AIR LINKERS vs SYSTEMS MARKETING AND SERVICES

THIS is a Revision Petition challenging the order of 10th June, 1993 passed by the State Commission of Tamil Nadu, Madras in O.P. No. 139 of 1993. The respondent complainant had delivered a consignment of P.C. Telex card Aurelec to the branch office of the revision petitioner opposite party for transport and delivery to the consignee M/s. Aurelec Data Processing System Pondicherry. The consignment was lost in transit.

THERE is a concurrent finding of fact by the District Forum as well as by the State Commission in this case that the failure of the revision petitioner opposite party to deliver the consignment at destination was a deficiency in service. The District Forum, therefore, directed the revision petitioner-opposite party to refund the value of the consignment of Rs. 7,235 with interest at 15% from 25.5.1991, compensation of Rs. 1,000 and costs of Rs. 250. The State Commission confirmed the order of the District Forum by its order cited above. The revision petitioner had taken the plea before the State Commission as well as before us that the consignment note executed by the respondent complainant described the contents of the consignment as "document". There was no communication whatsoever that it contained electronic goods P.C. Telex card. The State Commission, in its order, observed that the District Forum had gone into the matter in detail and on the basis of the testimony of the complainant it held that the consignment contained P.C. telex card though it was described as "document" and that its cost was Rs. 7,235. On that ground the State Commission held that it could not interfere with said finding. In the revision petition, the orders of the lower Forums have also been contested on different grounds viz. the Forums erred in evaluating the contents of the consignment the ownership of the telex cards did not vest with the consignor; that the electronic P.C. telex cards were being repaired by the complainant-consignor and an electronic component under repair could have been worth nothing etc.

IN revision, we cannot go into these questions. The only question with which we are concerned is whether there was any deficiency in service and if so the liability of the revision petitioner courier therefor.

IT is common ground between the parties that the consignment was lost in transit. It is also common ground that the consignment note described it as "document". The revision petitioner-courier had to knowledge or information that the consignment contained valuable P.C. telex cards. No wonder that the revision petitioner has contended in his petition that "had it been indicated as a parcel, the procedure would have been to get a declaration as to the contents and value and the consignment would not have been accepted if it were declared to contain electronic goods". In brief, the revision petitioner urged that the declaration in the consignment note was not properly made and it did not disclose the contents or value of the consignment. He has further urged "when the prima facie documentary evidence .. showed that the contents were none other than a document, the District Forum erroneously accepted that what was sent was a P.C. Telex card just on the basis of the testimony of the complainant .. and not on any documentary evidence". There is strength in the contention of the revision petitioner. We may add that at the hearing, the counsel for the revision petitioner had further pointed out that P.C. telex cards had to be packed in polythene bags whereas this consignment had only paper packing. In other words, the packing of the consignment also suggested that it was only "document" and not electronic goods like P.C. telex cards. In any case, in view of the consignor''s declaration on the consignment note, he is estopped from now claiming that it was a consignment not of "document" but of P.C. telex cards. As such compensation has to be limited to the value of the consignment as document and not as P.C. telex cards.

IT is not in dispute that the revision petitioner courier had been deficient in its service inasmuch as the consignment was lost in transit while it was in its custody. Its liability for the damage caused to the respondent opposite party through its negligence has to be determined not in terms of the contract which limits it to Rs. 250 only but in Tort. For the loss so caused to the respondent complainant through the loss of consignment we confirm the compensation payable at Rs. 1,000/- along with costs of Rs. 250 as awarded by the lower Forums. The amount payable as the value of the consignment of Rs. 7,235 is disallowed.

THE order of the State Commission granting reliefs to the respondent-opposite party is modified as above. This revision petition is disposed of accordingly. There is no order as to costs.