T.E.MOHAMMED KUNHI vs PROFESSIONAL COURIERS

THIS appeal is directed against the order passed by the District Forum Kasargod in O.P. No. 78/ 96. The complainant is the appellant.

SHORTLY stated, the allegations in the complaint are as follows. On 22.11.1995 the complainant, entrusted the opposite party an envelop containing valuable legal documents and affidavits for the delivery to his Counsel at Delhi for the purpose of filing a revision petition before the Supreme Court. The opposite party failed to deliver the envelop and hence the revision petition could not be filed. The connected matters are pending before the Sub-Court, Kasargod. The complainant alleged that he suffered financial loss of Rs. 1,00,535/- on account of deficiency committed by the opposite party. The opposite party filed a version contending that the consignment originally entrusted was returned with endorsement that the party is not available and though it was again sent it failed to be delivered. The alleged loss is baseless and the opposite party was liable to pay only Rs. 100/- as per the terms set out in the consignment note.

Before the District Forum no oral evidence was taken and only Exts. Al and A3 were marked. It is not disputed that the consignment entrusted was lost. It is the case of the complainant that the consignment contained papers and documents which are valuable to file a revision petition before the Supreme Court and because of the loss of the consignment the petitioner could not file revision petition and he sustained substantial financial loss. Ext. Al is the copy of the receipt obtained by the complainant at the time of entrustment. The District Forum observed that according to both sides terms and conditions are printed on the backside of the consignment, Ext. Al does not contain this section and that was only the photo copy of the front page. It also held that the burden is on the complainant to show what are the terms and conditions. Finally it relied on the decision of the Supreme Court in II (1996) CPJ 25 (SC) where it was stated that when a limited liability is stipulated Courier was liable to pay only that amount. In that view the District Forum passed an order directing the opposite party to pay Rs. 100/- as compensation and cost of Rs. 300/-.

AGGREIVED by the said order this appeal has been preferred. Learned Counsel appearing for the appellant pointed out that in the decision of the Supreme Court which was relied by the District Forum, the consignment note was signed by both parties creating a binding contract and in the instant case there is no meeting of mind between the parties to create a contract as the complainant has not signed the document. The District Forum proceeded on the basis that the burden is with complainant to prove that there are no terms limiting liability. We do not think that this view of the District Forum is correct. There is absolute liability on the Courier and that liability can be restricted by the contract. However the burden is on the person who pleads contract limiting liability to prove the same. There is no such proof in this case. It has been held in number of cases that there must be the meeting of mind between the parties to constitute a binding contract and unless the receipt or consignment note is signed by the consignor it cannot be held that the stipulated limited liability is binding on the consignor. We directed the opposite party to produce the carbon copy of the consignment note to find out whether the document was signed by the complainant. It was produced and it does not contain the signature of the complainant. How- ever learned Counsel submitted that the complainant had notice of the terms limiting liability. But we are unable to accept this contention because there is no evidence to show that the particular condition was brought to the notice of the complainant. In the circumstances we are unable to sustain the order passed by the District Forum. We accordingly allow the appeal and set aside the order of the District Forum holding that there is only limited liability. The District Forum has no occasion to consider the question of compensation. In the circumstances we remit back the matter to the District Forum to decide the amount of compensation to which the complainant is entitled, after giving both parties opportunities to adduce evidence. We direct the parties to appear before the District Forum on 12.12.1997. Appeal allowed. _____________