BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD

F.A.No. 267  OF 2017 AGAINST C.C.NO.238  OF 2016 DISTRICT CONSUMER FORUM-II HYDERABAD

Between

 M/s DTDC Couriers

Rep. by its Manager, No.6-1-1064/A/11,

Sunshine Complex, Lakdi-ka-pul,

Opp: Khairatabad Post Office

Khairatabad, Hyderabad-500004

                                                                      Appellant/opposite party 

              AND

 Smt S.Lakshmi W/o S.Raghuram Prasad

R/o No.10-1-18/25/A, Shyam Nagar

Masab Tank, Hyderabad-500004

                                                                      Respondent/complainant

Counsel for the Appellant                  M/s  Leo Raj

Counsel for the Respondent               Party in person

QUORUM              :

HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT

&

SRI PATIL VITHAL RAO, MEMBER

    WEDNESDAY THE TWENTY FIFTH DAY OF APRIL

TWO THOUSAND EIGHTEEN

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

          This is an appeal filed by the opposite party aggrieved by the orders   of District Consumer Forum-II, Hyderabad dated 26.05.2017    made in CC No.238 of 2016  wherein it  allowed the complaint directing it to pay Rs.50,000/- to the complainant within 40 days, in default pay interest @ 6% p.a. from the date of default till the date of realization.     

2.                           For the sake of convenience, the parties are referred to as arrayed in the complaint.

3.                           The case of the complainant, in brief, is that on 30.03.2016 she booked a consignment No.027306323 weighing 8kg consisting of sweets, pickles and other savories to be sent to her daughter form Hyderabad to Gurgaon.  The opposite party promised to deliver the said consignment at its destination by next day by Flight but the opposite party failed to send the same by Flight and the same was reached on 06.04.2016.  The opposite party instead of sending by Flight sent by road therefore, the items sent by her were spoiled.  Hence, the complaint directing the opposite party to refund the amount of Rs.1600/- paid for consignment together with damages of Rs.one lakh. 

4.                           The opposite party resisted the case contending that as per condition no.27 if any dispute arose between the parties the court situated at Bangalore alone will have jurisdiction.  Therefore, the District Forum has no jurisdiction to decide the complaint.  As per the conditions of consignment note the liability assumed by opposite party on a shipment is limited to Rs.500/- unless the sender declares a higher value as “declared values for carriage”.  The consignment was booked on 30.03.2016 and the same was delivered on 06.04.2016 and the opposite party never promised to deliver the goods through Air and consignment clearly shows the goods will be delivered by Road.  Therefore, there is no deficiency of service or unfair trade practice on the part of the opposite party and prayed for dismissal of the complaint. 

5.                           In proof of his case, the complainant filed her evidence affidavit and got marked Ex.A1.    On behalf of Opposite party, the Manager has filed his evidence affidavit and got marked Exs.B1 and B2.             

6.                The District Forum after considering the material available on record, allowed  the complaint bearing CC No.238 of 2016 by orders dated 26.05.2017 as stated in paragraph No.1, supra.

7.                Aggrieved by the said decision, the opposite party no.1  preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.     It contended that there is no mention of the value of the goods on the consignment note and the District Forum by seeing the Ex.B1 awarded compensation.  The District Forum erred in not considering jurisdiction aspect.     Therefore, the opposite party prayed to    set-aside the order of the District forum and appeal be allowed.  

8.                Counsel for appellant and the respondent party in person present and were heard.  Written arguments of both parties have been filed. 

9.                 The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner?  To what relief?

10.                         The counsel for the opposite party contended that as per the terms and conditions of the consignment note the courts at Bangalore alone have jurisdiction and the District Forum, at Hyderabad is not having any jurisdiction to entertain the complaint. 

11.                         It was stated that since the cause of action arose at Hyderabad and the complainant has paid the consignment charges at Hyderabad  a part of cause of action arose at Hyderabad. It may be stated here that according to Section 11 of the Act, a consumer complaint can be filed, by the complainant(s), before the District Forum within the territorial Jurisdiction whereof, a part of cause of action arises.   Since, as per consignment note Ex.A1 ,   a part of cause of action arose to the complainant, at Hyderabad, the District Forum   has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13(4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, the District Forum  is bound by the provisions of Section 11 of the Act. I n  Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Fora. It was further held, in the said case, that there is a difference between  Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of the District Forum at Hyderabad . In  Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

12.               Another contention raised by the opposite party is that as per the conditions of consignment note the liability assumed by opposite party on a shipment is limited to Rs.100/- unless the sender declares a higher value as “ declared values for carriage”. 

13.               Admittedly, the consignment, in question, was booked with the Opposite Party, by the complainant, vide consignment note, copy of which is Annexure Ex.A1. The weight of the consignment, was mentioned as 8 Kgs. The complainant had paid Rs.1600/- as booking charges of the said consignment to the Opposite Party.   At the column of the value of the goods both either by the complainant or by the opposite party not declared the value of the goods.     

14.               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 Ex-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 Ex.A-1 does not bear the signatures of the complainant. There is nothing, on the record, to prove that the terms and conditions of Annexure Ex.A-1 were read over and explained to the complainant, and she accepted the same by appending her signature. The terms and conditions of Annexure ExA-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 Ex.A-1, for the reasons aforesaid. The submission of the Counsel for the opposite party, in this regard, being devoid of merit, must fail, and the same is rejected.

15.               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 her, for booking the same with 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 Ex.A1. 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.

16.               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.

17.               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.

 18.              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 her, 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.  It is the common sense that any one preferred courier service for delivery of goods believing that the opposite party   should deliver the same  immediately by next day.   The complainant stated that she prepared sweets, pickles and other articles to send to her daughter who is residing at Gurgaon and chose to send the same by courier service believing that they should deliver it immediately by next day    as the same were perishable items.    The opposite party also not mentioned on the consignment note the expected delivery at destination and had it mentioned the same the complainant ought not to have entrusted the consignment to the opposite party and perhaps she  might have chosen another courier service.       Since, the consignment did not reach the destination, the purpose of sending the items was defeated.    Even, the grievance of the complainant was not redressed by the Opposite Party, as a result whereof, she had to file a Consumer Complaint. The complainant, thus, suffered mental agony also to some extent financial loss.   In Sudhir Deshpandes 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, 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.  But the District Forum wrongly taken the value of the goods mentioned in Ex.B1 which is not at all related to the complainant i.e., Ex.A1.  Therefore, we reduce the compensation from Rs.50,000/- to Rs.5,000/- and also pay the consignment charges of Rs.1600/-  and accordingly the order of the District Forum is modified.         Hence, the point framed at para No.9, supra, is answered accordingly. 

          In the result the appeal is allowed modifying the order of the District Forum-II, Hyderabad in C.C.No.238 of 2016 dated 26.05.2017 and the opposite party is directed to pay Rs.5,000/- towards compensation, Rs.1600/- towards the charges of consignment and also the costs of Rs.5,000/-.  Time for compliance four weeks. 

                                                                                PRESIDENT           MEMBER

                                                                                               25.04.2018