Blue Dart Courier Service vs Modern Wool Ltd

THIS is an appeal against the order dated 7th August, 1991 in Case No. 170/90 passed by the State Consumer Disputes Redressal Commission of Rajasthan at Jaipur.

2.THE relevant facts are briefly noticed below. THE respondent -complainant, Modern Wool Ltd., had purchased from a third party REP duty free transferable licences of the value of Rs. 7,86,600/ - at a premium of Rs. 72,050/ -. THE respondent -complainant delivered a packet stated to be containing these two import licences, on 9.1988 to the appellant, Blue Dart Courier Service at Bhadohi for delivering it to the respondent -complainant''s office at Bombay. THE packet containing the two licences was, however, lost by the courier in transit. THE State Commission held that the appellant -courier was negligent when he failed to deliver the packet to the respondent -complainant''s office at Bombay.

4.IN the light of this finding the next question to be considered by the State Commission was the quantum of compensation to which the respondent -complainant was entitled to on account of the loss, or injury suffered by it due to the negligence of the appellant courier.

5.THE respondent complainant had claimed Rs. 2,50,300/ - as compensation as under: Premium on the two licences Rs. 72,050/ - Extra payment of customs duty in the absence of REP Import Licences Rs. 98,250/ - Damages due to loss of interest at 20% Rs. 80,000/ - Rs. 2,50,300/ -

THE appellant courier disputes his liability on the following grounds: 1. THE respondent -complainant had not declared the contents of the packet in the Way Bill except that these were "documents". In particular the respondent complainant did not declare that the packet contained valuable REP Licences. 2. THE Way Bill clearly states that the Courier''s liability is limited to the carriers liability. This was duly signed by the shipper/consignor(respondent -complainant). As such carrier''s liability cannot exceed Rs. 1,000/ -.

THE State Commission came to the conclusion that no material had been placed by the appellant courier, that the printed matter relating to the limitation of liability was part of any negotiations between the respondent -complainant and the appellant courier. It further observed that there was no material on record to show that complainant''s attention was drawn to the said clause at the time when the packet was booked. Therefore, it cannot be said that the complainant was bound by the condition in the courier consignment note of limiting the liability. To quote from the order of the State Commission "We are firmly of the view that there is no proof that the Clause limiting the liability is as a result of negotiated contract and hold that if there is no such contract entered into by both the parties there must be proof that the term limiting the liability which are printed on the courier consignment note were brought to the notice of the person who booked the consignment.....". The State Commission also did not accept the contention of the appellant Courier that he was not knowing the contents of the envelopes which was delivered at Badohi to the carrier for being carried over to Bombay for delivery to the addressee. This conclusion was based on the admission of the appellant Courier in subsequent letters of 11th April, 1988 and 16thApril, 1988 in which there is a reference to the loss of two import licences and suggestion for their reconstructioa

8.IN the appeal it has been contended that the clause limiting the liability of the Courier to that of a Carrier is printed on the face of the Way Bill and it is not in small print. The same has been duly signed by the shipper (respondent complainant) and he cannot, now, maintain that he was not aware of this limitation of liability of the Courier. Further the liability will be limited to that of a Carrier under the Carriers Act. The appellant -complainant has also submitted that he did not have any knowledge whatsoever, at the time when the consignment was accepted for delivery, that it contained REP licenses and that the subsequent letters of 11th and 16th April, 1988 do not establish or even suggest that, at the time when the package was accepted for delivery, the appellant was aware of the nature of the contents of the packet. He has further stressed that it was for the respondent -complainant to prove that the appellants were aware of the contents of the consignment which was tendered for delivery and this they have failed to do. Therefore, the order of the State Commission was erroneous and deserved to be set aside.

AFTER the perusal of the memorandum of appeal, the counter affidavit of the respondent and the submissions of the Counsel for the parties before the National Commission out findings are: (a) There is no doubt that there was failure on the part of the appellant -Courier to deliver the packet and that the loss of the packet was due to deficiency in service on its paid arising from negligence. (b) The question that arises pertains to the quantification of the liability for this negligence. (i) The contents of the packet were declared by the consignor as "Dox" - documents. There was also failure on the part of the consignor to give" complete description of the contents" as required on the Way Bill. Documents may be of commercial value or may have no commercial value. In this case the documents a re claimed to have been transferable REP import Ucences of the value of Rs. 7.86 lakhs for the imports on which no custom duty was payable. (ii) In the absence of complete description of the contents and in the light of the declaration that they were only ''document''s, it is evident that the Courier was neither put on notice nor was it made aware that the packet contained documents of substantial commercial value. (iii) A person is guilty of negligence when he fails to exercise adequate care, the standard of care which he should have normally taken.

WHILE the loss to the consignor will depend on the inherent value of the packet to him, the risk will depend on its commercial value, and hence the risk will vary with the commercial value of the contents of the packet. The standard of care or adequacy of care to be exercised by a courier will, therefore, also vary with the declared commercial value of the articles to be carried by the courier. From the Way Bill it is evident that the contents of the packets were described as "Dox". No evidence has been produced by the respondent -complainant that the fact that these were valuable REP licences was conveyed to the courier at the time of booking the consignment for carriage. There is therefore, strength in the contention of the appellant -Courier that the subsequent letters of 11th and 16th April, 1988 cannot be fairly used to impute knowledge of the contents on the part of the courier at the time the packet was delivered to it for carriage viz. 9th of March, 1988. In the result, the degree of negligence on the part of the courier is mitigated.

THE next question to be considered is the extent of loss for which the carrier can be held liable? There is no conclusive evidence that the packet contained REP import licences. That these were import licences is based on the statement of consignor after the packet had been lost. It may also be possible to deduce from the factor of loss of the packet that it must have been a commercially valuable packet. But of what value remains a question mark in the absence of declaration about the complete contents of the packet of Way Bill.

.IN assessing the compensation payable for the loss we cannot also exclude the fact that the courier had limited its liability as per the Way Bill to that of a carrier (under the Carriers Act). This clause will not however preclude a Consumer Forum from assessing the compensation at any figure which it considers reasonable on the facts and circumstances of the case before it be cause it is not deciding an action for breach of contract but one for compensation for negligence. IN the light of the above discussion we hold that the appellant -Courier had no knowledge that the packet contained valuable REP licences, (ii) that the respondent -consignor had not declared the contents of the packet and as such it is difficult to assess the loss. IN our opinion on the facts of this case it would be just, reasonable and fair to fix the quantum of liability for the loss of the packet due to negligence at Rs. 1,000/ -only this case. This appeal is accepted and the order of the State Commission is set aside. The liability of the appellant -Courier to compensate the respondent -Consignor is fixed at Rs. 1000/ - only.

IT follows from the above finding that out of the sum of Rs. 25,000/ - deposited pursuant to the interim order dated 27th February, 1992 and paid over to the respondent Rs. 24,000/ - should be redeposited by the respondent with this Commission within 30 days from today for being refunded to the respondent -Courier as envisaged in that order. Appeal allowed