ONTIME EXPRESS (P) LTD vs HARSTMRON SINGH SANDHU

THIS appeal has been filed by the opposite party against the order of the District Forum-1 dated 4.2.92 by which they have been directed to pay consolidated damages of Rs. 5.000/- to the complainant within a period of one month from the date of the order.

BRIEFLY the facts are that Shri H.S. Sandhu, the complainant, delivered a packet to M/s. On- time Express Pvt. Ltd., which is working as a Courier, on 28.2.90 for delivery to M/s. Adhinath Textile Ltd., Ludhiana. It is alleged that the packet contained share certificates and that it did not reach the addressee, nor it could be traced out. Consequently the complainant filed the complaint for damages to the tune of Rs. 20,000/-. The complaint was contested by the opposite party. They admitted that the packet was delivered to them for carriage to Ludhiana and delivery to M/s. Adhinath Textile Limited. However, their liability was limited to the extent of Rs. 100/- as per printed terms as provided in the conditions printed on the receipt.

The learned District Forum held that the failure on the part of the opposite party to deliver the packet was not due to the reason beyond their control, and that they could not limit their liability to the extent of Rs. 100/- unilaterely. Such a condition tantamounts to unfair trade practice. Therefore, the opposite party should be liable to pay full loss of Rs. 5,000.00 suffered by the complainant on account of deficiency in their service.

THE contention of the learned Counsel for the appellant is that one of the conditions on which the packet was accepted by the appellant for carriage and delivery to the addressee was, that their liability in case of loss or damage of the packet would not exceed Rs. 100/-. Another condition provided that they would not be liable for any loss, mis-delivery, delay or damage to articles, documents etc. sent through them. He submits that in view of the aforesaid conditions if the packet was not delivered to the addressee, the appellant could be held liable only for an amount of Rs. 100/-. We have duly heard the arguments of the learned Counsel for the appellant and the respondent in person. We have given our thoughtful consideration to the argument. The matter does not require any detailed discussion as the National Commission has already decided a similar Case M/s. Skypak Couriers Pvt. Ltd. v. C.E.R.S. & Others, I (1992) CPJ 316 (National Commission). In that case Mr. Faruk Hussain Shaikh respondent No. 2 was representative of Mr. Mussadar Alikhan (for short Mr. Khan) a consumer in this case. Mr. Khan was working as Junior Executive with M/s. Mona Travels Limited at Ahmedabad. He was selected as Jacquard Installation Manager by M/s. Sulzer Nigeria Limited., Lagos (Nigeria), a leading textile group in Nigeria having world wide business. He was required to assume his duty on 6th March, 1990 and his training programme was arranged by his new employers through M/s. Sulzer Brothers Ltd., Switzerland. The training was to be followed by further training in Germany, and thereafter he was to take independent charge of a weaving unit of the said new employer at Lagos, Nigeria. The arrangement for ticket, Visas etc. for Mr. Khan was to be made by the new employers through M/s. Mona Travels, New Delhi. Mr. Khan deposited his passport, Degree Certificates and other testimonials with M/s. Mona Travels for obtaining the visas and air ticket etc.

MR. Khan was to fly on 4th March, 1990 from Ahmedabad to Zurich via Bombay. He instructed M/s. Mona Travels to send his visas, air ticket, passport, original Degree Certificates and testimonials and other relevant documents through the appellant M/s. Skypak Couriers so that he could receive them in time. M/s. Mona Travels sent all the documents through the said Courier on 10th Feb., 1990 to be delivered at Ahmedabad. It was not delivered to the complainant on account of its loss and he left for Zurich on 16th April, 1990. Thereafter, the new employer directed him to join his duty at Nigeria without undergoing training. Mr. Khan through Consumer Education and Research Society respondent No.l filed a complaint against the Skypak Couriers before the State Commission. The State Commission held the Courier liable to pay Rs. 10,000/- as damages on account of loss of salary from March 1990 to 19th April, 1990, Rs. 6,000/- damages for future prospects as he could not undergo training, Rs 4,068/- on account of expenses incurred for obtaining copies of Degree and Rs. 1,000/- as costs to Consumer Education Research Society opposite party No. 2. The Courier came up in appeal before the National Commission which hold that the Courier was liable to pay the damages assessed by the State Commission but it reduced the amount assessed as damages of future prospects from Rs. 6000/- to Rs. 1,000/-. In that case also there was a clause that the complainant according to the terms of the contract was entitled to a maximum of Rs. 100/-, and the documents had been sent without disclosing the contents of the packet. The facts of the present case are similar. In view of the ratio in the above case we are of the opinion that the complainant is entitled to the damages even in excess of Rs. 100/- from the appellant. The next question that arises for determination is to what amount the appellant is entitled to by way of damages. The learned Counsel for the appellant has argued that the amount of Rs. 5,000/- given as damages to the respondent are very high and that much amount should not be awarded to him. We have considered the argument. The respondent has not given the details of the amount which he had to spend for getting copies of the share scrips. Consequently, we think that the respondent will be amply compensated, if he is given an amount of Rs. 2,500.00 as damages. Therefore, we, partly accept the appeal modify the order of the District Forum and grant to the complainant an amount of Rs. 2,500/- as damages. It should be paid within a period of three months. In case the appellant fails to do so, action would be taken against them under Section 27 of the Consumer Protection Act. No order as to Costs. Appeal Partly Allowed.