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M/s. Neetha Impex Pvt. Ltd. v/s Dhl Worldwide Express Rep. By Its Company Secretary & Another

    Consumer Case No. 204 of 2002

    Decided On, 11 October 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Complainant: Kanhaiya Kumar, Anil Kumar, Advocates. For the Opposite Parties: Sandeep Narain, Anjali Agarwala, Advocates.



Judgment Text

The complainant which is an exporter consigned exported fabric worth Rs.31,76,195/- and sent the goods to the overseas buyer, by ship. The goods were consigned to Serif Implex Trading Company L.L.C., Dubai and were to be delivered at Kongo. The consignment having been financed by Union Bank of India, Hyderabad, the shipping documents were sent by Union Bank of India, Hyderabad to M/s. Overseas Marketing, bearing the address C/o, Somafri Bankque Development De MALI BP 94, Bamako in MALI through opposite party No.1 DHL Worldwide Express. The consignment instead of being delivered to Overseas Marketing was delivered to one Yattassaye. On the basis of the said documents, the goods were obtained by some unauthorized person thereby, causing loss to the complainant. Alleging negligence on the part of opposite party No.1 in rendering services to it, the complainant s before this Commission, seeking price of the consignment along with interest @ 24% per annum, amounting to Rs.15,24,576/- and compensation quantified at Rs.75,00,000/- making a total of Rs.1,22,00,000/-.

2. The complaint has been resisted by opposite party No.1, which inter-alia alleged in its written version that on the consignment i.e. the envelope containing documents reaching MALI on 06.6.2000 they admitted to deliver the same at the address mentioned on the envelope. However, the representative of Somafri Banque refused to accept the consignment as it was addressed to Overseas Marketing of which they were not aware. Earlier, two persons namely Mr. Kumar and Mr. Yattassaye claiming to be representatives of Overseas Marketing had approached Bamako, Mali Office of opposite party No.1 on 05.6.2000 with a copy of the airway bill which opposite party No.1 had issued while accepting the consignment. The said copy had been faxed by the complainant Neetha Implex. Thus two persons enquired about the consignment and informed opposite party No.1 that the said consignment had been sent for them by Mr. M. Prasad, Neetha Impex. They also showed the visiting card of Mr. Prasad as well as their own visiting cards in addition to the faxed copy of the airway bill issued by opposite party No.1to prove their bonafides and to enable opposite party No.1 to verify the fax number on the faxed copy of the airway bill with the fax number appearing on their visiting cards. Thus t wo persons again came to the office of opposite party No.1 on 06.6.2000 but the consignment had not arrived at Mali by that time. The envelope was thereafter handed over by Mali office of opposite party No.1 to Mr. Yattassaye when he visited the office of opposite party No.1 at 2.00 pm on 06.6.2000. While taking delivery he handed over a copy of the faxed airway bill to opposite party No.1. At about 3.00 pm on the same day Mr. Kumar, who had earlier come twice with Mr. Yattassaye came to the office of opposite party No.1 and enquired about the consignment. He was informed that the consignment had already been collected by Mr. Yattassaye. Mr. Kumar thereupon left the office of opposite party No.1. Thereafter, one Mr. Zoumana Diakite claiming to be Director of Overseas Marketing sent a letter to opposite party No.1 claiming that Mr. Yattassaye was not authorized by them to accept the consignment. General Manager of opposite party No.1 at Mali sent a reply to Mr. Zoumana Diakite but the same could not be served as no such person / company was found at the address given on his letter. It is further alleged that Mr. Zoumana Diakite met the General Manager of opposite party No.1 along with Mr. Kumar and admitted that Mr. Yattassaye was working with them but had escaped to Congo after cheating them. Thus according to opposite party No.1 there was no negligence on its part in rendering services. It is also claimed by opposite party No.1, without prejudice to its reply on merits, that its liability under the said airway bill is limited and cannot exceed 100 US $.

3. When this complaint came up for final hearing on 05.10.2018, more than sixteen years after it had been instituted, the learned counsel appearing on behalf of the complainant sought yet another adjournment, despite the complainant having already availed several adjournments. The following order therefore was passed by this Commission on 05.10.2018:

'Today also adjournment is sought on behalf of the complainant. The learned counsel for OP-1 submits that at least 10 adjournments have already been taken by the complainant. I find that adjournments were taken by the complainant in this matter on 12.12.2003, 23.7.2004 before the complaint was dismissed in default and for non-prosecution on 6.10.2004. Thereafter the complaint was restored on 4.2.2005. The complainant again took adjournment on 17.11.2005, 21.2.2013. Then this complaint was again dismissed for non-prosecution on 30.5.2013. The complaint was thereafter restored on 9.10.2013 and was listed for final hearing on 9.1.2014. The complainant again took adjournment on 9.1.2014 and 30.4.2014. Thereafter he filed an application for amendment. The said application was withdrawn by him on 27.10.2014. The complainant took further adjournment on 9.4.2015, 28.9.2015, 21.4.2016, 11.1.2017, 22.8.2017, 31.1.2018 and 26.9.2018. Considering the large number of adjournments already taken by the complainant and the age of the complaint, which is pending since 2002, I am not inclined to grant any further adjournment. The learned counsel appearing for the complainant expresses his inability to argue the matter. He submits that the written version filed by the complainant may be considered.'

Accordingly, I have heard the learned counsel for the opposite party No.1 and considered the written submissions filed by the complainant and opposite party No.1.

4. The first question which arises for consideration in this complaint is as to whether the opposite party No.1 was negligent in the matter of delivery of the consignment, sent vide airway bill issued by it in favour of Union Bank of India, Hyderabad, on 01.6.2000. As noted earlier, the consignment was required to be delivered to Overseas Marketing. No address of Overseas Marketing was given to opposite party No.1 at the time of booking the consignment. The opposite party No.1 was required to deliver the consignment to Overseas Marketing through Somafri Bankque. If the aforesaid bank refused to accept the consignment on the ground that it was addressed to Overseas Marketing and not to them and they had no clue about the Overseas Marketing, the opposite party No.1 in the normal course of events should have returned the consignment to the sender Union Bank of India, Hyderabad. That course however, was not adopted by opposite party No.1. The question which then arises for consideration is as to whether the opposite party No.1 was negligent in rendering services as a Courier when it delivered the consignment to Mr. Yattassaye. Admittedly, no authority letter from Overseas Marketing, authorizing Mr. Yattassaye in writing to receive the aforesaid consignment from opposite party No.1 was either brought by Mr. Yattassaye or even sought by opposite party No.1 from him. Admittedly, no proof of identity of Mr. Yattassaye was obtained by opposite party No.1 while delivering the consignment to him. Though, it is claimed by the opposite party No.1 that Mr. Yattassaye had brought the visiting card showing him to be a representative of Overseas Marketing, no such visiting card has been produced. No affidavit from any official of the opposite party No.1 visited at Mali at the relevant time had been filed to prove that Mr. Yattassaye has shown to him a visiting card, which indicated him to be associated with Overseas Marketing. No attempt was made by opposite party No.1 to even obtain the address of the M/s. Overseas Marketing from Mr. Yattassaye and deliver the consignment at that address instead of handing it over to him.

5. It is true that on seeing the faxed copy of the airway bill and the visiting card of Mr. M. Prasad of Neetha Implex, the opposite party No.1 could have belied that they had come from M/s. Overseas Marking to enquire about the consignment, but that belief was not sufficient to deliver the consignment to Mr. Yattassaye without taking any authority letter from Overseas Marketing in his favour without and without even obtaining the documents of his personal identity. As noted earlier, the wiser course would have been to ask him to give the address of M/s. Overseas Marketing and then deliver the consignment at the said address instead of handing it over to Mr. Yattassaye. The alternative course of action should have been to return the consignment itself to the sender Union Bank of India, Hyderabad. Therefore, the opposite party No.1, in my opinion was negligent in rendering of its services though the said negligence may not be termed as gross negligence. Since the complainant suffered loss on account of the aforesaid negligence of opposite party No.1 due to Mr. Yattassaye taking delivery of the goods on the basis of the documents which the sender had kept in the envelope that was handed over to Mr. Yattassaye, the complainant has to be compensated for the said loss.

6. The next question which arises for consideration is as to what amount, the complainant is entitled as compensation from opposite party No.1. Term No. 8 and 13 of the terms and conditions printed on the back site of the airway bill read as under:

'8. Extent of our liability –

(subject to conditions 11 and 13), in respect of any one shipment, our liability for any loss or damage however occasioned is limited to the lowest of these three amounts:

* US $ 100, or

* The actual amount of any loss or damage suffered by you; or

* The actual value of the shipment.This does not include any commercial value or special value to you or to any other person.

Some other terms and conditions read as under:

'13. Consequential damages

We are liable for the following whether they arise in contract or any other form of civil action, including negligence, and even if they are our fault:

* Consequential or special damages or loss

* Other indirect loss

* Breach of other contracts

Consequential damages or loss include, but are not limited to, lost income, profits, interest, markets, and use of contents.'

The notice printed on the back of the Airway Bill reads as under:

'By the conditions set out below DHL and its servants and agents are firstly not to be liable at all for certain losses and damage, and secondly wherever they are to be liable, the amount of liability is strictly limited to the amount stated in condition 8. Customers are therefore advised to purchase insurance cover to ensure that their interests are protected. See condition 10 –Insurance below.

7. The terms and conditions applicable to the shipment were expressly accepted by the sender who signed the following authorization printed on the front of the airway bill:

'5. Sender’s authorisation and signature

I/we agree that DHL’s standard terms apply to this shipment and limit DHL’s liability. The Warsaw Convention may also apply (see reverse)

I/we understand that DHL does not transport cash or dangerous goods (see reverse)

Signature …………. Date……….

8. Since the attention of the sender was expressly drawn to the terms and conditions on the reverse of the airway bill, it cannot be said that he had not read and accepted the said terms and conditions. Moreover, the sender being an employee of Union Bank of India, it would be difficult to believe that he had signed the said authorization without reading and understanding the terms and conditions of the consignment. In my opinion, when a person signs such an endorsement, it cannot be said that he had actually not read the said terms and conditions before apprehending his signatures to the said endorsement. Therefore, the liability of the opposite party No.1 cannot exceed US $ 100, the value of which in India Rupee at the relevant time is alleged to be Rs.4,345/-.

9. In Bharathi Knitting Company V. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 SCC 704, the appellant sent documents comprising invoice, packaging list, original export certificate, certificate of origin and original GSP form, to a German buyer through this very courier namely, DHL Worldwide Express Courier. The Cover did not reach the destination and by the time duplicate copies were sent to the buyer, the season was over. The appellant before the Hon’ble Supreme Court filed a consumer complaint, seeking compensation for the loss suffered by it, on account of the consignee having paid less than the invoice value of the goods. The State Commission decided in favour of the complainant. Being aggrieved, the opposite party / respondent preferred an appeal before this Commission. It was held by this Commission that the liability of the respondent / opposite party was only to the extent of US $ 100 as per the receipt issued by it. Being aggrieved from the order of this Commission, the appellant / complainant approached the Hon’ble Supreme Court, and contended that in the event of non-delivery of the cover, the resultant damages must be borne by the courier. Rejecting the contention, the Hon’ble Supreme Court inter-alia held as under:

'6. It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Anson’s Law of Contract, 24th Edn. At p. 152, on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arises: whether the terms of the contract were adequately brought to his notice? The terms of the contractual have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. ………….. But when there is a specific term in the contract, the parties are bound by terms in the contract. The National Commission in the impugned order pointed out as under:

We have considered the submissions of the counsel for the parties on the facts of the case and having regard to the earlier decisions of this Commission. The consignment containing the documents sent in the cover had been accepted by the appellant and was subject to the terms and conditions mentioned in the consignment note. The complainant had signed the said note at the time of entrusting the consignment and had agreed to and accepted the terms and conditions mentioned therein. Clauses 5 and 7 of the terms and conditions as also the important notice mentioned on the consignment note are reproduced below:

6. Limitation of liability – Without prejudice to clause 7 of the liability of DHL for any loss or damage to the shipment, which term shall include all documents or parcels consigned to DHL under this air bill and shall not mean any one document or envelope included in the shipment is limited to the lesser of

(a) Us $ 100

(b) The amount of loss or damage to a document or parcel actually sustained or

(c) The actual value of the document or parcel as determined under Section 6 hereof, without regard to the commercial utility or special value to the shipper.

7. Consequent damages excluded – DHL shall not be liable in any event for any consequential or special damages or other indirect loss however arising whether or not DHL had knowledge that such damage might be incurred including but not limited to loss of income, profits, interest, utility or loss of market.

Important Notice – By the conditions set out below DHL and its servants and agents are firstly not to be liable at all for certain losses and damages and secondly wherever they are to be liable the amount of liability strictly limited to the amount stated in condition and customers are therefore advised to purchase insurance cover to ensure that their interests are fully protected in all event.

Under Clause 5 of the terms and conditions of the contract, the liability of the appellant for any loss or damage to the consignment was limited to US $ 100. Clause 7 of the contract specifically provided that the liability of the appellant for any consequential or special damages or any other indirect loss, that may occur including the loss of market or profits etc. was excluded. It is also pertinent to note that despite the advice in the important notice, the complainant did not disclose at the time of consignment the contents of the cover and also not purchased the insurance cover to ensure that their interests are fully protected in all events.'

7. In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertak

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en in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission. Shri Krishnamni has brought to our notice that there are number of judgments covering divergent views. In view of the view we have expressed above, it is now settled law and the tribunals would follow the same.' 10. Considering the authoritative pronouncement of the Hon’ble Supreme Court in Bharathi Knitting Co. (supra) in a consumer complaint filed against this very courier, there is no escape from the conclusion that irrespective of the loss alleged to have been suffered by the complainant, the liability of the opposite party cannot exceed US $ 100, equivalent to Rs.4345/- at the relevant time. 11. The learned counsel for the complainant in his written submissions as referred to Saddler Shoes Pvt. Ltd., Etc. Vs. Air India & Ors. III 2001) CPJ 1 (SC) and Patel Roadways Ltd. Vs. Birla Yamaha Ltd. I (2000) CPJ 42 (SC). However neither of these judgments would apply to the present case, which involved carrying an envelope containing documents to its destination, without knowing the contents of the envelope. It would also be pertinent to note here that in the airway bill, it was stated that the shipment had no commercial value. No insurance in respect of the shipment was taken by the sender, Union Bank of India, Hyderabad. 12. For the reasons stated hereinabove, I hold that the opposite party is required to pay only a sum of Rs.4345/- to the complainant, along with appropriate interest. The opposite party is directed to pay the aforesaid amount to the complainant, along with simple interest @ 9% per annum from the date of institution of the complaint till the date of payment, within three months from today. The consumer complaint stands disposed of.
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