Carriage of goods and limitation of liability of Carrier
Goods are produced and sold .. .. the goods manufactured in one place have to be moved to the place where they are wanted (market demand and supply).To facilitate such movement, there are Transporters – from the time when goods were taken by hand, bullock / horse driven carts, motorized vehicles - - by trucks, rail, Sea and by aircraft !! A few decades earlier, came in – the Courier.
Welcome to my photo post – this morning ‘on movement of goods’ – how carefully one chooses the mode and the operator are of significance.This movement is insured under Marine cargo insurance policies.
A decade or so back on 23.09.2011, a party booked a consignment, containing the Pen Drive, with a Courier company to be delivered to the consignee, at Gurgaon. The thumb drive contained important data and was required to reach the consignee within a couple of days. As ill-luck would have it the consignment was not delivered at destination and when taken up, the Courier firm returned it back without remarks or remorse. It was stated that the complainant had mentioned the complete address of the addressee/consignee, on the consignment, but despite that the consignment was not delivered.The consignor took up further, lodged a claim throughRPAD.
The Courier tried to wash off its liability, on the ground of non-declaration of the contents of the consignment and value thereof, non filling up the declaration form, and giving incomplete address of the addressee. When the grievance of the complainant, was not redressed, left with no alternative, filed a complaint under Section 12 of the Consumer Protection Act, 1986.
The Courier in its written version, admitted the booking, and return of the consignment to the complainant but emphasized that the terms and conditions of booking were read over and explained to the complainant, at the time of booking the consignment, which he accepted. It was further stated that the liability of Opposite Party No.1, in case of any damage to the consignment, during the course of business, was to the extent of Rs.100/- only. They claimed that the consignment could not be delivered, to the consignee, on account of non-availability of his correct address. They contended that there was no promise to deliver the consignment within 2 days.
The Counsel for the Courier,placed reliance on Airpak Couriers (India) Pvt. Ltd. Vs. S.Suresh, I (1994) CPJ 52 (NC), a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, to contend that the complainant was bound by the limited liability clause, contained in consignment receipt. The perusal of the facts of Airpak Couriers (India) Pvt. Ltd.`s case (supra), clearly goes to reveal that the consignor therein had agreed to the terms and conditions of the consignment note that the liability of the courier shall be limited to Rs.100/- only. In the instant case, it was contended that neither the consignor signed the consignment note, admitting the terms and conditions thereof, nor he was read over and explained the same nor he agreed to the same. Thus, the terms and conditions being unilateral, in nature, were not binding on the complainant.
The State Forum in this case of DTDC observed thatthe mention of the limited liability is in very small print at the back of consignment note which is not necessarily read by the consignor before he/she entered into the transaction of despatch of the consignment and hence it cannot be said to be a part of negotiation between the two parties. Further, whatever may be the binding nature of the said clause in an action based on breach of contract we are of the view that it cannot restrict the liability of the courier for the consequences flowing out of its negligence and deficiency in the performance of the service undertaken by it.
In Skypak Couriers Pvt. Ltd. Vs. Consumer Education and Research Society, 1986-96 National Commission & SC on Consumer Cases 1788 (NS), the National Consumer Disputes Redressal Commission held as under: (v) The objection of the Couriers that liability of the opposite party was limited to Rs. 100/- did not carry any weight as the printed memo containing the above condition was neither signed by any body nor there was any evidence to show that the terms printed therein were shown to the consignor or the consignee or that the same were agreed upon by the consignor.
The principle of law, laid down, in the cases aforesaid, mentioned in this paragraph, is fully applicable to the facts of the instant case and limited liability clause of the Courier, was not binding on the complainant, as he was neither signatory to the same, nor any evidence was led by the Opposite Parties, that the said clause was read over and explained to him These were the unilateral terms and conditions, and, as such, the complainant was not bound by the same.
The State Forum held that the submission of the Counsel for the Courier being devoid of merit, is rejected. The appeal had been filed by DTDC Courier along with appeal for condonation of delay of 100 days.It was stated that the establishment was big with branches throughout India –hence the copy of order of Dist Forum had to be sent to their HO at Bangalore which resulted in delay due to administrative reasons.The State Forum further held thatthe appeal, being barred by time, and devoid of merit, is also dismissed, at the preliminary stage, with no order, as to costs.
Interesting ! – there are always lessons to be learnt.
With regards – S Sampathkumar
9.9.2024
