Killick Air Couriers And Forwarders Ltd vs Meena Vythilingam

BY this appeal the order of the 1st March, 1992 of the State Commission of Tamil Nadu in O.P. No. 184 of 1991 has been challenged.

THE appellant herein M/s. Killick Air Couriers and Forwarders Ltd. were the respondents before the State Commission and the respondent Dr. Meena Vythilingam was the complainant before that Commission. According to the facts stated in the order of the State Commission, the respondent - complainant had sent a consignment on 28th September, 1991 of 50 medical slides -surgical, clinical, operative and his to pathological from three eminent Surgeons of Madras, from Madras to Delhi through the appellant -Couriers for further carriage by one Dr. T.N. Krishnan to U.S.A. from Delhi for delivery to her husband for presenting a paper on surgery at the Yale University. This consignment was to be delivered at Delhi to Dr. T.N. Krishnan on or before 3rd of October, 1991 who was to leave New Delhi for U.S.A. on the 3rd of October, 1991. This consignment was lost in transit. The respondent - complainant, therefore, made a complaint for compensation of Rs. 9,91,400/ - against the appellant -Couriers. The State Commission came to the conclusion that the appellant -Couriers has been guilty of deficiency of service in the transport of the consignment which was lost due to his negligence and therefore, was liable to pay compensation to the respondent -complainant. It ordered payment of compensation of Rs. 61,200/ - and costs. Rs. 1,000/ -.

THE appellant has assailed the order of the State Commission on various grounds. It is sufficient for us to confine ourselves to the grounds of attack which to go to the root of the matter.

IN the standard term and conditions printed on the reverse of Airway Bill, it had been clearly declared that the Company is not a common carrier and it reserved the right to refuse to carry or transport any class of goods at its discretion. Further the appellant Company "shall not be liable under any circumstances for any loss, damage or expenses arising from or in any connection with marks, weights numbers, contents, quality or description of any goods". It further limited its liability for any loss or damage to the consignment to Rs. 100/ - only.

Under Clause 13(a) the Company also disclaimed liability for any loss, inter alia due to non -delivery of the consignment.

THE contents of the consignment were declared as ''documents'' and not valuable slides. This was a mis -declaration and, according to the appellant, now the complainant cannot claim compensation on the plea that the consignment contained valuable medical slides.

HE has further assailed the order of the State Commission on the ground that the complainant was not a consumer inasmuch as she had not paid any consideration viz. the freight charges for the carriage of the consignment. She had sent the consignment to M/s. Navodaya Enterprises who have Custom relationship with the appellant and who had in turn delivered it to the appellant -Courier for transmission to Delhi. There is no dispute that the consignment did not reach its destination i.e. New Delhi and was misplaced or lost in transit. So there has been deficiency in service as a result of negligence on the part of the appellant. The only question is What is the compensation payable to the respondent -complainant ?

THERE is no dispute that the consignment was described as containing "Documents" and that there was no indication of their nature and the probable value of the medical slides said to have been prepared by three eminent Surgeons of Madras over a period of 20years and therefore, irreplacable. In that context the prescribed declaration in Way Bill regarding the contents of the consignment assumes considerable significance. The courier, not being a common carrier, had no opportunity to refuse the consignment or to take steps for the security during carriage of valuable consignment. Secondly and more importantly, the absence of a declaration regarding the contents of the consignment renders it extremely difficult, if not impossible, to establish the contents and thereafter to properly evaluate the value of the consignment and the consequential loss sustained by the respondent -complainant.

THIRDLY there is merit in the contention of the appellant that there was no privity of contract between the respondent -complainant and the appellant here as the consignment was given for transport only by a third party M/s. Navodaya with whom the appellant -Company had Customs relationship. The averment that there is a running account between the appellant - Courier and M/s. Navodaya through which the appellant debited the charges for carriage against M/s. Navodaya does not establish that the respondent -complainant had paid the consideration for the carriage of the consignment. In fact no evidence has been produced in proof of payment by the respondent -complainant either directly to the appellant or through M/s. Navodaya. On the other hand it is in evidence that the consignment was sent on the personal account of Dr. T.N. Krishnan who was working in M/s. Navodaya and at whose instance the respondent -complainant had delivered the consignment of the appellant through M/s. Navodaya. More importantly, the respondent - complainant had sent a sum of Rs. 40/ - to the appellant by money order on 29th October, 1991 after filing the complaint petition obviously as payment of freight charges but the same money was returned. Therefore, it has not been established that any payment was made by the respondent complainant to the appellant - Courier. A Priori the respondent is not a complainant as defined under the Consumer Protection Act. In the light of the above discussion neither in terms of contract of carriage nor in terms of the Consumer Protection Act is it possible in this case to fasten any liability on the courier for his negligence in not delivering the consignment at Delhi. The appeal succeeds and the order of the State Commission is set aside. There is no order as to costs.

WE , however, make it clear that above order is without prejudice to the right of the respondent to seek redress, if any, in the Civil Courts, if she so advised. Appeal allowed.