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2010 DIGILAW 464 (HP)

Harinder Kaur v. ON-DOT Couriers & Cargo Ltd. ,Regd. & Corpn.

2010-03-12

SAROJ SHARMA

body2010
ORDER Chander Shekher Sharma, M. This appeal is directed against the order passed by District Forum, Shimla in Consumer Complaint No. 238/2004, decided on 13.1.2009 whereby complaint of the appellant was partly allowed and the respondents were jointly and severelly held liable to pay a sum of Rs. 100/ - alongwith litigation cost quantified at Rs. 1000/-. Besides this compensation of Rs. 5000/- was also awarded. It was further directed that the order shall be complied with by the respondents within a period of 45 days from the receipt of copy of the order. 2. The facts of the case as they emerge from the record are that the appellant had booked a parcel containing two embroidered shirts and one embroidered dupatta with respondent No.2 amount of Rs. 110/ - was paid as courier charges. This parcel was to be delivered to the consignee Smt. Rano Chaddha at B-201, Madras Tower, Cuffe Parade, Mumbai-400005. Total value of the goods of the said parcel were Rs. 14,200/-. Further averments in the complaint were that these consignments were not delivered to the consignee which amounts to deficiency of service on the part of the respondent/unfair trade practice. 3. In this background complaint U/s 12 of the Consumer Protection Act, 1986 was filed whereby directions was sought that respondents be directed to refund Rs. 14,200/ - being declared value of the parcel @ 2% per annum from the date of booking of the parcel and to refund on amount of Rs. 110/ - which was charged for booking of the said parcel. Amount of Rs. 20,000/- was claimed as compensation for harassment and agony suffered by the appellant in addition to this amount on Rs. 5,000/- is claimed as litigation cost. 4. Respondents when put to notice resisted and contested the complaint and their plea was that as per condition No.4 of Annexure C-2 & C-3 their liability is only upto Rs. 100/ - and they have also pleaded that value of the goods have also not been declared at the time of booking of the articles by the appellant which is to be declared as per clause (6) of terms and conditions of consignment note Anneuxre C-2, C-3 and they have also pleaded that there is no deficiency of service on their parts. Appellant has also filed rejoinder to the complaint wherein he has re-iterated the stand they have taken in the complaint. 5. Brief resume of the evidence led by the appellant in the present case is that the appellant in support of its case filed his own affidavit and affidavit of Sh. Virender owner of Sughat Arts, Patiala and Sh. M.S.Brar and reliance was also placed upon various documents, duplicate bills Annexure C-l and consignment note Annexure C-2 to C-3 of On-Dot Couriers and Cargo Ltd., and Annexure C-4 which contained the complete description of the articles booked and their value, Annexure C-5 letter dated 21.7.2003 addressed to the Branch Manager of respondent No.2. 6. We have heard learned counsel for the appellant and have also gone through the record of the case minutely. Mr. Vivek Negi, learned counsel for the appellant argued that District Forum below fell into error when it only allowed Rs. 100/ - to his client by placing reliance upon the terms and conditions in the consignment note Annexure C-l to C-2 which as per him are not binding upon the appellant, since they does not bear signatures of the appellant and as such appellant is entitled for the value of the articles booked by his client which comes to Rs.14,200/-. In support of this contention he has placed reliance on the decision of this Commission in First Appeal No. 382/2007, decided on 26.8.2008, titled as Manish Thakur V/s. M/s. Blaze Flash Courier Ltd., & Ors., Latest HLJ 2008 HP 1117: 2010 (1) CPC 591. As will be seen from the subsequent paras of this order, this decision fully covers this case and order of the District Forum below is liable to be set aside. 7. However, none appeared for the respondents in present case but the plea of the respondents in the present case their reply was that as per terms and conditions of the consignment noted their liability is only limited upto Rs. 100/ - and the appellant has also not declared the value of the goods which were booked for delivery to the consignee. 8. After hearing the learned counsel for the parties as well as after going through the record of the case we are of the view that order of District Forum is not legally sustainable. 100/ - and the appellant has also not declared the value of the goods which were booked for delivery to the consignee. 8. After hearing the learned counsel for the parties as well as after going through the record of the case we are of the view that order of District Forum is not legally sustainable. Reason being that District Forum below has wrongly placed reliance on the terms and conditions contained in consignment note Annexure C-1, C-2 while indemnifying the appellant to the extent-of Rs. 100/-. As these terms and conditions contained in Annexure C-1,C2 are not binding upon the appellant for want of signatures of the appellant on it and as such there is no concluded contract between the parties. The relevant terms and conditions No. 4 is extracted here in below :- "The COMPANY is liable only to the Consignor/ Shipper for any loss or damage to the shipment to the extent of loss of damage to a document or parcel actually sustained, subject to a maximum amount of Rs. 100/ - (Rupees One Hundred Only) in case of domestic packets & equivalent to US$ 100 (US$ One Hundred Only) in case of International Packets." 9. In the present case this fact is clearly proved on record form Annexure C-4 which clearly depicts the detail of the articles booked by the appellant and the value of these articles which comes to Rs. 14,200/-. This fact also find support from the affidavit of the complainant and also from Annexure C-1 which relates to bill No. 467 amounting to Rs. 2200/- and bill No. 465 amounting to Rs. 75001and even from the affidavit of Virender who is the owner of Swagat Arts Photographs from whom the part of booked articles were purchased vide bill No. 465 and 467 dated 3.6.2003. Respondents have not clearly denied the contents of Anneuxre C-4 which clearly depicts the detail of booked articles a10ngwith its value and which legally amounts to admit on the part of the appellant. As such from the aforesaid evidence on record this fact is clear that the value of the consigned articles was Rs. 14,200/-. There is no cogent and convincing evidence led by the respondents to rebute the aforesaid evidence as such we have no option but for accepting the same. 10. As such from the aforesaid evidence on record this fact is clear that the value of the consigned articles was Rs. 14,200/-. There is no cogent and convincing evidence led by the respondents to rebute the aforesaid evidence as such we have no option but for accepting the same. 10. There is cogent and convincing evidence on record to prove that there is a gross negligence on the part of the appellant, since they fail to deliver the articles to the addressee. Hence the appellant are liable to indemnify the respondent to the value of the consigned articles which is Rs. 14,200/-. This fact has also come on record that amount of Rs. 6100/ - were sent to the appellant through Bank Draft No. 867667, dated 24.3.2009, of Corporation Bank, during the pendency of the present appeal vide letter dated 2.4.2009, which is at page 78 of the complaint file. Even Sh. Negi, learned counsel for the appellant had drawn our attention to letter dated 29.4.2009, which was addressed to authorised signatory of On Dot Couriers and Cargo Ltd., which he had produced during the course of arguments which was also placed on record and is at page-82A of the complaint file which clearly depicts that amount of Rs. 6100/- were received by the appellant under protest during the pendency of appeal without prejudice to his rights in this appeal. 11. No other point was urged. 12. In view of the aforesaid discussion we partly allow this appeal holding that appellant is entitled to the 8.P'CUllt of Rs. 14,200/- being the cost of consigned articles in addition to what has been awarded by the District Forum. It is also made clear that since the amount of Rs. 6100/- had already been received by the appellants during the pendency of appeal as discussed in para-7 supra, as such appellant will only be entitled to an amount of Rs. 8100/- only. Respondent is further directed to pay an amount of Rs. 8100/- to the appellant within a period of 45 days from the date of this order failing which the appellant will be entitled to interest @ 9% per annum till its payment. No order as to costs. 13. All interim orders passed from time to time shall stands vacated forthwith. 14. 8100/- to the appellant within a period of 45 days from the date of this order failing which the appellant will be entitled to interest @ 9% per annum till its payment. No order as to costs. 13. All interim orders passed from time to time shall stands vacated forthwith. 14. Learned counsel for the appellant has undertaken to collect copy of this order free of cost from the Court Secretary as per Rules and office is directed to send the same to the respondent, in the like manner. M.R.B.