IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No.730 of 2011 (O&M) Date of Decision: April 25, 2011 Cox & Kings Limited …Appellants Versus Permanent Lok Adalat (Public Utility Services) and Anr. …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Kanwaljit Singh, Sr. Advocate with Mr. Sumeet Goel, Advocate, for the appellant. ***** 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against the judgment dated 05.01.2011 rendered by learned Single Judge upholding the order dated 02.06.2010 rendered by Permanent Lok Adalat (Public Utility Services) Ferozepur. The Permanent Lok Adalat vide its order has directed the appellant-company to refund a sum of Rs.3,69,000/- to the consumer namely Dr. Pritam Singh Sauna. The consumer had deposited a sum of Rs.5,88,461/- for availing the services of the appellant-company to visit abroad under the scheme known as “Coast to Coast” which was floated by the appellant-company. The payment was made through ICICI bank and it was duly acknowledged. However, the tour could not materialize because Visa arrangement for USA could not be made for all the three members of the family of consumer -respondent No.2. In the meanwhile, departure date of the tour i.e. 18.07.2008 had approached. The family could not leave for the tour. LPA No.704 of 2011 (O&M) On the demand raised by consumer-respondent No.2 for refund of the whole amount, the appellant-company only refunded a sum of Rs.1,55,461/- and withheld the substantial part. The Permanent Lok Adalat after noticing all the details vide its order dated 02.06.2010 directed that the balance amount of Rs.3,69,000/- along with interest @ 10% per annum be paid to the consumers- respondents. The self-explanatory order is extracted below: “30. “Booking Form 2008” filed in by the applicant on 26.04.2008, shows that he had handed over the passports to respondent No.1 on 26.4.2008 which were returned to him through some Gurpinder Singh along with a cheque of Rs.155461/- by the latter. Thus, the Passport of the application, his wife and son were already possession of the respondents which were also valid as per 'Booking Form 2008'. Therefore, one condition for going on the tour had been fulfilled by the applicant, his wife and son on the very first days, when the applicant had booked the tour on 26.04.2008. xx xx 32. Therefore, it was the unfair trade practice. Therefore, the applicant, his wife and son cannot be allowed to be subject to the oppressive provisions of cancellation charges. Thus, there is a force in the contention of learned counsel for the applicant that in addition to earning profit, by organizing tours and respondents are also extorting money from the public by applying the oppressive and penal clauses and cancellation charges schedule referred to above. Therefore, the respondents cannot charge cancellation charges more than Rs.60,000/-.” (Emphasis applied) 2. Learned Single Judge repelled the argument with regard to the territorial jurisdiction, which was firstly repelled by the Permanent Lok Adalat and then by the learned Single Judge. The learned Single Judge has expressly viewed that the cause of action admittedly arose in favour of consumer- 2 LPA No.704 of 2011 (O&M) respondent No.2 at Ferozepur where the impugned communication was received and sent by him. It was further held that so called contract between the parties on which reliance was placed by the appellant is unconscionable and unfair because it contains oppressive terms, which were repugnant to deny the legitimate claim of a traveler. Moreover, the terms and conditions of the tour on which reliance was placed by the appellant-company were not widely circulated or published when attractive offer of 'Coast to Coast' tours were made nor the consumer-respondent No.2 was ever informed that it would be his obligation to obtain Visa. On the contrary, consumer-respondent No.2 and his family was asked to apply for American Visa through the appellant- company which apparently was the responsibility of the appellant-company to secure Visa. At best, it has been found that it was a case of contingent contract which hinges upon a grant of valid Visa to consumer-respondent No.2 and his family members by the Foreign Embassy. 3. The learned Single Judge has upheld the view of the Permanent Lok Adalat that there was no valid explanation for deduction of hefty charges without providing any tangible service or facility to them and accordingly, the appellant-company has been found to be indulging unfair trade practice. 4. We have heard the learned counsel for the appellant at a considerable length and are of the view that the instant appeal lacks merit and is thus liable to be dismissed. 5. The law concerning incorporation of terms of contract containing in a fine printed standard form initially developed in England. There are significant developments in that area, in our country as well. A clause set out or referred to in a written agreement could be deemed to be a part of contract, if it was proved by proferen that such a clause was brought to the knowledge 3 LPA No.704 of 2011 (O&M) of the other party or sufficient steps were taken to notify the consumer of its existence before or at the time of contract. 6. The Courts in India has applied and followed the two celebrated judgments delivered by English Courts in the cases of Henderson v. Stevenson, (1875) L.R. 2 H.L. Sc. Appeal 470 and Parker v. South Eastern Railway Co. (1877) 2 CPD 416. For example, in Madras Railway Co. (Defendant-Petitioner) v Govinda Rau (Plaintiff-Respondent) (1898) L.R. Mad. 174 the validity of an exclusion clause in a forwarding note fell to be decided by the court. There, Govinda Rau, a tailor of Erode delivered a sewing machine and a bundle of clothes to the defendant company at the Erode Railway Station on February 29, 1890 to be sent to Karamadai. The purpose of despatching the goods was to make an enormous profit at Karamdai during the forthcoming 'car festival' but no notice of this purpose was given to the railway authorities. Govinda Rau went to Karamdai and waited till March 13, 1890 when the festival was over; but the goods were delivered to him only on March 26. In an action by the tailor to recover from the railway company a sum on account of his estimated profits and the expenses he incurred, the defendant company relied on a declaration in the forwarding note which declared that he was aware of the conditions on the back of the note and agreed to be bound by them. It was not clear whether the declaration was signed or not. One of the conditions was that the company was not liable “for any loss or damage to any goods whatever by reason of accidental or unavoidable delays in transit or otherwise”. Subramania Ayyar J., following Mellish L.J. In Parker's case said “... assuming that he was in fact ignorant of the conditions in question, that does not affect the binding character of the contract evidence by exhibit I (the forwarding note) 4 LPA No.704 of 2011 (O&M) inasmuch as in the portion thereof which bears his mark it is expressly stated ... that he agreed to the articles being carried subject to such conditions.” The court attached little importance to the fact that the note was signed. The Indian authorities do not deem a signed simple contract to be conclusive, and opportunity is still granted to a signer to show that he had no knowledge or the party delivering the document had not taken adequate steps to communicate to him the terms and exclusion clauses. Therefore, the document in this case and the one in Parker's case did not stand on different footing and the court reached the same conclusion. Similarly, in M. Sheikh Dawood v. The South Indian Railway Co. Ltd. (1945) ILR Mad. 174, the defendant railway company through its booking clerks booked certain consignments of rice from two stations on its line to Galle in Ceylon. The clerks on both the stations charged a concessonary rate which had been cancelled and was no longer in force at the time of these bookings. The Ceylon Government at Galle refused to deliver the goods unless the difference between the concessionary rate and the ordinary rate then prevailing was paid. The consigner paid the rates as demanded and brought the suit to recover the excess sum paid. The station- master of one of the stations deposed that a statement of new rates was hung up in the station premises for the information of the public. The change was notified in a local advice, which was circulated to all stations on the company's system. One of the conditions in the forwarding note was “Goods booked to stations on South India Railway are carried subject to the rules and conditions printed from time to time in the railway company's goods tariff and goods booked to or over a foreign railway are subject to the rules and regulations and to wharfage and other charges in 5 LPA No.704 of 2011 (O&M) force on such railway.” The court dealt in detail with the form of the forwarding note and said that after filling in the name etc. the consignor signed this statement: “I do hereby certify that I have satisfied myself that the description, marks, value and weight or quantity of goods consigned by me have been correctly entered in this forwarding note, and I agree to be bound by the conditions printed above and at the back of this forwarding note, and on the railway receipt granted for these goods.” Leach C.J., delivering the judgment of the court presumed the knowledge of the petitioner as to the changed rates because it was notified in the ordinary way and “as the petitioner accepted the rate set forth in the tariff (which means amended tariff and agreed to the rectification of any mistake, he cannot object to the additional charge. Failure to read conditions on the back of the forwarding note would not help him. The principle of Parker v South Eastern Railway Co. would apply here. A large number of these cases have been collected and analysed in the book titled as 'Control of Exclusion Clauses in England and India' by M.M. Kumar (1985) 7. When the aforesaid principles are applied to the present case, it becomes evident that mere signing of documents by a consumer on a standard form contract would not bring in a concluded contract between the parties because the mighty and powerful company who built enormous bargaining power cannot bullie the consumer by exploiting their weak bargaining power. It was unfair on the part of the appellant-company to expect consumer- respondent No.2 to commence his tour once Visa has not been granted to him and it was granted to his son and wife alone. Moreover, the appellant- 6 LPA No.704 of 2011 (O&M) company held out that it was its responsibility to obtain Visa for them, which was implicit from their own conduct. Therefore, it could not have pleaded that there was a binding term of contract stipulating that consumer-respondent No.2 was responsible for securing Visa merely because he has signed it. The parties were not ad idem because unfair clauses in the standard form were contrary to the overt act and conduct displayed by the appellant-company. Therefore, we are of the opinion that view taken by the Permanent Lok Adalat as affirmed by the learned Single Judge deserve to be upheld. There is thus no scope for admission of the appeal and the same is liable to be dismissed. 8. As a sequel to the above discussion, this appeal fails and is dismissed. (M.M. KUMAR) JUDGE (T.P.S. MANN) April 25, 2011 JUDGE Rajan 7