By Smt. C.S. Sulekha Beevi, President,

1. It is the case of complainant that he entrusted a consignment to third opposite party on 17-01-2004 to be delivered to Mr. Martin Rajesh, M/s Stryker India Pvt. Ltd., New Delhi. The consignment contained two numbers of life saving equipments worth Rs.1,25,000/- each. The details of the contents of the consignment was handed over along with consignment to third opposite party in the form of a letter to be shown to any authority in case of any inspection during transit. The items were send by complainant to the consignee for servicing and repairing the equipments as per the Annual Maintenance Contract. Complainant deals in the business of undertaking servicing of such sophisticated medical equipments through the consignee. The articles entrusted was not delivered to the consignee. After repeated enquiries by complainant opposite parties send a letter on 16-3-2004 stating that the articles were wrongly delivered to fourth opposite party and is thereafter lost. Complainant issued lawyer notices to opposite parties. Neither did opposite parties trace out the missing consignment nor did they issue any prompt reply. Third opposite party send a belated reply disowning any liability. Complainant alleges deficiency in service against opposite parties. The specifications and value of the equipments (U2 drill and TPS Universal drill) are stated in the complaint. It is stated that due to loss of the consignment complainant had no other go but to replace the same quality equipment to customers who had entrusted the equipments to complainant. Thereby complainant had to incur expenses of Rs.2,50,000/-. Hence this complaint to return the equipments send by the consignment or to pay Rs.2,50,000/- along with compensation of Rs.30,000/- for business loss and Rs.10,000/- for mental agony with costs of Rs.750/-.

2. Notice issued to first and second opposite parties were served. They remained absent and was set exparte on 05-10-2007. Fourth opposite party was deleted from the party array as per orders in I.A.8/08 filed by complainant.

3. Third opposite party entered appearance through power of attorney holder Sri.P.K. Alavi and has filed version. Third opposite party admits that complainant had entrusted a consignment on 17-01-2004 to be send to the addressee as stated in the complaint. It is submitted that though opposite party send the consignment to the destination it was wrongly delivered and thereafter could not be traced out. That a complaint was also lodged before the police. Complainant was informed about the loss. There was no breach of duty. That complainant is bound by terms and conditions printed on the consignment note. That complainant has not described the articles on the consignment note. That complainant later send a letter and delivery note to opposite party claiming these were handed over to opposite party at the time of entrustment of consignment itself. That even in such letter complainant has not stated the value of the articles. That complainant has not disclosed the contents of consignment and opposite party has no knowledge about it. As per the conditions printed on the consignment note the liability if any is limited to Rs.100/- only. The contention that the articles are medical equipments worth 2½ lakhs is denied by opposite party. That if the articles were so important and valuable complainant ought to have specifically described them. That as per the consignment note the weight is shown as 20gms only and the number of items is shown as one. That since the articles were send for repair and were in a non-working condition the equipments cannot attach any value and the value shown int eh complaint is incorrect. That complainant is not entitled to any reliefs.

4. Evidence consists of the affidavit filed by complainant and counter affidavit filed by third opposite party. Exts.A1 to A13 marked for complainant. Exts.B1 to B5 marked for opposite party.

5. Points for consideration:-

(i) Whether opposite parties are deficient in service.

(ii) If so, reliefs and costs.

 

6. Point (i):-

It is the case of complainant that he is running an establishment as Hi-tech Marketing Services for earning his livelihood. That the establishment undertakes service and repair of sophisticated medical equipments through M/s Stryker Pvt. Ltd., New Delhi. Admitted facts of the case are that complainant entrusted a consignment to third opposite party herein on 17-01-2004 to be delivered to Mr. Martin Rajesh, M/s Stryker Pvt. Ltd., New Delhi. But the consignment was not delivered to the consignee. It is the case of opposite party that the consignment was wrongly delivered to M/s Jagsonpal Pharma Ltd., New Delhi and could not be recovered, thereafter. The deficiency is obvious. We find opposite parties deficient in service.

7. Point (ii):-

The strong contention put forward on behalf of opposite party is that the liability if any is limited to Rs.100/- as per the terms and conditions printed on the consignment note which the complainant has accepted while entrusting the consignment.

8. Complainant has contended consistently from the very beginning itself that the consignment contained two items of life saving medical equipment worth Rs.1,25,000/- each. It is submitted on behalf of the complainant that the articles were declared to opposite party as per a letter handed over to opposite party describing the details of the articles. That such a letter was handed over to opposite party so as to avoid difficulties that may arise due to inspection by any authorities during transit. Ext.A7 is this letter which is also produced by opposite party and marked as Ext.B3. This letter is seen addressed as “To whom so ever it may concern”. The full description of the equipments send by the consignment are given and below this the statement reads as “This is to certify that the packet contains the following life saving items”. The description of articles is followed by the words which reads as under:

“ This is being send to our office at New Delhi, for repair. This is not for sale and does not contain any commercial value and are safe to travel by all means of transportation”.

Ext.A7 does purport to be a declaration issued by complainant not only regarding the contents of the consignment but also to the effect that the equipments are used ones and need not be subject to sales tax or other liabilities in case of any inspection during transit. Ext.A6 is a delivery note addressed to consignee with description of the articles. These documents were vehemently opposed by counsel for opposite party who contended that no such documents were handed over to third opposite party at the time of entrustment of consignment and that these were produced before opposite party only later when complainant came to the office of third opposite party to report about non-delivery of consignment. It was submitted by opposite party that they had no knowledge about the contents of the consignment and that the weight of the consignment noted on the consignment note was only 20gms.

9. This argument of opposite party does not find favour with us. The original consignment note is not placed before us. Ext.A5 series are the communications issued by the Delhi office of opposite party courier service regarding the non-delivery of the said consignment. Ext.A5(b) is a letter issued by Delhi office of opposite party to M/s Jagsonpharma to whom the consignment was wrongly delivered. In Ext.A5(b) opposite party has stated as under:

“The above said consignment was contents of life saving medical equipment meant for immediate delivery to and return after service by M/s Stryker India Pvt. Ltd., New Delhi. This matter is very much serious because the consignment is worth Rs.2,50,000/-”.

It was further submitted by opposite party that a complaint was lodged before the police regarding the loss of consignment. Ext.A5(d) is a letter by opposite party to the Station House Officer of Hauzkhas/New Delhi Station. It can be inferred that opposite party had taken such course of action to set the law into movement only because opposite party was aware of the cost and worth of the consignment. Complainant has put forward a consistent case regarding the contents of the consignment which is substantiated by Ext.A6, A7 and Ext.A5(b). Complainant has also produced Ext.A13 which is the catalogue of the medical equipments with pictures and descriptions of them. We therefore have no hesitation to conclude that the consignment had two life saving medical equipments.

10. It is the case of complainant that to maintain the loyalty with the customer and to safeguard the reputation of the establishment complainant purchased second hand equipments of same type for Rs.63,000/- and Rs.59,000/- each and replaced them to the customers who are Baby Memorial Hospital, Kozhikkode and Koyili Hospital, Kannur. Ext.A11 and Ext.A12 are two sales invoices issued to complainant for purchase of these second hand equipments. Ext.A9 and Ext.A10 are delivery chalan which evidences that these items were replaced to Baby Memorial Hospital and Koyili Hospital respectively. It was submitted by complainant that Ext.A8 which is a sales invoice issued to Director, Sree Chitra Tirunal Institute of Medical Sciences, Thiruvananthapuram, would show the price of one such equipment (5100-00-000 Stryker TPS U2 drill) described in Ext.A7 to cost Rs.1,29,913/- inclusive of Rs.4,713/- as taxes. It is sufficiently established by evidence and materials on record that the medical equipments are highly costly articles and are worth the price as contended by complainant.

11. Much thrust was laid by counsel for opposite party that complainant had signed the consignment note and therefore even if the consignment contained costly medical equipments the liability is limited to Rs.100/-. It was also argued by counsel for opposite party that the equipments were not in working condition and therefore had only the value of scrap. To establish that complainant has signed the consignment note opposite party relied on Ext.B4 which is the photocopy of POD. We have to state that the signature in this document is unclear. The original consignment note is not produced before us. Though opposite party filed petition seeking the complainant to produce the consignment note, complainant filed affidavit stating he has lost the same. It is pertinent to note that only after complainant filed such an affidavit, opposite party came forward with Ext.B4. Without the original consignment note, the POD which is kept in the custody of opposite party is unreliable and unacceptable to prove the signature of complainant in the consignment note.

12. In our view even if we assume that the consignment note was signed by complainant since the articles were declared by Ext.A7 and admitted by opposite party in Ext.A5(b) opposite party cannot restrict their liability by the conditions printed on the consignment note. Opposite party does not have a case that opposite party informed the complainant or his agent about the conditions printed on the standard form of consignment note. Moreover opposite party has not cross examined the complainant or served interrogatories to be answered by the complainant challenging the fact whether complainant had signed the consignment note. In case the conditions of liability are not explained by courier to the consignor, in our view, these conditions cannot be put into operation while evaluating the claim. Meeting of mind is essential for enforcement of such conditions limiting the liability. In absence of meeting of mind any term limiting the liability would not be part of contract and ordinary liability would flow in cases of deficiency in service. The further contention of opposite party that the equipments being send for repair and not in working condition had no value at all, cannot be digested in any cannon of common sense. It is the specific case of complainant that they deal with service and repair of such equipments and that the equipments were send for service and repair as per the Annual Maintenance Contract with the consignee. If that be so the equipments are more important to complainant not only for it's price but also to maintain the credibility and trust with his customers. On behalf of the complainant it was also submitted that opposite party had collected Rs.55/- as charges for sending the consignment which is more than ordinary and excess if the envelope carried only 20gms. Opposite party has not explained the reason for collecting such charges. Opposite party does not have a case that Rs.55/- is the usual tariff for a 20gms packet. When extra amount is collected by informing the importance of articles opposite parties should have applied more care and caution. In the present case it is not a matter where the consignment was lost in transit, but the consignment was delivered by opposite party to the wrong person. The act amounts to negligence perse, and that amounts to gross deficiency in service.

13. Taking into consideration Exts.A9 to Ext.A11 it is proved that complainant has spend Rs.1,22,000/- (Rs.63,000/- + Rs.59,000/-) to replace the equipments to the customers. Opposite party has not led any evidence to dispute these documents. Complainant is definitely entitled to be recouped with this amount which is the monetary loss suffered by him by loss of consignment. We consider that he has to be compensated for the deficiency, mental agony and hardships suffered by him. We hold that interest @ 6% per annum upon the above amount together with costs of Rs.1,000/- would meet the ends of justice.

14. In the result, we allow the complaint and order first, second and third opposite parties to jointly and severally pay to complainant Rs.1,22,000/- (Rupees One Lakh, Twenty Two thousand only) as damages along with interest @ 6% per annum from date of complaint till payment together with costs of Rs.1,000/- (Rupees One thousand only) within one month from the date of receipt of copy of this order.

 

Dated this 17th day of January, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A13

Ext.A1 : Photo copy of letter dated, 20-2-2004 by complainant to opposite party.

Ext.A2 : Photo copy of reply letter dated, 16-3-2004 by opposite party to complainant.

Ext.A3 : Photo copy of the lawyer notice dated, 02-4-04 by complainant's counsel

to opposite parties.

Ext.A4 : Photo copy of the reply notice by third opposite party to complainant's

counsel.

Ext.A5series : Photo copy of the communications issued by the Delhi office

of opposite party regarding the non-delivery of consignment.

Ext.A6 : Photo copy of Delivery Note dated, 17-1-2004 by complainant to

4^th opposite party.

Ext.A7 : Photo copy of declaration dated, 17-1-2004 by complainant to

4^th opposite party.

Ext.A8 : Invoice for Rs.1,29,913.00 from complainant to the Director,

Sree Chitra Tirunal Institute for Medical Sciences and Technology,]

Thiruvananthapuram.

Ext.A9 : Delivery chalan No.008/04-05 dated, 12-4-2004 from complainant

to Baby Memorial Hospital, Calicut.

Ext.A10 : Delivery chalan No.048/04-05 dated, 16-7-2004 from complainant

to the Administrator, Koyili Hospital, Kannur.

Ext.A11 : Sales Invoice dated, 31-3-04for Rs.63,000/- from Stryker India Pvt. Ltd. to

complainant.

Ext.A12 : Photo copy of the Sales Invoice dated, 30-6-04 for Rs.59,000/-

from Stryker India Pvt. Ltd. to complainant.

Ext.A13 : U2 drill catalogue, different varieties.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B5

Ext.B1 : Photo copy of letter dated, 20-2-2004 by complainant to opposite party.

Ext.B2 : Photo copy of Delivery Note dated, 17-1-2004 by complainant to

4^th opposite party.

Ext.B3 : Photo copy of declaration dated, 17-1-2004 by complainant to

4^th opposite party.

Ext.B4 : Photo copy of the receipt by third opposite party.

Ext.B5 : Photo copy of the list of POD dated, 21-01-04.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER