3 of the Way Bill. Further clause 2.1 states that by tendering material for shipment via Blue Dart Express, it is deemed that the shipper agrees to the terms and conditions stated therein.
2. As per clause 8.1 the limitation to the liability is as follows:

“Without prejudice to s. 9 + 10, the liability to Blue Dart Express for any loss or damage to the shipment shall be ₹ 5,000/- or the amount of loss or damage to the document or parcel actually sustained for the shipment which are not insured as mentioned below and the actual value of the documents or parcel so determined will be without regard to the commercial utility or supply value to the shipper.

 

            The Respondent No. 1 has signed as follows:

“I hereby agree to the terms and conditions of this non-insured AWB as mentioned above and warrant that information contained on this way bill is true and correct and I am aware that in case the consignment contains anything of value the company recommends insurance of the same. The company’s liability on this shipment is limited to ₹ 5,000/- or cost of reconstruction whichever is lower. Stamp duty if leviable on this way bill shall be borne by the shipper exclusively and declare that the shipment does not contain any cash or equivalent.”

            The company had recommended insurance, yet the complainant did not opt for the same. It has therefore been argued that the appellant cannot be held responsible.

 

            The Airway Bill clearly specifies that:

“In case this consignment contains anything of value, the company recommends insurance for the same. The company’s liability on this shipment is limited to ₹ 5,000/- or cost of reconstruction whichever is lower/lesser”

            Appellant company has employed trained staff who are regular in pointing at the terms and conditions which is conspicuously printed at the front and the back of the Airway Bill to the shippers prior to signing the contract.

            It has also been argued that the cause of damage was investigated upon and it was revealed that the damage was caused due to poor packaging by the complainant. As such deficiency of service is not imputable upon the appellant.

            There is also imputation that the value of the goods declared at the time of shipping and while filing the complaint petition. Learned Counsel, Mr. Pfosekho Pfotte has pointed out that the complainant had declared the value of the shipment as ₹ 20,000/- (Rupees twenty thousand) only which has been filled up at the upper right portion of the consignment note. Therefore, it was just a mala fide intention to extract money from the appellant. The District Consumer Forum was not justified in inflating the declared value to compensate the complainant.

            Summing up, the appellants argues that there is a contractual agreement that the liability of the courier will be limited to ₹ 5,000/- only. There is no deficiency of service as the investigation/inquiry suggests that the damage was due to poor packaging of the shipped goods by the complainants and not caused due to mishandling by the appellants.

            The declared value of the shipment has been inflated just to realise pecuniary benefits from the appellants.

            The impugned order dated 24.06.2016 in complaint case no. 2/2015 passed by the District Consumer Forum, Dimapur is therefore passed mechanically, without proper consideration of facts and also not in conformity with the laws which has been laid down by the Hon’ble Apex Court.

            Learned Counsel has placed reliance on the Apex Court’s decision in the case of

Bharati Knitting Company

-vrs-

DHL Worldwide Express Courier

Division of Airfreight Ltd.

(1996) 4 Supreme Court cases 704.

            The Apex Court while considering whether the parties to commercial contractual terms are bound by such agreement has answered in the positive thus opining at para 6 of the referred judgement which reads:

6. It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Anson’s Law of Contract, 24^th edition at page 152, on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document if not signed, being merely delivered to him, then the question arises: whether the terms of the contract were adequately brought to his notice? The terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms as rightly pointed out by Mr. R. F. Nariman, learned senior counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents needs to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M. N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact, situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original civil court established under CPC or appropriate state law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the contract.

Thus, observing the following order was passed by the Apex Court:

7. In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission. Shri Krishnamani has brought to our notice that there are number of judgements covering divergent views. In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is contended that besides the amounts awarded by the State Commission, liberty maybe given to the appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued according to law.

        The appeal is dismissed. No Cost.

 

            There was a contractual agreement limiting the liability of the appellant to the amount of ₹ 5,000/- which was consciously agreed and signed by the Respondent, therefore the awarded amount of ₹ 1,40,000/- passed by the District Consumer Forum is not in keeping with the ruling of the Apex Court and must be quashed and set aside.

            It has been established that the damage was caused due to poor packaging by the Respondent therefore there was no deficiency of service and no case is made out under section 12 of the Consumer Protection Act, there is no cause of action, the complaint ought to have been dismissed.

            Mr. N. Longkumer (adv) appears for the Respondent/Complainant. He argues that the goods were handed over under the custody of the appellants in good condition and also with proper packaging. When the goods were delivered it was found that the goods were damaged beyond repair. The goods were sent from Bangalore to Dimapur in course of which the damage was done under the custody of the appellants. Therefore, he argues that the damage was caused due to the mishandling of the goods by the appellant and they were rightly held liable by the District Consumer Forum. He submits that section 2(1)(9) of the Consumer Protection Act, 1986 defines “deficiency” as any fault in perfection, short-coming or inadequacy in quality, nature and manner of performance which is required to be maintained by or any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

            Section 2(1)(0) defines “Service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both housing and construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

            Thus, the act of the appellants are well qualified within the meaning of “deficiency of service” as contemplated under the Consumer Protection Act 1986, and they are liable to compensate the service receiver for such deficiency.

            It has also been argued that the Respondent/Complainant has availed the service of the appellants and not Respondent No. 2 i.e., The Manager, Royal Courier Service, Royal Hotel, Opposite Blue Hill Station, Dimapur, Nagaland. The appellants have taken the service of the Respondent No. 2 to handle the package resulting in the damage to the goods. The Respondent No. 2 is the agent of the appellants and therefore, the principal will be liable for the action of the agent.

            Reliance is placed upon the case of

Vadodara Municipal Corporation

-vrs-

Purshottam V. Murjani & others

                                    Reported in (2014) 16 scc pg 14, para 2, 5, 8 to 18.

            Furthermore, the terms and conditions relied upon by the appellants is very unfair and one sided. The font size and the print are not in a standard form but in a concealing form which was intentionally done to take undue advantage from the customers. The terms and conditions were not read out to the Respondent/Complainant at the time of availing their service nor they were made known of the conditions contained therein. The Complainant has not appended his signature to the terms and conditions. The learned counsel for the Respondent/Complainant has placed reliance upon the judgement of

 

The Blue Dart Express Limited

-vrs-

Stephen Livera

            Revision Petition No. 393 of 1997, dated 14.12.2001 passed by the National Consumer Disputes Redressal Commission.

            He has further placed reliance upon the case of

Central Inland Water Transport Corporation

-vrs-

Brojonath Gangully

                                    (1996) 3 scc, 156, para: 76, 77, 78, 79.

            The Commission has considered that submission forwarded by the contesting parties and the question which are pertinent to dispose the present appeal are:

1. Whether there was a valid agreement between the parties limiting the liabilities of the appellant and under the facts and circumstances the argument can be enforced so as to limit the liability of the appellant to the limit of ₹ 5000/-
2. Whether the print is not in the standard form and was printed in a manner to conceal the conditions to take advantage of the micro print and deceive the customers.
3. Even if the printed item be so, whether the same was read out to the customer or notified to him properly?
4. Whether there was a breach of contract and none of the agreement could be made enforceable considering that Respondent No. 2 was not a party to the agreement and they were responsible for handing the packages which was damaged beyond repair?

5. Whether the goods shipped were damaged due to poor packaging or mishandling?

With respect to issue no. 1 & 2 the only argument forwarded by the learned counsel for the Respondent/Complainant is that the print is small and conditions of the contract are printed in a deceptive manner. On considering the arguments presented the Commission is of the view that when an argument to a contract is signed, the responsibility of both the parties are equal – the parties should append their signatures only after understanding the terms of the contract. The question whether the print was small or deceptive or whether it was read over to the other party or not is not relevant. When the document exhibits that there is the signature of the parties, that settles the matter with respect to the terms of the contract and the courts are to enforce the same has been appropriately pointed out by learned counsel for the appellant, Mr. Pfosekho Pfotte referring to the case of Bharati Knitting Company vs Worldwide Express Courier Division of Air Freight Ltd. passed by the Hon’ble Supreme Court which is reported in (1996) 4 SCC 704. There has not been presented any decisions by the Apex Court opining otherwise on the issue at hand by the Respondents. We cannot therefore attempt to make any other interpretation on the issue.

            The parties have signed a contract and they will be bound by such contract. This answers issue no 1, 2 and 3.

            The learned counsel for the Complainant/Respondent submits that there was a breach of contract therefore none of the contractual agreement are enforceable. The appellant shall be made fully responsible for the loss of the consignment. He argues that the contractual agreement was signed between the complainant and the appellant i.e., The Blue Dart and not between the complainant and the Respondent no. 2 i.e., The Royal Courier Service. The goods were delivered to the complainant who was not a party to the contractual agreement. Therefore, there was breach of contract and the appellants are squarely liable for the deficiency of service and the manner in which the service is given to the consumers.

            On considering the argument presented by the Complainant/Respondent it is observed that:

1. Annexure 4 at page 39 of the appeal memo, the goods were delivered to the Complainant on 30/07/2014 by someone else not by the Blue Dart. The document also testifies that the goods were totally damaged. It was signed by the agent of Royal Courier Service who was not a party of the contract. Therefore, admittedly there was a breach of contract and in that state the contractual agreement whatever between the Complainant and the service provider cannot be enforced. This Commission has considered that the present matter need not be referred to the civil court for further remedy for contractual breach for the simple reasons that it would be futile to allow such steps and waste the time of the courts and defeat the purpose of the Consumer Protection Act.

 

We have examined the order of proceedings and it reveals that when the written gist was submitted by the learned counsel for the Complainant/Respondent on 21.05.2022, the learned counsel for the appellant had sought for sometime to present his written gist. The learned counsel for the appellant also desired that he should be given time to locate Respondent no. 2 who he claimed was a necessary party to the dispute. In fact, an interlocutory application no. 5/2016 was filed for causing service upon the Respondent no. 2 by way of publication in the widely circulated daily in Nagaland i.e., the Nagaland Post. It was duly published and even affidavit to this effect was presented by the appellant along with a clipping of the publication dated 13.04.2019 issuing notice upon the Respondent no. 2. However, the necessary party Respondent no. 2 did not show appearance and till date after 3 years of litigation the appellant is unable to produce his own agent who delivered the goods to the Complainant. The only person who can testify that the goods were damaged can be made by Respondent no. 2, who received the goods at Dimapur and delivered to the Complainant/Respondent. Therefore, this Commission is unable to accept the argument that the goods were damaged due to poor packaging considering that the concerned agent who received and delivered the goods is not here to testify to this effect.

It would be futile to go for civil remedy considering that the appellants are unable to bring the necessary party Respondent no. 2 i.e., Royal Courier Service before the court. Three years have lapsed giving opportunity to the appellants to secure the attendance of the Respondent no. 2 who is the agent of the appellant. Exercise would only delay the disposal of the complaint petition harassing the consumer as well as waste the precious time of the court.

            Coming to the issue of unconscionable agreement as raised by the learned counsel for the Complainant/Respondent who has placed reliance upon the case of

Central Inland Water Transport

Corporation Limited and Another

-vs-

Borjo Nath Gangully and Another

(1986) 3 SCC 156

He argues that the contract between the parties were in a standardized contract form offered to consumers of goods and services on essentially “take it or leave it” basis without affording realistic opportunity to bargain and under such conditions that customers cannot obtain desired product or services except by acquiescing in form contract. These are “Contracts of Adhesion” where the weaker party has no choice as to the terms of the contract.

            On the examination of the terms of the contract it certainly appears to be lopsided, having no liability upon the service provider and every risk to be borne by the consumer while liability of service provider is only limited to the extent of ₹ 5,000/- and with a rider that the goods of value have to be insured. We do not view that a service provider has the authority to put conditions that the goods should be insured. It is like shifting all one’s burden to the consumer to enter into a contract of insurance to further his business. It is more appropriate that the service provider insures his business as he is the one running the business and not the consumer. Even more severe rider has been incorporated which states “all shipments under the waybill are carried at owner’s risk”. What is startling is that fees have been charged for shipping the goods at owner’s risk. The annexure-C at page 21 of the appeal memo which clearly indicates that freight charges, fuel charges, AWB charges, other charges, service tax and cess tax etc have all be charged from the consumer, added to this FOV charge owner’s risk of ₹ 100/- has been charged. This is ridiculous. One cannot accept that a person/consumer has to pay money to the provider for putting everything at the risk and expense of the consumer. It is absolutely an unconscionable contract and has to be set aside as unenforceable.

            The service provider has made the consumer sign the standardized form of contract, where in all liabilities and risk has been put upon the consumer to bear. Thereafter, committing breach of contract, the service provider has entrusted untrustworthy agent, to perform a part of contract, who cannot be brought before the commission even after a spell of three years of opportunity having been given.

            There is breach of contract committed by the service provider, the service provider is unable to bring before the commission the necessary party to prove this case. None of the contractual agreement can be enforced. Deficiency of service is established.

            We find no merit in the appeal and is dismissed. No cost is awarded.