INDIAN FARMERS FERTILIZER COPERATIVE LTD. vs SKY PACK INTERNATIONAL EXPRESS

THIS complaint is by the Indian Farmers Fertilizer Co-operative Ltd., Aonla (IFFCO hereafter) in which initially M/s. Sky Pack International Express, Bombay and its Branch Office at Bareilly were impleaded as opposite parties. Subsequently under an order of the Commission dated 19.11.1992 the Insurance Company, Bombay and its Branch Office at Bareilly were impleaded as opposite party Nos. 3 and 4.

THE case of the complainant is that they had imported some machinery items as actual users from England. THEse items were supplied by Elarm International, London through Invoice dated 2.2.1990 in a single package. This package was received at Bombay by the clearing agent of the complainant (Nav Bharat Corporation), and handed over to Sky Pack Courier Service for delivery at Aonla at Bareilly to the complainant. When the consignment was received at Bareilly it was found that the packet was damaged and three pieces were short from amongst those items which were supplied from England. In the delivery receipt an endorsement that the package was damaged and that three pieces mentioned therein were short was made under the signature of the Branch Incharge of the Sky Pack Courier. The case of the complainant is that the Courier was responsible for the loss occasioned to the complainant due to short delivery. The complainant was entitled to reimbursement by the Insurance Company which had insured the consignment.

The stand taken in the reply by the Sky Pack Courier was that a sealed package was entrusted to it for delivery at Bareilly without any disclosure about its contents. As such, it was not liable to indemnify the complainant for any shortage which may have been found in the package at the time of its delivery. It has been stressed in the reply that at no stage were the contents of the package made known to the courier either by the complainant or by the clearing agent till the time of the delivery of the package at Bareilly.

THE Insurance Company has taken stand that it undertakes the liability subject to conditions mentioned in the insurance policy and that in the present case it was not liable at all. Parties filed affidavits alongwith which some documents have also been filed as enclosures by way of evidence. We have heard Mr. Santosh Kumar Counsel for the complainant at some length. Mr. B.P. Dubey, Advocate is present on behalf of the Insurance Company.

IN the affidavit of the Sri Narain Bhatia filed in support of the complaint it has been asserted in paragraph 4 that the packet had been entrusted to the courier in perfect condition, after the custom examination thereof by the clearing agent at Bombay and the courier had undertaken to transport and deliver it to the complainant in a similar condition. IN reply to this assertion it has been stated in the counter affidavit of Mr. P.K. Nigam on behalf of its Sky Pack Courier service that the clearing agent had handed over a sealed pack consignment to deliver the same to Aonla unit of the complainant and that the clearing agent never disclosed as to what were the contents of the sealed package. The package was handed over without any knowledge about its contents by the courier to the complainant. A rejoinder affidavit had been filed by Sri Narain Bhatia in which the allegation aforesaid in the counter affidavit has been denied and it has been asserted that the courier had full knowledge about the contents of the package and all the concerned documents had been seen and inspected by the courier. This is stated in paragraph 3 of the rejoinder affidavit of which the contents have been sworn to be true on the basis of knowledge acquired from the record. However, no such record from which it may stand established that the contents of the package were made known to the courier at the time when it was handed-over to them at Bombay has been placed on the record of this case. Mr. Santosh Kumar has drawn our attention to the Invoice dated 2.2.1990 of Elarm International in which the various items supplied have been mentioned as well as to the Delivery Receipt containing mention about the short delivery of three articles and damaged condition of the package. It has been urged on the basis of these documents and the endorsements contained on the Delivery Receipt that it should be presumed that the courier had knowledge of what was being handed over to it for delivery at Bareilly. It has also been urged that in the normal course of business no courier will accept any package for delivery at some other place except after finding out about the contents of the package to be delivered. As such also, says the Counsel, it should be presumed that the courier knew about the contents of the package when it accepted it for delivery at Bareilly. This submission overlooks the facts asserted in paragraph 5 of the counter affidavit filed on behalf of the courier that it is not a common courier and that it accepts packages for delivery except those which contain combustible / hazardous materials/cash/ Jewellery/Fire-arms/personal letters, etc. This assertion has not been controverted in the rejoinder affidavit of Sri Bhatia. The assertion can reasonably be read to mean that enquiry about the contents of the package is limited to finding out whether it contains any article of the nature mentioned in paragraph 5 of the counter affidavit and no more.

FROM the material which has been placed by the parties on the record of the proceedings, it is not possible to conclude that the courier was made aware of the actual number and details of the articles contained in the package handed over to it for being delivered at Bareilly. In the absence of such a conclusion it is not possible to hold it responsible for the short delivery of the three items or of any deficiency in service on its part.

IN view of the aforesaid conclusion we find it difficult to grant any relief to the complainant in this complaint which is dismissed but without any order as to costs. Let a copy of this order be made available to the parties or their learned Counsel as per rules. Complaint dismissed.