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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:

HEADNOTE:

JUDGMENT:                          O R D E R  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

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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

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    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

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    Especial  damages   or  any   otter      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.