M/s Airpak Couriers (India) Pvt. Ltd.
Vs.
S. Suresh

Before : Hon'ble Justice V. Balakrishna Eradi

      This is an appeal against the Order of the Tamil Nadu State Commission, Madras in Original Petition No.169 of 1991 before them.

      The facts of the case as put before the State Commission are the Respondent/Complainant is working as an Area Executive for M/s Kwality Tubes and Capillaries, which is a private limited company having its head office at Jaipur, dealing in copper brass tubes and sections. The Respondent/Complainant gets orders on commission of 1.6 % from the company on the net value of the orders. On 25.3.1991 a consignment of papers, described as "important" by the Respondent including perfermance Report and agreement letters were entrusted by the Complainant's head office at Jaipur to the (appellant) Courier at Jaipur to be transported and delivered to the Respondent/Complainant at Madras. The consignment did not reach the complainant. Inspite of repeated reminders there was no response. The matter was takenup with the appellant's head office at Delhi, but in vain. The documents have not been received. The complainant was put to much loss and hardship and he thereafter claimed Rs.2,50,000/- as compensation.

      At the time of the hearing in the State Commission the appellant failed to enter appearance and was therefore, proceeded against ex-parte.

      After taking evidence the State Commission held that it was a clear case of deficiency on the part of the appellant. Taking into account that the  value of the orders lost in the above mentioned courier parcel, was alleged to be Rs.50,00,000/- and that the respondent would have gained a commission of Rs.80,000/- if the consignment had been duly received, and that the Complainant must have been subjected to the mental agony ensuing from this loss, the State Commission granted Rs.1,00,000/- as compensation to the respondent/complainant plus Rs.500/- as costs and refund Rs.15/- being the freight charges collected, within one month from the date of receipt of the order.

      In appeal the appellant has submitted that as per the consignment note the said Kwality Tubes and Capillaries Pvt. Ltd. had agreed to the terms and conditions that the liability of the Courier Service is limited and restricted to the extent of Rs.100/- only. Further, as per the I.A.T.A. Regulations, no important documents were to be sent through Courier Service. Apecimen copy of the consignment note was filed and marked here in as annexure 'A'. The contention of the appellants is that since the consignment was lost in transit they are  liable to the extent of Rs.100/- only as damages. Moreover, the parties are bound by I.A.T.A Regulations which prohibit the sending of important papers. Then again the consignee is bound to disclose the nature of contents before sending the consignment. Later on, after the consignment is lost in transit, a claim cannot be made that there were very important documents in it, the declared value of which was not specially put down in the column assigned for it in the Courier consignment Note besides the column, Description of Contents.

      During the hearing the counsel for the Complainant/Respondent was unable to specify the important documents in the consignment : the performance Report and agreement letters were not important nor incapable of reconstruction.

      We find that there is substance in this appeal. If the documents which were consigned were of great value the consignee ought to have insured them. No such steps was taken nor was their value even disclosed in the consignment note.

      We also fail to understant why the consignor could not have been asked to send duplicate copies of the lost documents when the loss came to light.

      Therefore, the compensation awarded by the State Commission is not justifiable, In the circumstances of this case, we hold that since there has been a deficiency in the service of the Courier, Rs.100/- as per the accepted terms of the courier service plus Rs.500/- as costs may be given to there respondent.

      The appellants have also taken other pleas in their memorandum of appeal that the Madras State Commission did not have territorial jurisdiction as the cause of action arose in Jaipur and the appellants have their head office in Delhi. And also that the Respondent/Complainant was not a consumer as defined under the Consumer Protection Act, 1986 as he was not the consignee who paid Rs.15/- for the carriage of the consignment. But, these pleas were not pressed during the hearing. Moreover, the Respondent being the beneficiary of the service contracted for he is a Consumer entitled to file the complaint and receive compensation.

      In the result we modify the order of the State Commission the the extent that the  compensation is reduced from Rs.1,00,000/- to Rs.100/- only besides the costs awarded viz Rs.500/-.

      With these observations, we dispose of the appeal.