State Consumer Disputes Redressal Commission
M/S Mahek Agency vs M/S Shree Sai Surgicals on 21 October, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 03 / 2009
M/s Mahek Agency
1st Floor, Drona Complex
10/6, Raipur Road, Dehradun
......Appellant / Opposite Party
Versus
M/s Shree Sai Surgicals, Shop No. 7
Madan Market, Karanpur, Dehradun
through its Proprietor Sh. S.C. Hira S/o Professor B.R. Hira
R/o 4/6, E.C. Road, Dehradun
......Respondent / Complainant
Sh. M.K. Kohli, Learned Counsel for the Appellant
Ms. Anupama Gautam, Learned Counsel for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 21/10/2010
ORDER
(Per: Justice Irshad Hussain, President):
Appellant, a courier service agency, was the opposite party in consumer complaint No. 85 of 2005. The District Forum, Dehradun vide order dated 08.12.2008, awarded compensation of Rs. 10,000/- with interest @9% p.a. from the date of filing of the consumer complaint till payment to the complainant, on the premise that the appellant made deficiency in service on account of the consignment entrusted to it for delivery to the addressee, had been lost in transit.
2. The complainant has put up the case that the packet entrusted to the appellant contained Renal Dilator Set used in Urological Surgery, costing Rs. 10,000/- and the same had been lost in transit, for which the courier service agency was responsible. Claim was laid for 2 compensation, but the appellant paid no heed, hence consumer complaint was filed for compensation of Rs. 10,000/- with interest, to be paid by the appellant.
3. The consumer complaint was contested mainly on the grounds that the complainant has not got the packet insured; that the complainant has not disclosed the contents of the packet as well as the value of the same; that in the consignment note, it was clearly mentioned that in case the packet is lost in transit, the total liability of the courier service agent will be Rs. 100/- only and that the complainant was, in any case, not entitled to compensation more than the said amount.
4. The District Forum did not accept the contention of the appellant and in view of the invoice of the purchase of the article for sum of Rs. 10,000/-, found it just and proper to award compensation of Rs. 10,000/- with interest to the complainant, on the premise that the consignment was lost in transit on account of deficiency in service on the part of the appellant.
5. Having considered the submissions of the learned counsel for the parties in the light of the facts and legal aspects of the case, we may state at the outset that the District Forum was not factually and legally justified to award compensation more than the liability of the appellant, as has been indicated in the consignment note when the complainant booked the consignment for being sent to the addressee.
6. The reasons for the aforesaid decision are that the complainant in his affidavit, has not controverted the contention of the appellant that at the time of booking of the consignment, the complainant has neither disclosed the contents of the packet, nor the value of the 3 packet to the appellant. Further, it has also not been disputed that the consignment note clearly mentioned that in case the packet is lost in transit, the total liability of the appellant will be Rs. 100/- only. Considering these peculiar aspects of the matter, the District Forum was not at all justified to accept the claim of the complainant, on the assumption that a duty lay upon the appellant to call upon the complainant to disclose the value of the packet at the time of booking of the consignment. The complainant deals in surgical products and while booking the consignment, must have been aware that option was available to it to disclose the value of the packet to the appellant and also to have it insured and having not done so, it was not proper on the part of the District Forum to say that the appellant was duty bound to call upon the complainant to disclose the value of the packet. On that basis, it was also not justified to award compensation of Rs. 10,000/- to the complainant, when it was not in dispute that the consignment note clearly mentioned that in case the packet is lost in transit, the liability of the appellant will not exceed Rs. 100/-. It is not the case of the complainant that the consignment note contained terms and conditions in small and fine print and for that reason, it was not in the knowledge of the complainant that in the event of loss of the packet in transit, the liability of the appellant will not exceed Rs. 100/-. In the face of this situation, we don't think that the complainant would get any benefit from the decision of the Hon'ble National Commission in the matter of Tata Chemicals Ltd. Vs. Skypak Couriers Pvt. Ltd.; 2002 (2) CPC 107, more so, when the Hon'ble Apex Court in the case of Bharati Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.; II (1996) CPJ 25 (SC), has clearly laid down that in the event of deficiency in service of the courier, the liability of the courier was limited to the extent of the amount mentioned in the consignment note and in the case in hand, not more than Rs. 100/- only. Similar view 4 was also taken earlier by the Hon'ble National Commission in the case of Airpak Couriers (India) Pvt. Ltd. Vs. S. Suresh; I (1994) CPJ 52 (NC), also pressed into service on behalf of the appellant. The decision of the Hon'ble National Commission has also rightly been followed by Maharashtra State Consumer Disputes Redressal Commission, Bombay in the case of Indrapuri Express Courier and others Vs. Modern Agencies; III (1995) CPJ 179, fixing the liability of the courier to Rs. 100/-, mentioned in the consignment note on account of loss of the consignment in transit and the compensation awarded by the District Forum in excess of the agreed amount was, thus, directed to be reduced accordingly.
7. In view of above discussion, this appeal succeed partly and is to be allowed accordingly.
8. Appeal is partly allowed. Order impugned dated 08.12.2008 of the District Forum is modified and the appellant is directed to pay sum of Rs. 100/- only to the complainant - respondent together with interest @9% p.a. from the date of filing of the consumer complaint, i.e., 24.06.2005 till payment. No order as to costs.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE IRSHAD HUSSAIN) K