State Consumer Disputes Redressal Commission
Blue Dart Express vs Jagdish Kaur And Another on 23 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.487 of 2006
Date of institution: 28.03.2006
Date of decision : 23.05.2011
Blue Dart Express Ltd., Plot No.8 Balaji Estate, Kalkaji, New Delhi - 110019
through its Manager/authorised signatory.
.....Appellants
Versus
1. Smt.Jagdish Kaur w/o Late Sh.Joginder Singh R/o Village & Post Office
Satnaur, Tehsil Garhshankar, District Hoshiarpur.
2. The Manager, Blue Dart-cum-DHL Express Limited, Near (Indian Bank),
Bus Stand, Hoshiarpur.
.....Respondents
First Appeal against the order dated 08.02.2006
passed by the District Consumer Disputes
Redressal Forum, Hoshiarpur.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Mr.Baldev Singh Sekhon, Member Present:-
For the appellant : Sh.Sanjay Judge, Advocate
For respondent No.1 : Sh.H.K.Aurora, Advocate
For respondent No.2 : Ex parte
JUSTICE S.N.AGGARWAL, PRESIDENT
Respondent No.1 (in short "the respondent") had booked on behalf of her father-in-law Pritam Singh the marriage items/articles with the appellants at Hoshiarpur. The booked articles consisted of ladies suits with Dupattas 6 in numbers, Pagdi 1, two sarees with blouses, kaleera and gane and two chunnis and artificial jewellery, the total value of which was Rs.33,035/-. These articles were the marriage gifts and the marriage was to take place in England. The parcel was given to respondent No.2 on 27.4.2005 at Hoshiarpur and it was to be delivered by the appellants to Surinder Singh Gill, 327, Chester Road, Bold Mere, Sutton, Cold Field, Birmingham B 735 BL (U.K.) (Phone/Fax/E-mail 01213941507). The First Appeal No.487 of 2006 2 courier bill number of the respondent was 131 4456 566 and account number was 53051111-I. The appellants had charged a sum of Rs.7600/- from the respondent at Hoshiarpur in lieu of courier services. However, this parcel was not delivered by the appellants to the addressee. The respondent had also spent an amount of Rs.2000/- on telephone charges to confirm the delivery etc. The respondent also visited the office of the appellants at Hoshiarpur and requested many times to them to ensure the delivery of the parcel to the addressee but the appellants failed to do so. Hence, the complaint for recovery of Rs.42,635/- with interest @ 12% p.a. The earlier amount of Rs.16,100/- with regard to the deficiency in service committed by the appellants on 19.5.2003 was also claimed. Compensation, interest and costs were also prayed.
2. The appellants filed the written reply. It was pleaded that the respondent was not a consumer of the appellants. There was no privity of contract between the parties. The complaint was baseless and frivolous. False allegations were made. Otherwise also, the claim was exaggerated and the liability of the appellants was limited to 200 USD. Dismissal of the complaint was prayed.
3. The respondent filed her affidavit Ex.C1. She also proved documents Ex.C2 to Ex.C10 and Annexure C1 to Annexure C3. On the other hand, the appellants filed the affidavit of Sundeep Arora, Manager (Legal & Contracts), North as Ex.R1.
4. The learned District Forum accepted the complaint vide judgment dated 8.2.2006 with compensation amount of Rs.8000/-. The appellants were directed to make the payment of Rs.42,635/- to the respondent with interest @ 9% p.a.
5. Hence, this appeal.
6. The submission of the learned counsel for the appellants was that the appeal be accepted and the impugned judgment dated 8.2.2006 be set aside. Written arguments were also filed on behalf of the appellants. Reliance was placed on the judgment reported as "Bharati Knitting Company v. DHL Worldwide First Appeal No.487 of 2006 3 Express Courier Division of Airfreight Ltd., AIR 1996 SC 2508", "M/s Blue Dart Courier Service and another v. M/s Modern Wool Ltd., (1993) 3 CPJ 308 (NC)", "Airpak International Pvt. Ltd. v. K.P.Manu 1997 (1) CPR 15 (NC)" and "M/s Airpak Couriers (India) Pvt. Ltd. v. S.Suresh (1994) 1 CPJ 52 (NC)".
7. On the other hand, the submission of the learned counsel for the respondent was that there was no merit in the present appeal and the same be dismissed with heavy costs. Reliance was placed on the judgments of the Hon'ble National Commission reported as "Sudhir Deshpande v. Elbee Services Ltd., Bombay, 1993 (3) CPR 32" and "Tata Chemicals Ltd., v. Skypak Couriers Pvt. Ltd., II (2002) CPJ 24 (NC)".
8. Record has been perused. Submissions have been considered.
9. The version of the respondent was that she had booked one parcel with the respondents on 27.4.2005 from Hoshiarpur and it was to be delivered by the appellants in Berminghom (U.K.). The appellants had charged a sum of Rs.7600/- from the respondent as courier charges. It is really shocking that instead of admitting the facts pleaded by the respondent, the appellants took the plea that the allegations made in the complaint were baseless, false and incorrect. It was also denied if there was any privity of contract between the parties. It means, therefore, that the appellants had flatly denied if any parcel was handed over to the appellants by the respondent for onward delivery in Bermingham (U.K.). To prove her version, the respondent has not only filed her affidavit Ex.C1 but she has also proved the shipment air waybill dated 27.4.2005 as Ex.C2 by which an amount of Rs.7600/- was paid by the respondent. In this way bill Ex.C2, the name of Pritam Singh is mentioned as the sender and the name of Surinder Singh Gill of Bermingham is mentioned as the name of the person who was to receive it in U.K. The details of the articles sent through this bill are also mentioned. The number of the air way bill is mentioned as 131 4456 566.
10. Since the addressee had not received this parcel which was handed over by the respondent on behalf of her father-in-law Pritam Singh, the respondent First Appeal No.487 of 2006 4 had sent the letter to the appellants. It was duly replied by the appellants vide their letter dated 30.5.2005 Ex.C3. The appellants made reference to this airway bill No.131 4456 556 dated 27.4.2005 and informed the respondent that they had taken note of the said claim. The appellants wanted sometime to inform the respondent about the outcome. The appellants also assured the respondent of their best services and also informed her that if she needed further clarification, she could contact their Centralized Customer Service on telephone No.011 5159 1234. It was duly signed by Abhijit Kumar Ghosh, Manager-cum-Customer Service and its copy was sent to the office at Noida for information of Sukhwinder Singh, General Manager.
11. Inspite of that, the appellants failed to locate the parcel and the appellants again wrote letter dated 11.6.2005 Ex.C4 to the respondent in continuation of their earlier letter dated 30.5.2005 and they offered to refund 200 USD for the said shipment as full and final settlement as this was the maximum amount qua their own responsibility.
12. The appellants also submitted apology for the inconvenience caused to the respondent and also told the respondent that the loss does not happen all the time and it was not a normal occurrence in the high levels of the service Blue Dart provides to its esteemed customers.
13. Instead of admitting in the written reply having accepted the parcel from the respondent and having sent the same through airway bill No.131 4456 566 dated 27.4.2005 and even after admitting their failure in delivering the parcel to the addressee, the appellants have dared to deny in the written reply that the allegations made in the complaint were totally false. This is the height of deficiency in service committed by the appellants. Rather the appellants have rubbed salt on the wounds of the respondent by denying all the facts pleaded by the respondent in the complaint which stand proved by the own documents of the appellants.
First Appeal No.487 of 2006 5
14. The appellants have also the temerity to allege that the respondent was not a consumer qua them even after admitting in their own documents that they have failed to deliver the parcel to the addressee and even the appellants had offered the compensation amount to the respondent. Therefore, the deficiency on the part of the appellants is writ large.
15. The learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court reported as "Bharati Knitting Company v. DHL Worldwide Express Courier Division of Airfreight Ltd., II (1996) CPJ 25 (SC)"
in support of the submission that the liability of the appellants was limited to 100 USD.
16. This submission has been considered.
17. In the facts of the reported judgment, there was not only written agreement between the parties but it was also signed by the complainant and it was held by the Hon'ble Supreme Court in those facts that the person who signs the document containing contractual promise is normally bound by them even though he has not read them and even though he is ignorant of their precise legal effect. However, this judgment is not applicable to the facts of the present case for the simple reason that the respondent had given the parcel to the appellants and no written agreement has been placed on the file by the appellants by which their liability is limited or which was allegedly signed by the respondent.
18. Since there is no written agreement between the parties in the present case, therefore, the appellants cannot avail any benefit from the judgment of the Hon'ble Supreme Court in Bharati Knitting Company's case (supra).
19. On the other hand, the judgment of the Hon'ble Supreme Court in Bharati Knitting Company's case (supra) helps the respondent. It was observed by the Hon'ble Supreme Court as under : -
"4. It is true that the Act is a protective legislation to make available inexpensive and expeditious summary remedy. There must be a finding that the First Appeal No.487 of 2006 6 respondent was responsible for the deficiency in service, the consequence of which would be that the appellant had incurred the liability for loss or damages suffered by the consumer due to deficiency in service thereof."
20. In the present case, even the items are specifically mentioned in the airway bill dated 27.4.2005 (Ex.C2) and the service charges to the tune of Rs.7600/- are also specifically mentioned. There is no merit in the submission of the learned counsel for the appellants that the liability of the appellants is limited.
21. Admittedly, the respondent had given the parcel to the appellants and the appellants had got it booked with DHL Express. Reference has been made by the learned counsel for the appellants to the conditions printed on the backside of the waybill (Ex.C2) but even these terms and conditions are in small and fine print.
22. The DHL Express was the agent of the appellants. Therefore, the terms and conditions of the shipment Airway bill Ex.C2 are not binding on the respondent.
23. Moreover, the judgment of the Hon'ble Supreme Court in Bharati Knitting Company's case (supra) was discussed by the Hon'ble National Commission in the judgment reported as "Tata Chemicals Ltd. v. Skypak Couriers Pvt. Ltd., II (2002) CPJ 24 (NC)" and it was held as under : -
"When there is a condition in a contract signed by both the parties that condition printed in small and fine prints is meant to limit the liability of one of the parties. It should be construed strictly. Small and fine print should be clearly discernible and should draw the pointed attention of the consumer. Directives of the European Commission provide that a contractual term which has not been individually negotiated shall be First Appeal No.487 of 2006 7 regarded as unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer."
24. So far as the present case is concerned, the appellants have nowhere shown any document entered into between the appellants and the respondent which limits the liability of the appellants. The appellants have no doubt stated in their letter dated 11.6.2005 (Ex.C4) that their liability was limited only to 200 USD but they have failed to prove any document to show if it was specifically brought by them to the notice of the respondent.
25. The appellants have not only committed deficiency in service by not delivering the packet but they also deserved to be prosecuted for making false averments contrary to the contents of their own documents sent by them to the respondent.
26. In a case where the transporter had failed to deliver, the laptops (computers), the Hon'ble National Commission had directed the transporter to pay the costs of computers along with interest and costs in the judgment reported as "Sai Transport and Courier Private Limited v. Rupesh Kumar and others, 1(2008) CPJ 167". Where the conditions on the reverse side of the receipt were in small prints and were not explained, the Hon'ble National Commission had enhanced the amount of compensation in the judgment reported as "Osuri Devendra Phankar v. Desk to Desk Couriers & Cargo Ltd., III (2003) CPJ 160 (NC)"
27. In view of the discussions held above, we find no merit in the present appeal and the same is dismissed with costs of Rs.20,000/-.
28. The appellants had deposited an amount of Rs.25,318/- with this Commission at the time of filing of the appeal on 28.3.2006. This amount of Rs.25,318/- with interest accrued thereon, if any, be remitted by the registry to First Appeal No.487 of 2006 8 Jagdish Kaur respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
29. The interest on the amount of Rs.25,318/- shall stop running with effect from the date the appellants had deposited the same in this Commission. Interest on this amount of Rs.25,318/- shall be what has accrued on this amount when it remained deposited by this Commission in the Bank.
30. Remaining amount shall be paid by the appellants to the respondent within a period of one month after the receipt of a copy of this order, failing which, the appellants would be liable to pay interest on the amount of costs also.
31. The arguments in this appeal were heard on 13.05.2011 and the order was reserved. Now the order be communicated to the parties.
32. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (AMARPREET SHARMA) MEMBER (BALDEV SINGH SEKHON) MEMBER May 23, 2011.
Paritosh