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Unfortunately, in May 1996, in the case of Bharathi Knitting Company vs DHL Worldwide Express Courier (CA No 9057 of 1996), the Supreme Court held 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 did observe that (a) in case the consumer has not signed, then the question arises as to whether the terms were brought to his notice; (b) each case is dependent on the facts of the case and; (c) if a party disputes the binding nature of the signed document, then it is for him to prove the circumstances under which he signed the document. In 2001, in the Blue Dart Express vs Stephen Livera case, (RP no 393 of 1997, order dated December 14, 2001), the National Consumer Disputes Redressal Commission upheld the compensation of Rs 20,000 awarded to a consumer and differentiated it from Bharathi Knitting Company by saying that the Supreme Court in that case had not considered the small print in a standard contract. In this case, first and foremost, the terms and conditions, printed on the back of the receipt, were in small and fine print. Second, the attention of the sender was not drawn to it. Third, the receipt also did not clearly show that the sender had signed and accepted the conditions printed on the back, the Commission said. In Osuri Devendra Phanikar vs Desk to Desk Couriers and Cargo Ltd order dated August 1, 2003, the Commission upheld the award of compensation to the consumer for non-delivery of important papers. Then in Pravesh Kumar Mukherjee vs Air Transport Corporation Ltd (RP no 1404 of 2003), the Commission 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. More recently, on May 12, 2014, in DTDC Courier and Cargo and Another vs M/S Caterpillar India Pvt ltd and another, (RP no 2153 of 2008), the National Commission upheld the verdict of the lower consumer court, awarding a compensation of Rs 1,82,645 to the complainant. Here, the courier had lost the cheque during transit and the amount had been fraudulently withdrawn by someone who used that cheque. So in short, you can get the compensation despite the limited liability clause, if you have not signed the consignment note or the receipt, if the terms are printed in such a way (in illegible print and on the back of the receipt) that unless your attention is drawn to it, you will not see it and you have not been informed of the limited liability clause. In case you have signed the agreement, you can still point to the unfair nature of the standard agreement, where you, as the weaker party had no option but to sign on the dotted line. You can quote the Supreme Court order dated April 6, 1986, in Central Inland Water Transportation Corporation Ltd and Another vs Brojo Nath Ganguly and Anr (1986 AIR 1571 1986 SCR (2) 278), where the Apex Court said that the courts will strike down an unfair, unreasonable clause in a contract between parties who are not equal in bargaining power and one of the parties has no choice except to sign. What precautions should one take? Choose a courier with a good track record. Specify the content on the receipt. Try not to sign your acceptance of the terms. If you are sending expensive goods, you can insure them, but you cannot put their value on papers.
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