BAGAWATHI COMBINES vs SKYPAK COURIER LTD

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE first complainant is an exporter. It also arranges jobs for Indians abroad. It entrusted a consignment of documents to the opposite party on 7.9.92 at Madras for delivery to the second complainant at Papua New Guinea. THE documents were as follows .: (1) Details and literatures for supply of oil firing equipments meant for M/s. W.R. Carpenter and Company Estates, Mount Hagen, New Guinea. (2) Documents relating to supply of spare parts for M/s. Warran Plantation Private Limited, Papua, New Guinea. (3) Copy of the passport of Aminlal Varma Jegannath Verma the third complainant. (4) A cheque book containing 7 leaves issued by the Tamil Nadu State Cooperative Bank for the signature of the second complainant.

THE consignment was not delivered to the consignee. THEre was therefore negligence on the part of the opposite party and hence this complaint, for compensation claiming Rs. 4-5 lakhs as loss of export order from M/s, W.R. Carpenters and Company, loss of order to the value of Rs. 8 lakhs from M/s. Warran Plantation Pvt. Ltd., loss of earning for the third opposite party in the sum of Rs. 3 lakhs and loss of land deal on account of the failure of the cheque book in all a sum of Rs. 10,00,000/- is claimed as compensation. The complaint is resisted by the opposite party. It is contended that the first complainant is not a consumer and the complaint is not maintainable. The failure to deliver the consignment is not denied. But the quantum of compensation is disputed as highly speculative. The claim is made on probabilities and not on any event or occurrance. The opposite party denied any knowledge of the contents of consignment. They were never disclosed to the opposite party. The compensation claimed is therefore untenable. It is also contended that as per the consignment note, the courier is liable to pay compensation of 100 USD only.

Exhs. Al to A19 and B1 marked by consent. Proof affidavits are filed. No oral evidence has been let in.

THE points that arises for determination are:- (1) Whether the complaint is maintainable? (2) Whether there has been any deficiency of service or negligence on the part of the opposite party? (3) To what amount of compensation are the complainants entitled?

Point No. 1 & 2 : The first complainant has delivered a consignment of documents to the opposite party at Madras on 7.9.92 for delivery to the second complainant at Papua New Guinea and this consignment has not been deli vered by the opposite party to the consignee. These facts are not disputed. The consignment has been accepted by the opposite party for consideration and the first complainant is therefore a consumer entitled to maintain this complaint for deficiency of service and negligence. Admittedly, the consignment has not been delivered to the consignee and this is therefore a clear case of deficiency of service and negligence. Points 1 & 2 are answered in favour of the complainant.

POINT No. 3: The main question is about the quantum of compensation to which the complainants are entitled. According to the opposite party, as per the consignment note, a model form of which is marked as Exh.B1, the opposite party Courier is liable only to pay 100 US $ for non-delivery and the complainants are not therefore entitled anything more than that. Reliance is sought to be placed on the decision of the National Commission in Air Pak Couriers India Pvt. Ltd. v. Suresh (FA No. 65/92 dt. 11.3.93). This decision has been considered by this Commission alongwith the three earlier decisions of the National Commission in M/s. Bharathi Knitting Company v. DHL World Wide Express Courier Division of Air Freight Ltd. (1993 (2) CPR 564) and this Commission after analysing the position of law has held that the condition incorporated in the Airway Bill is no bar to the complainant seeking adequate compensation when there is negligence or deficiency of service. In a still more recent decision rendered by the National Commission on 18.5.93 in Sudhir Deshpande v. Elhee Services Ltd., 1993 (3) CPR 32 (NC) the National Commission has awarded compensation in the sum of Rs. 1,29,992/ even though the liability of the opposite party was limited to 100 US $ equivalent to Rs. 300/- in the consignment note. We may also refer to the decision of Bench of the Allahabad High Court in Oriental Fire & General Insurance Co. Ltd. v. New Suraj Transport Co. P. Ltd. where the question of validity of the condition in the consignment note came up for consideration. The Bench observed that there was no evidence to show that the terms and conditions in the consignment note were brought to the notice of the consignor at the time, when the goods were booked and hence they did not create any obligation on the consignor or consignee to be bound by this term. In Exh. B1 model consignment note filed by the opposite party the conditions of contract is printed in such small letters that it is not possible to read them without a magnifying glass. There is also no evidence that this term in the consignment note was brought to the notice of the consignor at the time of the booking. We therefore hold that the said term in the consignment note limiting the liability of the carrier to 100 US $ is not binding on the complainants. The first claim of the complainants is that they lost export order of the value of Rs. 4.5 lakhs because of the non-delivery of document No. 1 namely literature for supply of oil firing equipments for M/s. W.R. Carpenters and Company. In the first place, the nature of these documents and its importance has not been brought to the notice of the courier. Secondly it cannot be asserted with certainty that on seeing this literature M/s. W.R. Carpenter and Company would have placed orders with the first complainant. This claim is therefore merely speculative. Again the complainant cannot claim as compensation for the value of the order, but only the profit that it earned thereby. This claim must therefore fail. The second claim is that the first complainant has lost the order of the value of Rs. 8 lakhs on account of the non-delivery of the second document relating to supply of spare parts to M/s. Warren Plantation Pvt. Ltd. Here again, there is no certainty that M/s. Warren Plantation Pvt. Ltd., would have placed orders with the first complainant on seeing these documents. This claim is also speculative.

THE third claim is that on account of the failure of deliver the copy of the passport of the third complainant, he lost the opportunity of employment and sustained the loss Rs. 3 lakhs. This claim is highly speculative. We are not shown what was the nature of the employment that he applied for and lost. Further document No. 3 is only copy of the passport and there will be no difficult to get another copy. This claim cannot also be accepted.

THE last claim is that on account of the failure to deliver the cheque book, containing 7 leaves issued by the Tamil Nadu State Co-operative Bank for the signature of the second complainant, a promised land deal failed. THE complainants have not given any details of the land deal, the nature of the property, the land involved etc., we are therefore unable to accept this claim also. However, the complainants must have suffered much mental pain and agony on account of the non-delivery of the consignment. They are therefore entitled to general damages on this ground, and we find that a sum of Rs. 15,000/- would be a sufficient solatium.

In the result, we order as follows : (1) The opposite party shall pay to the complainants a sum of Rs. 15,000/- as compensation for mental pain and agony. (2) The opposite party shall also pay to the complainants Rs. 1,000/- towards costs.

Complaint allowed with costs.