SKY PACK COURIER PVT. LTD. vs Punjab National Bank

THIS appeal has been filed by Sky Pack Courier Pvt. Ltd. against the order of the District Forum, Jodhpur dated 15.7.1993 passed in Complaint Case No. 33/90 whereby the District Forum directed that the opposite parties-appellants should pay Rs. 10,000/-as compensation to the complainant.

FACTS leading to the filing of this appeal are that the complainant Punjab National Bank, Chopasani Road Branch, Jodhpur filed a Complaint Case No. 33/90 against the opposite parties with the averments that M/s. Sky Pack Couriers was a private limited Company and carried on business of collecting, carrying and delivering documents from place to place all over the world. M/s. Sky Pack Couriers had a branch at Sojatigate, Jodhpur. On 18.2.1988 an agreement was executed between the parties where under the opposite parties agreed to render service of carrying packets and parcels etc. of the complainant Bank to various places. The said Couriers assured that they would render service satisfactorily and they would be liable for any mistake, negligence or late delivery of the packets or parcels. It was also undertaken that the packets and parcels delivered to the Couriers will be delivered at the destination from 48 to 72 hours. In para 4 of the agreement the opposite parties undertook to indemnify the Bank against any loss, damage, charge and expenses as the Bank may be put to or incurred by Bank due to delay, non-performance, mal-performance, mis-performance, non-delivery or damage to any of the packets of documents whatsoever. On 22.3.1988 the complainant had handed over at 11.35 p.m. a packet to opposite party No. 2 for being delivered to Banca Commercial Italina, Bergamo, Italy. Opposite party No. 2 was paid Rs. 150/-as service charges and it had issued a consignment note No. 1390639 to the complainant. According to the complainant, the packet contained documents worth one lakh American dollars which the customer of the complainant Bank M/s. Adaarsh Gwar Gum Udyog had sent. The packet ought to have reached the destination within 72 hours. The opposite parties did not intimate regarding delivery of the packet at the destination. On 28.4.1988 the complainant Bank informed the opposite parties that the packet had not reached the destination and they should take immediate steps for delivery of the packet. Again a letter was sent to the opposite parties on 3.5.1988 in this regard. However the opposite parties did not send any reply to the complainant Bank. Ultimately a registered notice was sent to the opposite party on 9.7.1989 but the same was also not replied. The customer of Bank had, therefore, to go to Bombay twice or thrice in order to obtain duplicate copy of the documents and only thereafter, the duplicate copies could be sent to Italy for encashment. The complainant Bank alleged that normally the realisation period is 20 days and the customer of the Bank only pays interest to the former for these twenty days. In the present case, it took 65 days for the duplicate copies to reach Italy and the Bank had to suffer loss of Rs. 26,600/-with respect to interest. The opposite parties did not pay the amount to the complainant. The complainant, therefore, filed the complaint claiming Rs.26,600/-with interest @ 16% per annum amounting to Rs. 6,950/-and Rs. 550/-as notice expenses, in all Rs. 34,100/- Opposite party No. 1 filed certain preliminary objections before the District Forum dated 14.12.1992. The preliminary objections were that the questions involved in the complaint would require detailed evidence and, therefore, the complainant may be directed to take recourse to Civil Court. It was also pleaded that as per condition No. 6 of the agreement the Courier had undertaken to pay the amount claimed by the Bank immediately after receipt of the demand in writing from the Bank. Bank''s decision and demand in this respect was final. The complainant had made the final demand on 9.7.1989 and for that only civil suit could be filed. An objection was also raised that the Bank had to make claim for non-delivery within 30 days from the date on which the fact came to its knowledge. However the complainant asked for damages on 9.7.1989 i.e. after more than 30 days and, therefore, the complaint deserves to be dismissed. It appears from the file of the District Forum that the Forum heard arguments on these preliminary objections on 15.12.1992 and dismissed the same.

It appears that the opposite parties filed an application dated 28.5.1993 wherein it was stated that the claim of the complainant that he suffered loss of Rs. 26,000/- was false and baseless. It was denied that M/s. Adarsh Gaur Gum Udyog had not paid interest of 45 days.

THE District Forum held that the complainant had sent the packet through the opposite parties. This fact was not denied by the opposite parties. THE opposite parties did not file version on facts and they did not plead that the packet had been delivered at the destination. THE District Forum held that the complainant should be awarded compensation of Rs. 10,000/-. Aggrieved by this order, the present appeal has been filed by the opposite parties-appellants. The learned Counsel for the appellants submitted written arguments before the State Commission. In the written arguments the appellants have pleaded that as per Clause 7 of the agreement entered into between the parties on 18.2.1988, complainant had to submit his claim within 30 days from the date on which the fact of non-delivery came to the knowledge of the Bank. It is said that the packet was handed over on 22.3.1988 but the complainant did not claim the compensation prior to 24.4.1990 i.e., prior to the filing of the complaint before the District Forum. It was, therefore, urged that the complaint was barred and reliance was placed upon a decision of the National Commission reported in I (1993) CPJ 126 (NC). It has next been submitted that the complainant had not adduced evidence in support of his claim and, therefore, the order of the District Forum deserves to be set aside. Lastly, it has been urged that the complainant had not disclosed the value of the consignment in the consignment note and had not taken any steps to get the consignment insured. Consequently the complainant could not be awarded compensation. In this regard reliance has been placed upon the decision of the Andhra Pradesh State Commission reported in I (1994) CPJ 52 (NC).

WE have considered the arguments advanced by the learned Counsel for the parties. All that is mentioned in Clause 7 of the agreement executed between the parties is that the Bank shall make a claim for shortage, delay or non-delivery of the packet by the Courier, if any, within 30 days from the date on which the fact of such shortage, damage, delay or non-delivery of the packet comes to the knowledge of the Bank. It is nowhere mentioned in the agreement that if the claim is not made within 30 days from the date of knowledge of non-delivery, the Couriers opposite parties, would not be liable to compensate the complainant. As to the decision of the National Commission in M/s. Paras Textile v. New India Assurance Company Ltd., reported in I (1993) CPJ 126 (NC)=I (1993) CPR 713, it may be mentioned that in that case Clause 12 of the insurance policy provided that it was expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such disclaimer have been made the subject matter of a suit in a Court of Law, then claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder. WE have already stated that in the present case in Clause 7 of the agreement there is no stipulation that if the claim for non-delivery is not made within 30 days, the complainant will not be entitled to file a suit in a Civil Court or complaint under the Consumer Protection Act, 1986. The clause in the agreement in the present case also does not provide that the Couriers would not be liable for any loss or damage if the claim is not made within 30 days. It would thus be clear that Clause 12 in the insurance policy before the National Commission was entirely differently worded. Clause 7 of the present agreement neither provides that the Couriers will not be liable if the claim is not made within 30 days and nor it contains any provision that if claim is not made within 30 days, no suit in Civil Court or complaint under Consumer Protection Act, 1986 can be filed by the complainant. Upon facts, it may be mentioned that the complainant Bank had written letter to the opposite party No. 2 on 28.4.1988 that the packet sent under the consignment note had not reached the destination. The opposite party No. 2 was asked to look into the matter and to inform regarding the date of delivery. Again the complainant sent another letter dated 3.5.1988 regarding this and told to opposite party No. 2 that it would be liable for the loss or damage. Ultimately the complainant sent a registered notice on 9.7.1989 to the opposite parties claiming compensation of Rs. 32,636.25. The complaint was filed before the District Forum on 18.1.1990. It was within limitation and was not a stale complaint. We, therefore, reject the contention advanced by the learned Counsel for the appellants that the complaint was barred because claim for specified damages was not made within 30 days. On merits we have already stated that the consignment ought to have reached the destination on 25.3.1988. The complainant had brought the fact of non-delivery of the consignment to the notice of the opposite party No. 2 by letter dated 28.4.1988. As regards the argument of the learned Counsel for the appellants that the complainant had not adduced evidence to prove the damage sustained by it and further that the packet was not insured and the value of the consignment was not disclosed to the opposite parties. In this regard, we may mention that the opposite parties had agreed to give their services to the complainant Bank and had also executed an agreement regarding the rendering of service. In Clause 6 of the agreement, the opposite parties had, undertaken to indemnify the Bank against loss, damage and expenses as the Bank may suffer and incur due to inter-alia non-delivery of the packet of documents. The opposite parties had also agreed that they would pay the amount claimed by the Bank after receipt of their demand in writing and the demand of the Bank was agreed to be final. Clearly the Bank had claimed an amount of Rs. 32,636.25 from the opposite parties. The District Forum has only awarded Rs. 10,000/-to the complainant which is less than what had been claimed and demanded by the complainant. As regards the decision of the National Commission in the case of M/s. Air Pack Couriers (India) Pvt. Ltd. v. S. Suresh, reported in I (1994) CPJ 52 (NC)=I (1993) CPR 718, it may be mentioned that in that case the parties had agreed to the terms and conditions regarding liability of the courier service and had restricted the liability by agreement to the extent of Rs. 100/- only. On account of this agreement limiting the liability of courier service to Rs. 100/- only, the National Commission only awarded Rs. 100/- to the complainant. In the present case, the position is different as the couriers opposite parties had expressly agreed to pay the amount claimed by the complainant Bank immediately after receipt of demand in writing from the Bank. Bank''s decision and demand was also agreed to be final. We have already stated that the District Forum has awarded to the complainant lesser amount than claimed and demanded by the Bank. The Bank''s decision and demand regarding the amount claimable by it being agreed to be final, the District Forum was right in awarding compensation even in the absence of proof of actual loss by evidence. The parties having agreed to give finality to the claim and demand of the complainant Bank, the opposite parties are estopped from challenging it.

WE do not find any force in it and the same is hereby dismissed. Appeal dismissed.