NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Decided on April 22,1992
SKYPAK COURIERS PVT. LTD. …Appellant
B.S. Yadav, Member:
1.The appellants are the Branch Offices of the M/s. Skypak Couriers Pvt Ltd., who is carrying on business as Couriers. The Respondent No. 1 is Consumer Education and Research Society, a Registered Association while Respondent No. 2, Faruk Hussain Shaikh is the representative of Mr. Mussader Alikhan (for short Mr. Khan), a consumer in the present case. The complaint which has given rise to the present appeal was filed before the State Commission, Gujarat at Ahmedabad by the present respondents.
2. According to the complaint, Mr. Khan was working as a Chief Executive with M/s. Mahendra Suitings Ltd. at Ahmedabad. By virtue of his expertise and varied experience in his profession, the was selected as Jacquard and Installation Manager with M/s. Sulzer Nigeria Ltd., Lagos (Nigeria), a leading textile group in Nigeria having world wide business. Mr. Khan was required to assume his duty on the 6th March, 1990 and his training programme was arranged by his new employers through M/s. Sulzer Brothers Ltd., Switzerland. The training programme was to be followed by further training in Germany and thereafter he was to take independent charge of weeving unit of the said new employer at Lagos, Nigeria. The entire training programme was organised well in advance in order that Mr. Khan could take charge after completing the training at Lagos by April, 1990. Arrangement for air ticket, visas etc. for Mr. Khan were to be arranged by the new employer’s travel agents, M/s. Mona Travels, New Delhi. Mr. Khan deposited his passport, Degree Certificates and other original testimonials with M/s. Mona Travels, for obtaining the necessary visas and air ticket etc. Mr. Khan was to fly on 4th March, 1990 from Ahmedabad to Zurich via Bombay. Mr. Khan had instructed M/s. Mona Travels to send his visas, air ticket, passport, original Degree Certificates, testimonials and other relevant documents pertaining to his journey through the appellant, Skypak Couriers Pvt. Ltd. so that he could receive them in time. M/s. Mona Travels, sent all relevant documents through the above Couriers on the 10th February, 1990 under consignment No. 215882. It was a ‘To Pay’ consignment and consideration for such services was promised to be paid to the couriers by Mr. Khan. The consignment was to be delivered at his Ahmedabad address. The consignment was expected to reach Mr. Khan on 11.2.1990 but it was not delivered to him. He waited upto 13th February, 1990 on which date he contacted the Branch Office of the Couriers at Ahmedabad but was given no response. Mr. Khan contacted M/s. Mona Travels as well as the Bombay Office of the Courier about the non-delivery of the consignment in question. M/s. Mona Travels also contacted the offices of the Couriers. However, inspite of various communications between different branch office of the Couriers i.e. appellants, the consignment could not be traced. In the absence of the necessary visas, passport etc. Mr. Khan could not commence his journey on 4th March, 1990 and consequently could not attend the training programme on the 6th March, 1990. For obtaining a temporary passport in a short time, he lodged a First Information Report at Ahmedabad, as advised by the above travel agency. Mr. Khan was informed by the Couriers that the consignment had been lost. He obtained a fresh passport, new Degree Certificates, new air ticket, new visas and new copies of relevant other documents. He was enrolled in the next batch of training programme. He left for Zurich on 16th April, 1990. However, he was asked by his employer to join duty at Nigeria, without undergoing training.
3. It is further the case of the complainants that Mr. Khan had promised to pay Rs. 65/- for the services which were to be rendered by the Couriers i.e. the opposite party (now appellants). As the consignment was not delivered to him there was gross negligence on the part of the opposite party in losing the consignment and thus there was deficiency in the rendering of services by them. Mr. Khan suffered a huge amount of monetary loss by remaining jobless from 4th March, 1990 to 18th April, 1990. He also lost future prospects by not being able to undergo training. He assessed his loss for future prospects at Rs. 1,15,000/- and at Rs. 35,000/- towards loss of salary from 4th March, 1990 to 18th April, 1990. According to him, he had also to spend Rs. 4,658/- for obtaining a copy of his Degree Certificate, Rs. 2,959/- for getting his new air tickets and visas, Rs. 515/- for obtaining new copy of his passport. The complainants also claimed Rs. 1 lakh for the agony and hardship suffered by Mr. Khan in obtaining new copies of the documents and for remaining unemployed for some time. Thus in all, the complainant claimed Rs. 2,58,102/- from the opposite party.
4. The appellants resisted the complaint. Some preliminary objections were taken to the effect that M/s. Mona Travels, New Delhi was the only contracting party with them and as the whole cause of action accrued outside the territorial jurisdiction of the State Commission, Gujarat, the said Commission had no jurisdiction to entertain the complaint. Moreover it is mentioned in the courier consignment note that ‘Disputes subject to jurisdiction of Bombay Courts only’ and, therefore, on that ground also the said Commission had no jurisdiction to decide the present dispute. It was also averred that M/s. Mona Travels was a necessary party.
5. On merits it was pleaded that the opposite party’s liability was limited to a maximum of U.S. $100 in case of international consignment and Rs. 100/- maximum for intercity and Rs. 1,000/- for domestic consignment and this term is clearly mentioned in part 7 of the terms of the servicing and in case the consignment was of higher value than the indicated limited liability, then it would be advisable for the consignee to have a transit insurance policy; that the consignment in question was not got insured by M/s. Mona Travels that the consignment was not on ‘To Pay’ basis and that it was on credit basis and M/s. Mona Travels was a regular credit client; that the contents of the consignment were not declared by M/s. Mona Travels; that according to the First Information Report lodged by Mr. Khan on 21st February, 1990 he himself had lost his passport at Ahmedabad and, therefore, he could not ask for the expenses incurred by him in obtaining new copy of the passport; that at the relevant time and period Overnite/ OBC Couriers were haying an agreement with the opposite party for bringing all consignments from Delhi to Ahmedabad and the consignment in question was handed over to the said couriers and therefore, the said Couriers were also necessary party to the present dispute.
6. The opposite parties i.e. appellants also disputed the amounts of compensation claimed by the complainants. The appellants did not dispute the fact that the consignment in question handed over to them for carriage to Ahmedabad has not been delivered to Mr. Khan till today.
The State Commission vide their Order held as follows:
(i)The consignment was to be delivered to Mr. Khan (by mistake in the Order the name of the Complainant No. 2 Dr. Faruk has been mentioned as the consignee).
(ii)Under instructions of Mr. Khan, M/s. Mona Travels sent the documents under the consignment note in question and the appellants were, therefore, under legal obligation to deliver the said consignment to him and as they failed to do so they are guilty of non-delivery.
(iii)The consignment was to be delivered at Ahmedabad and hence they (The State Commission) had jurisdiction to entertain the complaint. The agreement that only Bombay Courts had jurisdiction to decide the dispute was not valid and unenforceable and, moreover, the Bombay Courts had no jurisdiction as the consignment was despatched from Delhi and had to be delivered at Ahmedabad.
(iv)M/s. Mona Travels was not a necessary party as Mr. Khan was the consignee and beneficiary of the consignment and the relief has been sought against the Couriers only.
(v)The objection of the Couriers that liability of the opposite party was limited to Rs. 100/- did not carry any weight as the printed memo containing the above condition was neither signed by any body nor there was any evidence to show that the terms printed therein were shown to the consignor or the consignee or that the same were agreed upon by the consignor.
(vi)It had been proved beyond doubt that the consignment contained passport, visas, air tickets, Degree Certificate etc. which were absolutely necessary for Mr. Khan’s travel to Zurich for training.
(vii)On account of the non-delivery of those documents Mr. Khan could not reach and report for training at Zurich, which was to start from March 6, 1990 and he had to obtain new passport etc. and he had to join his duties at Nigeria without undergoing any training.
(viii)As the Couriers have not explained what really had happened to the consignment, there was deficiency in the rendering of service amounting to negligence, and were, therefore, liable to pay damages. Rs. 10,000/- was assessed as loss of salary from March 4, 1990 to April 19, 1990, Rs. 6,000/- were assessed as loss for future prospects as Mr. Khan had to resume his duty at Lagos (Nigeria) without training. Rs. 4,068/- was assessed as expenses incurred by Mr. Khan in obtaining copies of Degree Certificate, Rs. 1,000/- of costs were also awarded to Complainant No. 1 i.e. the Consumer Education and Research Society.
The opposite party was asked to pay the above amount within 4 weeks from the day the Order was announced. It was further ordered that in case the amount was not paid within that period, it would carry interest at the rate of 18 per cent from the date of judgment till the date of payment.
7. Feeling aggrieved against the above Order the Appellants, as mentioned earlier, who are the branch offices of the Skypak Couriers have filed the present appeal.
8. On the date the appeal was heard the Counsel for the appellants was absent His Junior Counsel appeared on his behalf and requested for an adjournment. We did not find the ground advanced by him for the absence of the Senior Counsel as satisfactory. We refused to grant adjournment. The said Junior Counsel could not advance any arguments. We have heard the opposite party and have gone through the file.
9. After hearing the opposite party and going through the file we do not find any infirmity in the Order of the State Commission. The objections raised by the appellants in the written statement and urged before the State Commission have been discussed in detail by the Commission and they have given sound reasons for rejecting the various preliminary objections raised by the appellants.
10. We may take one of the allegations which has not been discussed by the State Commission in detail. It has been repeated in the ground of appeal. The objection is that in the First Information Report lodged by Mr. Khan, he had mentioned that he had lost the documents himself in Ahmedabad. As he was in urgent need of the passport etc. Mr. Khan might have made a wrong statement in the First Information Report. We have not been able to understand how that statement contained in the First Information Report helps the appellants. It is not in dispute that the consignment in dispute has not been delivered to Mr. Khan upto today and that has been lost by the Couriers. There is the finding of the State Commission that, in addition to other documents, the consignment contained, the passport also.
11. We have also gone through the amounts? awarded by the State Commission to Mr. Khan through his authorised representative Dr. Faruk (Complainant No. 2). All the items awarded appear to be reasonable except item of Rs. 6,000/- awarded as compensation for the loss of future prospects. There was no evidence to support that item except the bare statement of the Complainant No. 2 in the affidavit. However, Mr. Khan must have suffered some loss of future prospects as he had to join his duties without any training. We think that Rs. 1,000/- would be sufficient compensation to Mr. Khan for the loss of future prospects. Accordingly, we reduce this item of compensation awarded by the State Commission under this head to Rs. 1,000/-.
12. For the reasons aforesaid, we modify the Order of the State Commission to the extent that instead of Rs. 6,000/- the Complainant No. 2 would be entitled to only Rs. 1,000/- as compensation for the loss of future prospects. In other respects we do not find any force in the present appeal and dismiss the same with costs which we assess at Rs. 1,000/-.
Per Se Y. Krishan, Member
The State Commission had in this case come to the finding that the consignment of the complainant contained valuable materials and the same was lost due to negligence of the appellant Courier and, therefore, awarded damages as under:
1. Rs. 10,000/- as compensation for consequential loss of salary suffered by the complainant due to delay in getting a job in Nigeria in Lagos.
2. Rs. 4,068/- as expenses incurred by the complainant in obtaining duplicates of the documents.
3. Rs. 6,000/- by way of loss of future prospects. This has been reduced in the order above to Rs. 1,000/-.
4. An amount of Rs.1,000/- by way of costs by the State Commission.
5. Rs. 1,000/- as costs by the National Com-mission as per the Order proposed above.
2. The important question to be considered in this case is the liability of the Courier under law for loss of a consignment entrusted to its custody and transportation. During the hearing, Dr. Saraf, the Counsel for the Respondent complainant stated that the responsibility under law of the Courier is entirely different from that of a Carrier. I have not been able to find any legal provision or case law defining the responsibility and liability of a Courier as such for consignments delivered to it for purposes of carriage and delivery.
3. In the Courier Consignment Note executed in this case, it is printed that it is ‘Subject to standard conditions of carriage available on request. The Courier specifically limits its liability to a maximum of U.S. $100 per consignment for any cause’. From this it would appear that the Courier has assumed the rights and liabilities of a carrier presumably under the Carriers Act; he has also limited his liability to a maximum of U.S.$ 100 per consignment, on the face of the consignment note besides limiting his liability in the standard conditions of carriage which are made available on request of consignors.
4. It is also seen from the photocopy of the Courier Consignment Note in the paper book that the column ‘Description’ and ‘Declaration of the contents of the proposal’ (We declare that this proposal contains only commercial documents/ samples which are not of personal nature) have been left blank. Thus the consignor M/s. Mona Travels had sent the relevant documents like Passport, Visa, Air travel ticket etc. through the Courier without disclosing the contents of the packet. In my opinion it was obligatory on the part of the consignor to have disclosed the contents of the packet so that it could have been got insured if necessary.
5. Another important question is whether it has been proved beyond doubt that the consignment contained Passports, Visas, Air Tickets, Degree Certificates etc. of Mr. Khan. This is based on the admission of the Courier appellant, M/s.. Skypakin their letter of 20th February, 1990 written to the Respondent No. 2 Mr. Farukh. This admission cannot be used against the Courier. The Courier must have prior knowledge of the contents of the packet. If these were not communicated to the Courier at the time of booking the consignment, we cannot attribute any knowledge of the contents to the Courier and hold him liable for the loss.
6. It may also be further noted that in the F.I.R. lodged by Mr. Khan the consignee, about the loss of Passport, Visa etc., he had stated that the documents had been lost by himself (and not by the Courier). If he had given a false statement regarding the person who had lost the consignment, we cannot support his contention in these proceedings that the consignment containing the documents was lost by the Courier.
7. The reliefs granted by the State Commission are excessive, being in excess of liability limited to US $100/- per consignment on the face of the Courier-consignment note executed on behalf of the complainant by his Travel Agent. Besides the Courier is liable only for a nominal amount as consignor did not declare the contents of the consignment. In other words, the Courier’s liability will be limited to loss of a packet of unknown contents as such instead of the loss of valuable documents like passport, visa, air-ticket etc. and whose loss prevented him from taking up a new and lucrative job in time I assess the quantum of loss payable at Rs. 100/- only in this case. The Order of the State Commission is set aside. The respondent claimant is entitled to refund of the Courier consignment freight plus Rs. 100/- only as damages. There is no order as to costs.