State Consumer Disputes Redressal Commission
Mohammad Yusuf Raza vs Indore Transport Agency on 9 April, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/207
Instituted on : 18.03.2013
Mohammad Yusuf Raza,
S/o Haji Mohammad Ishaq Raza,
C/o : Alfa Collection,
R/o : Chhotapara,
Raipur, District Raipur (C.G.) ... Appellant.
Vs.
Indore Transport Agency,
21 & 22, Shri Vardhan Complex,
Opposite Big Bazar, Wardha Road,
Nagpur (Maharashtra) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for appellant.
Shri Narendra Kumar Jal, Manager present in person for respondent.
ORDER
DATED : 09/04/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 23.02.2013, passed District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.357/2010. By the impugned order the learned District Forum, has dismissed the complaint of the appellant/complainant.
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2. In nutshell, the facts of the case are that a Video Camera of Sony Company, valuing Rs.1,40,000/-, was booked by the appellant/complainant with the respondent/Transport Agency for its transport from Nagpur to Raipur, in the form of a parcel and requisite charges were paid by the appellant/complainant to the respondent/O.P. The allegation of the appellant/complainant against the respondent / O.P. was that the said parcel was not delivered at its destination and thus, deficiency in service has been committed by the respondent/O.P., so appellant/complainant, is entitled to get value of the article, along with other amount of compensation from the respondent/O.P.
3. The respondent/O.P. filed written statement before the District Forum and denied the allegations leveled against it by the appellant/complainant.
4. Earlier the District Forum vide order dated 03.03.2011 partly allowed the complaint of the appellant/complainant. Thereafter the respondent/O.P. filed appeal bearing No.197/2011 before this Commission and challenged the order of the District Forum. This Commission vide order dated 09.12.2011 remanded back the matter to the District Forum. The District Forum, observed thus :-
"8. We find that entire arguments of the learned counsel for the appellant is based on the documents, which have been filed for the first // 3 // time before us at the appellate stage. Such documents were not available before District Forum, so no opportunity was available to the respondent/complainant to meet those documents or to say anything or to produce anything in their rebuttal. In the interest of justice, it appears that such opportunity should be granted to the respondent/complainant, so that he can show as to how his case was within period of limitation and why it was not required to be dismissed by the District Forum, though, prima facie, it was appearing as a time barred.
9. In view of this, the appeal succeeds and is allowed. The impugned order is set aside. The case is remanded back to the District Forum, with a direction to take on record as evidence of appellant, all documents, which have been filed by the appellant before us at the appellate stage. The District Forum, is also directed to provide opportunity to respondent/complainant to file documents and affidavits in rebuttal of the aforesaid documents and then the case be decided afresh on merits. Office of this Commission is directed to send all those documents, which have been filed by the appellant before us at the appellate stage as evidence, along with application under Order 41 Rule 27 of CPC to the District Forum along with record of the Lower Fora. Parties are directed to appear before District Forum on 20.01.2012. No order as to the cost of this appeal."
5. After remand of the case, learned District Forum, after having considered the material placed before it by the parties, dismissed the complaint by the impugned order dated 23.02.2013.
6. Shri R.K. Bhawnani, learned counsel appearing for the appellant /complainant argued that impugned order passed by the District // 4 // Forum, is contrary to law and is liable to be set aside. He further argued that learned District Forum has not minutely studied the documents and affidavits available on record and passed the impugned order, which is contrary to law. He placed reliance on Transport Corporation of India Ltd. vs. Veljan Hydrair Ltd. II (2007) CPJ 35 (SC), Nazimuddin vs. Rajesh Kumar Agrawal, passed by this Commission on 17.01.2011 in Appeal No.466/2010.
7. Shri Narendra Kumar Jal, Manager appearing for the respondent supported the impugned order. He placed reliance on Patel Roadways Ltd. v. Birla Yamaha Ltd., AIR 2000 Supreme Court 1461; Arvind Mills Ltd. M/s Associated Roadways, AIR 2004 Supreme Court 5147; P. Ramarao v. P. Nirmala and others, AIR 1997 Supreme Court 1923; M/s M.G. Brothers Lorry Service v. M/s. Prasad Textiles, AIR 1984 Supreme Court 15; M/s. Southern Carriers Corporation v. M/s. Shaha Brothers, 1998 (1) Com. C.R. (Cons.) 1 (C.D.R.C. Mah.); Airpak Couriers (India) Pvt. Ltd. v. S. Suresh, I (1994) CPJ 52 (NC); Bharathi Knitting Co. vs. DHL Worldwide Express Courier Division of Airfreight Ltd., AIR 1996 Supreme Court 2508; Indrapuri Express Courier Pvt. Ltd. v. Allied Business Corporation, IV (2007) CPJ 165 (NC).
8. We have heard the arguments of both parties and have also perused the record of the District Forum.
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9. The appellant/complainant filed document 1 which is booking receipt issued by Indore Transport Agency in which transport charges Rs.60/- is mentioned and it is also mentioned that " bl jlhn ds ihNs fu;e eSaus le> fy;s gSaA" Document 2 is original booking receipt issued to some other party, which has been filed by the respondent/O.P. In the back portion of this receipt terms and conditions were mentioned. Condition No.2 reads thus :-
"02. Consignment not covered by insurance are sent entirely at owner's (consignors) risk. A maximum sum of Rs.1000/- whichever is less only, will be paid if the consignment is lost of damage during transit, the consignor will not be entitled to claim any further damages irrespective of the value of the article."
10. 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 the contract were adequately brought to his notice ? The terms of the contract have elaborately been considered and decided. The details // 6 // 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."
11. In the case of Indrapuri Express Courier Pvt. Ltd. vs. Allied Business Corporation (Supra), 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 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, // 7 // 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."
12. 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 corrier to Rs.100/- per consignment, corrier could not be made liable for loss of consignment during transit to any amount more than Rs.100/-".
13. The cases cited by the learned counsel for the appellant/complainant are distinguishable from the facts of the instant case.
14. In the instant case, the appellant/complainant filed document - 1 and respondent / O.P. also filed document 1 i.e. booking receipt. In both the documents the name of the sender is mentioned as Anil Nagpur and the name of the consignee is mentioned as Alfa collection.
// 8 // Looking to the aforesaid documents, it is not established that Anil Kumar had booked the goods through the respondent/O.P. In the said documents, the name of sender is mentioned as Anil Kumar and name of the consignee is mentioned as Alfa Collection. Looking to the documents, it is not established that the said goods was booked for the appellant/complainant. Had the said goods was booked for the respondent/complainant, then the sender Anil Kumar singed the booking receipt. Therefore, the terms and conditions of the booking receipts are binding on the appellant/complainant also. In the booking receipt document - 1, the value of the parcel/goods was not pre-declared at the time of booking and in the said receipt the value of parcel was not mentioned. The appellant/complainant himself signed the receipt (document - 1), therefore, the terms and conditions mentioned in the back side of the booking receipt are binding on the appellant/complainant. The appellant/complainant did not file any document, which indicates or establish that the appellant/complainant booked Video Camera valuing Rs.1,40,000/-. According to the appellant/complainant, one Anil Kumar of Nagpur sent Video Camera to the appellant/complainant from Nagpur. It appears that the Video Camera was booked by Anil Kumar and booking charges was paid by Anil Kumar. If the video camera was booked by Anil Kumar, then Anil Kumar, is consumer of the respondent/O.P. and the appellant/complainant is not consumer of the respondent/company.
// 9 // Document 1 which is photocopy of booking receipt in which the name of sender is mentioned as Anil Nagpur and the name of consignee is mentioned as Alfa Collection. The name of the consignee as mentioned in the said document is Alfa Collection, but the appellant/complainant did not file any evidence that he is the proprietor of Alfa Collection. Therefore, the complainant has not been able to prove that the said goods was booked by Anil Kumar for the appellant/complainant.
15. According to the document - 1, the name of sender is Anil Kumar of Nagpur and the name of the consignee mentioned is Alfa Collection and therefore, Anil Kumar, who is sender is material witness for the appellant/complainant, but the appellant/complainant did not file affidavit of Anil Kumar. The appellant/complainant also did not file any document which indicates that the send Anil Kumar Booked video camera in the said parcel. Therefore, the appellant/complainant has not been able to prove that actually Anil Kumar booked the video camera for the appellant/complainant from Nagpur through respondent/O.P. valuing Rs.1,40,000/-.
16. We have gone through the impugned order passed by the District Forum. We find that the District Forum has rightly reached to the conclusion that the appellant/complainant has not been able to // 10 // prove that Anil Kumar booked video camera from Nagpur for the appellant/complainant and the District Forum has also reached to the conclusion that there is no evidence that the appellant/complainant has paid any booking charges to the respondent/O.P. Therefore, the appellant/complainant Mohd. Yusuf Raza, is not consumer of the respondent/O.P. and there is no deficiency in service on the part of the respondent/O.P.
17. In our view, the finding recorded by the District Forum is just and proper and the impugned order does not suffer from any irregularity or illegality and does not call for any interference by this Commission.
18. Hence the appeal filed by the appellant/complainant being devoid of any merits is liable to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
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