FIRST FLIGHT COURIERS LTD. vs KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD.

DISSATISFIED and aggrieved by the order dated 3.1.1997 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, in O.P. No. 239 of 1993, the First Flight Couriers Ltd., through its Regional Manager, has filed this appeal before us.

THE case of the complainant in brief is as follows: THE respondent was the complainant before the State Commission. THE complainant usually engaged the First Flight Couriers Private Ltd., for dispatch and delivery of their urgent documents and parcels. THE complainant engaged the services of the opposite party (appellant before us) to deliver Mother Cards bearing serial numbers 36.01.01-35.01.02 and 30.1.2003 at Bangalore on 29.9.1993. THE complainant had issued a letter along with the cards declaring the value and requesting the opposite party to cover the transit under insurance and ensure delivery without delay. This letter was acknowledged in token of acceptance of the parcel and the conditions by one Anil Kumar on behalf of the opposite party. As the parcel did not reach the consignee, the matter was brought to the notice of the opposite party immediately. On 5.10.1993 the opposite party gave a letter to the effect that the consignment was misplaced during transit and they are trying the locate the same. The complainant lodged an official complaint with the Courier Company to take immediate action to locate the parcel and deliver it to the consignee and demanded refund of Rs. 4.7 lakh if the consignment was not delivered to the addressee before 9.10.1993. The complainants also stated that they were suffering a production loss of Rs. 60,000 per day for want of the cards. Police complaint were also lodged at Salem and Bangalore on 19.10.1993.

The Regional Manager of First Flight Couriers Mr. A.J. George came to the office of the complainant with their officers for a detailed discussion. He admitted the default and agreed to compensate the loss after contacting their director and sought time upto 25.10.1993. The complainant was shocked to receive a letter dated 26.10.1993 from Shri A.J. George denying liability to compensate the loss stating that the maximum limit of the liability was fixed under the printed conditions of the consignment note and they were liable to pay only Rs. 100. Therefore, a legal notice was issued. The opposite party denied their liability, forcing the complainant to file a complaint before the State Commission of Kerala praying for issue of direction to the opposite party (appellant in this case) to pay Rs. 4.4 lakh to the complainant for loss of the mother cards and also Rs. 60,000 per day for loss of production.

THE complainant filed an amended complaint on 27.12.1993 limiting their claim to Rs. 15 lakhs towards the loss of production in addition to the value of mother cards to the tune of Rs. 4.4 lakh and making it a total of Rs. 19.4 lakh. Case of the complainant: The appellant/opposite party is contesting the matter inter alia on the ground that since the total claim was over Rs. 40 lakh the State Commission had no jurisdiction. KELTRON the complainant was not a consumer. In terms of contract the appellant was not liable to pay more than Rs. 100. There was no admission about liability. There was no deficiency in service on their part for neither the value of the parcel containing mother board was disclosed nor it was got insured. Accordingly, the complaint should have been dismissed.

IN view of the pleadings following point arise for consideration: 1. Whether the State Commission had pecuniary jurisdiction to deal with case? 2. Whether Keltron is a consumer? 3. Whether there is any deficiency in service by the appellant in terms of the contract? 4. If above points are decided in favour of the complainant, the amount of compensation, interest and cost.

Pecuniary jurisdiction Learned Counsel for the appellant submitted that the total claim was more than Rs. 40 lakh and the State Commission had no jurisdiction to entertain the complaint, as at that point of time, the pecuniary jurisdiction of the State Commission was limited to Rs. 20 lakh. The State Commission persuaded the complainant to limit it to the tune of Rs. 20 lakh. He quoted a judgment in II (1991) CPJ 427 (NC)=1991 (3) CPR 331 (NC) in M/s. Suraj Steel, Hazaribagh v. R.P. Sharma, in which it was held by this Commission as under: The compensation claimed being only less than rupees one lakh, the State Commission had no jurisdiction under Section 17 of the Consumer Protection Act to entertain and adjudicate upon the complaint.

THEREFORE, in the original complaint, as the claim was more than Rs. 40 lakh the State Commission had no jurisdiction to entertain this and adjudicate on this complaint. In the original complaint, the complainant had claimed for more than Rs. 40 lakh. The complainant amended the complaint on 27.12.1993, the same limiting the claim to Rs. 15 lakh towards the loss of production in addition to the value of mother cards to the tune of Rs. 4.4 lakh and making it a total of Rs. 19.4 lakh. As in the amended complaint he has reduced the amount to less than Rs. 20 lakh which was at the relevant point of time was within the jurisdiction of the State Commission has the pecuniary jurisdiction to entertain it. Accordingly the judgment quoted by the learned Counsel for the appellant in CPR 1991 (3) 331 (NC), in M/s. Suraj Steel, Hazaribagh v. R.P. Sharma, is not of much help to him. In M/s. Suraj Steel, Hazaribagh v. R.P. Sharma, the compensation claimed is less than Rs. 1.00 lakh, accordingly, it should have been decided by the District Forum and not by the State Commission. But in this case though in the original complaint the total claim was Rs. 40 lakh and in the amended complaint it was reduced to less than Rs. 20 lakhs, hence, the ratio of the judgment supra is not applicable to this case. 2. Whether Keltron is a consumer-

IT is an undisputed fact that Keltron had engaged First Flight Couriers Limited in this case and have been using their service for sending their parcel and documents since long and they had a running account. Learned Counsel has submitted that the complainant had not paid any advance to the Courier Company while sending the parcel. Though this was not controverted by the learned Counsel for the respondent, he submitted that they had long term relationship and have been using the services of the appellant company for sending urgent parcels and documents even now. The appellant did not render the service gratuitously and there was implied promise under the prevalent system and deferred payment. This is covered by the definition of consumer in Section 2(d)(ii) of Consumer Protection Act, 1986, (hereinafter referred to as the Act), which reads as follows: "Consumer" means any person who- [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the persons who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned persons [but does not include a person who avails of such services for any commercial purpose]. (Emphasis supplied)

As Keltron had hired services from First Flight Couriers (P) Ltd. promising to pay the charges, Keltron is a Consumer under as per the definition of the consumer, under the Act.

LEARNED Counsel for the appellant submitted that the company did not remit surcharge for transit insurance and details of the contents and value of the parcel were not disclosed in the consignment note and hence the maximum liability of the opposite party is limited to Rs. 100 as per the condition printed on the reverse of the consignment note. 3. Question of deficiency in terms of contract- In their letter dated 28.9.1993 addressed to M/s. First Flight Couriers (P) Ltd., the Keltron has requested the Courier Company to cover the transit under, insurance and deliver the same to the consignee before the stipulated date which the appellant company had not done.

THE bare reading of the consignment note indicates that one parcel has been dispatched on 28.9.1993 at 11.30 a.m. to Bangalore on credit basis. This consignment note should be read along with the letter of Keltron addressed to the appellant which is re-produced below: Dear Sir, Kindly note that we have vide your consignment note No. 20174 dated 28.9.1993 delivered to your representative a document along with a parcel for dispatch to M/s. TMPL Machines Ltd., Nalinum, 1st Floor, 37/4 Meanee Tank Road, Bangalore-40 with a specific request to hand over the parcel to the consignee before 30.9.1993. This parcel contains 3 numbers of Mother Cards of our imported NC Drilling Machine. THE approximate value of this consignment is Rs. 4.00 lakhs and request you to cover the transit under insurance and deliver the same to the consignee before stipulate date. Thanking you. Yours faithfully, For Kerala State Electronics Development Corporation Ltd. This is not disputed by the appellant company. This makes it clear that the value of the consignment has been mentioned as Rs. 4.00 lakh and the courier company has been asked to cover the transit under the insurance and deliver the same to the consignee before the stipulate date. It was learnt during the hearing that the appellant is still having business relationship with Keltron.

THE learned Counsel for the appellant has quoted certain judgments in support of his case which are mentioned below:

IN II (1995) CPJ 90 (NC) in Airpak Couriers (INdia) Pvt. Ltd. v. S. Suresh, the National Commission, has held that: As per the consignment note the said Kwality Tubes and Capillaries Pvt. Ltd. had agreed to the terms and conditions. The consignee is bound to disclose the nature of contents before sending the consignment. Later on after the consignment is lost in transit, a claim cannot be made that there were very important documents in it, the declared value of which was not specifically put down in the column assigned for it in the Courier consignment Note besides the column, Description of Contents. If the documents which were consigned were of great value the consignee ought to have insured them. No such step was taken nor was their value even disclosed in the consignment note. Since there has been a deficiency in the service of the courier, Rs. 100 as per the accepted terms of the courier service plus Rs. 500 as costs may be given to the respondents. In II (1996) CPJ 25 (SC)=AIR 1996 Supreme Court 2508 - Civil Appeal No. 9057 of 1996 (Arising out of SLP (C) No. 10001 of 1996 - Bharathi Knitting Co. v. DHL World wide Express Courier Division of Airfreight Ltd., the Apex Court has held that: It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Anson''s Laws of Contract, 24th Edn at page 152 on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them and even though he is ignorant of their precise legal effect. Limitation of liability-Without prejudice to Clause 7 the liability of DHL for any loss or damage to the shipment, which term shall include all documents or parcels consigned to DHL under this Air bill and shall not mean any one document or envelope included in the shipment is limited to the lesser of- (a) US $ 100 (b) The amount of loss or damage to a document or parcel actually sustained or (c) The actual value of the document or parcel as determined under Section 6 hereof, without regard to the commercial utility or special value to the shipper.

The judgments quoted by the learned Counsel for the appellant are distinguishable from this case for the following reasons:

IN II (1995) CPJ 90 (NC) in Airpark Couriers (INdia) Pvt. Ltd. v. S. Suresh, it is clear that this order was passed because the value of the consignment was not declared and it was not insured and hence liability was limited as per consignment note. Secondly, in AIR 1996 SC 2508 Civil Appeal No. 9057 of 1996 (Arising out of SLP (C) No. 10001 of 1996), Bharathi Knitting Co. v. DHL Worldwide Express Courier division of Airfreight Ltd., liability limited to service as per the contract entered between the parties. In this case, the complainant has clearly mentioned the value of the consignment and also asked the courier company to insure the parcel which the courier company failed to do so.

IN this case Keltron has requested and informed the Courier company that this parcel contains 3 numbers of Mother Cards of our imported CNC Drilling Machine. The approximate value of this consignment is Rs. 400 lakh and request you to cover the transit under insurance and deliver the same to the consignee before stipulated date. As there were a clear-cut instructions that the mother cards were to be delivered before 30.9.1993 indicating the value of the consignment to the tune of Rs. 4 lakh and also requesting the courier company to have a cover note for transit insurance, failure of the courier company to comply with the instructions is indicative of a clear-cut deficiency in service on its part. Amount of compensation, interest and cost: Though the learned Counsel for the complainant vehemently argued that their liability is only limited to Rs. 100 we cannot gloss over the minutes of high level meeting wherein the General Manager of the complainant company and the Regional Manager of the opposite party had participated. In that meeting the Regional Manager of the appellant agreed in the meeting that they would definitely compensate the loss since the parcel was misplaced purely due to their default. It is too much to contend that the Regional Manager was forced to agree and sign the minutes under compulsion, as the minutes of the discussion between the officers of Keltron and First Flight Courier (P) Ltd., Trivandrum, dated 19.10.1993, were signed by the following who are executives: For Keltron - Shri V Ram Kumar, GM (C) Shri R Mohan, Manager (PCB Divn) And for First Flight Courier (P) Ltd.,- Shri A J George, Regional Manager, Cochin Shri J Samson, Manager, TVM Office The extract of the proceedings mentioned above is reproduced below: "M/s. First Flight Couriers (P) Ltd., represented by their Regional Manager from Cochin discussed in detail the status of the missing consignment sent from the PCB Divn. of Keltron to Bangalore on 28.9.1993 vide consignment note No. 21074 dated 28.9.1993. Keltron has categorically stressed on the compensation to be made by M/s First Flight Couriers towards the loss of the cards which had affected the production activities of the PCB Division. The whole work in the Division has come to a standstill and this situation is going to affect production of other Keltron units also since the other Divisions are depending on PCB Division for their basic raw-material for production. The loss towards the value of the cards is estimated to be approximately Rs. 4.70 lakh and in addition to this, the production loss is to the tune of approximately Rs. 60,000 per day. This loss has to be worked out from 6.10.1993 onwards, the anticipated date by which the CNC machine would have been put into operation if the cards were available. Mr. A.J. George, Regional Manager has agreed that since the valuable parcel was misplaced purely due to the fault of M/s. First Flight Couriers, their organization will definitely compensate for the loss incurred by KELTRON. Regarding compensating the production loss he will have to discuss with his Director before a final settlement can be made. However, he has requested time till 25.10.1993 on which date he will inform Keltron to what extent his organization can give compensation for the material and production loss of Keltron and also further status about the missing parcel vide consignment note No. 21074 dated 28.9.1993."

THE above minutes are a clear-cut admission of liability by the Courier company. In this case, the consignor has not only declared the value of the consignment but had also instructed the courier company to insure the consignment. Further during the meeting held on 19.10.1993, the courier company has also agreed to compensate the loss admitting their fault and deficiency in service.

IN view of evidence on record, particularly statement of P.W. 1 and his cross-examination in the light of Ext. R 4 dated 5.10.1993, it is evident that the value was Rs. 1.25 lakh + Rs. 2.30 lakh + Rs. 1.15 lakh totalling to Rs. 4.70 lakh. The quotations obtained and filed by the appellant dated 19.1.1996 from Pluri Tec INdia would not help the appellant for they are quotations of 1996 i.e., three years after. It is the amount which was invested by the complainant in the mother board which is material. If in these circumstances the learned State Commission has awarded Rs. 1,47,000 for the mother board lost only with interest @ 12% per annum with costs Rs. 1000 awarded, no exception could be taken. It may also be mentioned no compensation for business loss has been awarded. In view of the above reasons we do not find any merit in the appeal against the well reasoned order passed by the State Commission. Accordingly, the impugned order is confirmed and the appeal is dismissed. There shall be no order as to costs. Appeal dismissed.