Document Fragment View

Matching Fragments

It cannot be disputed that the Consignment Note issued by the opposite Party is in standard printed form and that the Clause limiting the carriers liability, though appearing on the face of it, is in a very small and fine print. Even witness Jagdish Chittara examined by the Opposite party, whose evidence I am inclined to disbelieve, does not say that the said clause or term was brought to the notice of the Complainants representative, much less discussed with him when he issued the Note and collected the consignment for transportation nor is there any correspondence exchanged between the parties indicating that the said clause was the subject of negotiations or bargain between the parties. In the circumstances, it is difficult to hold that the said clause would bind the Complainant and as such I conclude that the said clause cannot be availed of by the opposite party for limiting its liability and it will have to make good the full value of the consignment to the Complainant.   Though the arbitrator referred to Terms of Servicing appearing on the back of the consignment note but it would appear that these were not on the back of the consignment note and were separately mentioned on the reverse of the Consignment Receipt. On this aspect learned arbitrator held as under:
On the consignment note following conditions are printed (in small and fine print):
1.    

We declare that this parcel contains only commercial documents, samples which are not of personal nature

2.     Non-negotiable consignment note subject to standard conditions of carriage available on the request. The carrier specifically limits its liability to a maximum of US $ 100.00 per consignment for any cause.

  It is not that Terms of Servicing are given on the back of the consignment note but are separately provided. These are also in small and fine prints. There are 24 conditions and condition No.7 reads as under:

The consequential position that follows is that the contention of Shri Ashok Desai, learned senior counsel that the respondents herein having failed to establish negligence on the part of the appellant, their claim for damages should be rejected, cannot be accepted.

  Thus we opine that condition limiting the liability of the opposite party to US $ 100 is inapplicable in the present case as the carriage of goods was only in India and secondly it is nobodys case that any attention of the consumer-complainant was drawn to condition No.7 on the reverse of credit agreement form which was not signed by the complainant and which was also in small and fine print. It could not be said that complainant was aware of any such condition. That condition would not therefore limit the liability of the opposite party. No argument has been addressed if computer hardware would come within the terminology scientific instrument as contained in the Schedule to the Carriers Act, 1865 so as to bring the case within the provision of Section 3 of that Act. The arbitrator held that it could not be disputed that the consignment note was in the standard printed form and the clause limiting the liability, though appearing on the face of it, was in a very small and fine print and further there was no evidence to show that the said clause or term was brought to the notice of the complainant, much less discussed with complainants representative when the consignment note was issued and consignment collected for transportation. Arbitrator was therefore, of the view that the clause limiting the liability could not be availed of by the opposite party and that it would have to make good the full value of the consignment to the complainant. Numerous judgments have been cited before us for and against the value to be attached to such a clause.

    Statement of law as contained in the Chittys law of Contract and reproduced above is based on various judgments of English Courts. When there is a condition in a contract signed by both the parties that condition printed in small and fine prints is meant to limit the liability of one of the parties. It should be construed strictly. Small and fine print should be clearly discernible and should draw the pointed attention of the consumer. Directives of the European Commission provide that a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer. An English Court has been empowered to override a contract term if it appears it to be unreasonable.