1. This revision petition has been filed by the petitioner Manager DTDC express limited challenging the order dated 21st August 2017 passed by the State Consumer Disputes Redressal Commission, West Bengal (in short ‘the State Commission’) in First Appeal No.A/ 638/2016.
2. Brief facts of the case are that the respondent/complainant had booked a consignment for delivery to Guwahati from Kolkata on 4th March 2014 which was to be delivered on 8th March 2014. However the consignment was not delivered to the consignee till the stipulated time. The complainant pursued with the opposite party however no response was there and therefore the complainant filed a consumer complaint before the District Forum being CC number 612/2014. The complaint was contested by the opposite party by filing the written statement in which it was mainly alleged that the complainant had given incomplete postal address and therefore it was not possible for the opposite party to find out the address of the consignee. However the District Forum partly allowed the complaint and directed the opposite parties to pay rupees 10,000/- to the complainant for mental harassment and rupees 1000/- towards the cost of litigation within one month from the date of this order failing which OPs will pay 9% per annum interest.
3. Aggrieved by the order of the District Forum dated 30th June 2016 the complainant as well as the opposite party filed the appeals before the State Commission. The State Commission vide impugned order dated 21st August 2017 dismissed the appeal of the opposite party and allowed the appeal filed by the complainant as under :-
“The Appeals are accordingly disposed of.
That A/638/2016 A/703/2016 be and the same are dismissed and allowed on contest, respectively. The impugned order is modified as under:
The OPs shall pay the entire cost of goods, i.e., Rs.60,676/- to the complainant together with compensation for a sum of Rs.20,000/- and litigation cost amounting to Rs.1,000/- within 45 days hence. In default, OPs shall be liable to pay simple interest @9% on Rs.60,676/- from the date of filing of the complaint, i.e., 11-11-2014 till full and final payment is made.”
4. Hence the present revision petition.
5. Heard the learned counsel for both the sides and perused the record. Learned counsel for the petitioner stated that when the consignment was being booked it was suggested by the counterperson to take insurance for the consignment however, no insurance was taken and the consignment was booked under D series. It is mentioned on the receipt that for every consignment the liability of the petitioner will only be up to rupees 5,000. Therefore the petitioner cannot be burdened with more compensation than the liability arising out of the contract between the parties. Moreover, the petitioner is not concerned with the valuation of the consignment if no insurance premium is paid. If a person is sending valuable item, then precaution should be taken to send the same by obtaining the insurance cover as well. Otherwise for normal items, the liability is up to rupees 5,000/- only as mentioned in the receipt which forms the contract between the two parties.
6. It was further argued by the learned counsel for the petitioner that as alleged, the consignment consisted of a makeup kit which was sold by the complainant to the consignee and the transaction was of commercial nature and the service of the petitioner was availed for commercial purpose. Consequently the complainant is not a consumer under the provisions of the Consumer Protection Act 1986.
7. On the other hand, the learned counsel for the respondent/ complainant stated that the complainant has not done any commercial business with the petitioner and it was a sale to the consignee by the complainant who is running this business for earning her livelihood by means of self-employment. Since, State Commission has already dealt with this issue and has reached to the conclusion that this was not a commercial transaction and it was only an availment of courier service which is covered under Section 2(1) (o) of the Consumer Protection Act 1986.
8. It was further argued by the learned counsel for the complainant that though it has been argued by the learned counsel for the petitioner that the complainant was suggested to take insurance, however, no such letter or any proof has been filed by the petitioner to prove the same. Hence no value can be attached to this assertion of the petitioner.
9. With respect to the argument of the learned counsel for the petitioner about the limited liability of the petitioner, the learned counsel for the complainant stated that this issue has been examined by the State Commission and it has been concluded that mere printing of a specific liability clause does not constitute any conscious agreement between the parties and therefore the argument of limited liability has not been accepted by the State Commission. In support of his argument, the learned counsel referred to the judgment of this Commission in Roadwings International Vs. Hindustan Copper Limited & anr., III (1999) CPJ 23 (NC) wherein it has been observed:-
“9. The plea taken on behalf of the appellant that there was a specific contract to oust his liability as a common carrier is not acceptable in the facts of the case. The owner of goods did not enter into any specific contract in writing with the appellant as required in Section 6 of the Act. The contention of the appellant is that there is a printed Terms and Conditions of the carriage. These Terms and Conditions were binding on the owner of the goods. But, from what has been produced before us we do not find any signature of the owner in the document containing terms and conditions of the carriage of goods. It will be wrong to presume that the owner had consented to these terms and conditions before the delivery of the goods to the common carrier. Condition mentioned in a goods receipt issued by the carrier but not signed by the owner cannot constitute a special contract contemplated by Section 6 of the Act.”
10. The learned counsel for the complainant also referred to the judgment of this Commission in Air Star Express Courier Vs. Inder Medical Store & anr., II (2012) CPJ 167 (NC) wherein it has been observed:-
“7. Counsel for the petitioner then invited our attention to Clause 2 of the terms and conditions printed on the receipt which provides that “this Company limits its liability to a maximum of Rs.100 per consignment in any case”. That the petitioner’s liability is limited and the petitioner is not liable to pay more than Rs.100 for the loss of consignment. We do not find any substance in this submission. Written statement filed by the petitioner before the District Forum has not been placed on record. From the order of the District Forum, it appears that in the written statement petitioner had nowhere stated that the liability of the petitioner was limited to Rs.100 only. We are not sure whether the receipt now shown to us was produced in evidence before the District Forum. Otherwise also, this point has neither been considered or decided either by the District Forum or the State Commission. Under these circumstances, the plea now taken by the petitioner that liability was limited to Rs.100 only, cannot be accepted.”
11. I have carefully considered the arguments advanced by the learned counsel for both the parties and have examined the material on record. District Forum in its order has mentioned the following:-
“We are satisfied that the complainant is able to prove that the deficiency in service of the O.Ps. Under such circumstances, we find it is a fit case wherein the complainant deserves the compensation and litigation cost because that the consignee has already received the goods.”
12. From the above, it seems that the District Forum has given a finding that the consignment had reached the consignee though the same may have reached late and that is why the District Forum has only allowed the compensation and not ordered the cost of the consignment to be paid. However the State Commission has also awarded the cost of the consignment and has observed as under:-
“The essence of the bone of contention, i.e. non-delivery of consignment is not in dispute. It appears from the copy of Tax Invoice that the complainant sent goods worth Rs.60,676/- through the OP Courier after paying due service charge for this purpose. As a carrier, the OP Courier Company was duty bound to ensure safe and timely delivery of the consignment to the addressee, which it could not ensure. Therefore, there is no reason, why a hapless consumer should bear the brunt of laxity on the part of the service provider for which they charge a consumer through the roof. Accountability can only be restored if we show zero tolerance towards acts of laxity. In my considered view that the OP should be held liable to make good every penny of the loss suffered by the complainant.”
13. The State Commission has mentioned that the non-delivery of the consignment is not in dispute, though the District Forum has given a clear observation that the consignment was received by the consignee. The State Commission has not mentioned whether the State Commission has found the finding of the District Forum as wrong and on what basis. The State commission has also not given any finding that the consignment did not reach the consignee. It is also very strange that the opposite party has also not mentioned in written statement whether the consignment was received by the consignee or not. Thus, the position in respect of the delivery of the consignment was doubtful and therefore this Commission vide it's order dated 3rd April 2019 gave time to the learned counsel for the petitioner to file any document or any other proof for delivery of the consignment to the consignee. The learned counsel had stated that he will seek instruction in this regard, however, nothing has been filed by the learned counsel for the petitioner and therefore the conclusion needs to be derived that the petitioner does not have any proof to establish that the consignment was delivered to the consignee. The consignment note reads as under:-
“Consignment note for 5 kg & above or 1 kg & above when paired with secure pack in Lite service.”
14. This is a Consignment note for 5 kg and above or 1 kg and above when paired with secure pack in Lite service. However, no weight is mentioned on this consignment note. There are columns for description of content and value of goods. However all these columns are blank. The column of total value of goods in rupees is also blank. In column number 5 declared value for courier has to be mentioned in rupees, however, the same is also blank.
15. This consignment note is not signed by the sender though there is a specific space mentioned for the signature of the sender. It is thus clear that the petitioner opposite party has not even completely filled up this consignment note for the reasons best known to them. Had the value been quoted in this consignment note, the delivery persons of the opposite party would have given more attention to the correct delivery of the consignment. It is nowhere mentioned in the consignment note that these columns are to be filled only if insurance is taken. Therefore, in my view, the petitioner has been deficient in completing the consignment memo as per the actuals. In a similar case where mobile sets of about Rs.8.00 lacs were sent by the same courier but did not reach the consignee, this Commission in Ashish Verma Vs. DTDC Courier & Cargo Limited & Ors., RP No.886 of 2015, decided on 06.8.2018 has observed the following:-
“9. First of all, the OPs’ policy of liability does not distinguish between envelope containing a letter and a carton weighting heavily like carton of mobiles sets etc. However, this depends on the policy of the OPs and they have established that they are liable to pay only Rs.500/- as per that policy. Clearly, there is no insurance taken by the complainant and as per the version of the OPs, even the risk coverage policy of the OP was not taken by the complainant, though the complainant has stated that he never denied paying for the insurance and whatever money was asked, he had paid the same and he was under the genuine impression that risk cover was already paid for. So far as the liability of the OPs with respect to loss or misplacement of the two packets is concerned, as per the terms and conditions that is rightly assessed by both the fora below as Rs.500/- only. But the question of deficiency in service has not been considered by any of the fora below. The deficiency is not only in respect of loss of the packets, however, the deficiency is also in the processing of the receipt, dispatch and delivery of these packets. It is seen from the booking receipt/risk coverage consignment note that most of the columns are not filled by the OPs and it only mentions five packets. On the right hand side of this note, following is mentioned:
“ 100% money back guarantee.
Use our Assured Second Business Day Delivery Service to place Far & Wide Across the Country”
10. The OPs have not even returned the fee paid to the OPs by the complainant as per this promise when the items were not delivered. This shows that the OPs are not even honoring their own commitment which is printed on this note. Moreover, it is seen that in this booking receipt/Risk Coverage Consignment Note, most of the columns are blank and no details of the packaged boxes have been given and the claim column relating to value of box has been left blank. It is also not clear that if risk coverage was not there then why risk coverage note was issued to the complainant. If this is just the booking receipt, then why the amount charged is not mentioned in this document. It seems that the OPs have not filled up this form completely to avoid their liability in future. So it means that their intentions were not good and their employees may be involved in the whole incident. Thus, this is clearly an unfair trade practice which has been adopted by the respondents/ OPs and even if this is due to mistake of some employees of the OPs company, the company would be liable for the same on the principle of vicarious liability. Due to this unfair trade practice, the complainan
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t has suffered and he has not been able to recover the cost of the consignment from the OPs. Thus, the complainant is required to be compensated for this unfair trade practice adopted by the respondents/OPs. In the facts and circumstances of the case, I deem it appropriate to allow a compensation of Rs.1 lakh to be paid by the respondents/OPs to the petitioner/complainant for this unfair trade practice. The total cost of the misplaced consignments cannot be allowed as compensation because the complainant has also been negligent in not getting the form filled up by the OPs with all the details and he also did not check it at the time of booking the consignments. The value of cartons is not proved on the basis of these receipts/risk coverage note.” 16. On similar lines, in the present case, I deem it appropriate to allow a compensation of Rs.30,000/- (rupees thirty thousand only) along with interest @6% p.a. from the date of filing complaint till actual payment. 17. Based on the above discussion, the revision petition no.3124 of 2017 is partly allowed and the petitioner is directed to pay Rs.30,000/- along with interest @6% p.a. from the date of filing the complaint till actual payment. As interest is being awarded, no justification is there for separate compensation of Rs.20,000/- and this part of the State Commission’s order is set aside. Cost of litigations of Rs.1,000/- is enhanced to Rs.5,000/-. The orders of the fora below stand modified accordingly. This order be complied by the petitioner/opposite party within a period of six weeks from the date of receipt of this order.