Delivering disappointment

Pushpa Girimaji

For Raksha Bandhan, I sent my brother in Chennai, an expensive rakhi. It was a thin, 14-carat gold band, beautifully designed. I had spent an entire day searching for it. And I sent it a week in advance so that it reaches him before Raksha Bandhan. However, to my great disappointment, it never reached him. The courier company says that on my complaint, they traced the package, but it was open and the gold rakhi was missing. They were investigating into the matter. I asked them to return the cost of the rakhi and the courier charges, but they did not agree. What should I do?

Please send them a formal letter, complaining about their failure to deliver the packet and demanding refund of the courier cost and the cost of the rakhi. You can also enclose a copy of the purchase receipt to prove the cost. Usually, if you are sending something expensive, they ask you to pay extra for an insurance cover to pay for any loss, I do not know if they did that in your case. If they have collected the money from you for insurance, then there’s all the more reason for them to indemnify your loss. Please tell them if they do not redress your complaint immediately, you will go to the consumer court, asking for not just the refund of the cost of the rakhi and the courier charges, but also compensation for the disappointment caused as a result of the rakhi not reaching your brother, cost of travel to purchase the rakhi and to hand it over to the courier, punitive damages for the behaviour of the courier and costs of litigation. So it will be wiser for them to pay you now. If they do not respond positively, lodge a complaint before the consumer court. 

Can you give a case law to support my claim? Are there any decided cases against courier companies?

I do not know whether the courier asked you to sign on any form limiting his liability. Usually, what they do is to ask you to sign on a paper containing some unilateral terms and conditions aimed at taking away your right to compensation for their negligent service and limiting their liability in such cases to a paltry Rs 100 or refund of the courier charges. However, while doing so, they neither tell you about it nor get your consent or even point to those terms. The person signing on the paper will not even know what is in small print on the paper. 

However, in May 1996, in Bharathi Knitting Company Vs DHL Worldwide Express Courier … ( CA No 9057 of 1996) the Supreme Court held that 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. This came as a major blow to consumers. 

But in 2001, an order of the apex consumer court in Blue Dart Express Vs Stephen Livera, (RP NO 393 of 1997) brought the consumers, the much needed relief. The National Consumer Disputes Redressal Commission here pointed out that in Bharathi Knitting, the Supreme Court had not considered the small print in a standard contract. In this case, the terms and conditions, printed on the back of the courier’s receipt, were in small and fine print and the attention of the sender was not drawn to it. Besides, the receipt also did not clearly show that the consumer had signed and accepted the conditions printed on the back, the Commission said. It therefore upheld the compensation of Rs 20,000 awarded by the lower consumer court.

In two subsequent judgements, the National Commission further strengthened the rights of the consumer vis-à-vis courier service. In Pravesh Kumar Mukherjee Vs Air Transport Corporation Ltd (RP NO 1404 of 2003) the Commission said where there is no conscious agreement between the parties, the unilateral condition incorporated in the consignment note will not be binding on the parties. 

Then in 2014, the Commission reiterated this when it upheld the compensation of Rs 1,82,645 awarded to a consumer, whose cheque had been stolen during transit and encashed (DTDC Courier and Cargo Vs M/S Caterpillar India Pvt Ltd RP NO 2153 of 2008) 

So please go ahead and claim your compensation!