DESK TO DESK COURIER And CARGO PVT.LTD vs SUDESH KUMAR

THIS appeal is preferred by the opposite party in C.C.No.331 of 1994 on the file of Visakhapatnam District Forum questioning its order dated 21.3.1996 allowing the said complaint and awarding compensation of Rs. 10,000/- and costs of Rs. 1,000/- to the complainant, who is the respondent in this appeal. The question raised by the appellant is whether more than the stipulated compensation can be directed to be paid by a courier in case of non-delivery of the consignment entrusted to it for delivery to the consignee.

IN the present case the undisputed facts are that the appellant is running a courier service and has a branch at Visakhapatnam; the complainant entrusted a letter on 18.2.1994 (which according to her contained a demand draft dated 15.2.1994 for Rs. 1,00,000/-) to the appellant for carriage to Pune and delivery to one Dr. R.K. Sharma; at the time of entrustment the contents of the letter were not disclosed to the appellant and the letter was not insured; Dr. R.K. Sharma was not delivered that letter; the letter was not lost in transit and it reached Pune office of the appellant and according to the appellant the letter was delivered to a wrong person; as per the terms of contract noted on the courier consignment note the carrier specifically limited "its liability to a maximum of Rs. 100/- for consignment for any cause"; as per I.A.T.A. Regulations, which bind the courier services, the liability of a courier for loss of a consignment should not exceed Rs. 100/-; the complainant took back from the Bank the amount covered by the D.D. minus the D.D. commission after furnishing an INdemnity Bond to the Bank. The complainant claimed in all Rs. 24,000/- compensation made up as follows: (a) Bank commission Rs. 300.00 (b) Loss of interest on Rs. 1 lakh for one month Rs. 2,400.00 (c) Expenses due to trip to Pune Rs. 4,000.00 (d) Telephone calls Cost of 8 days pay @ Rs.300/-day Rs. 3,000.00 2,400.00 Rs. (e) Local trips Rs. 1,000.00 (f) Bank agreement Charges Rs. 500.00 (g) Damages for mental agony and mental tension Rs. 10,400.00 Rs. 2,4000.00 The case of the appellant is that as mis-delivery of the consignment was not in dispute the appellant was liable only to pay compensation of Rs. 100/- and no more. The District Forum held that there was no material placed by the complainant to show that when the consignment was handed over to the appellant, it was made aware of the contents of the consignment. It further held that there was no reason to disbelieve die complainant''s case that the letter entrusted to me appellant contained a Bank draft for Rs. 1,00,000/- and that the same was supported by documents like Indemnity Bond executed by the complainant in favour of Central Bank of India on 16.3.1994 when she instructed the Central Bank of India to stop payment of the Bank draft. It appears that the complainant managed to see that the amount covered by the Bank draft was not paid by the Bank and that she did not lose that amount except perhaps the Bank commission and the amount spent on the Indemnity Bond. However it was the case of the complainant that she and her husband had to go to Pune immediately to take preventive steps to see that the Bank draft was not encashed by persons into whose hands it might have fallen and consequently she had to incur considerable expenditure apart from suffering mental tension and physical strain and stress for a considerable period. The District Forum observed that the liability of the appellant under the consignment note was limited to Rs. 100/- only but was pursuaded to award compensation of Rs. 10,000/- reasoning as follows: "That cannot defer us from considering the complainant''s claim for higher damages. There is material to show that there was gross neglect on the part of the opposite party in dealing with the complainant justifying the award of damage. Even after the complainant informed the opposite party that the consignment did not reach the addressee R.K. Sharma, the opposite party did not appear to have taken any proper and effective steps to trace the consignment and hand it over to the complainant and had that been done, the complainant would have been spared the trouble and inconvenience of approaching the Bank with a request for non-encashment of the Demand Draft and also execution of an Indemnity Bond in the Bank''s favour on 16.3.1994. As the case was one of mis- delivery only at Pune, the destination point and not loss in transit, there should not have been any difficulty for the opposite party''s Pune office to locate the person to whon the consignment was actually delivered as the delivery must have been made under a receipt by one of the employees of the opposite party. Yet, nothing appears to have been done and the opposite party apparently tried to pass on the buck to their Pune office. Even after the complaint was filed mere seems to have been no sympathy for the complainant''s cause and the opposite party, in its counter, went to the extent of disputing the complainant case about her being put to considerable trouble".

The District Forum observed that the ruling of the National Commission in M/s. Airpak Couriers (India) Pvt. Ltd. v. S. Suresh, I (1994) CPJ 52 (NC)=1993 (1) CPR 718=1986-1996 Consumer 3080 (NS), did not apply to the facts of the present case as the facts in that case were different. That was also a case where the consignment entrusted to the courier (who was the appellant before the National Commission) did not reach the complainant and the courier relied on the terms and conditions in the consignment note restricting and limiting its liability to Rs. 100/- only and also on the I.A.T.A. Regulations restricting the liability of couriers to a maximum of Rs. 100/-. The National Commission up-held the view of the Tamil Nadu State Commission that there was deficiency in the service of the courier but reduced the compensation from Rs. 1,00,000/- awarded by the State Commission to Rs. 100/- as per the accepted terms of the courier service plus Rs. 500/- towards costs. There is also the decision of the National Commission in DHL Worldwide Express v. Bharathi Knitting Co., I (1996) CPJ 289 (NC)=1986-1996 Consumer 1875 (NS). In that case also the consignment was delivered to another person finding that the consignee''s office was closed on the couriers arrival. But no message was given to the consignee informing him of the whereabouts of the consignment. Thus there was no delivery of the consignment to the consignee by the courier. The National Commission upheld the finding of the State Commission that there was deficiency in service and because of the negligence of the courier loss occurred to the complainant who was the consignor. The National Commission restricted the compensation as per the terms of the contract holding that the nature of the documents or its importance and value to the complainant had not been disclosed on the consignment note and that the consignment was not insured despite advice to that effect given by the courier. The National Commission distinguished its earlier decisions in M/s. Skypak Couriers Pvt. Ltd. v. Ms. Anupama Bagla, I (1992) CPJ 84 (NC)=1986-1995 Consumer 273 (NS), and M/s. Skypak Couriers Pvt. Ltd. v. Consumer Education and Research Society and Others, I (1992) CPJ 316 (NC)=1986-1995 Consumer 1788 (NS).

THE decision of the National Commission in DHL Worldwide Express, (supra), has been up- held by the Supreme Court in Bharathi Knitting Company v. DHL Worldwide Express, II (1996) CPJ 25 (SC)=(1996) 4 SCC 704. THE Supreme Court posed the question: "when the parties have contracted and limited their liabilities the question arises: whether the State Commission or the National Commission under the Act (Consumer Protection Act, 1986) could give relief for damages in excess of the limit prescribed under the contract". THE Supreme Court observed that when a person signed document which contained contractual terms, normally parties were bound by such contract and that it was for the party to establish exception in a suit and that when a party to the contract disputed the binding nature of the signed document it was for him to prove the terms of the contract or circumstances in which he came to sign the documents needed to be established. THE Supreme Court further elaborated the course to be followed by the Tribunals under the Act as follows: "THE question we need to consider is: Whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract".

On the facts of that case the Supreme Court observed that the National Commission found that the complainant had signed the consignment note at the time of entrusting the consignment to the courier and had agreed to and accepted the terms and conditions mentioned therein, and held as follows: "In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission. Mr. Krishnamani has brought to our notice that there are number of judgments covering divergent views. In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is contended that besides the amounts awarded by the State Commission, liberty may be given to the appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued according to law".

THIS decision of the Supreme Court was followed by the National Commission in Airpak Intemational Pvt. Ltd. v. K.P. Nanu & Anr., III (1996) CPJ 156 (NC)=1997 (1) CPR 15. In that case the National Commission observed that the consignment note provided that the courier "shall not be liable for special, incidental or consequential damages arising from the carriage hereof and limits its liability to a maximum of Rs. 100/- per consignment for any cause". The consignment in that case was lost. The District Forum awarded Rs. 20,000/- finding that there was deficiency in service and the State Commission on appeal reduced the compensation to Rs. 15,000/-. The National Commission held that in view of the consignment note limiting the extent of liability undertaken by the couriers to Rs. 100/- only on the very front portion of the consignment note the District Forum and the State Commission were not justified in granting any compensation for the deficiency in service beyond Rs. 100/- as per the accepted terms of the consignment note given by the courier. In view of the decision of the Apex Court in Bharathi Knitting Company (supra), and of the National Commission in K.P. Nanu (supra), we have to hold that compensation for not delivering the consignment in the present case has to be restricted to Rs. 100/- only because in the consignment note the courier specifically limited its liability to a maximum of Rs. 100/- per consignment for any cause. Non-delivery of an article as undertaken by the courier would certainly be deficiency in service and that would be a cause for liability of the courier. The District Forum however took the view that on the facts of the present case there was a further failure which gave rise to an additional deficiency in service. The District Forum reasoned that in the present case the consignment was not lost because admittedly it reached Pune but was delivered to a wrong person for some reason, and when the complainant who was the consignor sought immediate action for tracing the consignment informing the courier that it contained a demand draft for Rs. 1 lakh, the courier did not take any prompt steps to retrieve the consignment because of which the complainant was put to great mental stress and agony and had to go to Pune to protect her interest thereby incurring considerable expenditure forwhich she claimed compensation. Whether the facts of the present case give rise to an independent obligation on the part of the courier and whether failure to fulfil that obligation results in deficiency in service giving rise to a separate and independent cause for compensation is a nettlesome question. We need not enquire into this question because the learned Counsel for the appellant submitted that the appellant would pay a further sum of Rs. 500/-. We are of the view that on the facts of the present case that would be an adequate compensation for not taking prompt steps for tracing the consignment which was admittedly not lost in transit but was mis-delivered to a wrong person. This would be a warning to the couriers because in recent times the number of cases in which consignments containing demand drafts, share certificates, U.T.I, certificate and valuable documents entrusted to couriers going to wrong persons are on the increase. It may be possible in some of the cases to establish the connivance of those concerned in the courier company. We however need not dilate on this in the present case. In the result, the order of the District Forum is modified and the appellant i.e., opposite party before the District Forum, shall pay to the respondent/complainant Rs. 600/- instead of Rs. 10,000/- as compensation together with costs of Rs. 1,000/- fixed by the District Forum i.e., in all Rs. 1,600/- (Rupees one thousand and six hundred only) within six weeks from today. Appeal disposed of.