SKYPAK COURIERS vs UNITED COMMERCIAL BANK

THE opposite Parties appeal.

THE facts of the case are summarily as follows:- THE Complainant sent a sealed cover on 16.2.89 containing Travellers cheques, demand drafts and cheques worth U.S. Dollars 16433.82 through the Opposite Parties for delivery to the French American Banking Corporation, New York, U.S.A. Finding that the consignment did not reach its destination, the complainant entered into correspondence with the Opposite Parties. Since ultimately there was no definite and good response they filed a complaint before the District Forum with the following prayers:- (1) To deliver back to the complainant the sealed cover containing Travellers'' cheques, demand drafts and cheques for the value of U.S .Dollars 13,823.82 entrusted to the Opposite Parties and incase of not delivering the same, to pay compensation equivalent of the Travellers cheques as on date of the order with interest at 21% p.a. on the sum ordered, from the date till realisation; (2) To pay special damages of Rs. 25,000/to the complainant with subsequent interest at21%p.a. from the date of plaint till realisation; (3) To pay Rs. 5,000/as expenses incurred by the complainant, and (4) Costs.

The District Forum after hearing both the parties and examining the documents produced by the complainant ordered as follows:- "The Complainant shall be paid by Opposite Parties 1 to 3 (jointly and severally ) the value of U.S. Dollars 13,823.82 with interest at 12% p.a. thereon, from 16.2.89 till date of payment in full quits together with cost of Rs. 1,000/-. The above said amounts shall be paid within thirty days from the date of receipt of this order."

In other words, the alternative item in the first prayer was allowed with a reduction in the rate of interest. The other prayers were, therefore, dismissed. There is no appeal by the complainant in respect of such dismissal. This appeal by the Opposite Parties is to the effect that the District Forum ought not to have ordered payment of the totality of the value as alleged by the complainant. In this case the fact of entrustment and the fact of non-delivery of the consignment are accepted by both the parties.

THE case of the Appellants is as follows:THE non-delivery is not intentional and it is inherent to the nature of the operations they are carrying on; they are engaged in the transport of light consignments; there is a risk of some items getting lost in the course of transport; for that purpose they have agreed to pay a liquidated damage of 100 dollars; there is an entry to that effect in the courier consignment note handed over to the complainant upon his entrusting the consignment to the couriers. The case of the complainant is that the Opposite Parties were not able to locate the exact point at which it was lost and the fate of the consignment and that therefore they are liable to pay the full amount.

THE main point which arises for our decision is how to determine the amount of compensation in case of non-delivery of consignment entrusted to a regular courier. The value of the consignment may vary considerably from case to case. It may go from a very small amount to a very big one. It may have sentimental value which is difficult to compute in terms of money. It may consist of information and documents like degrees and attestations the loss of which may have an important impact on the life of a person. A courier who is engaged in carrying all sorts of consignments cannot be asked to pay the exact value of the consignment in case of loss. The best course for the courier is to fix the amount of liquidated damage in case of loss. This is what the Opposite Par-ties have done in this case. In the absence of such fixation the Court will fix the average value of the consignment that the courier service is deemed to transport. The National Commission in M/s. Skypak Couriers P. Ltd. v. The Karur Vysya Bank Ltd., I (1994) CPJ 97 (NC) has made it clear that unless the value of the consignment is made known before entrustmant to the courier the courier cannot be saddled with the liablity of the actual value of the contents of the consignment. This is the position of law as it stands at present. So any person sending a consignment higher in value then the liquidated damage will be well advised to insure the consignment. The learned Counsel for the complainant strenuously argued that the Opposite Parties did not take any genuine step to retrieve the consignment when it was found not to have reached the destination, that the complainant could recover only 2610 U.S. Dollars as against 16,433.82 U.S. Dollars which is the value of the consignment. This specific ground was not taken before the District Forum in order to allow the other party to put forth his case. Even otherwise, it is because the Opposite Parties have failed to see that the consignment reached the destination, that we presume deficiency in service which includes any acts of negligence which could have occurred in respect of this particular consignment. The Forum has not asked for any particular item of proof of negligence. It has inferred negligence from the mere fact of ultimate non-delivery. This contention fails.

IT was secondly contended by the learned Counsel for the Complainant that in the case decided by the National Commission the courier was able to locate the exact point where IT was lost, but we failed to see how IT helps the case of the complainant. The decision of the National Commission is not based on the knowledge of the point of loss. The ratio dec-dendi that in the absence of knowledge about the contents of the consignment the courier cannot be saddled wITh the liabilITy of the exact ITem of loss. This contention is also fails.

IT was lastly argued by the learned Counsel for the Complainant that the fate of the consignment even now remains unknown and mysterious, that there is every reason to suspect that the consignment may be in the hand of the courier itself and that this will be a clear case of conversion by detention. If it is so, it is not a case of deficiency of service for which alone the machinery created under the Consumer Protection Act can give relief; the matter will be rather within the province of the Criminal or Civil Courts. If the complainant has got sufficient elements to justify such suspicion it is open to him to move the appropriate Court and this order will not operate as res-judicata, since we have not gone into that matter nor given a finding. With this remark, this contention is repelled. In the result, the appeal is allowed partly. The order of the District Forum is modified as follows:The Complainant shall be paid by the Opposite Parties 100 U.S. Dollars with interest from the date of the institution of the complaint before the District Forum at 12% p.a and at 15% p,a. from one month after the date of the order till full payment. No costs. Appeal partly allowed.