Chandigarh

StateCommission

A/40/2015

On Dot Courier & Cargo Ltd. - Complainant(s)

Versus

Surya Pharmaceutical Limited - Opp.Party(s)

Anish Gautam, adv.

02 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	40 of 2015
Date of Institution	:	13.02.2015
Date of Decision	:	02/03/2015

 

On Dot Couriers and Cargo Limited, 8/42, Kirti Nagar Industrial Area, New Delhi-110015 and Regional Office at Chamber No.50-54, 57-59, Sukhmani Chambers, SCO 68-70, Sector 17A, Chandigarh, through its Authorized Signatory i.e. its Administrative Manager Mr. Sanjeev Puri son of D.K. Puri.

……Appellant/Opposite Party No.1

V e r s u s

1. Surya Pharmaceuticals Limited, having its Corporate Office at SCO 164-165, Sector 9-C, Madhya Marg, Chandigarh, through its Commercial Manager, Mr. Vipan Dureja.

              ....Respondent No.1/Complainant

2. Sunrise Enterprises, through its authorized representative, SCO 12, 1st Floor, Cabin No.2, Sector 7, Madhya Marg, Chandigarh.

              ....Respondent No.2/Opposite Party No.2

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh. Anish Gautam, Advocate for the appellant.

                 Sh. Amit Gupta, Advocate for respondent No.1.

                 Service of respondent No.2, dispensed with vide order                     dated 16.02.2015.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 01.01.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent No.1) and directed the Opposite Parties, jointly and severally, as under:-

“In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same ispartly allowed, qua them. The Opposite Parties are directed, jointly and severally, to:-

[a]  Pay Rs.20,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant; 

         [b] Pay Rs.10,000/- towards costs of litigation

The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the compensation amount as per sub-para [a] of para 13 above, from the date of institution of this complaint, till it is paid, apart from costs of litigation of Rs.10,000/-.”

2.       The facts, in brief, are that the complainant booked a consignment, with Opposite Party No.2, on 30.09.2013, vide receipt Annexure C-2, containing C-Forms worth Rs.6.00 lacs, addressed to the Universal Agro, Kathua (Jammu). The said consignment was to reach its destination, within 3 working days, from the date of booking the same. It was stated that, however, when the said consignment did not reach the destination, the complainant contacted Opposite Party No.2. Opposite Party No.2, was made clear about urgency of the said consignment, but it did not bother. The said consignment was misplaced/lost, during the transit, which was never located.
3.       It was further stated that, on 04.12.2013, the complainant sent another consignment through Opposite Party No.2, containing sales tax returns of its Plant, in Jammu, addressed to the Universal Agro, Kathua (Jammu), vide receipt Annexure C-3. It was further stated that despite assurance having been given by Opposite Party No.2, that the said consignment would be delivered within 03 days, it was delivered after a long delay. It was further stated that since the consignment was very urgent, the complainant had to pay huge penalty, due to delay, in delivery thereof. It was further stated that the Opposite Parties were made aware of urgency of the consignments, but they did not pay any heed to it. It was further stated that one consignment was misplaced/lost during the transit, whereas the second one was delivered after a long period of delay, by the Opposite Parties. It was further stated that the complainant tried to contact the Opposite Parties, in the matter, but no satisfactory reply was given. Legal notice dated 27.12.2013 was also served upon the Opposite Parties, but to no avail. 
4.       It was further 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, directing the Opposite Parties, to pay compensation to the tune of Rs.6,02,000/-, alongwith interest @18% P.A., towards loss of consignment, containing C-Forms, loss of its (complainant) good will and delay, in delivery of second consignment; Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.10,000/-.
5.       Opposite Party No.1 in its written reply, stated that the complainant approached Opposite Party No.2, for booking of the said consignments. It was further stated that, since the complainant had not availed of any service of Opposite Party No.1, the complaint qua it deserved to be dismissed. It was denied that the complainant suffered huge loss, on account of deficiency in rendering service, by Opposite Party No.1. It was further stated that the complainant could not be allowed to take benefit of its own wrong, as neither any endorsement nor instruction nor declaration pertaining to the value nor contents of the consignment were disclosed at the time of booking of the same. It was further stated that the said consignment was not even got insured by the complainant, at the time of booking the same. It was further stated that when the matter with regard to the loss of consignment,  was brought to the notice of Opposite Party No.1, immediately, thereafter, the matter was reported to the Police, as a result whereof, DDR (Annexure R-1) was registered. It was further stated that, as per the terms and conditions, mentioned on the consignment notes, Opposite Party No.1 had specifically limited its liability to a maximum of Rs.100/- per consignment, for any loss within India (Domestic) and to a maximum of US$100, for international consignments. Receipt of legal notice was denied. It was further stated that, since Opposite Party No.1 had no relationship with  Opposite Party No.2 and  they (Opposite Parties No.1 and 2) were doing their business independently, it (Opposite Party No1) was not liable for any act done by it (Opposite Party No.2). It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments were denied, being wrong.
6.       Despite service, none put in appearance on behalf of Opposite Party No.2, as a result whereof, it was proceeded against exparte by the District Forum, vide order dated 16.07.2014.
7.       The complainant and Opposite Party No.1, led evidence, in support of their case.
8.       After hearing the Counsel for the complainant, Sh. Sanjeev Puri, Admin. Manager of Opposite Party No.1, 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.
9.       Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
10.       Service of respondent No.2/Opposite Party No.2, was dispensed with, by this Commission, vide order dated 16.02.2015, for the purpose of this appeal.
11.       We have heard the Counsel for the appellant, respondent No.1, and, have gone through the evidence, and record of the case, carefully. 
12.       The Counsel for the appellant, submitted that as per the courier receipts Annexures C-2 and C-3, the liability of the appellant/Opposite Party No.1 was only limited to the extent of Rs.100/-, per shipment. He further submitted that, under these circumstances, the District Forum was wrong, in awarding compensation, in the sum of Rs.20,000/-, on account of deficiency, in rendering service and mental agony & physical harassment, caused to the complainant/respondent No.1. He further submitted that even respondent No.1/complainant, being a Limited Company, could not be granted compensation, for mental agony and physical harassment.  He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
13.       On the other hand, the Counsel for respondent No.1/complainant, submitted that the terms and conditions, in fine print, on the back side of the courier receipts Annexures C-2 and C-3, were neither read over, nor explained to the representative of the complainant, who booked the said consignments, nor the same were signed by him (representative of the complainant), and, as such, it (complainant) was not bound by the same. He further submitted that, under these circumstances, the question of limited liability of the appellant/ Opposite Party No.1, did not at all arise. He further submitted that compensation for mental agony and physical harassment could be granted to the complainant, despite the fact that it is a Limited Company. He further submitted that the order of the District Forum, being legal and valid, is liable to upheld.
14.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, respondent No.1, and the evidence, on record, we are of the considered opinion, that the appeal is liable to partly accepted, for the reasons, to be recorded hereinafter. Admittedly, the consignments, in question, vide receipts Annexure C-2 and C-3, were booked by the complainant, with the Opposite Parties.  Courier charges were charged by the Opposite Parties, from the complainant, for delivery of the said consignments. It is also the admitted case of the Opposite Parties, that one of consignments was misplaced/lost, in transit, and could not be delivered at the destination, whereas, the other consignment was delivered after a period of long delay. By not delivering one of the consignments booked with the Opposite Parties, by the complainant, at the destination, after receipt of the necessary charges,  and, on the other hand, delivery of the second one (consignment), after a period of long delay, they (Opposite Parties) were deficient, in rendering service, as also indulged into unfair trade practice. The District Forum was, thus, right in holding so. The findings of the District Forum, in this regard, being correct are affirmed.
15.       The submission of the Counsel for the appellant/Opposite Party No.1, that the liability of the appellant/Opposite Party No.1, was only limited to the extent of Rs.100/-, as is mentioned, in the courier receipts Annexures C-2 and C-3, is also without merit. In our considered opinion, the appellant/Opposite Party No.1 could not claim that its liability was only to the extent of Rs.100/- as per Annexures C-2 and C-3. The terms and conditions on the back side of Annexures C-2 and C-3 are printed in fine print. No evidence was produced by the Opposite Parties that the same were read over and explained to the representative of the complainant. These terms and conditions were not signed by the representative of the complainant. So these terms and conditions were not binding on the complainant. 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.”

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.”

18.       The principle of law, laid down, in the cases aforesaid, is fully applicable to the facts of the instant case, as Annexures C-2 and C-3 which are in a fine print, containing the limited liability Clause of the Courier, were not binding on the complainant, as neither any of its representative was signatory to the same, nor any evidence was led by the Opposite Parties that the said Clause was read over and explained to him (representative of the complainant). The District Forum was also right in holding so. The findings of the District Forum, in this regard, being correct are affirmed.
19.       The next question, that arises for consideration is, as to whether, the direction of the District Forum, to the effect that the Opposite Parties shall pay compensation of Rs.20,000/-, to the complainant/ respondent no.1, for deficiency in service and causing mental and physical harassment was correct or not. It may be stated here, that the complainant, being a Limited Company and, thus, a juristic person was not entitled to compensation for mental agony and physical harassment. Similar principle of law was laid down in Wipro Limited Vs.Toppers Multimedia (P) Limited & Ors., II (2010) CPJ 39 (NC).  The District Forum, was, thus, wrong in awarding compensation to the complainant for mental agony and physical harassment. However, we are of the considered opinion, that the Opposite Parties were certainly deficient, in rendering service, as discussed above, to respondent No.1/complainant and, as such, it (respondent No.1/complainant) was entitled to compensation, only for such deficiency. In our opinion, compensation of Rs.10,000/- shall be adequate, instead of Rs.20,000/-, as awarded by the District Forum, for deficiency in rendering service.  The order of the District Forum requires modification, to this extent.
20.        No other point, was urged, by the Counsel for the parties.
21.        For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, and the appellant/Opposite Party No.1, as also respondent No.2/Opposite Party No.2, are directed, in the following manner:-

1. To pay compensation, to the tune of Rs.10,000/-, on account of deficiency, in rendering service, to respondent No.1/complainant, instead of Rs.20,000/-awarded by the District Forum.
2. The other reliefs granted and directions given by the District Forum, vide its order impugned, shall remain intact.

22.       Certified copies of this order, be sent to the parties, free of charge.
23.        The file be consigned to Record Room, after completion.

Pronounced.

02/03/2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg