State Consumer Disputes Redressal Commission
Raghu Exports (India) Ltd. vs Dhl Express Limited on 17 January, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1848 of 2009
Date of institution : 24.12.2009
Date of decision : 17.01.2014
Raghu Exports (India) Ltd., 12-Leather Complex, Kapurthala Road,
Jalandhar through Shri Parveen Kumar, Managing Director.
.......Appellant- Complainant
Versus
1. DHL Express (I) Pvt. Ltd. (Branch Office), BLUE DART & DHL,
Near Jasdeep Building, Near Skylark Hotel, Model Town Road,
Jalandhar through its Branch Manager.
2. DHL Express (I) Pvt. Ltd., 1986 (Head Office), Lok Bharti
Complex, Marol Maroshi Road, Andheri (E), Mumbai-400 059.
......Respondents- Opposite Parties
First Appeal against the order dated
22.9.2009 of the District Consumer
Disputes Redressal Forum, Kapurthala.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri Ravi Kumar Bhatti, Advocate. For the respondents : None.
JUSTICE GURDEV SINGH, PRESIDENT :
Not feeling satisfied with the order dated 22.9.2009 passed by District Consumer Disputes Redressal Forum, Kapurthala Camp at Jalandhar (in short, "District Forum"), vide which the First Appeal No.1848 of 2009. 2 respondents/opposite parties were directed to pay an amount equal to US$ 100 on account of deficiency in service and Rs.2,000/- as cost of litigation, the appellant/complainant has preferred this appeal for the enhancement of that compensation as claimed in the complaint.
2. Briefly stated, the facts are that the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986, averring therein that it set up a new unit in the year 2007 for manufacturing of leather sofa covers after spending huge amount and for procuring the business, it used to send the samples to its customers abroad. It booked one consignment consisting of a box containing leather sofa cover kit valuing US$ 150 with opposite party No.1 in its office at Jalandhar, vide Invoice dated 20.6.2007 and Shipment Airway bill dated 20.6.2007. The package was to be sent to M/s Leather Living Furniture at Canada. In the Shipment Airway bill the Executive of the opposite parties wrongly filled up the name of the consignee/receiver as M/s Rooster Products though in the Invoice the name of the consignee was given correctly. When the mistake was pointed out, the said Executive corrected the same. The consignment was unnecessarily delayed and whenever it used to enquiry about the fate thereof, the opposite parties had been saying that the address information of the consignee of the goods was needed; which was only a lame excuse on their part as earlier also they had delivered the consignment to the same consignee. Ultimately, the consignment reached the consignee on 5.7.2007 after the delay of 15 days and that too in damaged condition. That fact First Appeal No.1848 of 2009. 3 was conveyed to it by the consignee/receiver, vide e-mail dated 6.7.2007. That consignee/receiver also sent the track record of the consignment through e-mail dated 7.7.2007, which was extracted from the website of the opposite parties. Thereafter a long series of correspondence took place between it and the opposite parties through e-mail etc. and a legal notice dated 10.7.2007 was also served by it. In the course of that correspondence the opposite parties admitted the delayed delivery of the goods and that too in damaged condition. Still they have not cared to compensate it for the loss of business and goodwill suffered by it. The opposite parties are guilty of negligence, deficiency in service and unfair trade practice. The delayed delivery and delivery of damaged consignment led to the refusal of the export order from the consignee, which it was eagerly expecting and which in no case was going to be less than worth US$ 90000 (approximately Rs.36,00,000/-). The new unit, which was set up for manufacturing leather sofa covers, became useless and is lying idle for lack of manufacturing order from the consignee, who is one of the largest exporter of leather products in USA and Canada and is having a great influence in the market. In these circumstances it is entitled to compensation/damages to the tune of Rs.15,00,000/-. It prayed for the issuance of direction accordingly to the opposite parties, besides claiming Rs.10,000/- as cost of litigation.
3. The opposite parties in their reply admitted that the box was consigned with it, which was to be delivered to the consignee at Canada. They also admitted that the articles in the consignment got First Appeal No.1848 of 2009. 4 dirty. While denying the other averments made in the complaint, they pleaded that the complainant itself had signed the Shipment Airway bill at the time of sending the articles in question and the shipment was governed by it and was subject to the terms and conditions contained in the Airway bill. As per the agreed terms, their liability for a loss or damage was limited to US$ 100 or the loss actually sustained or the actual value of the shipment without regard to the special value of the shipment to the consigner. They were not liable for any consequential or special damages or other indirect loss. The claims are limited to one claim per shipment settlement and that was to be full and final settlement for all the loss/damage in connection therewith. As per clause 8 thereof, in case the shipper recorded the said limit as insufficient, it was required to make a special declaration of the value and was to request for insurance thereof or was to make its own insurance arrangements. That clause makes it obligatory for the consigner to obtain the shipment insurance for the amount of the value of the shipment and in the event of his failure the liability for any loss of the shipment or part thereof is assumed to have been admitted by him. Clause 10 of the terms and conditions of the Airway bill excludes their liability regarding the loss, which was on account of the circumstances beyond their control. Therefore, the complainant was not entitled to any amount in excess of the limit mentioned in those clauses. As the consignment was delivered to the consignee, so the present complaint is not maintainable.
First Appeal No.1848 of 2009. 5
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for the complainant as no one appeared on behalf of the opposite party and we have also carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that it was correctly recorded by the District Forum in the impugned order that the opposite parties admitted the delayed and damaged consignment. Once that finding was recorded, the order should have been made for the payment of Rs.15,00,000/- as compensation as claimed in the complaint and there was no ground for limiting the liability of the opposite parties to US$100 as printed on the consignment slip. The consignment contained samples so sent to the consignee and on the basis of those samples, they were to place an order, which was to run into lacs of rupees, as the consignee was the main importer of the leather goods. As the consignment was damaged, so the consignee did not place any such order and the complainant suffered a loss of Rs.15,00,000/-.
7. In support of the averments made in the complaint, affidavit of Parveen Kumar, Managing Director of the complainant-Company was proved on the record as Ex.CA. In that affidavit he deposed about all the facts so stated in the complaint. He specifically deposed that there was delay in delivery of the consignment to the consignee by the opposite party and when the same was delivered it First Appeal No.1848 of 2009. 6 was found to be damaged. The fact that the consignment contained the leather sofa cover kit, which was a sample for approval, stands proved from the Invoice Ex.C-2. As per the Shipment Airway bill Ex.C-3, the box containing those goods was consigned with the opposite parties for delivery on 28.6.2007. The deposition of Parveen Kumar as contained in the affidavit that there was delay in delivery of the consignment to the consignee is supported by the e- mail dated Ex.C-8, which was sent by the consignee. The fact that the articles contained in the consignment were in damaged condition stands proved from various e-mails sent by the consignee and which were proved on the record as Ex.C-6 to Ex.C-9, Ex.C-10 and Ex.C13 to Ex.C-17 before the District Forum. It is clear from the contents of the impugned order that it was admitted by the learned counsel for the opposite parties that the consignment was received late and in damaged condition. No one come present on behalf of the opposite parties before us to challenge that finding.
8. The Shipment Airway bill was also proved on the record by the opposite parties as Ex.R-2. In fact that Shipment Airway bill Ex.C-5 is only the front portion of that Airway bill and the conditions printed on the back thereof are only contained in Ex.R-2. The conditions so printed on the back are so much prominent that the complainant is bound to have notice thereof. Moreover, on the front portion thereof, there is acknowledgement of those terms and conditions, which was duly signed by the representative of the complainant. As a result of that acknowledgement, the complainant is to be imputed First Appeal No.1848 of 2009. 7 the knowledge of those terms and conditions. The relevant clauses 6 and 8 thereof are reproduced below:-
"6. DHL's Liability DHL contracts with Shipper on the basis that DHL's liability is strictly limited to direct loss only and to the per kilo/lb limits in this Section 6. All other types of loss or damage are excluded (including but not limited to lost, profits, income, interest, future business), whether such loss or damage is special or indirect, and even if the risk of such loss or damage was brought to DHL's attention before or after acceptance of the Shipment since special risks can be insured by Shipper. If a Shipment combines carriage by air, road or other mode of transport, it shall be presumed that any loss or damage occurred during the air period of such carriage unless proven otherwise. DHL's liability in respect of any one Shipment transported, without prejudice to Sections 7-11 is limited to its actual cash value and shall not exceed the greater of $US 100 or $US 20.00/kilogram or $US 9.07/lb for Shipments transported by air or other non-road mode of transportation; or $ US 10.00/kilogram or $ US 4.54/lb for Shipments transported by road(not applicable to the US). Claims are limited to one per Shipment settlement of which will be full and final settlement for all loss or damage in connection therewith, if Shipper regards these First Appeal No.1848 of 2009. 8 limits as insufficient it must make a special declaration of value and request insurance as described in Clause 8 (Shipment Insurance) or make its own insurance arrangements, failing which Shipper assumes all risks of loss or damage.
8. Shipment Insurance.
DHL can arrange insurance of Shipper covering the actual cash value in respect of loss of or physical damage to the Shipment provided the Shipper completes the insurance section on the front of the waybill or requests via DHL's automated systems and pays the applicable premium, Shipment insurance does not cover indirect loss or damage, or loss or damage caused by delays."
9. As per these terms and conditions, the liability of the opposite parties was limited to the direct loss only and not to any indirect loss as has been claimed by the complainant. Their liability was not to exceed US$100. The complainant cannot make a claim for indirect loss by way of the loss of business to it on account of non-placing of the order by the consignee, in view of the fact that the samples reached the consignee in damaged condition.
10. In support of the submission so made by the learned counsel for the complainant, he placed reliance on the following judgments:-
i) I(2012) CPJ 204 (INLAND COURIERS PVT. LTD. vs. INDO-JAPAN HYBRID);First Appeal No.1848 of 2009. 9
ii) 2008(1) CPC 437 (Akash Udyog vs. On Dot Courier & Cargo Ltd. & Anr.);
iii) II(2002) CPJ 76 (THE MANAGER, PROFESSIONAL COURIER vs. G. RAJAGOPAL).
10. In Indo-Japan Hybrid's case (supra), there was non-delivery of consignment by the courier within agreed time and there was loss to the consignment. In the original receipt as well as the bills issued by the opposite parties, it was mentioned that the consignment contained seeds amounting to Rs.38,900/-. The opposite party never directed the complainant to get the article insured though the value thereof was more than Rs.1,000/-. It was held that the courier/opposite party was negligent as well as deficient in service and the order passed by the District Forum to pay Rs.38,900/- as compensation on the basis of the value of the goods was upheld by the West Bengal State Consumer Disputes Redressal Commission, Kolkata. In Akash Udyog's case (supra) a letter containing voucher of Rs.7,000/- was sent through the courier service to the complainant, which was expected to reach him within 2/3 days but was delivered after 10 days and that too in tampered condition. In those circumstances the courier/respondent was directed by the State Commission to pay the sum of Rs.7,000/- along with interest at the rate of 6% per annum along with compensation of Rs.5,000/-. In G. Rajagopal's case (supra) the contention that on account of non- delivery of the package containing valuable hearing aids by the courier his liability is limited to only Rs.100/- by way of special First Appeal No.1848 of 2009. 10 contract was repelled and it was directed by the State Commission to pay the fullest extent of the value of the consignment.
11. Similar matter came up for consideration before the Hon'ble Supreme Court in II(1996) CPJ 25 (SC) (BHARATI KNITTING COMPANY vs. DHL WORLDWIDE EXPRESS COURIER DIVISION OF AIRFREIGHT LTD.). In that case the respondent-plaintiff- manufacturer appeared to have entered into an agreement with a German buyer for summer season, 1990 and consigned certain goods with documents sent in a cover on May 25, 1990. That cover did not reach the destination. Consequently, though the duplicate copies were sent but by the date of receipt of the consignment the season was over. Resultantly the consignee agreed to pay only DM 35,000 instead of invoice value of DM 56,469.63. As a result the appellant laid the complaint before the State Commission for the difference of the loss incurred i.e. DM 21,469.63 equivalent to Rs.4,29,392.60, which was ordered. The respondent carried the matter in appeal and the Hon'ble National Commission in the order passed by it held that since the liability was only of an extent of US$ 100 as per the receipt, the appellant was entitled for deficiency in service only to that extent with interest at the rate of 18% per annum from 25.5.2010 till the realization of that amount. Appeal was filed before the Hon'ble Supreme Court against that order of the Hon'ble National Commission. In the appeal that order was upheld and it was held as under:-
"4. It is true that the Act is a protective legislation to make available inexpensive and expeditious First Appeal No.1848 of 2009. 11 summary remedy. There must be a finding that the 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. When the parties have contracted and limited their liabilities, the questions arises: whether the State Commission or the National Commission under the Act could give relief for damages in excess of the limits prescribed under the contract?"
12. Like the present case and in that case also the terms and conditions limiting the liability of the carrier/courier were printed on the Shipment Airway bill and were similar to the above said conditions. In that case also, the consigner had agreed to those conditions by putting his signatures. It was in view thereof that the above said findings were recorded by the Hon'ble Supreme Court. The ratio of this judgment fully applies to the facts of the present case and in view thereof the order passed by the District Forum is to be upheld. However, the District Forum omitted to allow the interest on the said amount of US$ 100.
13. Accordingly the appeal is allowed to the extent that the opposite parties are directed to pay interest on that amount at the rate of 9% per annum from the date of notice dated 10.7.2007 till the realization of that amount.
First Appeal No.1848 of 2009. 12
14. The arguments in this case were heard on 14.1.2014 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) January 17, 2014 MEMBER Bansal