Kanhiya Lal Pitti vs Naveen Jain

THIS revision petition has been filed by Kanhiya Lal Pitti and another (hereinafter referred to as ''Petitioners'') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Rajasthan (hereinafter referred to as the ''State Commission'') in Appeal No. 1011/1999 wherein Naveen Jain was the Respondent.

THE facts of the case according to the Respondent who was the original complainant before the District Forum, are that he had sent a parcel through the Petitioner/Courier Company containing Sarees worth Rs. 49,500 in the name of Smt. Kanta Goyal of Gujarat Dai Staff Industries, Baroda to whom these were to be delivered by Respondent made inquiries with the Petitioners from whom no satisfactory response was received. Aggrieved by this, Respondent filed a complaint before the District Forum on grounds of deficiency in service and requested that Petitioners be directed to pay the Respondent Rs. 49,500 towards cost of Sarees, Rs. 1 lakh for loss of his reputation, Rs. 5,000 for mental agony and Rs. 2,000 as litigation expenses.

PETITIONERS while admitting that a parcel had been booked on 16.10.1998 by the Respondent which was to be delivered to Smt. Kanta Goyal at Baroda however stated that they had in fact delivered the said parcel on 26.10.1998 at the given address and the delivery was also shown to have taken place through their Cash Memo No. 77287. Petitioners, therefore, while not admitting any deficiency in service contended that in case they were at fault, they would be liable to pay only Rs. 50 per kg and, thus, a total amount of Rs. 250 in the present case to the Respondent.

THE District Forum after hearing both parties allowed the complaint inter alia observing that if the Petitioners had delivered the parcel then the question of filing the present complaint would not have arisen unless there was any ill-will against the Petitioners which is not the case. Further, Petitioners were unable to produce any credible evidence in respect of the delivery of the parcel, for example, affidavit of the person who delivered the parcel. The Branch Office of the Petitioners at Baroda should have also tried to find out whether the parcel was delivered to the wrong person since it had not been received by the addressee. Finding Petitioners guilty of deficiency in service. District Forum directed them jointly and severally to pay to the Respondent, Rs. 49,500 towards the cost of the lost Sarees, Rs. 500 for mental pain and Rs. 500 towards litigation cost within one month from the date of order.

AGGRIEVED by this order, Petitioners filed an appeal before the State Commission who while upholding the order of the District Forum observed as follows: "As stated above the parcel in question was to be delivered to Smt. Kanta Goyal at Baroda. In this respect, Smt. Kanta Goyal has stated that till 23.2.1999 she has not received the parcel which was sent by the complainant to her. The appellants have filed a delivery report before learned Consumer Forum in this respect, in which some person has signed against the receipt of the goods. However, the appellants have failed to prove that who had signed on the delivery sheet. On the perusal of the records that the parcel in question has been delivered by the official of the appellants to Kanta, however, no affidavit of the said person has been placed on record by the appellant before the learned Consumer Forum. It is pertinent to mention here that the appellants have issued a receipt No. 77287 to the complainant in respect of the goods to be sent. In the business of courier another copy of the receipt issued by the appellants is to be got signed by the person who receives the courier. In the present case another copy on which the appellants have taken the signatures of the person who received the courier at the time of delivery, has not been produced. In this situation the learned Consumer Forum in case had arrived at the conclusion that the appellants have not delivered the parcel to the concerned person, there is no infirmity in the order passed by the learned Consumer Forum in our view. As far as compensation is concerned it is admitted fact that the amount of compensation depends upon the transaction between the parties. In the present case, the appellants have not produced any evidence which can prove that the complainant had agreed for any terms and conditions in respect of damages. In case there would have been the signatures of the complainant on any such terms the matter would have been different, however, in the present case there is no agreement. Hence, in our opinion, the learned Consumer Forum by declining the contention of the appellants that they are entitled to pay Rs. 50 per kg on account of damages, there is no infirmity in the order passed by the learned Consumer Forum."

Hence, the present revision petition. Counsel for Petitioner was present. None appeared on behalf of the Respondent. Since service is complete, it was decided to proceed with the case ex parte.

COUNSEL for Petitioners while reiterating that the parcel had in fact been delivered to the addressee as is clear from their Cash Memo No. 77287, further contended that even if the parcel was not delivered to the correct address, as per the terms and conditions of the courier service, they are liable to pay compensation of Rs. 250 only. The terms and conditions which were filed in evidence reads as follows: "In case of loss of documents parcel, Akash Ganga Courier''s maximum liability is Rs. 50 only. No claim or compensation will be paid by Akash Ganga Courier due to receiver party refused to take delivery or delayed delivery......"

THE Fora below, therefore, erred in awarding very high compensation which was against the terms and conditions as noted above. Counsel for Petitioners further brought to our notice a judgment of the Hon''ble Supreme Court in Bharathi Knitting Co. v. DHL Worldwide Express Courier, II (1996) CPJ 25 (SC)=(1996) 4 SCC 704, wherein it was ruled that parties are bound by the terms and conditions of a contract and damages beyond the limit provided in the terms and conditions cannot be altered. We have heard learned Counsel for Petitioners and have gone through the evidence on record.

IN the first instance, we agree with the finding of the State Commission that the Petitioner was unable to provide credible evidence that the consignment parcel had been delivered to the right addressee. As observed by the Fora below no affidavit in support of the person who delivered the goods, was produced and further a copy of the receipt in which the signatures of the person who received the delivery has also not been produced. Regarding the terms and conditions of the contract by which, according to the Petitioner, compensation was to be limited to only Rs. 250, we note that these terms and conditions pertain to loss of "documents parcel" where the maximum liability was Rs. 50 whereas in this case it was a parcel containing Sarees and not documents and, therefore, perhaps not relevant in this case. No terms and conditions pertaining to delivery of parcels have been produced in evidence. Further, there is no evidence of an agreement between the two parties regarding adherence to the terms and conditions, if any, in respect of the damages for loss of parcels. The judgment cited by Petitioners are, therefore of no use in this case since the facts and circumstances in the two cases are different.

IN view of the above reasons, we see no reason to interfere with the well-reasoned orders of the Fora below and uphold the same. The revision petition is dismissed. The Petitioners are directed to jointly and severally pay to the Respondent. Rs. 49,500 towards the cost of Sarees Rs. 500 towards mental pain, Rs. 500 towards litigation cost within one month from the date of order failing which interest @ 6% shall be applicable on the entire amount. Revision Petition dismissed.