WONDERCLEAN vs M.SHAJ

THE opposite party in OP No. 285/98 on the file of the Consumer Disputes Redressal Forum, Kozhikode is the appellant.

THE complainant therein approached the District Forum with a grievance that he had entrusted with the opposite party a sari and a shirt for dry cleaning which on return was found to be stained at few places. THE complainant alleged that the same occurred at washing the same by the opposite party, therefore, he wanted a compensation of Rs. 10,000/-. The opposite party in their version denied the allegation that the materials got stained while it was in the custody of the opposite party and sought to maintain, that it got stained when it was being worn by the complainant. Alternatively, it was contended that as per the terms and conditions printed on the receipt, which the complainant accepted by affixing his signature beneath the same, compensation, if at all, payable can only be ten times the washing charges. The complainant gave evidence as P.W. 1 and produced Exbts. P1 and P2. On a consideration of the said evidence the District Forum made a direction to the opposite party to pay an amount of Rs. 4,440/- with interest @ 12% and also costs of Rs. 500/-. The said direction is under challenge in this appeal. At the time of argument the learned Counsel for the appellant produced before us a photo copy of the Exbt. P1.

As regards the case of the opposite party that the material got stained when it was worn by the complainant, the same cannot be accepted, and the District Forum also did not accept the same. The District Forum points out that Exbt. P1 receipt does not mention any stain.

THEN the other question for consideration is, whether the opposite party is bound to pay anything more than ten times the washing charges. The learned Counsel for the appellant submitted that condition No. 4 is unambiguous inasmuch as it limits the liability of the opposite party by stating that in any case the compensation shall not exceed ten times the charge for laundering the cloths. There is a further statement in that Clause 4 to the effect that when compensation of ten times the laundary charge is paid, the damaged piece would become the property of the company. The appellant has filed a memo stating that no claim will be made by the appellant regarding the saree and shirt, and the complainant can retain the possession of the same irrespective of the result of the appeal. The only question now arises is the effect of the said Clause 4 in Exbt. P1. As the saree is found to be stained particularly in the context of the evidence of P.W. 1, the complainant, the District Forum in interpreting Clause 4 is of the view that the said clause does not in any way bar the complainant from claiming compensation from the opposite party for mental agony. Thus the District Forum found, on account of the condition in Exbt. P1 on payment of ten times the laundary charges the material became the property of the opposite party, the said clause cannot affect the claim of compensation for mental agony. The learned Counsel for the appellant maintained, that such an interpretation is not possible, he relied on the decision of the National Commission in Airpak International Pvt. Ltd. v. K.P. Nanu & Anr., III (1996) CPJ 156 (NC). There, the matter arose with respect to the liability of the courier. The material sent through it did not reach the addressee, District Forum awarded compensation of Rs. 20,000/- though in appeal the same was reduced, the opposite party filed revision before the National Commission. The National Commission adverted to the decision of the Supreme Court in Bharati Knitting Company v. DHL Worldwide Express Courier Division of Airfrieght Ltd., II (1996) CPJ 25 (SC), and the Commission''s earlier decision in CI (1994) CPJ 52 (NC), and came to the conclusion that the State Commission was not justified in awarding compensation for deficiency in service beyond Rs. 100/-. There the condition limited the liability to a maximum of Rs. 100/- per consignment. The National Commission observes in para 4 of the said decision : "The State Commission as well as the District Forum have acted against the principles of law laid down by this Commission and upheld by the Supreme Court that the award of the amount for deficiency in service on the part of a courier is limited to the extent of liability undertaken by the courier". Though the matter arose with reference to a courier, the principle of law laid down therein is applicable to the facts of this case, the common feature being there is a clause limiting liability below which the respondent has affixed his signature. The State Commission, Chandigarh in Herman Mit Singh v. Speedman Express & Anr., II (1999) CPJ 216=1999 (2) CPR 46, interpreted a similar clause limiting the liability to Rs. 100/- per consignment and held that the compensation could not exceed Rs. 100/-. The District Forum itself has taken notice of Clause (4) in Exbt. P1, but proceeded to hold, that the said clause cannot bar the complainant for claiming compensation for mental agony. This aspect also has to be answered in the context of the decision in Airpak International Pvt. Ltd. v. K.P. Nanu & Anr. (supra), referred to early. Therein the consignment was the ashes of the deceased wife of the complainant which was sent through the courier for immersion in the Ganga after performance of the last rites. But the consignment never reached the consignee. The complainant alleged that the mortal remains of his wife are priceless, as the loss of the ashes caused mental agony and pain the complainant has claimed a compensation of Rs. 50,000/-. But the compensation was limited to Rs. 100/-

THE facts of the case therein is such that there could be no doubt that the complainant therein could have had undergone mental agony on account of the loss of the ashes of his deceased wife. Inspite of that the compensation was limited to Rs. 100/-. In view of the above the impugned order has to be modified by limiting the compensation to Rs. 440/- only, consequently the appeal has to be allowed. In the result, the appeal is allowed; the impugned order is modified to the effect that the opposite party/respondent is liable to pay compensation of Rs. 440/-. In this appeal there will be no order as costs. Appeal allowed.