Madras High Court
M/S.Skypak Service Specialities Ltd vs M/S.Shaw Wallace & Co.Ltd on 9 July, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 9.7.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.650 of 1991 and Cross-Appeal SR.No.74864/1991 M/s.Skypak Service Specialities Ltd., a Public Limited Company having its Registered Office at 'Skypak House', Marol, Bombay-59 and Area Office at 154/155, K.H.Road, Madras-34. ... Appellant Vs. M/s.Shaw Wallace & Co.Ltd., a Public Limited Company having its office at No.4, Bankshall Street, Calcutta and Branch Office at 154, Thambu Chetty Street, Madras-1. ... Respondent Appeal against the judgment and decree passed by the learned II Addl.Judge, City Civil Court, Madras 11.10.90 in O.S.2077/88. For appellant : Mr.S.Rajendrakumar For respondent : Mr.S.Udayakumar J U D G M E N T
This appeal is focussed as against the judgment and decree dated 11.10.90 in O.S.2077/88 passed by the learned II Addl.Judge, City Civil Court passed as against the sole defendant who is the appellant herein, directing it to pay a sum of Rs.20,894/- to the plaintiff. Cross-Appeal has been filed by the plaintiff animadverting upon the rejection of the remaining part of the suit claim. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
3. The pith and marrow of the case of the plaintiff as stood exposited from the plaint could be portrayed thus:-
The plaintiff entrusted a sealed cover containing two Demand Drafts to the defendant in Madras for being carried and delivered to one Maharashtra Distilleries. It so happened that the cover was not delivered whereupon there were exchange of notices between the parties and ultimately suit was filed claiming damages to the tune of Rs.41,778/-. The damages was quantified by taking into account the interest payable to the addressee M/s.Maharashtra Distilleries Ltd., on account of non-delivery of those two cheques.
4. Denying and impugning, refuting and challenging the allegations/averments made in the plaint, the defendant filed the written statement, the gist and kernel of it would run thus:-
The defendant being a Courier agreed to deliver the cover entrusted to it to the addressee without knowing the contents. However in Ex.A.1, the courier consignee note issued by the defendant to the plaintiff, it is found printed as under:-
"Non-Negotiable consignment note subject to standard conditions of carriage available on request the carrier specifically limits its liability to a maximum of US $ 100.00 per consignment for any cause"
(Emphasis supplied) The defendant therefore is not liable to pay damages over and above US $ 100.00 which is approximately equivalent to Rs.1000/-. It is also the contention of the defendant that the defendant was not aware that the cover contained those two Demand Drafts. Accordingly, the defendant prayed for the dismissal of the suit.
5. The trial court framed the relevant issues. During trial one A.S.Hari was examined on the side of the plaintiff and Exhibits A-1 to A-12 were marked. On the side of the defendant, no oral or documentary evidence was adduced.
6. Ultimately, the trial court decreed the suit directing the defendant to pay a sum of Rs.20,894/- but rejecting the remaining part of the suit claim.
7. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the defendant filed the above appeal on various grounds, the warp and woof of them would run thus:-
Ignoring Ex.A.1 and more specifically the clause restricting the liability of the defendant to pay damages to the plaintiff, the lower court simply decreed the suit mulcting the defendant with the responsibility to pay such a huge sum of Rs.20,894/-. The trial court did not take into consideration the fact that the plaintiff had not produced any modicum or exiguous extent of evidence to prove that the defendant was put on notice about the two demand drafts which were allegedly put inside the envelope.
8. The grounds as found in the Cross Appeal are to the effect that the trial court was not justified in rejecting the remaining part of the claim of the plaintiff even though the plaintiff produced Ex.A.8 and Ex.A.9. Accordingly, the plaintiff prayed for decreeing the suit in toto as prayed in the plaint.
9. The points for consideration are:-
(i)Whether the clause in Ex.A.1 could be taken as one legally operating as against the plaintiff in laying claim as against defendant for damages over and above U.S.$100?
(ii) Whether the trial court was justified in decreeing partly the suit but in rejecting the remaining part of the suit claim?
(iii)Whether there is any infirmity in the judgment and decree of the trial court?
10. Heard both sides, who reiterated their respective grounds of appeal and advanced their arguments.
11. Points 1 and 2 are taken together for discussion as they are interlinked and interwoven with each other:-
The learned counsel for the defendant in support of his contention would cite the following decision reported in 1996(5) Supreme 439 in Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., An excerpt from it would run thus:-
"...3.It is contended by Mr.M.N.Krishnamani, learned senior counsel appearing for the appellant that the Consumer Protection Act, 1986 (for short, the 'Act') is a beneficial legislation envisaged to accord expeditious and inexpensive relief to the consumer;when the Commission gave a finding that there was a deficiency in service, the National Commission was wrong in law to reduce the liability of US $100 contained in the receipt. There is no consensus ad idem between the appellant and the respondent who is a courier vis-a-vis the appellant. Therefore, the National Commission was wrong in awarding deficiency amount only to the extent of US $ 100. He seeks to contend that until there is an agreement by the appellant by consensus ad idem with the respondent for carriage of the invoice with limited liability, it must be presumed that in the event of non-delivery of the cover thereof, the resultant damages must be born by the courier. The State Commission would be entitled to award the difference of the damages to the appellant. The State Commission therefore, was right in awarding the damages. We find no force in the contention. .....
5. 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 page 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 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 signed 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 Mr.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 the contract, the parties are bound by the terms in the contract. The National Commission in the impugned order pointed out as under:
"We have considered the submissions of the counsel for the parties on the facts of the case and having regard the earlier decisions of this Commission. The consignment containing the documents sent in the cover had been accepted by the Appellant and was subject to the terms and conditions mentioned on the consignment note. The Complainant had signed the said note at the time of entrusting the consignment and had greed to and accepted the terms and conditions mentioned therein. Clauses 5 and 7 of the terms and conditions as also the important notice mentioned on the consignment note are reproduced below:
Clause 6:"Limitation of liability: Without prejudice to clause 7 the liability of DHL for any loss or damage to the shipment, which term shall include all documents or parcels consigned to DHL under this Air bill and shall not mean any one document or envelope included in the shipment is limited to the lesser of
(a)US $ 100
(b)The amount of loss or damage to a document or parcel actually sustained or
(c)The actual value of the document or parcel as determined under Section 6 hereof, without regard to the commercial utility or special value to the shipper.
Clause &: Consequent damages excluded :DHL shall not be liable in any event for any consequential or special damages or other indirect loss however arising whether or not DHL had knowledge that such damage might be incurred including but not limited to loss of income, profits interest, utility or loss of market.
Important Notice:By the conditions set out below DHL and its servants and agents are firstly not to be liable at all for certain losses and damages and secondly wherever they are to be liable the amount of liability strictly limited to the amount stated in condition and customers are therefore advised to purchase insurance cover to ensure that their interests are fully protected in all event."
Under clause 5 of the terms and conditions of the contract, the liability of the Appellant for any loss or damage to the consignment was limited to US $ 100. Clause 7 of the contract specifically provided that the liability of the Appellant for any consequential or special damages or any other indirect loss, that may occur including the loss of market or profits etc., was excluded. It is also pertinent to note that despite the advice in the important notice, the Complainant did not disclose at the time of consignment the contents of the cover and also not purchased the insurance cover to ensure that their interests are fully protected in all events."
6. In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission. Shri Krishnamani has brought to our notice that there are number of judgments covering divergent views. In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is contended that besides the amounts awarded by the State Commission, liberty may be given to appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued accordingly to law.
The appeal is dismissed. No costs."
12. A mere perusal of the above judgment would clinchingly highlight that if there is an express clause in the consignment note ; certainly the consignor would be bound by it and over and above that the consignor would not be justified in claiming damages. The trial Court in paragraph 8 and 9 without considering that the plaintiff's liability is restricted only US $ 100 simply held as though the defendant had not proved its case. The above cited precedent of the Hon'ble Apex Court would clearly highlight that the document like Ex.A.1 herein would certainly bind the carrier and the consignor. Ex.A.1 would clearly evince that the relevant clause is found printed in visible letters, which are capable of being read and it is not printed at the back of the consignment note in small letters, incapable of being read. Hence, it is evident that the said clause in Ex.A.1 is binding on both the plaintiff and the defendant. Over and above that, the plaintiff is not justified in claiming damages. At this juncture, my mind is redolent with the maxim In jure, non remota causa Sed Proxima Spectatur ; In law, the proximate and not the remote, Cause is regarded. The defendant being the courier,should not be mulcted with undue responsibility for non-delivery of the cover to the addressee; consequently, the defendant cannot be compelled to pay amounts towards monetary loss which was incapable of being foreseen by it at the time of accepting the cover from the plaintiff for delivery. If it is adjudged otherwise, then no courier would be able to carry on with its business with reasonable profit. Hence, in this view of the matter, I am of the considered opinion that the trial court misdirected itself and decreed the suit for such an amount without appreciating the restrictive clause limiting the liability of the defendant upto US $ 100 in Ex.A.1. As such, there is no merit in the cross-appeal.
13. The learned counsel for the defendant would also cite one other decision rendered by NCDRC, New Delhi reported in 1995(1) Bom.C.R.(Cons.)10 in Airpak Couriers (India) Pvt.Ltd., vs. S.Suresh. An excerpt from it would run thus :-
"...4. After taking evidence the State Commission held that it was a clear case of deficiency on the part of the appellant. Taking into account that the value of the orders lost in the above-mentioned courier parcel was alleged to be Rs.50,00,000/- and that the respondent would have gained a commission of RS.80,000/- if the consignment had been duly received and that the complainant must have been subjected to the mental agony ensuing from this loss, the State Commission granted Rs.1,00,000/- as compensation to the respondent-complainant plus Rs.500/- as costs and refund of Rs.15/- being the freight charges collected within one month from the date of receipt of the order.
5. In appeal, the appellant has submitted that as per the consignment note the said Quality Tubes and Capillaries Pvt Ltd., had agreed to the Terms and conditions that the liability of the courier service is limited and restricted to the extent of Rs.100/- only. Further, as per the I.A.T.A. Regulations, no important documents were to be sent through courier service. A specimen copy of the consignment note was filed and marked herein as Annexure A. The contention of the appellant is that since the consignment was lost in transit, it is liable to the extent of Rs.100/- only as damages. Moreover, the parties are bound by I.A.T.A. Regulations which prohibit sending of important papers Then again the consignor is bound to disclose the nature of contents before sending the consignment. Later on, after the consignment is lost in transit, a claim cannot be made that there were very important documents in it, the declared value of which was not specifically put down in the column assigned for it in the courier consignment note beside the column 'description of contents'.
6. During the hearing the counsel for the complainant-respondent was unable to specify the important documents in the consignment. The performance report and agreement letters were not important nor incapable of reconstruction.
7. We find that there is substance in this appeal. If the documents which were consigned were of great value, the consignor ought to have insured them. No such step was taken nor was even their value disclosed in the consignment note.
8. We also fail to understand why the consignor could not have been asked to send duplicate copies of the lost documents when the loss came to light.
9. Therefore, the compensation awarded by the State Commission is not justifiable. In the circumstances of this case, we hold that since there ha been a deficiency in the service of the courier, RS.100/- as per the accepted terms of the courier service plus Rs.500/- as costs may be given to the respondent."
(emphasis supplied)
14. Placing reliance on the aforesaid decision, the learned counsel for the defendant would also develop his argument to the effect that in this case, there was non-disclosure of the contents of the cover to the plaintiff. No doubt in the aforesaid cited decision, the NCDRC placing reliance on I.A.T.A. Regulations, held that important documents should not have been sent through envelope. In this case, no rule or regulation had been brought to the notice of the plaintiff at the time of the cover having been entrusted to the defendant by the former. Hence, in my considered view, the defendant could not press into service the cited decision. However, the defendant succeeds in the appeal in view of its liability as found set out in Ex.A.1. Accordingly, Point Nos.1 and 2 are answered.
15. Point No.3:- In view of the above findings, the appeal is allowed to the effect that the judgment and decree of the trial court shall stand modified to the extent that the defendant shall be liable to pay the plaintiff only US $ 100. (One hundred) Regarding interest portion, the trial court awarded exhypothesi the interest at the rate of 12% per annum from 15.6.1987 till the date of filing of the suit on the assumption that the defendant is liable to pay interest from the date of those Demand drafts. Such assumption is wrong in the absence of any specific contract to pay interest in that manner and therefore the Interest Act would come into play. Section 3(1)(b) of the Interest Act 1978 (Act No.14 if 1978) is extracted hereunder for ready reference:-
"3(1)(b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings."
Hence interest shall be payable as ordered by the trial court with effect from 11.9.1987, the date of acknowledgement of plaintiff's notice. In other aspects the rates of interest as ordered by the trial court shall hold good including the periods of interest.
16. Accordingly, this appeal is allowed in part directing the defendant to pay the plaintiff US $ 100 with 12% interest per annum from 11.9.1987 till the date of filing of the suit and 6% interest from the date of the suit till the date of deposit. There shall be no order as to costs. Connected Cross-Apeal is also closed.
17. Learned counsel for the defendant would make extempore submission that in view of E.P., having been filed by the plaintiff, the entire amount of the E.P., had been paid to the plaintiff and they may be permitted to recover the excess amount from the plaintiff as per the G.RAJASURIA, J.
nvsri judgment of this Court.
18. I am of the considered opinion that the above submission has considerable force in it. Accordingly, the appellant/defendant is entitled to recover from the plaintiff the amount over and above the actual amount decreed in this appeal by this Court, by filing E.P., before the lower court concerned.
19. I would like to clarify one other point here that the value of US $ 100 (one hundred) shall be quantified by the Executing Court as stood as on the date of the filing of the suit.
9.07.2008 Index:Yes Internet:Yes nvsri To The II Addl.Judge, City Civil Court, Madras Judgment in
A.S.No.650 of 1991