CONSUMER EDUCATION And RESEARCH SOCIETY And ANOTHER vs SKYPAK COURIERS (P). LTD. And OTHER

COMPLAINANT No. 1 is a Registered Consumer Association and complainant No. 2 is a consumer of services. The Opposite Parties are M/s. Skypak Couriers, and its branches, who had undertaken to deliver the consignment from Delhi to Ahmedabad, which consignment is alleged. to have been lost and has not been delivered until now. COMPLAINANT No. 2 who is aged 38 years, is Bachelor of Technology in Textile Engineering from Bangalore University and was, at the relevant time, working as Chief Executive with M/s. Mahendra Suiting, Ltd., at Ahmedabad.

IT is the case of the complainants as can be seen from the complaint that on account of the experience and varied experience in his profession, complainant No. 2 was selected as a Jacquard and Installation Manager with M/s. Sulzer, Nigeria, Ltd., Lagos (Nigeria), a leading textile group in Nigeria, having its world-wide business. Complainant No. 2 was required to resume his duty on March 6, 1990 and his training programme was arranged by his new employers through M/s. Sulza Brothers Ltd., Ch 8630, Ruti Zurich, Switzerland. The training programme was due to start from 6, March 1990 which was to be followed by a further training programme in Germany and thereafter the complainant Dr. Fraud was to take independent charge of Weaving Unit of the said new employer at Lagos. The complainants have annexed the letters at Annexure-''C'' and ''D'' in support of the said averments. The entire training programme was organized well in advance so that complainant No. 2 could take charge of the Unit of the new employers at Lagos after completing the training by April 1990. All arrangements for the Air-ticket, Viza, hotel booking; etc., were made by the new employer''s travel agents M/s. Mona Travels of New Delhi.

It is further the case of the complainant that Dr. Faruk had deposited his passport, original degree certificate with testimonials with said Mona Travels for obtaining necessary Visa and air ticket, etc., since the complainant was to fly for Zurich from Ahmedabad on March 4, 1990. The complainant had instructed Mona Travels to send his Swiss Visa, Nigerian Visa, passport, original degree certificate, Air-ticket and other important documents pertaining to his journey to Zurich and onwards, through opposite party No. 2 Skypak Couriers, at Delhi through their Ahmedabad Branch much in time to enable him to commence journey for Zurich as per the programme; and in turn, M/s. Mona Travels dispatched and/or consigned the said documents through Opposite Party No. 2 by consignment weighting about 150 Grams. Annexure-''E'' is the Xerox copy of the consignment Note. The consignment was expected to reach the next day, that is to say, on February 11, 1990, at Ahmedabad. Charges for the same were promised to be paid to Opposite Party No. 1 for such a quick service by Complainant No. 2.

DR. Faruk waited up to 13th February, 1990 but even till that date, the consignment was not delivered to him at Ahmedabad. The consignment was not delivered to him even though he went personally and made inquiries with Ahmedabad Branch of the Opposite Party several times. He was not given any response by the Opposite Party. As the facts reveals, Opposite Party No. 1 appears to have sent a communication to their Bombay office, informing one Mr. Anoop Anand that Dr. Faruk had not received the packet which contained his individual Passport No. 341375 and Air-ticket, as also his original degree certificate alongwith various other business documents. It was further stated that inspite of sending their executive, to their displeasure, the document was not traced. The last para thereof specifically states that the documents contained in the packet belong to organization having world-wide business and are very important to them. Copy of the said letter is at Annexure-''F'' to this complaint.

IN order to show that the consignment contained important documents, the complainants have produce Xerox copy of the letter written by M/s. Mona Travels, dated 19th February, 1980, addressed to Dr. Faruk, and that letter specifically mentions that the consignment contained his individual passport, air-tickets, original degree certificate papers pertaining to Visa, etc., and he was advised to lodge First INformation Report so as to obtain temporary passport from the passport office at Ahmedabad. Thereafter, letter dated 20th February, 1990 appears to have been written by the Opposite Party Skypak from Bombay to Dr. Faruk, referring to the consignment in question expressing regret, stating that the said consignment containing original Air-tickets, passport, Vizaa, etc., are lost in transit from Delhi to Ahmedabad, and that they were searching for the same. IN a letter to the Bombay office of Skypak, the complainant had in term stated in the last para that he had suffered heavy loss due to the negligence on the part of Opposite Party, that he had been stagnated for six months since he could not attend the Training campaign at Zurich and was placed in dark and he had lost a very good opportunity to the negligence on the part of the opposite party. In response to the summons issued by us, the Opposite Party appeared and filed the written statement. In that written statement, they have admitted the issuance of the consignment note in question through Mona Travels weighting 150 Grams, oh February 10, 1990, as also the fact that the said packet was not delivered till to-day to Complainant No. 2 who was the consignee of the said packet. Mr. Sen, the learned Advocate appearing on behalf of the opposite party has raised following contentions at the hearing:- (a) That Mona Travels is the only contracting party with Opposite Party No. 2 and the cause of action having arisen outside the territorial limits of this State Commission, this Commission has no jurisdiction; (b) That the consignment note clearly mentions the words "...subject to the jurisdiction of Bombay Courts only..." and, therefore, this Commission has no jurisdiction; (c) That the complaint suffers from the vice of non-joinder the necessary party, that is to say, Mona Travels, they being the contracting party; and has not been joined as a party to the present proceedings; (d) That they are not admitting the contents of the consignment which were only commercial documents and not of any personal nature; (e) That the consignment note is issued subject to the standard conditions of carriage which specifically limits its liability to the maximum of US 100$ for International consignment and up to Rs. 100/- for intra-city consignment; and hence the complainant is not entitled to get any damage exceeding Rs. 100/-. (f) Lastly, that the complainant is not entered to get any damage.

NOW, so far as the first contention of Mr. Sen is concerned, under the consignment note Annexure-''E'', the consignment was to be delivered to complainant No. 2 Dr. Faruk who was the consignee. It is proved that the consignment contained the documents belonging to Dr. Faruk and it was at his instructions that Mona Travels had sent the documents under the said consignment note. The Opposite Party was, therefore, under the legal obligation to deliver the said consignment to Complainant No. 2 and having failed to deliver the same, the opposite party has become responsible for non-delivery thereof. 10 (a). So far as cause of action is concerned, the same has arisen at Ahmedabad also, because the opposite party had agreed to deliver the consignment at Ahmedabad and hence this Commission also has the jurisdiction to entertain and try the present complaint.

THE further contention of Mr. Sen that the consignment note mentions die dispute ''subject to jurisdiction of Bombay Courts only'' has also no substance because the party can not create jurisdiction in a Court even by voluntary agreement if the Court has otherwise no jurisdiction. THE parcel in question was dispatched from Delhi and was to be delivered at Ahmedabad. THErefore, the cause of action arose both at Delhi as well as at Ahmedabad. No part of the cause of action can be said to have arisen at any time at Bombay, within the jurisdiction of Bombay Courts. THE Bombay Court cannot have the jurisdiction to hear the present dispute. Assuming for the sake of argument that there is any agreement, the same is not valid and enforceable. Hence this contention of Mr. Sen cannot be accepted. The other contention of Mr. Sen concerning non-joinder of Mona Travels also has no merit. It has been settled position that either the consignor or a consignee can bring in any action. Complainant No. 2 Dr. Faruk is admittedly the consignee and a beneficiary of the consigned article. The relief is sought against the opposite party and not against Mona Travels. The complaint, therefore, does not suffer from any vice on non-joinder of party as argued by Mr. Sen.

Mr. Sen was not able to support his contention that the contents of the consignment were commercial documents and not personal belonging. Mr. Sen has not been able to show to us that the consignor had written that the parcel contains only commercial documents/samples which are not of personal nature. We are not able to understand as to why even if such thing is printed on the consignment note, the same will absolve die opposite party from its liability. The parcel contained the documents which were of commercial nature. It did not, however, contain any sample or samples which were not of personal nature. Since there was no sample, the question does not arise. This submission of Mr. Sen has, therefore, no merit.

NEXT contention of Mr. Sen, that according to standard conditions of carriage by the opposite party die liability on the part of die opposite is limited for intra-city services at Rs. 100/- only, does not carry any weight. The opposite party has produced one printed Memorandum at Annexure- 6, in support of this contention. This printed memorandum is neither signed by anybody; nor there is any evidence before us to show that the terms printed therein were shown to the consignor or that the same were agreed upon by the consignor. In any view of the matter, in absence of any written and signed contract, this contention has also no merit and die same is negatived. It has been proved beyond doubt that the consignment contained valuable documents like passport, Visa, Air-tickets, degree certificate, etc., which were absolutely necessary for complainant No. 2 to travel and reach Zurich for training. Because of non-receipt of these documents, Dr. Faruk could not reach and report for training at Zurich which was to start from March 6, 1990. Dr. Faruk was obliged to obtain a new passport, new Air-ticket, duplicate Degree Certificate, Visa, and other relevant documents. He had to get himself enrolled for the next batch for training and had, therefore, to re-schedule his training programme commencing from April, 1990 and he was asked to resume duty at Nigeria, (Lagos) without undergoing any training by the employer. The opposite party has not only not delivered the consignment, but has also not explained as to what really happened to the said consignment. In our opinion, this is really a deficiency in service amounting to negligence on the part of the Opposite Party. The Opposite Party is, therefore, clearly liable to pay damages to Complainant No. 2.

IT is amply proved on record that the complainant remained jobless from 4th March, 1990 up to April 18, 1990 because of the delay in receiving travel documents. He has also lost future prospects by not being able to undergo the Training. The complainant has estimated this loss at Rs. 1,50,000.00 which is for loss of salary and loss of future prospects. He has estimated the. loss of salary at Rs. 35,000.00. There can be no doubt that Dr. Faruk was jobless between the period from March 4, 1990 till April 18, 1990, that is to say, for the period of 1 month and 14 days which is clearly on account of negligence on the part of the opposite party for not delivering the travel documents. It is well known fact that the salary of a qualified person like Complainant No. 2 is very high outside India. We, therefore, assess the salary of Dr. Faruk at Rs. 10,000.00 for said period he would be entitled to get Rs. 10,000.00 for the said period, by way of damages. It is true that Complainant No. 2 has suffered for future prospects since he could not undergo training and had to resume his duties at Lagos (Nigeria) directly. But then we have no other evidence on record except the bare word of the complainant stated in the Affidavit filed by him. The fact, however, remains that the complainant has suffered due to negligence on the part of the Opposite Party. We, therefore, assess the damage at Rs. 6,000.00 (six thousand).

THE complainant has stated that he had spent Rs. 4,068/- for obtaining the duplicate copies of the Degree Certificate from the Bangalore University. He has given the break up of the expenses at Annexure-''K'' which includes advertisement in the newspaper, University Fees, Conveyance, Air-ticket, train fare and Miscellaneous expenses. Some vouchers have also been produced. We have no reason to doubt that the complainant has actually spent that much amount as claimed by him. We are, therefore, inclined to allow this claim made by the complainant. We hence award the said amount of Rs. 4,068/-.

LASTLY, Mr. Sharaf sought to rely upon the decision of Hon''ble the National Commission in the case of Skypak Couriers, Pvt. Ltd. v. Anupama Bagla, reported in 1991 CPR (III)=I (1992) CPJ 84 (NC) page 362. The present opposite party was the appellant in the case before Hon''ble National Commission. The appellant was given a consignment containing Video Cassette for carriage from Jaipur to Bombay. The Respondent complainant could not secure admission in college as the video cassette contained a record of her work done in Cornell University in USA. This was treated as deficiency in services and the complainant respondent was awarded compensation of Rs. 10,000/- by the State Commission. The appellant Skypak Couriers preferred appeal and the Hon''ble National Commission had confirmed the Judgment of the State Commission by dismissing the appeal filed by M/s. Skypak. Mr. Sharaf has also relied upon the Judgment of this Commission in Appeal No. 1 of 1989 in the case of Ishwarlal Jivanlal Desai v. Skypak International Couriers and Others II (1991) CPJ 478. In that matter, the complainant had filed a complaint being Complaint No. 4 of 1989 before the Surat District Forum alleging that a consignment containing Visa documents which were handed over to M/s. Skypak (International) Couriers Surat for being delivered in USA within 24 hours, had not been delivered and hence he filed the complaint claiming Rs. 33,500.00 by way of damages. The District Forum in that matter awarded Rs. 12,375.00 as damages against which the complainant had filed the appeal before this Commission. Ultimately, the appeal was settled and the Respondent Skypak agreed to pay total compensation of Rs. 20,000.00 to the original complainant.

It is therefore apparent that the present case is not a single case in which valuable consignment entrusted to Skypak was not delivered to the consignee, and it appears from the record that all these consignments contained valuable material for which the respective Courts had awarded damages as stated above. In our opinion, this decision also helps Mr. Saraf who appeared on behalf of the complainant.

IN the result we reject the submissions made on behalf of the opposite party and pass the following order:- ORDER (A) The opposite party Skypak Couriers shall pay to the complainant, an amount of Rs. 10,000/- (Ten thousand) as compensation for the loss of salary suffered by the complainant. (B) The Opposite Party shall also pay to the complainant in addition to the above amount, a further amount of Rs. 4,068/- being the amount of expenses incurred by the complainant for obtaining duplicates of the documents. (C) The Opposite Party shall also pay a further amount of Rs. 6,000/- six thousand, by way of loss of future prospects, to the complainant. (D) The Opposite Party shall pay to complainant CERS, an amount of Rs. 1,000/- by way of costs of this complaint. The Opposite Party shall pay or shall deposit before this Commission, the said amounts for being paid to the concerned Complainant, within four weeks from to-day, failing which, the Opposite Party will be liable to pay interest at @ 18%. On the above amounts from the date of judgment till payment. Complaint allowed with costs.