A.M.HAREESH vs MANAGER, SKYPAK INTERNATIONAL

Mr. Justice D.R Vithal Rao, President

THE facts, briefly stated, are as follows : - 1 THE complainant, a medical graduate, averred that he wanted to appear for F.M.G.E.M.S. (Foreign Medical Graduate Examination in the Medical Sciences) conducted by EGFMG (Educational Commission for Foreign Medical Graduates), Philadelphia, U.S.A. and for that he sent an application along with some documents and a cheque for 265 U.S. Dollars in an envelope addressed to the Educational Commission for Foreign Medical Graduates, 3624, Market Street, Philadelphia, Pennsylbania-19104/2685 U.S.A. TTiis envelope was to reach the addressee on or before 11.6.1991. THE complainant sent the said envelope on 8.6.1991 through the opposite party-the International Courier, at Mysore. The complainant, further averred that the opposite party agreed to send the same within 11.6.1991 and took an amount of Rs. 475/- as charges.

The complainant, nextly averred, that the opposite party did not carry the said envelope so as to reach the same to the addressee in U.S A, on or before 11.6.1991. The complainant received a letter on 18.6.1991 from the E.C.F.MG. Office dated 13.6.1991, stating that his registration to take on July 23/24,1991, administration of F.M.G.E.M.S. was cancelled for failure to make required payment on time. So he was not able to take the examination in the month of July 1991. Consequently lost 6 months period as the next examination was to be held only in the month of January 1992.

THE complainant, further averred, that in consequence of the deficiency on the part of the opposite party he suffered the following loss : - I. Exam fee of $265/- which is non-refundable; II. Courier service charges of Rs. 475/-; III. Travelling Reservation charges cancellation and other expenses - Rs. 200/-; IV. Loss of academic career for 6 months @ minimum of $1000/- p.m.

The complainant, on the basis of these averments, sought the relief narrated above.

THE opposite party disputed the claim made by the complainant, and averred that the opposite party never promised or agreed to carry the envelope given to him by the complainant on 8.6.1991 at Mysore to Philadelphia on or before 11.6.1991. The opposite party, further averred that it was made known to the complainant while he handed over the envelope on 8.6.1991 at Mysore, that it would take 3 working days to reach U.S.A. from International Airport, Bombay, from Bangalore 4 working days and from Mysore 5 working days. The opposite party denied that there was any delay on their part to carry the article to Philadelphia. The opposite party, on the basis of these averments, denied that there was any deficiency of service and repudiated the claim made by the complainant and sought the complaint to be dismissed. The complainant during the enquiry, examined himself as C.W-1, and got Ex. C-l to C-9 marked in evidence. The opposite party examined R.W-1, the Manager of the opposite party, branch office, at Mysore, and R.W-2 and got Ex.R-1 to R-6 marked in evidence.

THE admitted facts of the case are that the complainant delivered the envelope to the opposite party by about 10 or 10.30 a.m. on 8.6.1991 at Mysore, to carry the same to Philadelphia, U.S.A. and paid charges for the same of Rs. 475/-. It is also an admitted fact that the said envelope reached the addressee in Philadelphia U.S.A on 13.6.1991. It is also not disputed that the registration of the complainant to take July 1991 examination was cancelled for failure to make required payment on time. This is evident from Ex.C-2, a letter from EC.F.M.G. dated 13.6.1991.

THEREFORE, the only disputed point between the parties is whether the opposite party, at the time of receiving the envelope from the complainant on 8.6.1991 at Mysore, did agree or promise to carry the said envelope to Philadelphia, U.S.A. on or before 11.6.1991. The complainant, to establish this fact, has stated in his evidence thus : "On 8.6.1991, in the morning, I went to the Post Office at Mysore, and enquired as to how many days it would require for a letter to reach Philadelphia, if sent by Speed Post. I was told that it would take 5 days and that cost would be Rs. 200/-. Then I went to the Respondent''s office at Mysore, and enquired as to what time they would require to deliver the letter to Philadelphia. I also explained to them the importance of the document that I was sending and the time within which it should reach Philadelphia. Manager told me that it would take 3 to 4 days and that the cost would be Rs. 475/-. That information was given to me by the Manager of the Respondent who is sitting before this Commission with his Advocate."

The complainant, C.W-1 has in his cross-examination, stated thus : "Ex.R-1 was shown to me by the Manager on that date. It is true that it is shown in it that it would take 3 to 4 days from International Airport of India to reach Philadelphia."

Ex.R-1 is the tariff guide which shows that transit time required to reach Philadelphia, U.S.A. is 3 working days out-bound from India. As referred above, even the complainant has admitted that it is shown in Ex.R-1 that it would require 3 to 4 days from International Airport of India to reach Philadelphia.

THE complainant gave the envelope to the opposite party on 8.6.1991, at Mysore. It is evident from the evidence of R.W-1 -the Manager of the opposite party, at Mysore, that that envelope was carried to Bangalore in the evening of 8.6.1991 and that envelope left Bangalore for Bombay on 9.6.1991. It could not be sent on that day having regard to the fact that it was too late by the time the flight reached Bombay from Bangalore and the same could not be carried to the International Airport, Bombay to carry it in the early morning i.e., 10th morning flight to U.S.A. So the envelope left International Airport, Bombay, only in the early hours of 11.6.1991. It is evident from Ex.C-2 and from the evidence of R.W-1 that the said envelope of the complainant reached the addressee in Philadelphia, USA in the morning of 13.6.1991.

THE complainant has admitted as referred above, that Ex.R-1-tariff guide, was shown to him at the time of delivering the envelope to the opposite party on 8.6.91, at Mysore, which showed that the transit period required is 3 to 4 days from International Airport of India to reach Philadelphia, USA. Having regard to this fact and circumstances, it is very difficult to hold that there was any deficiency in service by the opposite party. Ex.R-5-incoming load register and Ex.R-6-outgoing load register were maintained by the office of the opposite party at Bangalore, certain pages were found torn and missing in Ex.R-6. The representative of the complainant argued that the records are not properly maintained by the opposite party and so no reliance could be placed on Ex.R-5 and R-6. Ex.R-5 and R-6 are the two registers maintained by the opposite party in the regular course of its business. Simply because some pages are torn and some pages are missing in these old records, it cannot be said that they are either manipulated or un-reliable. The contents at Ex.R-5(a) and Ex.R-6(a) only show that an article of the complainant was received at Bangalore office from Mysore in the night of 8.6.1991 and it left Bangalore for Bombay in the evening of 9.6.1991 and reached Bombay at about 9.30 p.m.

THE Manager of the opposite party, at Mysore, R.W-1, has specifically stated that he did not promise the complainant that the document would be delivered on 11.6.1991 to the addressee at Philadelphia, U.S.A. THE complainant in his evidence has stated that the Manager of the opposite party told him when he gave the envelope to him at Mysore on 8.6.1991 that the transit period would be 3 to 4 days. THE complainant has further admitted, as referred above, that Ex.R-1 was shown to him when he gave the envelope at Mysore, that transit period would be 3 to 4 days from the International Airport of India to reach Philadelphia, U.S.A.

THEREFORE, it is clear that, the complainant has failed to establish the fact that the opposite party did agree or promise to carry the envelope to Philadelphia, U.SA. on or before 11.6.1991. In that view, the point raised for consideration is answered in the negative. In the result, therefore, this complaint fails and it is dismissed. The parties are directed to bear and pay their own costs. Complaint dismissed.