SHREENATH TRAVEL AGENCY vs CHEM

THIS is an appeal by the opposite parties against the order dated 3.1.1997 passed in case No. 137/94 by the District Consumer Disputes Redressal Forum, Indore (for short the ''District Forum'').

FACTS giving rise to this appeal are thus : that the complainant booked consignment for delivering it to the consignee at Ahmedabad on payment of consideration of Rs. 40/- of which a consignment note was issued. The contents of the consignment were not disclosed nor their value. The appellant as the carrier of the goods delivered the consignment to the consignee, who refused to take the delivery stating that this is not the same drum which was booked and handed over to the appellants at Indore. The complainant claimed the amount of Rs. 72,072/- and interest thereon. Thereafter, a complaint was filed under Section 12 of the Consumer Protection Act, 1986 (for short the ''Act'') which was resisted by taking various legal and factual pleas. The District Forum after appreciation of evidence and material on record ordered payment of Rs. 72,072/- with interest thereon from 1.3.1994 at the rate of 18% p.a. to the complainant alongwith the costs of the proceedings of Rs. 500/-. Mr. P.K. Pancholi, learned Counsel for the appellants contended that the consignment booked vide consignment note No. 4080 on payment of Rs. 40/- without disclosing the contents and their value. According to condition No. 1 the appellants would not have accepted the goods of the value more than Rs. 2,000/-. According to condition No. 6 for any type of loss the appellants will not be held liable, (i) any amount exceeding to Rs. 2,000/- for the loss in total, and (ii) Rs. 50/- per kg. maximum upto Rs. 2,000/- whichever is less. On consignment note, it was clearly written "contents not known nor the value of the goods". Conditions printed over-leaf are binding on the parties. Therefore, in view of the decision of the Supreme Court in Bharti Knitting Company v. DHL Worldwide Express Courier Division of Airfreight Limited, II (1996) CPJ 25 (SC), and the decision of Maharashtra State Consumer Disputes Redressal Commission in Indrapuri Express Courier & Ors. v. Modern Agencies, III (1995) CPJ 179 (Maharashtra S.C.), if at all there was liability, it cannot be more than Rs. 2,000/-. It was submitted that allegation made in the complaint and in the defence version requires acute and complicated questions of law and fact, therefore, the District Forum ought to have directed the complainant to approach the Civil Court.

Mr. Rakesh Shukla, learned Counsel for the respondent submitted that the condition is not binding on the complainant as he was not party to the agreement, it is merely a receipt issued to him. Therefore, in view of the decision of the Supreme Court in Hakim Singh v. M/s. Gammon (India) Limited, AIR 1971 SC 740, the complainant was entitled to be compensated by payment of the value of the goods for the non- delivery of the consignment booked.

HAVING heard Counsels for the parties and on going through the record looking to the consignment note wherein the contents of the consignment have not been disclosed nor their value, in view of the specific condition Nos. 6(i) and (ii) in the consignment note, the liability of the appellants would be limited to the extent of Rs. 2,000/- as compensation as held by the Supreme Court in Bharti Knitting Company (supra). Maharashtra State Consumer Disputes Redressal Commission in case of Indrapuri Express Courier and Others (supra), has also expressed the view that in case loss of consignment in transit in the absence of disclosure of the value of the consignment which was also not got insured the liability would be as indicated in consignment note. The decision of the Supreme Court in Hakim Singh''s case (supra), is distinguishable on facts and is of no help to the respondent as in that case it was held that parties cannot by agreement confer jurisdiction on Court not possessed by it under the Code.

IN view of the above, we are of the view that the liability of the appellants would be to the extent of Rs. 2,000/- and Rs. 40/- the luggage charges and interest thereon at the rate of 12% p.a. from the date of booking i.e. 26.11.1993. In the result, the appeal is partly allowed. The order of the District Forum shall stand substituted as indicated hereinabove. However, the appellants shall bear the costs throughout which are quantified at Rs. 1,000/-. Appeal partly allowed.