Corporate Couriers Ltd. vs DWIJEN A. PANCHAL

THIS appeal arises from order dated 4.6.1998 rendered by the learned Consumer Disputes Redressal Forum, Ahmedabad City in Complaint No. 576 of 1995 directing the opponent courier to pay to the complainant compensation in the sum of Rs. 20,000/- with interest at the rate of 18 percent per annum from 1.7.1995 till payment, expenses in the sum of Rs. 2,000/- and cost of the complaint also in the sum of Rs. 2,000/-.

IT was the case of the complainant that as per the advice of the doctor, complainant''s blood was collected and the same was sent for pathological test to Bombay through opponent courier. The sample was sent to Mr. T.D. Somaiya and complainant paid Rs. 151/- to the opponent who issued a receipt. The Microaided Diagnostic test was to be carried out of the said blood sample of the complainant. The sample was intended to be received by Mr. T.D. Somaiya at Bombay without any delay so that the test could be performed on 27.4.1995 as scheduled. On account of negligence and deficiency in service on the part of the opponent courier, the blood sample was not delivered to Mr. T.D. Somaiya up to 27.4.1995. The blood test was, therefore, not carried out as scheduled. The test was to be carried out to find out whether the complainant was suffering from Hepatitis or not. The complainant had to make trunk calls and to pay Rs. 350/- for the same. IT was thereafter that the blood sample was delivered and was tested on 2.5.1995 and the report was issued on 2.5.1995 and 5.5.1995 by Hradaya Hospital. In fact, the blood sample was wrongly delivered to other laboratory. As the complainant did not get the test report in time, another blood sample for testing was taken and was sent along with his man resulting into huge expenses being incurred by him. The complainant, therefore, filed the aforesaid complaint before the learned Forum praying for compensation in the sum of Rs. 10,000 by way of expenses and Rs. 20,000/- by way of further compensation along with compensation in the sum of Rs. 75,000/- and cost quantified at Rs. 5,000/-. The complaint was resisted by the opponent on the ground that the complainant could not be said to be a consumer, that there was no negligence or deficiency in service on the part of the opponent, that the blood specimen was given to Talwarkar Pathology Laboratory on 14.4.1995, that it was not disclosed that the parcel contained blood sample and that the complaint should, therefore, be dismissed.

Considering the rival pleadings of the parties and material placed on record, the learned Forum came to the conclusion that the opponent failed to deliver the blood samples to Mr. T.D. Somaiya for carrying out the test and it was wrongly delivered to Talwarkar Pathology Laboratory as admitted by the opponent. Thus, there was apparently deficiency in service on the part of the opponent resulting in huge expenses to the complainant. However, for the purpose of awarding compensation, the learned Forum did not have any material to justify the compensation as prayed for in the complaint. It, therefore, directed payment of compensation in the sum of Rs. 20,000/- on the head of mental pain and agony and Rs. 2,000/- for expenses as well as Rs. 2,000/- by way of cost. The opponent courier has preferred this appeal against the said order.

WE have heard the learned Advocates for the parties. WE have gone through the impugned order. WE have also gone through the decisions which have been submitted on behalf of the rival parties. It has first been submitted that the complainant could not be said to be a ''consumer'' in the eye of law inasmuch as there was no contract of rendition of service as courier between the complainant and the opponent courier. For that purpose xerox copy of the receipt has been shown to us. It shows the name of the consignor being Microaid. Now it has not remained in dispute that Microaid is a laboratory in the city of Ahmedabad taking blood samples and sending relevant blood samples for specific test being carried out at Bombay by concerned doctor. Opponent courier is accepting such blood samples and, therefore, there was knowledge on the part of opponent courier that the aforesaid laboratory was sending blood samples for specific test being carried out. Obviously, therefore, the persons whose blood samples were being sent by the opponent courier would be the beneficiary in the eye of law. It is the case of the complainant that he had paid the charges of courier although receipt was issued in the name of Microaid as the sample was taken for being handed over to the opponent courier. In view of the definition of ''consumer'' as contained in Section 2(1)(d) of the Consumer Protection Act, a beneficiary is covered under the said definition and, therefore, the complainant was very much entitled to make a grievance with regard to a deficiency in service of the opponent courier because ultimately he was the affected party.

IT has next been submitted on behalf of the opponent courier that the courier receipt indicates liability to be limited to the maximum of Rs. 100/-. In the first place there was no factual defence taken from such receipt before the learned Forum. IT is only for the first time that such a defence is sought to be taken in this appeal. In our considered opinion, had such a defence been taken before the learned Forum, the complainant would have been in a position to say that he was not shown such a printed term in the receipt or that his attention was not drawn to the small letters of print of the terms below the receipt. That having not been done this defence cannot be permitted in this appeal. In that view of the matter, decision in the case of Bharathi Knitting Co. v. DHL Worldwide Express Courier, Division of Airfreight Ltd., II (1996) CPJ 25 (SC) will not have applicability to the present case. That decision will also have no applicability to the present case as the courier receipt was signed by the consignor and, therefore, the contract contained in the courier receipt was binding to the parties in that case. IT is true that even if the receipt is not signed by a consignor the condition set out in such receipt would be binding to the parties, as, such a receipt would be a contract between the parties provided the terms and conditions contained in the printed receipt are either brought to the notice of the consignor or it was shown to the Forum that the consignor knew about such a term/condition when the parcel/packet was handed over to the courier. In the same manner decision in the case of Airpak International (P.) Ltd. v. K.P. Nanu, III (1996) CPJ 156 (NC)=1997 (1) CPR 15, will not be applicable. In reply reference has been made to a decision of the Honourable National Commission in the case of Skypak Couriers (P.) Ltd. v. Consumer Education and Research Society, (1999) NCJ 79 (NC), where it has been observed that the printed memo containing the conditions with regard to limitation of liability did not bear signature of either party and when there was no evidence to show that such printed condition was shown to the consignor, such a term or condition will not be binding to the consignor. In the present case there was no defence with regard to limited liability taken before the learned Forum. Hence, submission flowing from the printed condition in the courier receipt cannot be accepted. It has finally been submitted that there has been suppression of material fact on part of the consignor in not disclosing the contents of the parcel/packet handed over to the courier. As stated above, as a matter of routine practice Microaid laboratory used to send such samples through opponent courier for specific or special laboratory test. If the opponent was not knowing about the contents of the packet/parcel it would not have delivered the packet to a wrong person who was also a pathologist. It is an admitted fact that the sample was delivered to a pathology laboratory at Bombay other than a doctor (Pathologist) to whom it was to be delivered. This would necessarily imply that concerned personnel of the opponent courier had knowledge of the fact that there was blood sample which was in fact required to be examined and tested by the particular expert at Bombay. It has finally been submitted that the complainant has failed to adduce any evidence worth the name with regard to quantum of compensation. In our considered opinion there is a great deal of substance in this submission. Upon being asked to make out a case with regard to quantum of compensation, the learned Advocate appearing for the complainant fairly conceded that the complainant can get maximum amount of Rs. 5,000/- in the facts and circumstances of the case. It is a fact that the complainant was required to incur expenses of making trunk calls as well as sending a man with another blood sample. From this it necessarily flows that 2nd blood sample was required to be given by the complainant and he had to undergo all that physical and mental strain for seeing that the 2nd blood sample was examined/tested by the concerned doctor at Bombay. In that view of the matter, lump sum compensation in the sum of Rs. 5,000/- as suggested by the learned advocate for the complainant clearly appears to be just and fair bearing in mind all the facts and circumstances of the case.

IN view of what is stated above we pass pass following order. ORDER

IMPUGNED order dated 4.6.1998 rendered by the learned Consumer Disputes Redressal Forum, Ahmedabad City in Complaint No. 576 of 1995 is hereby set aside and instead following order is passed. Opponent courier (appellant in this appeal) is directed to pay to the complainant Rs. 5,000/- within six weeks from today. This appeal is accordingly partly allowed with no further order as to costs. Appeal partly allowed.