SKYPAK COURIERS P LTD. vs KARUR VYSYA BANK LTD.

THIS is an appeal by the appellant M/s. Skypak Couriers P. Ltd. against the order of the 1st of April, 1992 made by the State Commission of Tamil Nadu in Original Petition No. 108 of 1991. By that order the State Commission held that the appellant was guilty of deficiency in service as well as of negligence which resulted in the loss of consignments containing 61 instruments in the form of traveller cheques and banker cheques. Therefore, it awarded a sum of Rs. 52,000/- being the value of the 40 traveller cheques to the respondent-complainant along with interest at 12% p.a. and a sum of Rs. 5,000/- as damages and Rs. 1,000/- as costs.

THE appellant Courier has challenged the order of the State Commission on the ground that the consignment note filed by the respondent complainant merely described the contents of consignment as "documents". In particular it did not disclose that it contained valuable documents in the form of financial instruments viz. 61 instruments consisting of 56 visa travellers cheques of the value of U.S. $ 50 each and 5 bankers cheques to be delivered to M/s. Manufacturers Hanover Trust Co., New York. This consignment was transported through M/s. Air Canada Airlines and the loss of the consignment came to notice in London. The respondent complainant could reconstruct the 5 bankers cheques and also obtain payment in respect of 16 of the 56 travellers cheques by furnishing indemnity. However, the remaining 40 travellers cheques of the value of U.S. $ 2,000 were encashed by third party agencies who were not entitled to do so. The respondent-complainant thus sustained a loss of the value of 40 travellers cheques. The State Commission came to the finding that the appellant Courier had been guilty of deficiency in service as well as negligence. It rejected the appellant''s plea that the negligence was only on the part of the Airlines and not on its part.

THE State Commission observed that "there is no reason to doubt" that the consignment contained 61 instruments consisting of 56 travellers cheques of the value of U.S. $ 50 each and 5 bankers cheques.

AFTER hearing the parties and going through the records, we find that there is no basis for the finding of the State Commission that the consignment contained 61 instruments as described above. That the consignment contained 61 valuable instruments is based merely on the statement of the complainant who had declared them in the consignment note as mere "documents''''. The respondent consignor had failed to put the appellant Courier on notice regarding the valuable nature of the consignment. The appellant has also pointed out that, as per his notice to the appellant, originally the respondent had claimed a sum of Rs. 36,300/-only as the value of the lost 40 travellers cheques besides interest thereon but eventually the value of the said cheques has been computed as Rs. 52,000/-. There was no satisfactory explanation at the hearing for this discrepancy.

THE appellant has also urged before us that he had advised the respondent Courier as early as on 29th September, 1989 to issue instructions for "STOP PAYMENT" but the respondent Bank did so only after expiry of more than three months on 19th December, 1989.

MORE importantly, according to the appellant the travellers cheques were encashed by the respondent Bank and were sent through the Courier for collection to the Manufacturers Hanover Trust Co., New York. After encashment the cheques were embossed by a special crossing, i.e.) on the face of the instrument and on the back of the instruments these were endorsed in favour of the Manufacturers Hanover Trust Co. According to the appellant the Bankers Trust Co., New York and also Bank of New York collected the cheques : thus Trust and the Bank "has clearly ignored all these endorsements and collected money for some miscreants who seems to have stolen the cover and collected the money fraudulently. We, therefore, find that as collecting the money (Bankers Trust Co., New York and the Bank of New York), you have not acted in the ordinary course of business. You have acted negligently by ignoring the existing endorsement thereby causing loss to our bank (i.e. Karur Vysya Bank) who are lawfully entitled to receive the money". In spite of this the respondent bank has filed a claim for damages against the appellant. The facts as narrated above speak for themselves. The respondent consignor failed to disclose the valuable nature of the contents of the consignment. The loss was caused to him, according to his own statement, directly by the lapse on the part of the Bank of New York, who is not impleaded in these proceedings.

WE , therefore, hold the appellant Courier responsible only for failure to carry the consignment safely and deliver it to the consignee. In the absence of any knowledge about the contents, he cannot be saddled with the liability for loss of its valuable contents. In the circumstances of this case we consider that the ends of justice would be met if the carrier is directed to pay compensation amounting Rs. 2,500/- only to the respondent Bank for loss of the consignment as such.

THE appeal is allowed in part and the order of the State Commission is modified to the extent of reducing the liability of the appellant Courier and fixing it at Rs. 2,500/-as above. The parties will bear their own costs.