1. THE fact of the case as submitted by the petitioner and not controverted by the opposite party are that M/s. Elbee Services Ltd., the opposite party were entrusted to deliver two packs of maquette''s and one envelope containing documents as an entry to the Hakone Open-Air Museum, Tokyo for qualification to the 7th Henry Moore Grand Prize exhibition of abstract sculptures, on 11.12.1990. As per their commitment the consignment would be delivered by 14.12.1990, and a sum of Rs. 2,991 /- was paid as freight charges.
2. THIS consignment did not reach the assigned destination in the time and therefore, the petitioner has claimed loss to the tune of US $ 3,00,000. He has classified this claim under the following heads:
(i) The Henry Moore Prize:10 Million Japanese Yens. (ii) Minimum Financial assistance assured: 4 Million Japanese Yens. (iii) Minimum prize money assured: 4 Million Japanese Yens. (iv) Minimum loss due to orders which would have been received: 12 Million Japanese Yens. (v) Freight charges: Rs. 2,992/- (vi) Cost of preparing Maquettes (2 Nos.): Rs. 25,000/-
Plus whatever compensation the National Commission deems fit to award for maximum inconvenience and mental torture. Also Rs. 2,000/- for fax messages etc.
3. IN their reply the opposite party disclaims their liability for the loss beyond US $ 100, as stated on the Air Way Bill. They quote "unless a greater value is declared in writing in the space provided on this way bill the shipper declares and agrees that the releaseds value of this shipment covered by the way bill is U.S. $.100 or the equivalent in local currency. The Rules relating to liability establishment by the Warsaw Convention and any amendments thereto shall apply insofar as the same is governed thereby. In addition the maximum value per package and the maximum U.P.S. liability per package are U.S. $.25,000 unless limited in the U.P.S. international reference guide. The shipper agrees to the terms and conditions set forth on the reverse side of the way bill." The opposite party states that by signing the way bill the complainant has agreed to the aforesaid and other conditions of the contract and is therefore, bound by the same. The opposite party submits that as the complainant has not declared any higher value of the consignments, the liability of the opposite party is limited to U.S. $ 100 only. They also put up the plea that "circumstances were beyound their control" as the consignment was held up in the Quarantine at Japan, and it was not being cleared by the consignee in Tokyo by paying the quarantine fee.
4. IN the rejoinder submitted by the petitioner, assisted by the Consumer Guidance Society of India, Bombay, two important points have been highlighted. "The very first defence theory brought out by the opposite party is that it is seeking to cover its own negligence under the guise of "circumstances beyond control". This shelter is obviously invalid, since circumstances such as natural calamities, wars, strikes, lockouts on a labour dispute has not at all occurred. Another invalid excuse sought by the opposite party is its limited liability of USS100equivalent to Rs. 3,000/-. In other words, it does admit a liability but seeks to gain as low a limit as possible.
5. IF it were protected by "circumstances beyond its control" why at all offer a compensation of US $ 100?
6. ANOTHER strong defence argument put forward by the opposite party is the absolutely new theory-viz., "That the abnormal delay in delivery occurred due to the package being subjected to "Quarantine" and further inspection charges. Strangely this theory was brought out only after the Commission issued a notice to give its version in the case."
However, the complainant does not deny that Quarantine inspection did take place, since a copy of the report of the inspection has been submitted. The date of arrival of the package is stated as December 14, 1990 on this report.
7. BUT what surprises the complainant is that he was kept totally in the dark about this event. Incidentally the opposite party by virtue of its own rules and regulations stated on the reverse of its way bill receipt No. 32605464-980 dt. 10.12.1990 clearly indicates that "packages refused by consignees or which for any other reason cannot be delivered, will be held and the shipper will be contacted for further instructions.
8. THE opposite party in its versions has strongly held that the quarantine charges had to be paid for release of the said Cargo and the same was refused by the consignee. Yet the shipper was not contacted (as per the opposite party''s own rules) who would have willingly agreed to pay the same. It is also interesting to note as to who finally paid the quarantine charges, when the package was finally released on February 11,1991. The opposite party has not submitted any evidence on this account nor has made any demand on the complainant."
In taking the above arguments into consideration, it is seen that there was deficiency on the part of the opposite party. Also taking into view of the facts revealed in the rejoinder that:
1. The complainant is a Guiness Book record holder; 2. He is the recipient of various national awards and certificates of appreciation for the skill of his works; 3. His subsequent entry to Japan in 1992 has won him a prize for excellence in sculpture and the final prize is awaited;
It is our opinion that the petitioner is entitled to reasonable compensation. Though he has claimed damages under various heads we consider that it is just and reasonable to direct reimbursement of freight charges, Rs. 2,992/- cost of preparing maquettes,Rs.25,000/-and Rs.2,000/-spenton fax messages etc. and also Rs. 1,00,000/- by way of compensation for inconvenience and mental strain experienced as befitting compensation.9. THUS we hold that the petitioner shall be entitled to receive Rs. 1,29,992/- plus a sum of Rs. 5,000/- by way of costs from the opposite party.
10. WE may make an observation here that the mention of the ''limited liability'' is in very small print at the back of the consignment note which is not necessarily read by the consignor before he/she entered into the transaction of despatch of the consignment and hence it cannot be said to be a part of negotiation between the two parties. Further, whatever may be the binding nature of the said Clause in an action based on breach of contract we are of the view that it cannot restrict the liability of the courier for the consequences flowing out of its negligence and deficiency in the performance of the service undertaken by it.
The petition is disposed of as above.
