EMCEE COURIERS (P) LTD. vs MANAGING PARTNER, GEO MOTORS

-THE first Opposite Party appeals.

THE case of the Complainant summarily is as follows:- On 27.12.91 two demand drafts worth Rs. 1 lakh and Rs. 7,77615/- respectively of Bank of Baroda were entrusted to the Opposite Party No.2 at Pondicherry who is the agent of the First Opposite Party functioning at Madras, for onward carriage to M/s American Express Bank Ltd., Calcutta; the delivery was to take place on 31.12.91. THE documents did not reach the destination. After two months the Opposite Party No. 1 informed the complainant that the documents booked from Pondicherry had been lost in transit on the way to Airport by On-Board Couriers (O.B.C.). Immediately he took steps to take duplicate drafts. But on account of the delay which occurred he had to pay interest to the tune of Rs. 56,264/-. He therefore, prayed for a direction to the Opposite Parties to pay him Rs. 56,264/- and also Rs. 25,000/- as compensation for mental agony. The First Opposite Party admitted having received a matter to carry and confirmed that the cover was lost by On Board Couriers on 30.12.91. When their van on way to the Air-Port met with a collusion with a bus leading to severe disaster entailing the death on the spot of the staff of On-Board Couriers and extensive damage to all the loads. The Opposite Party, therefore, offered to pay a compensation to the tune of Rs.500/-.

Since the facts were admitted by both the parties, the only question which arose before the District Forum was to fix the amount of compensation. That compensation was fixed by the order dated 29.10.91 at Rs. 55,000/- for the interest and Rs. 5,000/- for mental agony suffered making a total of Rs. 60,000/-. Aggrieved by that order the First Opposite Party has preferred this appeal.

AS far as the Second Opposite Party is concerned, he is the agent of the Opposite Party No. 1 in Pondicherry. He is the person who booked the consignment and despatched it to Madras for onward transmission. It is stated by the Opposite Party No.1 that the Second Opposite Party has ceased functioning . in Pondicherry. Further, the First Opposite Party, even though he arrayed the Second Opposite Party as Second Respondent here, has undertaken to bear full responsibility to satisfy the directions in the order passed in this appeal including the liability of the Second Opposite Party in the complaint. Now the only question which arises for our consideration is what is the amount of compensation which is to be granted to the complainant ?

THE learned Counsel for the complainant would state that he should be fully compensated for the actual loss sustained. To that effect he placed reliance on two decisions. THE first decision is one of the National Commission in M/s. Skypak Couriers Pvt. Ltd. and Another v. Ms. Anupama Bagla, I (1992) CPJ 84 (NC) in which an amount of Rs. 10,000/- as compensation was confirmed for the loss of a cassette which contained a record of her (the complainant) work done at Cornell University in U.S.A. On account of the non-delivery of the cassette the complainant was denied of her chance of getting admission to the Sophia College at Bombay. THE second case is again the decision of the National Commission in M/s. Skypak Couriers Pvt. Ltd, v. C.E.R.S. and Others, I (1992) CPJ 84 (NC). In that case the National Commission confirmed the damages to the tune of Rs. 10,000/- for loss of salary suffered by the complainant and reduced the amount of Rs. 6,000/- for future prospects granted by the State Commission to Rs. 1,000/-. THE complainant was in that case a person who was to undergo training in Germany. Since all the papers including his air ticket, passport, original degree certificates, testimonials and other relevant documents were lost by the Skypak Couriers, he could not attend the training programme, resulting in loss, as far as his future prospects were concerned. We have perused carefully those two orders. It is nowhere stated in those orders that the entire loss, whatever the amount, should be paid by the couriers even if the value and the importance of the documents handed over to the couriers have not been disclosed to them. THE only guidance we could get from those decisions is that the machinery should not hesitate to grant sizable compensation. The learned Counsel for the Appellant relied on a decision of the National Commission in M/s. Airpak Couriers (India) Pvt. Ltd. v. S. Suresh (1993 CPR 718) where it was observed by the National Commission that "the consignee is bound to disclose the nature of contents before sending the consignment" and that "if the documents which were consigned were of great value the consignee ought to have insured them". We humbly think that these are the principles which are to be followed. Any prudent man, when he entrusts a valuable consignment, will take care to inform about the value of the consignment and take adequate insurance, because there is always an element of risk in transit. 8. (a) We shall now proceed to consider what is the amount to be granted by way of compensation. Unliquidated damages granted by this Commission "may be exemplary, nominal or substantial. Substantial damages may be of two kinds: general damages and special damages. General damages are the pecuniary reparation for the damage which is presumed to follow from the injury. Special damages are the pecuniary equivalent of the actual loss sustained. Special damages can be granted only if the wronger could have anticipated the amount of loss, or is deemed to have anticipated it. In the present case, it is to be noted that the Opposite Party is dealing each day with a large number of clients. It has not undertaken to carry valuables. There is no averment that the Opposite Party was made aware of the content of the consignment. So the Opposite Party could not have anticipated nor is it deemed to have anticipated the amount of loss. There is no room for special damages. Further, special damages have to be fully proved. There is no such proof adduced by the complainant.

The normal course will be to grant general damages. The amount paid by the complainant is Rs. 30/-, and the content was not disclosed/the Amount of general damages will be necessarily small since it would be related to the average value of the consignment carried by the Opposite Party. The Opposite Party values it at Rs.500/- which if is prepared to pay. But as far as this case is concerned, we find that exemplary damages have to be ordered. The Opposite Party has committed the fault of making the complainant believe that it was offering a fool-proof service. It has not advised its clients about the necessity of insuring the content whenever there is a valuable. This is an advice which every client is expected to get from a professsional in the field of transportation. It failed also to put forth to the client the amount of liquidated damages it was prepared to pay in case of loss, which would have induced the complainant to take an insurance. Mistakes of this kind are committed day in and day out by carriers involving a lot of loss and mental agony to customers. It is time the carriers learned how they should conduct their business without exposing their clients to risk. After taking into account all the relevant facts, we consider that this is a fit case for exemplary damages, and we fix them at Rs. 15,000/-.

THE District Forum has granted in this case special damages, that is to say the actual loss alleged to have been sustained by the Opposite Party. But we have held earlier that the complainant has not made out acase for special damages. THErefore, the order of the District Forum has to be set-aside.

SINCE there was an inordinate delay in filing the appeal we consider that interest should be paid from the date of the order of the District Forum. In the result, the appeal is allowed in part. The Appellant/Opposite Party No. 1 is directed to pay a total amount of Rs. 15,000/- to the complainant with interest at 12% p.a. from the date of the order of the District Forum, that is to say from 29.10.92 till full payment. Appeal allowed.