National Consumer Disputes Redressal
Blaze Flash Couriers (P) Ltd. vs Rohit J. Poladiya And Anr. on 9 January, 2008
Equivalent citations: I(2008)CPJ452(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. This appeal is directed against the order passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, awarding compensation of Rs. 2,50,000 as well as Rs. 5,000 as mental agony to the complainant/respondent against which the opposite party/appellant has filed this appeal.
2. Brief facts in this appeal are that the complainant sent a package on 7.3.1992 containing some share certificates and documents to be delivered at Mumbai through courier service of opposite party. The package did not reach the destination. The opposite party informed that the package was missing and on 28.3.1992, the opposite party sent a letter to the complainants stating that they were unable to locate the same. Since the complainant claimed that the complainants has specifically informed that the package containing shares of different persons had been lost and as such they had specifically instructed the opposite party/appellant to take extra care in dealing with the package. They had purchased the shares of the value of Rs. 3,00,057 and the total price was paid by them. They also claimed compensation of Rs. 25,000.
3. The appellant contested the matter, inter alia on the ground that in the consignment note it was specifically stated that the matter in dispute would be subject to Madras jurisdiction and further the liability would be limited to Rs. 100. The appellant denied about the alleged instruction to take extra care. The appellant never knew that the complainants were the share brokers and that the sealed packet contained share certificates.
4. We have heard the learned Counsel for the appellant and have gone through the record.
5. It is undisputed fact that the complainant/respondent wrote to the company about the loss of missing signed transfer deeds by sellers but the company in turn informed if the signed transfer deeds by the sellers were brought, they would oblige to transfer and it would stop the transfer. The partner of Mahavir Enterprises, Calicut according to the PW1 requested their brokers, Dharamsi Enterprises to buy those shares from market and deliver it to Bombay Stock Exchange. In cross-examination, he admitted that they had noted the terms and conditions printed in the consignment note and also did not declare the value of the contents and they had also not insured.
6. RW1 examined on behalf of the appellant. He stated that the value of the contents was not declared and that had the complainants declared the value, etc., they would have taken additional charge to take special care. They had collected only Rs. 45 i.e. the charge of an ordinary packet. It was also stated in the consignment note a condition had been printed limiting the liability of the opposite party to Rs. 100.
7. It was also claimed that the only Court in Madras had jurisdiction in view of the conditions printed in the consignment note that "Madras Court alone had jurisdiction". There is no dispute about the fact that on the basis of Ex. P-4, the State Commission took the view that it did not contain what was described as to general information in Ex. R1 (in regard to jurisdiction and limit of liability). However, in Ex. R-4 contained printed conditions in very small letters limiting liability to Rs. 100. There is dispute about the fact that Rohi J. Poladiya, partner and Jiten P. Shah, partner had sent parcel. The parcel was sent from Calicut to Mumbai. Thus, the jurisdiction would also arise at Calicut. There is no disputing of the proposition of law that simply mentioning in small letters "jurisdiction subject to Madras jurisdiction alone" would not be sufficient to confer jurisdiction on Madras Courts. Jurisdiction cannot be conferred by agreement on any Court or Fora, which did not possess it either under the Code of Civil Procedure or under any other law otherwise. The question of option of choosing one of the Courts out of the Courts at two places where the cause of action arose could bedecidedby agreement. Thus, out of two Courts having jurisdiction to try a suit, by an agreement between the parties that dispute between them could be tried in one of the Courts; and it would not be contrary to public policy. But if the jurisdiction was sought to be conferred by an alleged agreement on the basis of some mention in some bills or some consignment notes, etc., then it would be against the public policy to make an attempt to confer jurisdiction on a Court or Fora where the cause of action had not arisen. It may further be mentioned that in case attention is not drawn specifically to a contract in fine prints about confining jurisdiction to one Court by specifically drawing attention of the other party such an agreement would not confer any exclusive jurisdiction to one Court or Fora. The jurisdiction could be conferred only where cause of action would arise.
8. In support of contention of limited liability, it was contended that in the consignment note, condition had been printed that the liability of the opposite party. Appellant would be limited to Rs. 100. The State Commission rightly rejected the plea on the ground that Ex. P-4 was not signed by the complainant, it was in fine prints, and specific attention was not drawn. The complainant had stated that he was not aware of any statement limiting the liability could not be disputed. This Commission came to consider similar question of limited liability mentioned in fine prints, in the case of Blue DartExpress Limited v. Stephen Livera, (R.P. No. 393 of 1997 (NC) decided on 14.12.2001), and this Commission made following observations:
When the courier receipt did clearly show that the sender or her representative had signed thereon and accepted the terms and conditions printed on its face or overleaf and the petitioner-opposite party aim did not in so many words assert that sender or her representative had signed or initiated on the courier receipt and accepted the terms and conditions thereon, therefore, petitioner could not rely on them to non suit the complainant or to limit its own liability. This condition limiting the liability of the petitioner, as noted above, it is in small and fine print and as noted above it is not pleaded that attention of the sender or her representative was drawn to any such conditions of the courier service rendered by the petitioner. Then the article meant for Phineheira could not have been given to his peon without ascertaining if he was agent of Phineheira or was authorized to receive any such document or was usually receiving it for Phineheira.
9. It was could not be said that peon was 'other person' on behalf of Phineheira to receive the document. If we refer to Order 5 Rule 13 ©f Code of Civil Procedure, It is specifically mentioned that a servant Is not a member of family within the meaning of that Rule which provides when defendant Is absent from his residence at the time when service of summon is sought to be effected on him thereat and there Is no likelihood of his being found thereat within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.
Decision of the Supreme Court in the case of Bharathi Knitting Co. v. DHL Worldwide Express Ceurier does not apply as that case did not consider small and fine print in a document in a standard from.
(Emphasis supplied)
10. Learned Counsel has relied upon in the case of Bharathi Knitting Co. v. DHL Worldwide Express. , as well as the judgment of this Commission in the case of Indrapuri Express Courier Pvt. Ltd. v. Allied Business Corporation IV (2007) CPJ 165 SC : 2007 CTJ 1038 (CP) (NCDRC). It may be mentioned that in these cases the question of meeting of minds party being "ad idem" was not required to be considered in relation to the terms of limited liability or jurisdiction mentioned in fine prints and more so of any evidence about absence of drawing specific attention to such terms. Seeing in the aforesaid circumstances, it would be evident that the judgment in Bharathi Knitting Co. (supra) and Indrapuri Express Courier (supra) would be of no help.
11. It is evident that meeting of mind was essential and in absence of meeting of mind any term relating to limiting the liability would not be part of the contract and ordinary liability would flow in cases of deficiency in service. Since it is undisputedly that the damage was caused in transit containing shares. It is required to be seen as to what amount of compensation should be awarded. In this connection, there is no dispute about the fact that the complainant had not declared the contents of package. The complainant stated to have purchased shares of Rs. 3,00,057 and Ex. P1 was list of share certificates, Ex. P2 was the list of shares purchased and its value and Ex. P29 is the confirmation memo from Dharamsi Enterprises. The opposite party has not any evidence to dispute these submissions, based on above documentary evidence.
12. However, it is also true that the packet was not got insured. If the value of the package was about 3 lakh, the complainant was also supposed to take care and Insured the package. Seen in this light, the complainant has also distributed towards the loss of package by not getting it insured. In the aforesaid circumstances, it would not appear appropriate to exclusively hold the appellant liable to exclusively hold the appellant liable, to Consequently, the complainant would be paid 50% of the loss suffered by him meaning thereby that the complainant would be entitled to Rs. 1.50 lakh from the date of complaint with interest @ 6 ½%. The impugned order is modified accordingly and the appeal is partly allowed in the above terms. If it has not been paid, the appellant is directed to pay the amount withing a period of three months from the date of receipt of this order.