Not delivering happiness? Not done

Pushpa Girimaji

My wife and I live in two different cities on account of our jobs and I could not visit her on her birthday, So, I bought her a watch costing Rs 39,000 and sent it through courier. As suggested by the courier company, I even paid for the insurance; however, the watch never reached her. Now the courier company is not willing to make good the loss on the ground that the contract limits its liability to only Rs 250. However, they never told me about it. The insurance company is not paying either, saying that the package was lost as a result of the negligence of the courier company and that attracts the exclusion clause in the policy. What should I do now?

First and foremost, you must hold the courier company liable. They promised to deliver the package to your wife within a certain period and failed to do so. They even asked you to take an insurance, which actually showed their own lack of confidence in delivering the watch safely to your wife. Yet, you complied with that. The courier company, therefore, has to fully compensate for your loss.

I would suggest that you first send your complaint to the national consumer helpline (consumerhelpline.gov.in) and see if they can resolve it. If the courier company does not pay up even after their intervention, then you will have to go to the consumer court.

Can the courier guy deny me compensation on the basis of his limited liability clause in the contract?

I have answered this question many times before, but will repeat it again for your benefit. First and foremost, the limited liability clauses of courier companies are highly unfair and take away the consumer’s right to compensation (for negligent service) provided under the Consumer Protection Act. So, I would argue that they cannot be binding on the consumer.

However, it’s taken a long time for consumers to get to this point. In fact, in May 1996, the Supreme court held in Bharathi Knitting Company Vs DHL Worldwide Express Courier… (CA No 9057 of 1996) that where the consumer has signed his acceptance of the terms limiting the liability of the courier, the consumer courts cannot intervene and award compensation beyond the limit specified under the terms of the contract.

However, the apex court also observed that (a) if a party disputes the binding nature of the signed document, then it is for him to prove the circumstances under which he came to sign it; (b) in cases where the consumer has not signed the contract, the question arises as to whether the terms were brought to his notice at all; and c) each case is dependent on the facts of the case.

In its order delivered in 2001 (Blue Dart Express Vs Stephen Livera, RP NO 393 of 1997) the National Consumer Disputes Redressal Commission upheld the compensation of Rs 20,000 awarded by the lower consumer court on the ground that (a) in Bharathi Knitting, the Supreme Court had not considered the small print in a standard contract. And in this case, the terms were not only in fine print, but were also on the back of the receipt. And the consumer’s attention was not drawn to it; (b) the receipt did not clearly show that the sender had signed and accepted the conditions printed on the back.

In Pravesh Kumar Mukherjee Vs Air Transport Corporation Ltd and Another (RP NO 1404 of 2003), the Commission went one step further and held that where there is no conscious agreement between the parties, the unilateral condition incorporated in the consignment note will not be binding on the parties .

Again in DTDC Courier and Cargo and Another Vs M/S Caterpillar India Pvt Ltd and Another, (RP NO 2153 of 2008. Pronounced May 12, 2014), the Commission upheld the verdict of the lower consumer court, awarding a compensation of Rs 1,82,645 to the complainant, whose cheque, entrusted to the courier for delivery, had been stolen during transit and encashed.

So you can get the compensation despite the limited liability clause if you have not signed on the consignment note or the receipt, or if the terms are not easily noticeable or your attention has not been drawn to it or if you can convincingly argue that the terms of the contact were between two unequal parties and the weaker party had no choice but to sign on the unfair terms and conditions.