State Consumer Disputes Redressal Commission
Rohit Goyal vs Trackon Couriers Pvt. Ltd. on 18 May, 2015
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.1300 of 2011 Date of Institution: 26.08.2011 Date of Decision : 18.05.2015 Rohit Goyal, aged about 23 years, s/o Sh. Sushil Kumar Goyal, r/o HIG 1276, Phase I, Model Town, Bathinda. .....Appellants/Complainant Versus 1. Trackon Courier Pvt. Ltd., C-143, Naraina Industrial Area, Phase 1, New Delhi through its Managing Director. 2. Paramjit Singh C/o Trackon Couriers Pvt. Ltd., Opposite Bikaner Sweets, 100 Road, Adjoining to D. Bross, Bathinda. .....Respondent/Opposite Parties First Appeal against order dated 08.07.2011 passed by the District Consumer Disputes Redressal Forum, Bathinda Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri. Vinod Kumar Gupta, Member Shri Harcharan Singh Guram, Member Present:-
For the appellants : Sh. Vishal Goel, Advocate For the respondent : Sh.Hoshiar Singh, Advocate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 08.07.2011 of Consumer Disputes Redressal Forum Bathinda, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.
2. The complainant Rohit Goyal has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant sent some document including photocopies of enrolment card, examination form dully filled in by the him along with bank draft of Rs.1300/- as examination fee in favour of Bar Council of India New Delhi through courier no.213293666 issued by OP No.2. After receiving the charges on 24.10.2010, it was assured to complainant by OP No.2 that the parcel would be delivered at the address of consignee or destination on the next working day. The complainant has been approaching OP No.2 with regard to acknowledgment of the delivery of the courier, but to no effect. On enquiry from Bar Council of India, the complainant found that no such courier was received by Bar Council of India. The complainant again approached OP No.2 to enquire about the above-said courier and found that it has not been delivered at the destination by the OPs. The act of the OPs in not delivering the courier at the destination is gross deficiency in service on their part, resulting into loss to the complainant, as he was deprived from appearing in the examination test, to be conducted by Bar Council of India New Delhi. The complainant has, thus, filed the complaint against the OP praying for compensation of Rs.75,000/- on account of mental harassment caused by OPs.
3. Upon notice, OP No.1 and 2 filed written reply by raising preliminary objections that complainant was intimated in clear terms by OPs to check the address written on the envelope, which was to be sent to Bar Council of India New Delhi because government offices generally do not accept the documents through courier. The complainant still insisted on the sending the same through OPs and said he would take it back in case its delivery was refused by the consignee. The OPs obliged the complainant in good faith, but the consignee refused to accept the same. The OPs admitted this fact on merits that complainant sent the consignment through them. The OPs denied about the contents of the envelope, which was booked in the ordinary way. It was denied that OPs gave any assurance to the complainant that consignment would be delivered on the very next day . OPs controverted the other averments of the complaint and prayed for dismissal of the present complaint.
4. The complainant tendered in evidence the affidavit of complainant Ex.C-1, copy of legal notice Ex.C-2, postal receipts Ex.C-3 and Ex.C-4, copy of courier receipt Ex.C-5 and copy of courier receipt Annexure-1. As against it, OPs tendered in evidence affidavit of Sh. Mahesh Kakkar Authorized person/Signatory of OPs, authority letter Ex.R-2, affidavit of Sh. Paramjit Singh, Booking Clerk of OPs Ex.R-3. On conclusion of evidence and arguments, the District Forum, Bathinda, dismissed the complaint of the complainant by virtue of order dated 08.07.2011. Dissatisfied with the order of the District Forum, Bathinda, the instant appeal has been preferred against the same by the complainant now appellant in this appeal.
5. We have heard learned counsel for the parties and have also gone through the record of the case in this appeal.
6. The counsel for the complainant submitted that the OPs invented this false excuse that Bar Council of India does not accept the document through courier. The counsel for the complainant referred to Annexure A-3 document placed on the memorandum of the appeal, where it is recorded that demand draft should be in favour of Bar Council of India payable at New Delhi and it be sent by courier/registered post to the Bar Council of India. The counsel for the complainant argued that Bar Council of India falsifies the stand of OPs on the point that Bar Council of India does not accept the demand draft through courier. We have to refer to evidence on the record to determine the controversy in this case between the parties. The pleading of both the parties have been examined by us. There is affidavit of complainant Rohit Goyal Ex.C-1 on the record in support of his pleadings in this case. He has sworn in this affidavit his statement, as pleaded in the complaint. Ex.C-2 is legal notice sent by him to the OPs. Ex.C-3 and Ex.C-4 are postal receipts of legal notice. Ex.C-5 is the copy of receipt. The complainant based his case on the above-referred documents. To refute this evidence of the complainant, the OPs tendered in evidence the affidavit of Sh. Mahesh Kakkar, Authorized person/Signatory of Trackon Courier/OPs on the record. He stated in his affidavit that it was categorically told to the complainant after seeing the address written on the envelope, Bar Council of India does not accept the documents through courier. The complainant himself insisted on sending the same through OPs, who assured that he would take it back in case it was refused by the consignee. The deliveryman visited the complainant with undelivered docket and informed him to take it back, but complainant refused to accept the same and rather threatened to drag the OPs in legal courts. He further stated in this affidavit that consignment contained Enrolment Card, Examination Form or demand draft of Rs.1300/-, as alleged in the complaint as above-said consignment was booked in an ordinary way and contents of the same were never conveyed by the complainant at the time of booking. Ex.R-2 is letter in favour of Sh. Mahesh Kakkar, Ex.R-3 is affidavit of Paramjit Singh Booking Clerk-cum-Consignment delivery person of the OPs. He stated in this affidavit that complainant booked the consignment and on seeking address of Bar Council of India, it was specifically conveyed to the complainant that government offices are not accepting the consignment through courier, but the complainant insisted him to book the consignment with the pretext that if the consignee would not accept the consignment, he should take it back. He further stated in his affidavit that the Bar Council of India refused to accept the consignment and later complainant also refused to accept the same.
7. We have heard the submissions of counsel for the parties and appraised the evidence on the record, as referred to above. The complainant pleaded in para no.1 of the complaint that he sent some document including photocopy of Enrolment Card, Examination Form and one demand draft of Rs.1300/-, whereas in para no.5 and 6 of the complaint the complainant has pleaded that the envelope was containing original documents and demand draft of Rs.1300./- In legal notice Ex.C-2, as argued by counsel for OP, it is set out in para no.1 that some documents including photocopies of Enrolment Card, Examination Forum dully filled in by the complainant along with one demand draft of Rs.1300/- were sent to the consignee. The complainant again stated in it that he requested the OPs to return the original envelope containing documents and it was conveyed in this legal notice to the OPs. The District Forum rightly observed that version of the complainant is contradictory with regard to his own documents. The complainant nowhere mentioned that he disclosed the contents/documents of the envelope to OPs. The complainant has also not disclosed number of demand drafts nor produced photocopy of the draft, which he had allegedly sent through the courier of the OPs, copy of courier receipt Ex.C-5 on the record. But surprisingly overleaf thereof is blank. The backside of the courier receipt contained the terms and conditions. We take assistance from copy of this courier receipt, which is placed on record of the District Forum as Annexure -1. The terms and conditions entered into between the parties are in the shape of agreement. The complainant tried to overreach the Consumer Forum in producing the front side of the courier receipt only and not the backside of the courier receipt which contains the terms and conditions thereon.
8. The complainant has not disclosed the contents of the envelope. The complainant simply sent the courier in ordinary process. Clause 4, 5 and 7 of the terms and conditions are binding upon the parties. The courier of the complainant had not reached at the destination and stand of the OPs stood falsified by Annexure A-3 in the grounds of appeal that documents of complainant sent through courier to Bar Council of India are accepted and we cannot accept that contention the complainant. Since the contents of the envelope was not disclosed and it was only in the ordinary process and special risk surcharge/claim value on this consignment was not paid, therefore, as per Clause 5 of the terms and conditions of the receipt, the OPs are liable to pay Rs.100/- for loss of the packet. State Commission Haryana (Panchkula) examined this matter in M/s Track on Courier Private Limited Vs. Gopal S/o Amar Singh and others in First Appeal No.437 of 2010 decided on 17.03.2011 that the OPs cannot held liable to pay any compensation to the complainant, as contents of the value of the parcel were not disclosed at the most as per the terms and conditions and in view of the law laid down by Apex Court in "Bharti Knitting Co. Versus.. DHL Worldwide Express Courier Division of Airfrieght Ltd." II(1996) CPJ-25 (SC) that when the complainant sent the documents through a courier, even to his foreign customer, the document did not reach the destination, the consignee instead of paying the fixed value of invoice agreed to pay less amount, the Apex Court held authoritatively that when there is specific term in the contract, the parties are bound by the same. When a party to the contract disputes the binding nature of the signed contract. It is for him to prove the terms of contract or the circumstances, in which he signed the document, needs to the established. The Apex Court mandatorily held in the above authority that the Tribunals and Foras would follow this settled law in the country hence forward. The liability of the courier in the presence of an express contract, entered with the terms and conditions, the liability is limited and the deficiency in service is to the extent of liability, as undertaken by the opposite parties in the agreement. In view of the unambiguous position of law laid down by the Apex Court in the above authority, we are respectfully bound by the same. The law laid down by the Apex Court has binding force throughout the country.
9. In view of the law laid down by the " Apex Court in Bharti Knitting Co. Versus.. DHL Worldwide Express Courier Division of Airfrieght Ltd (supra)", are of this opinion that the terms and conditions of the courier receipt Annexure-1, whereof has been produced in the appeal, are signed by the complainant and complainant is bound by the same. Consequently, we hold that the liability of the OPs for the loss of the shipment is expressly limited to Rs.100/- only in this case. The District Forum out-rightly dismissed the complaint of the complaint and order of the District Forum is substituted in this appeal by holding that liability of the OPs now respondents in this appeal is expressly confined to Rs.100/- as per Clause 5 of the terms and conditions of this receipt.
10. As a result of our above discussion, the order of the District Forum under appeal in this case is set aside and it is ordered in the appeal that complainant is entitled to recover Rs.100/- for loss of documents from OPs, as per clause 5 of the terms and conditions, as contained in receipt Annexure-1.
11. Arguments in this appeal were heard on 13.05.2015 and the order was reserved. Now the order be communicated to the parties.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (HARCHARAN SINGH GURAM) MEMBER May 18 2015.
(ravi)