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Himachal Pradesh High Court · body

2007 DIGILAW 405 (HP)

Akash Ganga Courier Ltd. v. Mohar Singh

2007-10-01

ARUN KUMAR GOEL, SAROJ SHARMA

body2007
ORDER (Arun Kumar Goel, President) - This appeal is directed against the order dated 21.12.2006, passed by District Forum, Kullu, in Consumer Complaint No. 18/2006. By means of impugned order appellant and respondent No. 3 have been directed to pay Rs. 40,000/- to the respondent No. 1 with interest @ 9% per annum from the date of institution of the complaint i.e. 21.4.2006 till payment alongwith cost assessed at Rs. 2000/-. 2.Record of the complaint file shows that appellant was set ex parte after due service in the complaint before the District Forum below. This factual position was also not disputed at the time of hearing on its behalf. Only respondent No. 3 contested this case. Appellant is a courier service and respondent No. 3 carries on its business on its behalf in District Kullu. Respondent No. 1 filed the complaint on the basis that he had sent 5 kilograms of cabbage seed to M/s.Ajay Enterprises, near bus stand, Theog. Value whereof was Rs. 90,000/-. Its shippers’ receipt, is at page 29 of the complaint file, it shows payment of Rs. 125/-. It was not delivered to the addressee according to respondent No. 1. As such he got issued legal notice to the General Manager of the appellant, as well as to respondents No. 2 and 3. 3.In this context it may be noted that respondent No. 2 was deleted at the instance of the respondent No. 1 before the District Forum below. As such he being not a party to the complaint, it was ordered to be deleted in the present appeal, vide order dated 25.4.2007 passed by us. 4.In response to the legal notice, appellant asked the lawyer to send the particulars of shippers receipt. Further, it was mentioned that all the terms and conditions are mentioned in its shippers which is the contract between both party (parties). The terms and conditions are the subject of claim and compensation. Needful was done on behalf of the respondent No. 1, vide his lawyer’s letter dated 23.1.2006 through registered post, copy whereof is at page 34 of the complaint file. 5.Another fact that needs to be noted here and is borne out from the record is, that the addressee to whom courier was sent informed respondent No. 1 regarding non receipt of the courier sent on 7.11.2005 as per intimation dated 15.11.2005. Communication in this behalf is at page 48. 5.Another fact that needs to be noted here and is borne out from the record is, that the addressee to whom courier was sent informed respondent No. 1 regarding non receipt of the courier sent on 7.11.2005 as per intimation dated 15.11.2005. Communication in this behalf is at page 48. It appears that respondent No. 1 Mohar Singh sent letter dated 20.11.2006 asking the addressee to whom courier was sent again enquiring regarding receipt of the consignment sent through the courier service. It was re-affirmed by the said addressee that till 22.11.2006 the firm had not received the consignment in question. 6.This resulted in filing of the complaint. And as already noted the appellant those to remain absent despite service, whereas respondent No. 3 filed reply to the complaint. His version is that the respondent No. 1 had sent one parcel of 5 KGs on 7.11.2005 to M/s. Ajay Enterprises Theog, District Shimla and further according to him it was received by the said addressees. This is what he has stated in paragraph 3 (iii) and (iv) of his reply. Further according to him since the complaint was not filed within 30 days by the respondent No. 1, it is presumed that parcel sent by respondent No. 1 has been delivered to the addressee. He has again reiterated his stand regarding delivery of consignment to the addressee again in paragraph 3(vii) of the reply. 7.In this background Mr. Aggarwal learned Counsel for the appellant submitted, that consignment in question has been duly delivered to the addressee and further according to him, that even it was not delivered, then in terms of the shippers receipt which is at page 29 of the complaint file, respondent No. 1 at best is entitled to Rs. 500/- in all. Though on the basis of reply of respondent No. 3 he urged that the consignment was duly delivered to the addressee. Whereas the addressee has specifically denied this position in writing. Both the original letters are there on the file of the complaint. 8.In addition to this evidence produced by respondent No. 1 has remained unchallenged on behalf of the appellant. So far respondent No. 3 is concerned, he has also not filed any evidence to controvert, muchless rebut the evidence of the complainant. Both the original letters are there on the file of the complaint. 8.In addition to this evidence produced by respondent No. 1 has remained unchallenged on behalf of the appellant. So far respondent No. 3 is concerned, he has also not filed any evidence to controvert, muchless rebut the evidence of the complainant. With a view to support the case of the appellant learned Counsel referred two decisions of the National Commission in the case of M/s. Airpak International Pvt. Ltd. v. K.P. Nanu and another, 1997(2) CLT 237 and in case of Airpak Couriers (India) Pvt. Ltd. v. S. Suresh, 1994(1) CLT 500. On the other hand Mr. Sunil Mohan Goel learned Counsel for the respondent No. 1 refereed to the decision of National Commission in the case of M/s. Skypak Couriers Pvt. Ltd. v. Consumer Education and Research Society and others, 1999 NCJ (NC) 79 and submitted that the impugned order needs to be upheld as it suffers from no infirmity to call for interference in this appeal. 9.Learned Counsel for the respondent No. 3 reiterated the stand of his client as set out in the reply as briefly referred to hereinabove and also supported the submissions of Mr. Aggarwal. 10.For the reasons to be recorded hereinafter, so far decisions of the National Commission relied upon on behalf of the appellant to limit its liability in terms of the shippers receipt are concerned, in the circumstances of this case, they have no applicability and thus on benefit can be derived by the appellant from those. 11.A perusal of the original shippers receipt shows that it is not signed by the sender i.e. respondent No. 1. As according to us, in order to bind said respondent with its terms and conditions it was necessary, that it should have been got signed from the sender also. In these circumstances to say that the liability of the appellant and or respondent No. 3 is limited to a maximum sum of Rs. 500/- is not correct on the part of the appellant and or respondent No. 3 and therefore this plea is rejected. 12.Similarly, there is no evidence on record to suggest directly, indirectly, remotely or even by necessary implications, that the terms and conditions were read over and explained to respondent No. 1 by respondent No. 3 for and on behalf of the appellant. 12.Similarly, there is no evidence on record to suggest directly, indirectly, remotely or even by necessary implications, that the terms and conditions were read over and explained to respondent No. 1 by respondent No. 3 for and on behalf of the appellant. This in our opinion is necessary for the purpose of taking advantage by the appellant as well as by respondent No. 3 simultaneously getting it signed from the said respondent. 13.Faced with this situation learned Counsel for the appellant stated that once the shippers receipt was accepted by respondent No. 1, he is presumed to be aware of all the conditions subject to which he booked the consignment. We cannot upheld this submission urged on behalf of the appellant and supported by respondent No. 3. 14.In fact, with a view to complete the contract between appellant and respondent No. 3 on one side and respondent No. 1 on the other , we are of the view that unless the senders’ i.e., respondent No. 1 is a privy to it, there is no question of his being bound by it and admittedly the original shippers receipt is not signed by him not there is any evidence produced by respondent No. 3 to suggest that its conditions were read over and explained to the said respondent No. 1 who after admitting those and agreeing too as well as having signed it to had booked the consignment in question. And as already noted evidence regarding dispatch is admitted by respondent No. 3 in its reply who has set out the plea of delivery. Though no delivery receipt has been placed on record. In case the consignment had been delivered to the addressee, why no receipt was produced before the District Forum below, learned Counsel for the respondent No. 3 had no answer, and so was the position of Mr. Deepak Aggarwal learned Counsel for the appellant. 15.Therefore, in our opinion the shippers receipt was unilateral document, as such no benefit can be delivered either by the appellant or by respondent No. 3. Latter in any case even otherwise cannot take any benefit of this receipt because his case is of the consignment having been delivered to the addressee, but without any proof of such delivery, as also because of non-rebuttal of the evidence produced by the appellant. 16.No other point is urged. Latter in any case even otherwise cannot take any benefit of this receipt because his case is of the consignment having been delivered to the addressee, but without any proof of such delivery, as also because of non-rebuttal of the evidence produced by the appellant. 16.No other point is urged. In view of the aforesaid discussion, we find no merit in this appeal which is accordingly dismissed with cost quantified at Rs. 5000/-. All interim orders passed from to time shall stand vacated forthwith. Office will make available a copy of this order to the parties free of costs as per rules. M.R.B. ———————