At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN
By, PRESIDENT & THE HONOURABLE MR. V.V. JOSE
For the Appellants: P. Balakrishnan, Advocate. For the Respondent: -----------
S.S. Satheesachandran: President
Appeal is filed by opposite parties 2 and 3 in C.C.No.444 of 2007 on the file of Consumer Disputes Redressal Forum, Thrissur hereinafter referred to as the 'District Forum'. The forum below has directed opposite parties in the above complaint case to pay compensation of Rs.1,00,000/- ( Rs.one lakh ) with cost of Rs.2,000/- (Rupees Two thousand) to the complainant. Aggrieved by the Order the above opposite parties have preferred this appeal.
2. Short facts necessary for disposal of this appeal can be summed up thus:Complainant through the opposite parties, who are consignees sent some documents in an envelope to his wife paying a sum of Rs.1874/- as charges.Concededly, the documents sent through the envelope were lost during shipping and it was intimated by the consignees to the complainant-consigner.According to Complainant the envelope contained valuable documents necessary for his wife to secure employment and in view of its loss during transit by the negligence of the consignee, she could not get any job and she had to incur a lot of expenditure for her stay in a foreign country. Imputing deficiency of service against opposite parties complainant claimed compensation of Rs.2,50,000/- and refund of charges paid for sending the consignment and also cost of Rs.7500/- (Rupees Seven thousand five hundred) from them.First opposite party separately and second and 3rd opposite parties, present appellants jointly filed versions disputing the claims of complainant . First opposite party contended that it was no way involved in the transaction and it has no liability towards the complainant. Second and third opposite parties in their version contended that their liability is restricted to the terms and conditions mentioned in Ext.P1 Bill.They also contended that the complainant has not suffered any special damage or other indirect loss due to loss of the consignment in shipping.
3. On the side of complainant Exts.P1 to P4 were exhibited, and no evidence was let in by opposite parties. The Forum below appreciating the materials produced upheld the claim of complainant and directed opposite parties to pay him compensation of Rs.one lakh and cost of Rs.2000/- (Rupees Two thousand). Challenge is against that Order.
4. Notice of appeal was issued to respondent/complainant.But after service he has elected to remain absent.
5. We heard counsel for the appellant and perused the records. Learned counsel for the appellant relying on Bharathi Knitting Company V. Dhi Worldwide Express Courier Division of Airfreight Ltd (Civil Appeal No.9057 of 1996) contended that where a limited liability is undertaken in the contract entered into by the parties the extent of liability on the defaulting party for deficiency of service should be limited to the liability agreed upon.The Forum below without even having an enquiry whether the complainant had suffered any special damages, for which no evidence was tendered by complainant,erroneously granted compensation in excess of limited liability agreed upon in the contract by parties, submits the counsel.Inviting our attention to clause (6) of Ext.P1 way bill, the learned counsel contended maximum liability which could be fixed upon the consignees is only 100 dollars and in the present case where there was no evidence for special damages compensation payable to the complainant for the loss of consignment during shipping should have been nominal and much less the amount fixed as outer limit of liability under the bill.
6. We have gone through Ext.P1 way bill. Clause 6 of Ext.P1 bill would show that the consignees’ maximum liability shall not exceed greater to 100 dollars or 20 U.S dollars per kilogram. Where a contract was entered by parties fixing the liability in the event of breach resulting damage to one of the parties the defaulting party can beheld liable only with the liability agreed upon by them.In the decision relied by the counsel and referred to above Apex court has held in awarding amount for deficiency in service the extent of liability undertaken by the parties in the written contract has to be respected to and followed.Taking note of the conflicting decisions rendered and confusion then holding field the Apex court has also stated that the law explained in the decision has to be followed by all forums and courts.As rightly contended by counsel for the appellant the forum below without taking note of the terms and conditions of Ext.P1 bill has ordered for payment of excess compensation to complainant from the opposite parties.Though the learned counsel has contended that no special damage was proved by complainant to claim the maximum liability fixed under Ext.P1 bill i.e 100 dollars we find that his case that the loss of documents had resulted in his wife not getting employment and she was forced to continue in foreign country incurring loss of expenditure cannot be brushed aside.So we are of the view that the complainant is entitled to get the maximum liability i.e. 100 dollars fixed under Ext.P1 bill, but not any amount in excess thereof. The learned counsel for appellant would submit that the present value of dollar in Indian Rupee can be taken note of for convenience in limiting and fixing the compensation payable.
7. Learned counsel for appellant would also submit that the appellants by mistake have deposited a sum of Rs.51,000/- (Rupees fifty one thousand) while filing this appeal though the maximum amount payable was only Rs.25,000/-(Rupees Twenty five thousand) under the proviso to Section 15 of Consumer Protect Act. Refund of the excess amount of Rs.26000/- is prayed for by t
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he counsel.If any excess amount over and above the maximum amount under the proviso to Section 15 has been paid in appeal, it shall be refunded to the counsel for the appellant on application. 8. Order passed by the forum below is modified limiting the compensation awarded to Rs.6500/- (Rupees Six thousand five hundred), which is equivalent to 100 dollars as per the prevailing market value.Cost of Rs.2000/- (Rupees Two thousand) ordered by the Forum is retained. Appeal is partly allowed as indicated above. Appellants are also allowed to have refund of the deposit made to the extent theappeal is allowed.