SAWAN MALL NARANG vs WORLD PACK AIR COURIER

THIS order would dispose of complainant/ appellant''s application for amendment of the complaint during the pendency of the present first appeal.

IT appears that the complainant sent some documents in a packet to his son through the opposite party working as courier. The packet was not delivered. The complainant approached District Forum-II for compensation on the ground of alleged deficiency in service. In reply, inter- alia, the respondent took the plea of limited liability in accordance with the terms and conditions of the courier service. Relying on Bharthi Knitting Company v. DHL World Wide Courier Express, II (1996) CPJ 25 (SC), the District Forum held that the liability of the opposite party was limited to Rs. 100/-. The complaint was allowed and opposite party directed to pay the said limited liability in addition to costs amounting to Rs. 500/-. Dissatisfied with the order, the complainant has preferred the first appeal. During the pendency of the first appeal, the complainant had moved the present application for amendment. By the amendment the complainant seeks to add paragraphs 24 to 29. The application has been opposed. The grounds stated in the reply for opposing the prayer are that the proposed amendment will enable the complainant to introduce a new cause of action accrued after the remedy had become barred by limitation. The prayer is also opposed on the ground that it is highly belated and is not bona fide. It is also stated to be hit by the principle underling Order 2, Rule 2, CPC. The respondent, it is stated, would be prejudiced as it cannot be adequately compensated by payment of costs.

We have heard Mr. R.K. Aggarwal, authorised representative of the applicant and Mr. Sanjeev Gupta, Advocate for the respondent.

IT cannot be disputed that in an appropriate case the FORA has the power to allow amendment including amendment during the pendency of the appeal. Reference in this connection may be made to Sau Shaileka & Anr. v. Pearless Finance Corporation, I (1997) CPJ 100 (NC). A perusal of the paras 24 to 29 proposed to be added to the original complaint shows that no new fact is sought to be added. The complainant wants to challenge the limited liability clause on the additional ground that it amounted to unfair trade practice. As no new fact is sought to be introduced, we do not think that it would be necessary to remand the case to the District Forum for a fresh decision. What is intended is to give adequate notice to the respondent that at the time of arguments the limited liability clause is proposed to be assailed on the additional ground of unfair trade practices. With the permission of the Commission argument, which is in substance legal in nature and does not going into the facts can be permitted to be raised. The principle of Order 2, Rule 2 is not even remotely attracted. After careful consideration and for the aforesaid said reasons, the proposed amendment is allowed without prejudice to the plea of limitation which would be gone into at the time of disposal of the appeal. The proposed amendment is allowed subject to payment of Rs. 350/- as costs. Amended complaint already filed is taken on record. Respondent shall file reply to the amended complaint on 26.3.1999. Copy of the order be furnished to both sides. Application allowed.