State Consumer Disputes Redressal Commission
D.T.D.C. Courier vs C.G.Services Bhilai on 21 March, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2015/515
Instituted on : 27.10.2015
D.T.D.C. Courier,
Power House Chowk, Power House,
Bhilai, District Durg ... Appellant.
Vs.
C.G. Services, Bhilai,
Through : Prop. Smt. Ritu Agrawal,
W/o Shri Alok Agrawal, Age 43 years,
R/o : 7, Shopping Complex, Nehru Nagar,
Bhilai, District Durg (C.G.) ...Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Vinod Kumar Pradhan, for the appellant.
Shri Nand Kumar Sahu, for the respondent.
ORDER
Dated : 21/03/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 25.08.2015, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Complaint Case No.C.C./2014/67. By the impugned order, the District Forum, has allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as under :-
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(a) To pay a sum of Rs.30,000/- (Rupees Thirty Thousand Only), which is cost of the goods booked.
(b) If the above amount is not paid by the appellant (O.P.) to the respondent (complainant) within stipulated time, the appellant (O.P.) will be responsible to pay interest @ 9% p.a. on the above amount from the date of order till date of payment.
(c) To pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards compensation for mental agony to the respondent (complainant).
(d) To pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation to the respondent (complainant).
2. Briefly stated, the facts of the complaint of the respondent (complainant) are that on 15.04.2013 three Camera valuing Rs.30,000/- were booked by the respondent (complainant) with the appellant (O.P.) through courier from Bhilai (C.G.) to Ahmedabad (Gujarat) and the delivery was to be given at Ahmedabad (Gujarat). The appellant (O.P.) received charges to the tune of Rs.170/- for the same and issued receipt No.M869113438 in favour of the respondent (complainant). The appellant (O.P.) assured the respondent (complainant) that the booked goods will reach it's destination within 3 days, but the above courier packet, has not been reached to Ahmedabad till the date. The respondent (complainant) gave intimation to the appellant (O.P.) regarding non-delivery of the goods // 3 // sent through courier, but the appellant (O.P.) did not give any information to the respondent (complainant). The appellant (O.P.) received a sum of Rs.170/- as charges for delivering the goods in Ahmedabad, but till the date the appellant (O.P.) did not deliver the goods at its destination. The appellant (O.P.) committed deficiency in service because in spite of receiving charges did not deliver the goods at the destination. The respondent (complainant) requested the appellant (O.P.) several time from 15.04.2013 till date but the appellant (O.P.) did not return the goods and also did not deliver the goods at the destination. Vide letter dated 16.06.2013, the respondent (complainant) sought information regarding the goods booked and demanded to deliver the same at the destination, but the appellant (O.P.) did not give reply to the above letter. Hence, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The appellant (O.P.) filed its written statement and averred that as per rules and conditions, at the time of booking goods through courier, the consumer is required to disclose the particulars and price of the booked goods. The respondent (complainant) suppressed this fact. The respondent (complainant) did not disclose the above fact to the appellant (O.P.), therefore, the appellant (O.P.) is having no responsibility. In the DTDC rule and condition No.17, it has been // 4 // clarified that during carrying the goods, if any loss is occurred, then there is no responsibility of the D.T.D.C. Courier. According to point No.15 in case of mis-delivery or damage to the goods or loss and if there is any responsibility of the courier, then it is maximum upto Rs.100/- with a condition if the sender declared value of the goods more than Rs.100/-. The respondent (complainant) did not disclose the particulars and price of the goods booked at the time of booking, therefore, the appellant (O.P.) is not liable to pay any compensation to the respondent (complainant) and the complaint is liable to be dismissed.
4. The respondent (complainant) filed documents. Document A-1 is letter dated 16.06.2013 sent by the respondent (complainant) to the appellant (O.P.), A-2 is receipt dated 15/04/2013 issued by the appellant (O.P.) in favour of the respondent (complainant), A-3 is Debit Note dated 03.07.2013.
5. The appellant (O.P.) has filed document Annexure NA-1 which terms and conditions .
6. Earlier the District Forum vide order dated 24.06.2014 has allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as mentioned in para 7 of the above order. The appellant (O.P.) filed Appeal No.FA/14/509 against the above order // 5 // before this Commission. This Commission vide order dated 11.03.2015 allowed the appeal and remitted back the case to the District Forum to decide the complaint on merits.
7. After remand of the case, learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as mentioned in para 1 of this order.
8. Shri Vinod Kumar Pradhan, learned counsel appearing for the appellant (O.P.) has argued that the impugned order passed by the District Forum is contrary to law and is liable to be set aside. The respondent (complainant) has not been able to prove his case. The respondent (complainant) has not filed any document which shows that the price of the booked goods was worth Rs.30,000/-. The respondent (complainant) did not disclose the particulars and price of the booked goods and the appellant (O.P.) has received only a sum of Rs.170/- towards charges from the respondent (complainant). The receipt issued by the appellant (O.P.) did not mention the price of the goods booked as well as the particulars of the goods booked. If the respondent (complainant) would have declared the value of the goods booked, then the appellant (O.P.) did not book the same because according to terms and conditions, the value of the consignment under the consignment notes should not exceed Rs.5,000/-. It appears that // 6 // the respondent (complainant) did not disclose the value of the goods booked, therefore, the respondent (complainant) is not entitled to receive any compensation from the appellant (O.P.). The impugned order passed by the District Forum, is erroneous and is liable to be set aside.
9. Shri Nand Kumar Sahu, learned counsel appearing for respondent (complainant) has supported the impugned order passed by the District Forum and has argued that the impugned order passed by the District Forum is based on material available on record before it. The impugned order does not suffer from any illegality, irregularity, therefore, it does not call for any interference by this Commission and the appeal filed by the appellant (O.P.) is liable to be dismissed.
10. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
11. Earlier the District Forum vide order dated 24.06.2014 has allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as mentioned in para 7 of the above order. The appellant (O.P.) filed Appeal No.FA/14/509 against the above order before this Commission. This Commission vide order dated // 7 // 11.03.2015 allowed the appeal and remitted back the case to the District Forum. This Commission observed thus :-
"10- vr% vihykFkhZ dh vksj ls lafLFkr vihy Lohdkj fd;k tkrk gS A ftyk Qksje }kjk ikfjr vkyksP; vkns'k fnukad&24-06- 2014 fujLr fd;k tkrk gS vkSj ;g izdj.k ftyk Qksje dks bl funsZ'k ds lkFk izfrizsf"kr fd;k tkrk gS fd vihykFkhZ ftyk Qksje ds le{k ftyk Qksje }kjk nh xbZ frfFk ij viuk fyf[kr dFku ,oa nLrkost izLrqr djsaxs A vihykFkhZ dks ;g Hkh funsZf'kr fd;k tkrk gS fd ftyk Qksje }kjk tks frfFk fu;r dh tkosxh] mDr frfFk ij og vko';d :i ls fyf[kr dFku izLrqr djsxk vkSj ;fn vihykFkhZ }kjk ftyk Qksje }kjk fn;s x;s frfFk ij fyf[kr dFku izLrqr djus esa pwd djrs gSa] rks mldk fyf[kr dFku izLrqr djus dk volj lekIr gks tkosxk A vihsykFkhZ }kjk fyf[kr dFku ] nLrkost izLrqr djus ds i'pkr~ ifjoknh dks Hkh [k.Mu esa nLrkost izLrqr djus dk volj iznku djsaxs A rR'pkr~ mHk;&i{k dks lquokbZ dk volj nsdj izdj.k dk xq.k&nks"k ij fujkdj.k djsaxs A i{kdkjksa dks funsZf'kr fd;k x;k fd os fnukad&30-03-2015 dks ftyk Qksje nqxZ ds le{k mifLFkr jgsa A ftyk Qksje ds ewy vfHkys[k dks okil Hkstk tkos A vihy dk O;; i{kdkj viuk&viuk ogu djsaxs A"
12. The respondent (complainant) filed document A-1, which is photocopy of Receipt No.M86911343 dated 15.04.2013 issued by DTDC Courier & Cargo Limited. In the said document, the value of the goods booked and particulars of the goods books have not been mentioned. Only the amount which was received as freight charges // 8 // i.e. Rs.170/- is mentioned in the column of total amount. In the terms and conditions, it is mentioned thus :-
"No claim shall be entertained by DTDC for any loss or damage, non- delivery, breakage, leakage, pilferage etc. Of the shipment unless a written claim is lodge within 30 day from the date of booking subject to having paid risk surcharge of 2% on declared / invoice value. Consignment should be insured by consignor or can be carried without insurance or under DTDC risk surcharge. If not insured by either of the party, then as per claim policy of the company, the company will be liable to pay maximum up to the sum of Rs.100 only. If insured by consignor COF charge @ 0.2% on invoice /declared value of Rs.25/- whatever is higher is charged. In the absence of insurance cover, the consignor may opt for the DTDC risk coverage policy by paying 2% on invoice value / Declared value Rs.50/- whichever is higher.
Consignment value booked under this consignment note should not exceed Rs.5000/-."
13. In the case of Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 Supreme Court Cases 704, Hon'ble Supreme Court observed thus :-
"6. It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Anson's Laws of Contract, 24th Edn. At p. 152, on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arises : whether the terms of // 9 // the contract were adequately brought to his notice ? The terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the singed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract ? It is true, as contended by M.N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the tribunal has to refer the parties to original civil court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in contract, the parties are bound by the terms in the contract."
14. In the case of Indrapuri Express Courier Pvt. Ltd. vs. Allied Business Corporation, IV (2007) CPJ 165 (NC). Hon'ble National Commission observed thus :-
"3. Submission advanced by Mr. Ajit S. Bhasme for petitioner is that the value of parcel as Rs.42,000 was not pre-declared nor the parcel was got insured for that estimated value by the respondent. Terms contained in the receipt filed along with the affidavit of Shyam Sunder R. Kalantri, Managing Director of petitioner constituted a // 10 // contract between the parties. Liability for loss of the parcel in question under the terms was restricted to Rs.50. In support of the submission, strong reliance was placed on the decision in Bharathi Knitting Company v. DHL Worldwide Express Courier Division of Airfreight Ltd., II (1996) CPJ 25 (SC). Under the said receipt the liability for loss of a booked parcel is limited to Rs.50 only. Said decision supports the submission in regard to the liability of petitioner being restricted only upto Rs.50/- in this case. Amount as awarded by the District Forum includes the value of booked parcel as Rs.42,000 which is to be reduced to Rs.50. Order passed by the State Commission, thus, deserves to be modified to that extent. Interest will be payable on this modified amount. Order accordingly."
15. In the case of M/s. Desk to Desk Courier & Cargo vs. Kerala State Electronics Development Corporation Ltd., 2004 (1) CPR 114 (NC), Hon'ble National Commission has observed that "where printed terms and conditions on consignment note signed by consumer restricted the liability of courier to Rs.100/- per consignment, courier could not be made liable for loss of consignment during transit to any amount more than Rs.100/-".
16. In the instant case, the respondent (complainant) filed document A-2 i.e. booking receipt in which the Consignor Name and Address is mentioned as Chhattisgarh Service and the Consignee Name and Address is mentioned as Neelam Ele. (P) Ltd., Ahmedabad. In the above column against the column of total amount a sum of Rs.170/- has been mentioned. The columns of No. of pcs, Gross Wt.
// 11 // Length x Breadth x Height, Vol. Wt. etc were kept blank and the value of the goods was not mentioned in the booking receipt. Only total amount which has been received by the appellant (O.P.) is mentioned. It appears that the respondent (complainant) has never declared the value of the goods, which were mentioned in document A-3 Debit Note Dated 03.07.2013. Had the goods which were mentioned in the said Debit Note were booked with the appellant (O.P.), then the value of the said goods could have been mentioned in the booking receipt. In the instant case the total value of the parcel was neither declared at the time of booking nor it was insured for the amount claimed by the respondent (complainant), therefore, the respondent (complainant) is only entitled for getting compensation 10 times of the amount which was received by the appellant (O.P.), which comes to Rs.1,700/-.
17. Learned District Forum awarded a sum of Rs.20,000/- to the respondent (complainant) towards compensation for mental agony, which is on higher side. In the instant case, the goods were not delivered to the consignee at its destination, therefore, the respondent (complainant) definitely suffers mental agony. Looking to the facts and circumstances of the case, and the compensation awarded to the respondent (complainant), it is just and proper to award a sum of Rs.10,000/- (Rupees Ten Thousand Only) to the respondent (complainant) instead of Rs.20,000/- (Rupees Twenty Thousand Only), as awarded by the District Forum.
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18. So far as direction of the District Forum regarding payment of cost of litigation Rs.5,000/- (Rupees Five Thousand Only) to the respondent (complainant), it is just and proper and does not call for any interference by this Commission. Therefore, the impugned order passed by the District Forum, is liable to be modified.
19. In view of above discussions, the appeal of the appellant (O.P.) is partly allowed and the impugned order dated 25.08.2015, passed by the District Forum, is modified accordingly. It is ordered to the appellant that the appellant (O.P.) will pay a sum of Rs.1,700/- (Rupees One Thousand and Seven Hundred Only) to the respondent (complainant) as compensation instead of Rs.30,000/- (Rupees Thirty Thousand Only), as directed by the District Forum. The appellant (O.P.) will also pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) to the respondent (complainant) as compensation for mental agony instead of Rs.20,000/- (Rupees Twenty Thousand Only). The remaining part of the impugned order shall remain unaltered. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /03/2016 /03/2016 /03/2016 /03/2016