Sri Shyamal Gupta, Member

In this Appeal, the legality of the Order 18-01-2019, passed by the Ld. District Forum, Kolkata-II (Central) in CC/322/2018 has been challenged by M/s Tridev Express Cargo.

The dispute between the parties cropped up over non-delivery of one bag containing handloom products of the Respondent which she booked with the Appellant.

We heard the parties at length and gone through the material on record.

Containing inter alia that the Respondent is running her cloth trading business on pan India basis, Ld. Advocate appearing on behalf of the Appellant, at the very outset, called in question the maintainability of the complaint case.

In support of such contention, however, Appellant has not advanced any sort of evidence.  Rather, it transpires from the photocopies of Consignment Notes (C/N) that the same do not bear any official address of the Respondent in Bengaluru.  In fact, in the C/N in question, the consignee has been shown as ‘self’.  Admittedly, the goods were received by the Respondent herself in Bengaluru. In the petition of complaint also, it is claimed by the Respondent that she runs her boutique business for her livelihood by means of self-employment. It is observed by the Ld. District Forum that now-a-days, owners of different Boutique participate in different exhibitions throughout the country to present their latest fashion.  We find no good reason to differ with such practical view.

Considering all these emerging facts; more so, in absence of any scrap of paper to support the contention of the Appellant, we are constrained to thump down the objection of the Appellant in this regard.  Fact of the matter remains that the Respondent hired the services of the Appellant on payment of due charges and therefore, she is/was definitely a bona fide ‘consumer’.

Undisputedly, the Appellant failed to ensure safe delivery of all the booked materials.  Therefore, there can be no manner of doubt about the deficiency in service on the part of the Appellant.

In this regard, it is contended by the Ld. Advocate for the Appellant that in terms of the conditions laid down in the C/N in question, its liability stood confined to Rs. 100/-.

We, however, found no logic into such weird contention of the Ld. Advocate.  The C/N does not bear the signature of the Respondent.  Therefore, it cannot be said that she was made aware of such vital stipulation in the C/N.  That apart, it is often seen that courier companies try to abdicate their liabilities to adequately compensate the consignor, in the event of occurrence of peril, citing draconian stipulations contained in the C/Ns written in illegible fonts.  This is done despite the fact that the highest Court of the Land itself time and again expressed grave resentment over such unfair trade practices of courier companies in no uncertain terms.

In this regard, we may profitably refer to the decision of Hon’ble Supreme Court in Central Inland Water Transportation Ltd. & Anr. vs. Brojo Nath Ganguly & Anr., reported in 1986 SCR (2) 278, wherein the Hon’ble Court has been pleased to observe thus –

“Article  14 of   the Constitution  guarantees to all persons equality  before the law and the equal protection of the laws. This principle is that the Courts will not enforce and will,  when called   upon to do so, strike down an unfair and unreasonable  contract, or   an unfair  and            unreasonable clause in  a contract  entered into  between parties who are not equal  in bargaining  power. The  above  principle          will apply where the inequality of bargaining power is the result of the          great disparity  in the  economic  strength  of the ontracting parties.  It will  apply where the inequality is the result  of circumstances, whether of the creating of the parties or  not. It  will apply  to situations         in which the weaker party  is in  a position in which he can obtain goods or services  or means  of livelihood  only  upon  the  terms imposed by  the stronger  party or  go without them. It will also  apply  where  a  man  has       no  choice,  or  rather  no meaningful choice,  but to  give his assent to a contract or to sign      on the dotted line in a prescribed or standard form or to  accept a       set of   rules            as  part  of  the  contract, however, unfair        unreasonable or  unconsionable a  clause in that contract  or form or rules may be. This principle will not apply  when the  bargaining       power of  the   contracting parties is  equal or  almost equal.  mis principle  may  not

apply where both parties are businessmen and the contract is a commercial  transaction. In today's complex world of giant corporations with  their vast  infrastructural organizations and  with   the         State   through            its  instrumentalities   and agencies entering  into almost  every branch of industry and commerce, there can be myriad situations  which result  in unfair and  unreasonable bargains between parties possessing wholly disproportionate       and unequal  bargaining power.           The Court  must   judge  each   case  on   its  own         facts     and circumstances when  called upon to do   so by  a party under section 31(1) of H the Specific Relief Act, 1963.

2.5 In  the  vast            majority  of  cases,  however,    such contracts within conscionable term  are entered into by the weaker party  under  pressure  of  circumstances,  generally economic, which results in inequality of bargaining power. Such contracts          will not fall within the four corners of the definition of  "undue influence" as defined by section 16(1) of the   Indian Contract Act. The majority of such contracts are in a standard or prescribed form or consist of a set of rules. They are not contracts between individuals containing terms  meant  for  those  individuals  alone.  Contracts  in prescribed or  standard forms or which embody a set of rules as part of the  contract are entered into by the party with superior bargaining power with a large number of persons who have far  less bargaining  power or  no bargaining  power at all. Such  contracts which  affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair       and   unreasonable  are  injurious  to   the  public interest. To  say such           a contract is only voidable would be to compel  each person     with whom  the party  with  superior bargaining power  had contracted  to go to Court to have the contract  adjudged  voidable.  This  would  only  result  in multiplicity of            litigation which  no Court should encourage and also would not be in public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged

void under section 23 of the Indian Contract Act, as opposed to public policy.

2.6  The  Indian  Contract        Act  does  not  define  the expression "public  policy" or            "opposed to  public policy". From  the  very      nature of  things,  such  expressions  are incapable of  precise definition. Public policy, however, is not the   policy of a particular government. It connotes some matter   which  concerns           the  public  good  and the  public interest. The  concept of  what is for the public good or in the public interest or what would be injurious or harmful to the public  good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were  once considered  against public  policy are          now being upheld  by the  courts and  similarly where  there has been a          well-recognized head  of public policy, the  courts have not  shirked from extending it to new transactions and changed circumstances  and have at times  not even flinched from inventing a new  head of public policy. The principles governing public policy must be and are capable on  proper occasion,  of expansion  or modification. Practices which were considered perfectly normal at one time have  today   become  abnoxious  and  oppressive  to  public conscience. If there is  no head  of  public  policy  which covers a case, then the court must in consonance with public conscience and           in keeping  with  public  good and  public interest declares  such practice  to be   opposed  to  public policy. Above  all, in deciding any  case which  may not be

covered by  authority Indian  Courts have  before  them the beacon light  of the  Preamble to  the Constitution. Lacking precedent, the          Court can always be guided by that light and the principles   underlying the Fundamental Rights  and         the Directive Principles  enshrined in our Constitution.

The normal rule of Common Law has been that a party who seeks to  enforce an  agreement which  is opposed  to public policy will  be non-suited.  The types of contracts to which the principle  formulated  in  this  case  applies  are not contracts  which   are tainted           with   illegality  but    are contracts which     contain  terms   which  are  so  unfair  and unreasonable that  they shock  the conscience  of the Court. They are  opposed  to  public  policy  and  required  to  be adjudged void.”

The message from the Hon’ble Court is loud and clear – by stipulating unfair conditions in the C/N, the Courier Companies cannot get away paying paltry compensation to bona fide consumers.

At the cost of repetition, it bears mentioning here that the C/N does not bear the signature of the Respondent.  Therefore, it cannot be ascertained with certainty as to whether or not the Respondent was duly taken on board about the terms and conditions, especially the limitation clause, as stipulated in it before booking the consignment.  It is the settled position of law that where there is no conscious agreement between the parties, the unilateral conditions incorporated in the C/N cannot be given effect to and the same will not be binding on the parties. Accordingly, the plea that the Appellant cannot be held liable beyond the scope of terms and conditions as contained in the C/N is totally a misnomer. 

Now, let us discuss, what should be the adequate compensation in view of the fact that the Respondent could not put forth any tangible proof in support of her contention that the misplaced bag contained goods worth Rs. 1,25,000/-.

It is usual business practice of courier companies to obtain necessary declaration regarding the value and nature of goods being booked from the consignor and prominently mention the same in the C/N to obviate unwarranted legal hassles.  This norm is stringently followed in respect of high value goods. 

It appears from the documents on record that while booking another consignment (C/N No. 200123 dated 17-11-2017), the Respondent tendered one such declaration.  Therefore, the only logical inference that we can derive at in the matter is that no such exception was done in respect of the consignment under consideration. 

To top it all, it is claimed by the Appellant in its WV that the consignments were booked through Railways, who would invariably call for such declaration before booking the material. 

For reasons best known to the Appellant, however, it has not placed on record this crucial piece of document, i.e., declaration of the Respondent regarding the content, quantity and value of the consignment, for us to see if indeed the Respondent made exaggerated claim or not.

Thus, while the Appellant miserably failed to mat the Respondent on this score, in our considered opinion, it cannot abdicate its liability as fixed in the impugned order.

With such finding, we are constrained to dismiss this Appeal with a cost of Rs. 10,000/- being payable by the Appellant to the Respondent.