Consumer citation
Rekha.....
(Querist) 14 March 2010
This query is : Resolved
Plz search these for us or instruct us how to search or provide with these cases with full citation..plz..plz.
-2005(3)c.p.j.16 k.s. murugaryin vs. s.r.selv raj
-2005(3)c.p.j.405 nilam chaturvedi vs. m.g.f. india
-1996n.c.j.517 (s.c.) bharti nitting co. vs. d.l.h. worldwide express
courrier division airflight ltd.
Thanks in advance
Raj Kumar Makkad
(Expert) 14 March 2010
Rekha! It is very easy to search the judgments cited by you from the CPJ itself. If you dont have these books in you library then obtain from the library of some other advocate or from your Bar association library. If you say, If you fail then contact me as I can also post those citations to your address.
Rekha.....
(Querist) 15 March 2010
With all due respect sir V hv Consumer law Digest up to 2005 and from 2007 V r the subscriber of CPJ. So far as Our Bar Association Library is concerned V dont hv library n this is unfortunate what to do?? N other Advocates..it is always not convenietn to appraoch them easily..thats y respected Sir V r here on LCI.
Thanks for ur instructions
Parveen Kr. Aggarwal
(Expert) 16 March 2010
Bench: K Ramaswamy, F Uddin, G Pattanaik
PETITIONER:
BHARATHI KNITTING COMPANY
Vs.
RESPONDENT:
DHL WORLDWIDE EXPRESS COURIER DIVISION OF AIRFREIGHT LTD
DATE OF JUDGMENT: 09/05/1996
BENCH:
K. RAMASWAMY, FAIZAN UDDIN, G.B. PATTANAIK
ACT:
JUDGMENT:
Leave granted.
We have heard learned counsel on both sides. This appeal by special leave
arises from the appellate order of the National Consumer Disputes Redressal
Commission, New Delhi dated 17.1.1996 made in FA No.317 of 1993 which in turn
reversed the order of the State Forum Commission, Madras in O.P. No.364/93 dated
June 9, 1993. The admitted facts are that the respondent-plaintiff manufacturer
appears to have an agreement with a German buyer for summer season, 1990 and
consigned certain goods with documents sent in a cover on May 25, 1990
Containing (1) invoice No.32; (2) packaging list; (3) Original Export
Certificate and certificate of origin No.T/WG/001316 dated 24.5.90; and (A)
Original GSP Form A No.E1. It would appear that the cover did not reach the
destination. Consequently, though the duplicate copies were subsequently sent by
the date of receipt of the consignment, the season was over. Resultantly, the
Consignee agreed to pay only DM 35,000/- instead of invoice value DM 56,469.63.
As a result, the appellant laid the complaint before the State Commission for
the difference of the loss incurred by the respondent in DM 21,469.63 equivalent
to Rs.4,29,392.60 which was ordered. The respondent carried the matter in
appeal. The National Commission in the impugned order held that since the
liability was only of an extent of US $ 100 as per the receipt, the appellant is
entitled for deficiency of service only to that extent which is equivalent to
Rs.3,515/− with interest at 18% from May 25, 1990 till date of realisation with
cost. Thus, this appeal by special leave. It is contended by Mr. M.N.
Krishnamani, learned senior counsel appearing for the appellant that the
Consumer Protection Act, 1986 (for short, the "Act") is a beneficial legislation
envisaged to accord expeditious and inexpensive relief to the consumer; when the
Commission gave a finding that there was a deficiency in service, the National
Commission was wrong in law to reduce the liability of US $100 Contained in the
receipts There is no consensus ad idem between the appellant and the respondent
who is a courier vis-a-vis the appellant. Therefore, the National Commission was
wrong in awarding deficiency amount only to the extent of US $100. He seeks to
contend that until there is an agreement by the appellant by consensus at idem
with the respondent for carriage of the invoice with limited liability, it must
be presumed that in the event of nor delivery of the cover thereof, the
resultant damages must be born by the courier. The State Commission would be
entitled to award the difference of the damages to the appellant. The State Commission, therefore, was right in awarding the damages. We find no force in
the contention. It is true that the Act is a protective legislation to make
available inexpensive and expeditious summary remedy. There must be a finding
that the respondent was responsible for the deficiency in service, the
consequence of which would be that the appellant had incurred the liability for
loss or damages suffered by the consumer due to deficiency in service thereof.
When the parties have contracted and limited their liabilities, the question arises: whether the State Commission or the National Commission under the Act
could give relief for damages in excess of the limits prescribed under kha Contract? It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Anson's Laws of Contract, 24th Edn. at page
152, on exemption clause with regard to notice of a printed clause, it was stated that a person who signed, a document containing contract and terms is
normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arises: whether the terms of the
contract were adequately brought to his notice? The terms of the contract have
elaborately been considered and decided, The details thereof are not necessary
for us to Pursue. It is seen that when a person signs a document which contains
certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned
senior counsel, that normally parties are bound by such contracts it is for the
party to establish exception in a suit. When a party to the contract disputes
the binding nature of the signed document, it is for him to prove the terms in
the contract or circumstances in which he came to sign the documents need to be
established. The question we need to consider is; whether the District Forum or
the State Commission or the rational Commission could go behind the terms of the
contract? it is true, as contended by Mr. M.N. Krishnamani, that in an
appropriate case, the Tribunal without trenching upon acute disputed question of
facts may decide the validity of the terms of the contract based upon the fact
situation and may grant remedy. But each case depends upon fits own facts. In an
appropriate case where there is an acute dispute of facts necessarily the tribunal has to refer the parties to original civil Court established under the
CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract. The National Commission in the impugned order pointed out
as under:
"We have considered the submissions of the counsel for the parties on the facts of the case and having
regard the earlier decisions of this Commission. The consignment containing the documents sent in
the cover had been accepted by the Appellant and was subject to the terms and conditions mentioned on
the consignment note. The Complaining the documents sent in the cover had been accepted by the Appellant and was subject to the terms and conditions mentioned on the consignment note. The Complainant had signed the said note at the time of entrusting the consignment and had greed to and
accepted the terms and conditions
mentioned therein. Clauses 5 and 7
of the terms and conditions as also
the important notice mentioned on
The consignment note are reproduced
below:
Clause 6: "Limitation of liability:
Without prejudice to clause 7 the
liability of DHL for any loss or
damage to the shipment, which term
shall include all documents or
parcels consigned to DHL under this
Air bill and shall not mean any one
document or envelope included in
the shipment is limited to the
lesser of
a) US $ 100
b) The amount of loss or damage to
a document or parcel actually
sustained or
c) The actual value of the document
or parcel as determined under
Section 6 hereof, without regard to
the commercial utility or special
value to the shipper.
Clause 7: Consequent damages
excluded: DHL shall not be liable
in any event for any consequential
or special damages or other
indirect loss however arising
whether or not DHL had knowledge
that such damage might be incurred
including but not limited to loss
of income, profits interest,
utility or loss of market.
Important Notice: by the conditions
set out below DHL and its servants
and agents are firstly not to be
liable at all for certain losses
and damages and secondly wherever
they are to be liable the amount of
liability strictly limited to the
amount stated in condition and
customers are therefore advised to
purchase insurance cover to ensure
that their interests are fully
protected in all event. Under
clause 5 of the terms end
conditions of the contracts the
liability of the Appellant for any
loss or damage to the consignment:
was limited to US $ 100. Clause 7
of the contract specifically
provided that the liability of the
Appellant for any consequential or
Especial damages or any other
indirect loss, that may occur
including the loss of market or
profits etc. was excluded. It is
also pertinent to note that despite
the advice in the important notice,
the Complainant did not did one at
the time or Consignment the
contents of the cover and also not
purchased the insurance cover to
ensure that their interests are
fully protected in all events."
In view of the above consideration and findings we are of the opinion that the national Commission was right in limiting the liability undertaken in the
contract entered into by the. parties and in awarding the amount for deficiency service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission. Shri Krishnamani has brought to our notice that there are number of judgments covering divergent views. In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is Contended that besides the amounts awarded by the State Commission, liberty may be given to the. appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued accordingly to law. The appeal is dismissed. No costs.
Parveen Kr. Aggarwal
(Expert) 16 March 2010
Delhi State Consumer Disputes Redressal Commission, New Delhi
JD Kapoor, President; Mahesh Chandra & Rumnita Mittal, Members
Neelam Chaturvedi - Appellant
Versus
MGF (India) Ltd - Respondent
Appeal No. 163 of 1996 Decided on 13.12.2004
JD Kapoor, President - The complaint of the Appellant was dismissed vide impugned order dated 23.2.1994/8.4.1994 solely on the ground that the Appellant is not entitled to the relief sought by her, as the hire-purchase agreement entered into between the parties does not entitle her to any relief on account of deficiency in service on the part of the Respondent.
2. Admittedly, the Appellant entered into an agreement with the respondent for the purchase of motor vehicle by paying initial amount of Rs. 23,400/- and the balance in equal monthly installments. The delivery of the vehicle was made to her on 30.6.1987, the date of agreement. In spite of the fact that the entire payment by way of instalments was made by the Appellant, the Respondent declined to issue 'No Objection Certificate' for transfer of the vehicle in her name. The District Forum interpreted the hire-purchase agreement as a lease agreement for the period of two years whereafter the Respondent was entitled to take back the possession of the said vehicle.
3. The view taken by the District Forum is entirely erroneous and not in terms of the hire-purchase agreement. It is not understandable as to how the Respondent would become the owner of the vehicle after having received the full amount of the cost of the vehicle by way of initial deposit of Rs. 23,400/- and the remaining amount paid by way of instalments. Therefore, no other alternative is left with the Respondent but to provide 'No Objection Certificate' for transfer of the vehicle in question in the name of the Appellant and by not doing so, the Respondent is guilty of deficiency in service and unfair trade practice.
4. In view of the aforesaid reasons, we allow the appeal and set aside the impugned order. In the result, the complaint is allowed with directions to the Respondent to furnish No Objection Certificate within one month for transfer of the vehicle in the name of the Appellant, otherwise Transport Authority shall transfer the registration in favour of Appellant.
5. FDR/Bank Guarantee, if any, deposited by the Appellant be returned to the Appellant forthwith under proper receipt.
6. A copy of this order, as per the statutory requirements, be forwarded to the parties, free of charge also to the concerned District Forum and thereafter the file be consigned to the Record Room.
Appeal allowed.
