Modern Woollens Ltd vs Blue Dart Courier Service

THE complaint relates to deficiency in service rendered by opposite parties to the complainant.

THE complainant is a Limited Company registered under the Companies Act, having its registered office at D -22, M.D. Road, Jaipur. Its Mills and Sales are at Hanumangarh Road, Bhilwara. It manufactures woollen carpets yarn for woollen carpet in New Zealand and other countries. The complainant purchased two REP duty free licences No. P/W/30 96274 dt. 14.1.1988 valued Rs. 4,30,000/ - and No. P/L 3096289 dt. 19.1.1988 valued Rs. 7,86,600/ - from M/s. Banaras Beeds Mfg. Co. Varanasi. The complainant paid Rs. 72,050/ - to the aforesaid company for the two licences. The details of payment are as under:

Premium charges on duty free REP licence dt. 14.1.1988 Rs. 25,014.00 2. Premium charges on duty free REP licence dt. 19.1.1988 Rs. 47,036.00 Rs. 72,050.00

Debit note of Rs. 72,050/ - was submitted by the complainant marked as Anx. 1, and photo copies of both the licences have been submitted marked as Anxs. 2 & 3. Opposite party No. 1 is M/s. Blue Dart Courier Service, Head Office Bombay and opposite party No. 2 is Branch Office Blue Dart Courier Service, M.I. Road, Jaipur. The opposite parties perform courier service for delivering postage, envelopes, parcels, packets from one place to another on payment of charges. Opposite party No. 1 has its office in Varanasi, Bombay, Jaipur and other parts of Rajasthan. The complainant''s Bhadohi office delivered a packet containing the above two licences on 9.3.1988 to the opposite parties'' office at Bbadohi for delivering them to the complainant''s office at Bombay on payment of charges, Receipt Anx. 4 dt. 9.3.1988 was issued after taking over both duty free REP licences. Photostat copy of the receipt has been submitted by the complainant marked as Anx. 4. The packet containing the two licences was lost. The opposite parties filed FIR in this regard. By letter Anx. 5 dt. 11.4.1988, the Manager of opposite party No.l at Bhadohi (Varanasi) informed the complainant that their load bag in which packet under DAW No. 1809169 dt. 9 -3.1988 was lost on that day.The complainant was requested to reconstruct the documents so that the opposite parties may resend them free on charge. The complainant was also informed that his claim will be settled as per the Rules and Regulations of the Company. The case of the complainant is that the two licences were lost on account of the negligence of the opposite parties inasmuch as service of delivering was not performed by them in a manner in which it should have been performed. Vide letter dt. 16.4.1988 (Anx. 6) it was written that it is not so easy to reconstruct the licences. Amongst other it was also written that these licences are transferable. The case of the complainant is that it had purchased New Zealand raw wool from M/s. Bloch and Behrens (N.Z.) Ltd. vide indent No. 2896 dt 19.2.1988. The party had sent raw wool vide their invoice No. 4428 dt. 21.3.1988. On account of the non -availability of the licences the complainant had to pay Rs. 15/ - per kg. for 6550 raw wool while taking delivery from customs. A sum of Rs. 98,250/ - is said to have been paid. The complainant has submitted photo copy of payment of Customs duty including 65550 kg raw wool for which the licences were obtained marked as Anx. 8. The case of the complainant is that on account of the negligence of the performance of service by the opposite parties, the complainant has suffered the following loss: 1. Cost of both the licences Rs. 72,050.00 2. Extra payment of customs duty Rs. 98,250.00 3. Damages due to loss of interest at 20% Rs. 80,000.00 Rs. 2,50,300.00

THE complainant served a notice (Anx. 9) dt. 12.8.88. The complainant has stated that by letter dated July 21,1988 the opposite parties refused to pay the full loss. The complainant, therefore, filed the complaint on 6.6.90 praying that the opposite parties may be directed to pay Rs. 2,50,300/ - as compensation for loss for the negligence in performing service by them alongwith interest @ 18% p.a. till realisation. With the complaint documents marked Anxs. 1 to 10 were submitted.

AFTER notice on behalf of the opposite parties version of the case was filed on 8.10.1990 opposing the complaint on various grounds. It was submitted that the complainant is bound by the terms on the consignment note whereby the liability of the opposite parties was limited to that of the carriers liability and that the complainant did not declare the contents of the packets and the opposite parties had no knowledge of its contents; as a result of that the packet was taken to be of no commercial value. It was pleaded that it was the negligence of the complainant not to have disclosed to the opposite parties the true nature, quality and value of the documents. The complainant according to the opposite parties failed to declare the contents of the packet by providing any invoices or in the alternative stating that packets contained item of value. It was, however, admitted that the complainant had purchased New Zealand Raw Wool from M/s Bloch and Behrens Ltd. and the raw wool was despatched vide invoice No. 4428 dt. 21.3.1988. The packet was delivered to the opposite parties on 9.3.1988 which was to be delivered to the place of destination on 10.3.1988. It was submitted that this appears to be not probable as the goods from New Zealand were despatched 11 days later in spite of the fact that the complainant did not possess the REP licences as the same supposedly were lost due to no fault of the opposite parties. In the version of the case it was also stated that the opposite parties as a gesture of good will offered to pay for reconstruction charges of the alleged documents or in the alternative reimburse the complainant for a maximum claim of Rs. 1,000/ -. On behalf of the complainant affidavit of Kalicharan was submitted on 27.11.1990. However, prior to that an affidavit in reply of Shri Nikhil Saxena on behalf of M/s. Blue Dart Courier Service was submitted on 8.11.1990, though the affidavit bears the date October 30, 1990. It was stated on 27.11.1990 that the parties do not want to produce any other evidence. Arguments in the complaint of Mr. M.R. Singhvi, learned Counsel for the complainant and Mr. P. Narula, learned Counsel for the opposite parties were heard on 25.1.1991.

TWO questions arise for determination in this complaint which are: 1. whether the service rendered by the opposite parties to the complainant suffered from any deficiency as envisaged by Sec. 2(1)(g) of the Act? 2. if answer to this question is in the affirmative, whether the complaint suffered any loss on account of the negligence of the opposite parties and if so how much? Re. Q No. 1:

IT is not in dispute that packet for delivery was delivered by the complainant''s Bhadohi office, at Bhadohi on 9.3.1988 and receipt Anx. 4 was issued. That packet was lost and not delivered to the addressee at Bombay. It is not necessary to enquire into the plea of the opposite parties as to the contents of the envelope that was delivered, for, the reason that in the letter dt. 11.4.1988 Shri Vinod Mishra, Area Executive of the opposite parties, informed that packet under DAWB 1809169 dt. 1988 was lost, and the Manager was requested to reconstruct the documents. Assurance was given for the settlement of the claim as per the Rules and Regulations. Letter Anx. 6 which was written by Shri Vinod Mishra to Mr. J.S. Bhati in regard to the claim of M/s. Modern Woollens Ltd. which is dt. 16.4.1988 also make mention of the two licences which were produced by the complainant from M/s. Banaras Beed Mfg. Co. Varanasi after making payment of Rs. 72,050/ -, Number of licences are mentioned in that letter. The complainant has purchased both the licences marked as Anxs. 2 & It is not open at this stage to the opposite parties to contend that they were not knowing the contents of the envelope which was delivered at Bhadohi for being carried over to Bombay for delivery to the addressee. The complainant has hired the services of the opposite parties for consideration for delivery of the packet to the addressee at Bombay for which receipt Anx. 4 was issued by Bbadohi office. The opposite parties undertook to deliver the packet the next day to the addressee which they failed to do. The reason given as appears from the letter Anx. 5 dt. 11.4.1988 is that the Board courier suffered from sudden heart attack and so load bag in which the packet in question was there for being carried was lost on 9.1988. In the version of the case filed on behalf of the opposite parties it has merely been stated that the opposite parties were not negligent in performing the service. To quote from para 4 of the version of the case "The respondent was/is not liable for any act over which it has no control or which was/is an irrestible (?) act of nature. It was an act which could not be prevented and the respondent under such circumstances is not liable to compensate the complainant". Nothing has been stated in the version of the case about the sudden heart attack of the courier on Board. The opposite parties remained satisfied by stating that there was no negligence on the part for performing the service. It is surprising that even the name of the courier on Board has not been disclosed what to speak of filing his affidavit or examine him as a witness in support of the plea that he suffered from sudden heart attack on 9.1988 when he was on Board carrying the load bag containing the packet in question. 9. "Deficiency" has been defined in Sec. 2(1)(g) of the Act. On the facts pleaded which have been substantiated by affidavit of Kalicharan and also the letters of the opposite parties, the service of delivering the packet has not been performed in the manner in which it was expected to be performed. There was, thus, a shortcoming in the performance of the service. It is, therefore, held that the opposite parties were negligent when they failed to deliver the packet to the addressee at Bombay which was lost during the transit. Question No. 1 formulates by us is, thus answered in the affirmative.

AS held by us hereinabove the opposite. parties were negligent in performing the service. Under Sec. 14(1)(d) of the Act, the complainant is entitled to compensation for the loss or injury suffered by it on account of the negligence of the opposite parties. The complainant in para 6 of the complaint has stated that it had suffered the following losses on account of the negligence and non - performance of service by the opposite parties. Cost of both the licences Rs. 72,050.00 Extra payment of Customs duty Rs. 98,250.00 Damage due to loss of interest at 20% Rs. 80,000.00 Rs. 2,50.300.00"

THE complainant has paid Rs. 72,050/ - for obtaining the two licences detailed in para 2 of the complaint from M/s. Banaras Beeds Mfg. Co. Varanasi. The licences were obtained by them for obtaining 6550 kgs of raw wool at Rs. 11/ - per kg. These licences were purchased for taking delivery of the goods without payment of customs duty. As the licences were lost the complainant had to pay Rs. 15/ - per kg for 6550 kg. raw wool while taking delivery from customs. Thus a sum of Rs. 98,250/ - is said to have been paid by the complainant as customs duty for taking delivery of 6550 kg. raw wool. This is established by Anx. 8 and the affidavit of Kalicharan. The complainant has alleged that it had to pay a sum of Rs. 98,250/ - as the two licences were lost. Had the licences been available, the complainant would have obtained the delivery of the goods without payment of the additional amount of Rs. 15/ - per kg. for, it had already paid premium charges on duty for free REP licences at Rs. 11/ - per kg. when it purchased the two licences. The complainant according to it has, thus, been put to a loss of Rs. 98,250/ - which it had to pay on account of the loss of the two licences by the opposite parties and is thus, entitled to this amount. A sum of Rs. 72,050/ - has been claimed which the complainant had paid for the purchase of the licences. It is strange that the complainant has claimed this amount from the opposite parties. The complainant has paid the aforesaid sum for obtaining REP licences and the amount paid was as premium charges on duty free REP licences. Had the licences been not lost, on production of those licences the complainant would have obtained the delivery of 6550 kgs. raw wool. In any view of the matter whether the licences were available for taking delivery or they have been lost, the amount paid i.e. Rs. 72.050/ - as premium charges, the complainant was required to pay, the complainant cannot claim this amount from the opposite parties on the ground that the two licences were lost by the opposite parties in transit. The case of the complainant put at its best as is borne out from the notice Anx. 9 dt. 12.8.1988 which was served by the complainant''s Advocate on the opposite parties was that in the absence of the two licences the complainant had to pay Rs. 15/ - per kg. for 6550 kg raw wool while taking delivery from customs which the opposite parties are liable to pay on account of gross negligence and carelessness of the employees in handling the valued mail. In the notice it was specifically mentioned that the opposite parties are called upon through notice to pay a sum of Rs. 98,250/ - together with interest @ 18% p.a. from 9.3.1988 till the date of payment failing which a suit will be instituted against them. The complainant is entitled only to that amount which it had to pay as the licences were lost. It is not entitled to Rs. 72,050/ - which it paid for the purchase of the two licences. It was submitted on behalf of the opposite parties that their liability does not extend beyond Rs. 1,000/ - for, on the basis of the terms and conditions of the consignment note their liability is limited to the carriers liability which is Rs. 1,000/ -. In the consignment note amongst others it is written that "it should be noted that our liability is limited to the carriers liability." This condition is printed above shippers signatures. A somewhat similar question arose before us in Miss Anupma Bagla v. M/s. Skypack Couriers and Another (Complaint Case No. 48/89 decided on 10.1.1989). There contention was raised that the couriers liability was limited and it could not extend beyond Rs. 1,500/ -. After examining, AIR 1984 Andhra Pradesh 5, 1983 (1) All E.R. 108 at page 117, Chitty on Contracts (Vol. 1) (24th Ed. 1971) page 313 paragraph 677, and (1964) 1 All ER 430 it was held that the complainant is not bound by the printed condition limiting liability in the courier consignment note which is in small print and that the opposite party cannot take advantage of this printed clause regarding limiting of the liability to US $ 100 Rs. 1,500/ - at that time. In this case no material has been placed by the opposite parties that the printed matter relating to the limiting of liability was part of any negotiations. There is no material on record to show that the attention was drawn to the said Clause at or before the time when the packet was booked. It cannot be said that the complainant is bound by the condition of limiting the liability in the courier consignment note. We are firmly of the view that there is no proof that the clause limiting the liability is as a result of negotiated contract and hold that if there is no such contract entered into by both parties, there must be proof that the terms limiting liability which are printed on the courier consignment note were brought to the notice of the person who booked the consignment. Para 41 of A.I.R. 1984 Andhra Pradesh 5 supports the above view. Miss Anupma Bagla''s case (supra) was affirmed by the National Commission vide Appellant M/s. Skypack Couriers Pvt. Ltd. and Another v. Miss Anupma Bagla (First Appeal No. 8/90decided on May 3,1990).

IN the letter dt. 11.4.1988 written by Shri Vinod Mishra to the Manager of the complainant amongst others it was stated that the complainant''s claim will be settled as per the Rules and Regulations of the company. This letter is dated 11.4.1988 but the claim was not settled. It is further borne out from the letter dt. 16.4.1988 (Anx. 6) that after a talk with the person who is a consultant of Import Export licences "it is not so easy to reconstruct the licences." The complainant has alleged that it had paid Rs. 98,250/ - for taking delivery from Customs as the two licences were lost. They are entitled to this amount from the opposite parties.

THE complainant has claimed interest on all the amounts @ 18% p.a. till realisation. The complainant has stated that it had paid the amount of Rs. 98,250/ - to the Customs vide Anx. 8 on 20.5.1988 for taking delivery of 6550 kg. raw wool. In the facts and circumstances of this case the complainants are entitled to interest by way of compensation on the amount paid @ 12% p.a. from the date the complainant paid the amount until realisation from the opposite parties and not more. Interest from 9.3.1988 cannot be awarded on this sum for there as on that the complainant itself paid this amount vide Anx. 8. The complainant has alleged that it has paid the amount of Rs. 98,250/ - @ Rs. 15/ - per kg. on 6550 kg. raw wool. A perusal of Anx. 8 Bill of entry for home consumption shows that the quantity of the total raw wool was 15670 kgs. which was commuted to 16000 total duty paid on the aforesaid quantity of raw wool is Rs. 2,32,450/ -. According to this Rs. 14.83 comes as the duty per kg. Anx. 8 further shows that the assessable value from duty point of view was Rs. 9,27,481/ - which consist of the following items: 1. 20% basic duty Rs. 1,85,496.20 2. 5% additional duty and Rs. 46,374.05 3. Auxiliary duty Rs. 579.67 Total comes to Rs. 2,32,449.92 This has been rounded off to Rs. 2,32,450/ -.

It may be stated here that the complainant had received much more quantity of the raw material other than that was covered by both the licences. Duty recovered from the complainant for the purchase of licence No. 30906274 was for 2274 kg. and licence No. 3096209 for 4276 kg. The total quantity of raw wool covered by both the licences is 6550 kgs. The complainant had to pay the duty on 6550 kg. @ Rs. 14.83 per kg. The complainant has calculated the duty on the quantity of 6550 @ Rs. 15/ - per kg. which comes to Rs. 98,250/ - whereas as per calculation stated hereinabove the duty comes to Rs. 4.83 per kg. and according to that the amount comes to Rs. 97,136.50 which can be rounded off to Rs. 97,137/ -. Thus in all on account of the loss of the packet containing both the licences the complainant had to pay a sum of Rs. 97,137/ - for 6550 kg. of raw wool. This amount the complainant had to pay on account of the negligence of the opposite parties as the packet was lost which contained the two licences. The opposite parties have to reimburse this amount, namely Rs. 97,137/ - to the complainant. The affidavit of Shri Kalicharan which has been submitted on behalf of the complainant shows that the complainant had to pay additional amount on account of Custom Duty amounting to Rs. 98,250/ - but it is entitled to Rs. 97,137/ -.

THE complainant has claimed interest on Rs. 98,250/ - @ 18% p.a. from 9.3.1988. The amount was paid by it for customs on May 20, 1988 as is evidenced by Anx. 8. The complainant is only entitled to interest as compensation from the date of payment i.e. May 20,1988. It is, therefore, ordered that the complainant is entitled to get interest from opposite parties on Rs. 97,137/ - @ 12% p.a. from May 20,1988 until realisation. Besides the interest as compensation as stated above the complainant is not entitled to any other compensation under Sec. 14(1)(d) of the Act. The claim of the complainant is, therefore, allowed to this extent that the complainant is entitled to get Rs. 97,137/ - together with interest by way of compensation @ 12% p.a. from May 20,1988 until realisation. Rest of the claim is dismissed. One month''s time from the date of the receipt of the order by the opposite parties is allowed to them for making payment in accordance with the order, failing which resort will be made to Sec. 27 of the Act.

THE complaint is decided as indicated above. Complaint allowed.