1. By filing this claim under section 25 of the Punjab Consumer Protection Act, 2005 (hereinafter to be called the Act) M/S D.H Distributor through its Manger Mr. Farooq Asghar Khan has asserted that claimant, on 11.10.2012, had hired services of defendant for delivery of a parcel to CMH Karachi which was having life saving injection named 'Herceptin 440-mg' (a Cancer medicine); because of services of over-night delivery parcel had to be transported at CMH Karachi on 12.10.2012 at any cost because it was a cold chain item and delay would expire it; defendant failed to pass on said shipment on 10.12.2012 (Friday) which resulted into expiry of said medicine/vaccine; on 15.10.2012 (Monday) when parcel reached at its destination, CMH Karachi had refused to receive it being expired; due to negligence and defective services of defendant claimant had suffered loss of Rs.
1,30,000/- i.e. price of medicine besides Rs. 1,30,000/- on account of damages, inconvenience and loss of reputation.
2. Defendant submitted its written statement where preliminary objections about malafide, suppression of facts, maintainability of claim, estoppel, wastage of time of Court and counter damages for defendant were taken. On facts it was asserted that defendant never provides services for perishable items but only at risk and cost of a customer; it was provided in terms and conditions that a customer is bound to declare value of shipment and in case of loss defendant can pay only pay Rs. 100/- ; claimant never disclosed that there was some medicine inside the packet and if it was to be done, defendant could have arranged for safe custody of parcel in case of delivery beyond time; courier of defendant attempted to hand over packet on 12.10.2012 but no body was present in CMH, Karachi to obtain it; on 13th and 14th these were Saturday and Sunday so parcel could not be delivered because on these dates CMH was closed; on 15.10.2012 parcel was delivered to the extent of remaining articles. Defendant had prayed for dismissal of claim with costs.
3. In evidence Mr. Farooq Asghar Manager had appeared as Pw-1 on behalf of claimant who had produced documents Ex. P-1 to P-3.
4. On the other hand, Mr. Shahid Mahmood Mughal Zonal Manger came in witness box as Dw-1 who had produced the documents Ex.D-1 to D-10/1-3.
5. I have heard arguments of both sides.
6. Before I take contentions of rivals one by one, I will like to refer the admitted facts in this case which are as under: - i. Defendant was and is a courier Services Company and claimant was its customer. ii. On 11.10.2012 claimant got booked a shipment which in ordinary course had to be delivered by defendant on 12.10.2012 (Friday). iii. On 12.10.2012 parcel could not be delivered. (What were reasons those shall be discussed later on). iv. On 13.10.2012 and 14.10.2012 these were holidays being Saturday and Sunday and CHM, Karachi was closed. v. On 15.10.2012 some of the articles available in parcel were received but to the extent of life saving drug it was refused by CMH, Karachi as it had expired.
7. Plea of defendant in this case, as mentioned earlier, is very specific that on 12.10.2012 (Friday) its courier attempted to deliver parcel but as no body was present there so same could not be distributed. Therefore, onus was heavily on shoulders of defendant to prove this fact.
8. Sh. Muhammad Shabir learned counsel for defendant maintains that at the time of booking claimant did not disclose value of articles available inside the parcel, therefore, it is not entitled for any damages; terms and conditions available on back of receipt were known to claimant where it was provided that in case of loss defendant can pay only Rs. 100/- as compensation.
9. No doubt that claimant did not declare value of articles when it approached defendant for hiring its services but question arises that whether this will be fatal or not? We have to ignore what was inside the parcel and that claimant did not declare value thereof but it is to be focused that what were those reasons which had compelled claimant to hire the services of defendant? Admittedly, there was a declaration by defendant that it had over-night services which means that on very next available working day it was bound to deliver a consignment to other side.
It is not denied that as these are special services so consideration for these services is higher then expenses which a person pays in case of ordinary post. That means if a person takes services of an ordinary post office for ordinary express, maximum payment by him has to be made only in double figure. On the other hand, when services of a courier company are obtained, like defendant, said amount is in hundreds. Therefore, what had persuaded claimant to engage defendant, it was over- night delivery. If section 16 of the Act, is read, this supports my above referred view. It is reproduced as under: - Duty of disclosure.- (1) Where the nature of the service is such that the disclosure of the capabilities or qualifications of the provider of the service or the quality of the products that he intends to use for provision of the service is material to the decision of the consumer to enter into a contract for provision of services, the provider of services shall disclose the same.
(2) ..............
10. Admittedly, defendant had declared and still says with regard to quality for provision of services as over-night hence said quality was material for claimant to its decision for hiring the services.
What had to be end of these services? That was delivery of parcel on 12.10.2012 in CMH, Karachi. If there was a failure on part of defendant to provide this standard, then question of defective or faulty services shall definitely arise irrespective of the fact that what was inside the parcel.
However, there can be instances where services provider can claim that circumstances were such that those were beyond human control and for that examples can be like that a courier met serious accident or there was fire in the office of services provider which resulted into destruction of every material or there was a crash of plane through which bags of parcels were being sent to their respective destinations. These events can be good defenses. In this case, as disclosed earlier, there is a specific version of defendant which if is accepted then claimant shall have no case otherwise position shall remain that defendant could not provide services of standard and quality which it had announced.
11. Coming to terms and conditions available on back of receipt, no doubt that claimant in cross- examination admitted that he knew all said terms and conditions. However, during course of arguments claimant contended that said terms and conditions he came to know when correspondence of him started with defendant after this event.
12. It is commonly observed that people hardly go through terms and conditions which are printed on the back of such agreement like courier receipt, mobile phone, telephone or other utility connections. Preamble of the Act shows that it is for protection and promotion and interest of consumer. Therefore, to my mind simple printing of terms and conditions on the back of a document shall not mean that under section 16 of the Act, duty of disclosure was successfully done by a manufacturer or services provider.
13. To my mind section 16 of the Act is based on general guidelines which United Nations had issued across the world while passing a resolution for protection of consumers' rights. Before I refer relevant recommendations of that resolution I want to add that the earliest known statement of consumer rights at a political level was given on 16th March 1962, when President John. F. Kennedy of the United States delivered a speech to Congress in which he outlined four consumer rights and those were: - a. Right to safety b. Right to be informed (underlined by me) c. Right to choose and d. Right to be heard
14. Thereafter it was 1981 when United Nations Economic and Social Council requested the Secretary General to continue consultations on consumer protection with a view to elaborating a set of general guidelines for consumer protection, taking particularly into account the needs of developing countries. In 1983, draft guidelines for consumer protection were submitted to ECOSOC (Economic and Social Council) in response to its request. Following extensive discussions and negotiations, the Guidelines were adopted by consensus resolution of United Nations General Assembly on 9th April 1985. Confining to section 16 of the Act some of the guidelines were: - a) Access of consumers to adequate information to enable them to make informed choices according to individual wishes and needs. b) Consumers should be protected from such contractual abuses as one sided standard contracts, exclusion of essential rights in contracts, and unconscionable condition of credit by sellers.
15. In above stated back ground, to give true effect to section 16 of the Act, every manufacturer or services provider must confront its/his customer with these terms and conditions and those must be signed by such customer.
16. In this case, even if it is admitted that claimant knew all terms and conditions before hiring services, even then it will not be a barrier for him to knock the door of this Court. For that section 17 of the Act, is of much importance which says that: - "The liability of a person by virtue of this Part to a person who has suffered damage shall not be limited or excluded by the terms of any contract or by any notice"
17. What I see is that in fact this provision is a safeguard in cases where Manufacturers or Services providers are succeeded to insert in contract one sided terms and conditions. Contentions of learned counsel in this regard are, therefore, repelled.
18. Learned counsel for defendant further maintains that under Air Act, or Carrier Act, defendant is not liable for any action. Although no specific law has been shown but even if it is presumed that there is a law other then Act, even then Section 3 of the Act, has made it clear which says that: - "The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force"
19. Learned counsel for defendant also contends that on 18.12.2012 except medicine in packet all other articles were received by CMH and if claimant says that there was defective and faulty services then why he did not make claim to the extent of those articles which were received by CMH.
20. This argument has no force because claimant has a right to relinquish its claim to the extent which he desires and such relinquishment shall not be fatal for his remaining claim.
21. Now I come to specific defence raised by defendant. At the cost of repetition said defence was that a courier attempted to deliver parcel on 12.10.2012 but no body was there to receive it. From perusal of written statement and documents except Ex. D-10/1-3, I am unable to find that courier who attempted to deliver parcel in question.
22. This was first time on 17.01.2013 while closing the evidence of defendant besides other documents also produced Ex. D-10/1-3 which are copies of delivery sheets. According to first page of this document shipment under dispute with other was handed over to one Mr. Javed courier of defendant on 12.10.2012 at 08:08 am. Second page of this document is the same as page one.
Whereas, third page is of 13.10.2012 (Saturday) in the name of same courier showing that certain parcels including under question were handed over to him. On this date admittedly it was "Saturday" and CMH was off so mentioning "Saturday off" is not a question of dispute.
23. Learned counsel for defendant by referring this document again and again contends that courier on 12.10.2012 recorded a word "Time off" which as per his interpretation means that there was no person to receive said parcel. I have no hesitation to say that this document has not been proved in accordance with law. Reasons are as under: - i. It is a surprised document brought on record first time on 17.10.2012 and before that date this document was not sent to claimant for his satisfaction during various correspondences. ii. This document was not relied in list of documents and even not mentioned in written statement. iii. All columns of this document were filled by writing and who had written it he was not produced in Court. iv. Who prepared this document? In whose custody it was? And who had issued the same? All these questions have no answer at all. v. It is a photocopy so its genuineness without production of original record shall remain in cloud.
24. For the sake of arguments and to do complete justice even if I discuss this document as a piece of evidence, I have no reservations to hold it as a fake paper. Its first sheet is relevant. In column No. 5 having title "Receive Name Remarks" all entries are without cutting or over writing. Only cutting is with reference to shipment under dispute which is shown at serial No. 14. Why it is so? Learned counsel for defendant despite his best efforts could not convince me. Not only this but in column No. 2 under every shipment number there is a serial number and most of them have been tried to be changed.
25. I have good reasons to hold it fake. Most important is that in column No. 5 mentioned earlier firstly it was written" Saturday closed" and after cutting the word "Time out" was written. Learned counsel for defendant does not admit the word "Saturday" and when I asked that what word this is? He is not in a position to tell me. It is defendant and none else who is bound to explain this word because this document was produced by it.
26. Why I say it Saturday. My view is supported when I compared this word from similar words written at sheet No. 3 dated 13.10.2012 at serial numbers 9 and 15. The word "Saturday" written against both said serial numbers is in same manners, with same style and same flow as on page one. I will like to reproduce all these entries through process of scanning and same are as under: - {{TABLE AND IMAGE}} 1 2 Sheet 1 (disputed entry)
Sheet 3 (admitted entries) {{TABLE AND IMAGE}}
27. Even a person of normal vision on simple perusal can say that at sheet No. 1 the word Saturday was written and nothing else. It appears that sheet one of Ex. D-10/1-3 was prepared at some belated stage and as courier of defendant first time had gone to deliver parcel on Saturday so he wrote what he did. Most probably before production of this document in Court when said blunder was found, a tempering was made by writing the word "Time out" and this is the reason that original document was not brought before Court for its examination.
28. How I can say that word "Time out" means that other side of shipment was not present in the office because it is only an interruption of learned advocate for defendant without referring any definition of this word from their own rules of business. If no body was present then entry should be in a way as it had happened.
29. Finally, there is fatal ground for defendant to negate its defense and that is that why that courier was not produced in Court who was a direct witness in this regard? Learned counsel for defendant when is asked he responded that said courier is still an employee of defendant company. In spite of my repeated questions he did not give any logical reason but simply stated that as huge expenses had to be born to produce witness from Karachi so it was not done. What I can comment on this because on one hand defendant is trying to protect its reputation by contesting the case and demanding counter damages with dismissal of claim and on the other hand mere to avoid expenses of some amount best witness has been withheld. Principle cannot be ignored that whenever there is best available evidence and it is withheld by a party who could produce it, presumption shall be adverse to that party.
30. Whatever, has been discussed in the light of that claimant has succeeded to establish its claim whereas defense story has been found false. Coming to question of relief, claimant did not prove price of medicine as Rs. 1,30,000/- or otherwise. No document in this context was brought on record except a photocopy showing to have been prepared by Roche Company. As it is not part of documentary evidence and it is a simple photocopy, so my declaration shall remain that claimant did not prove price of injection.
31. Admittedly, claimant is customer of defendant for about 23 years. It is not denied that there was life saving drug in parcel. CMH cannot be stated to be an ordinary customer. Therefore, when due to faulty and defective services of defendant CMH refused to receive expired medicine, it was shocking and damaging for claimant business thus it is entitled to damages of Rs. 1,30,000/- which it has prayed.
32. Therefore, in terms of section 31 of the Act, I issue an order to defendant and direct it to pay Rs.
1,30,000/- (one lac and thirty thousands) as damages to claimant within a period of 30 days from today. File shall be consigned to record room after its due completion.