Date of Filling: 24.05.2016
Date of Order: 19.11.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CC No.28/2016
MONDAY, THE 19th DAY OF NOVEMBER 2018
Z.Ashok Zachariah,
S/o, P.V.Zachariah,
Plot No.42, 3rd street,
Thillai Nagar, Korattur,
Chennai -600 080. ……Complainant.
//Vs//
1.M/s.Fedex Express
Represented by its Manager,
No.610, CTH Road,
Padi, Chennai -600 050.
2.M/s.Fedex,
Represented by its Manager,
Bookerang Unit 801, wing A&B1
8th Floor, Chandivali Farm Road,
Andheri East, Mumbai -400 072. …….opposite parties.
The complaint is coming upon before us finally on 02.11.2018 in the presence of M/S.J.Venkatesan, counsel for the complainant and M/s. Indialaw, counsel for the opposite parties and upon hearing arguments having perused the documents and evidences on both sides, this forum delivered the following.
ORDER
PRONOUNCED BY THIRU S.PANDIAN, PRESIDENT.
This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite parties for seeking direction to refund the freight charges a sum of Rs.3,693/- with interest at the rate of 24% per annum and a sum of Rs.1,00,000/- towards compensation for causing mental agony and hardships due to the deficiency of service on the part of the opposite parties and with cost.
2.The brief averments of the complaint are as follows:-
That on 20.04.2015 the complainant contacted the customer care of the opposite party over phone and enquired about the procedures to send an apple mobile phone through parcel to his son at United States of America. During the enquiry they required certain bills and letter with regards to the parcel which required to be sent to USA and further informed that the parcel can be sent under Fedex Express Package Service and will reach the destination by 22nd or latest by 23rd April 2015 and the freight charges will be at Rs.3,693/- and a pick up man of the opposite party will come and collect the parcel.
3. That on that day at about 5.30pm the pickup man of the Fedex Express came from the 1st opposite party and collected the parcel and the freight charges of Rs.3,693/- and issued necessary bills to that effect. While collecting the parcel, the pickup man also collected the copy of the mobile purchase bill, ID proof of the complainant and a letter stating about contents of the parcel and its value and its requirement. The pickup man also informed the complainant that the movement of parcel can be tracked on net. On 22nd April 2015 due to curiosity the complainant has tracked the movement of the parcel on internet and found that the parcel is in Bangalore which is against the assurance of the opposite party during the enquiry had on before booking the parcel. The complainant was very much shocked and surprised to see that the parcel was still in the Bangalore as such he enquired about the same through customer care of the opposite party as registered a complaint and the complaint number is 0422006976.
4. That on 23rd April 2015 the complainant again tracked the parcel to know its movement. The said tracking put the complainant into great distress and hardship as the tracking shows that the parcel is back in Chennai. Immediately the complainant has contacted the customer care service and enquired about the fate of the parcel for which they replied that since there was some customs related problem it came back to Chennai and since that has been sorted out, it will sent back today itself and will reach its destination positively by 25th April 2015 without fail.
5. While facts are so, on 24.04.2015 on Mr.Chintan from the 2nd opposite party called the complainant from the phone No.022-67486389 and told that he is looking into the complainant’s complaint and it will be sorted out at the earliest and he further informed that the complainant can call him over phone for further details. Further the complainant on tracking the parcel on 24.04.2015 it was found that the parcel was still in Bangalore and on 25.04.2015 it was in Chennai.
6. That on 25.04.2015 someone called the complainant and informed that the parcel could not be sent to its destination and at about 2.30pm on the same day one Mr.Gopal came to complainant residence and returned the parcel after 5 days of its booking. When the complainant asked about the refund of freight charges for which he replied that the refund will be made through cheque payment and it will reach the complainant in two days. But the complainant has not received the refund of freight charges as assured by the opposite party and therefore the complainant submitted a claim form on 28.04.2015 duly filled up to the opposite party through net and post. On receipt of the claim form, the complainant received an email on 04.05.2015 from one Customer Relations Representative-Associate namely Mr.Purnima Kerkar of the opposite parties rendering their apology stating that consignment could not be sent to its destination due to operational error and further informed the complainant that the refund will reach the complainant through cheque for Rs.3693/- from accounts credit and control department.
7. Even after the mail from the opposite party, the refund was not made to the complainant and therefore the complainant had made innumerous attempts to get the refund from the opposite parties including a letter dated.15.05.2015 but all the efforts were ended in vain as such the complainant was compelled to send notice dated 01.06.2015 with all details and enclosures through registered post to the opposite parties. The opposite parties received the same but did not return the freight charges and even chosen not to send any reply. The act and the attitude of the opposite parties put the complainant into severe mental agony and hardship, for which the opposite parties are jointly and severally liable to be compensated. Hence this complaint.
8. The contention of written version of the opposite parties is brief as below:-
The complaint is false, frivolous and vexatious and is gross misuse of process of law. The complainant has not approached the forum with clean hands. The opposite party humbly submits that a consignment was booked with this opposite party’s office at Chennai on 20.04.2015. The said consignment could not be delivered due to customs and regulatory related clearances. Despite fervent efforts from the opposite party, the consignment could not pass through due to lack of documents required for customs and regulatory clearance and for no fault of the opposite party and consequently the consignment had to be returned to the sender on 25.04.2015.
9. The complainant sought for the refund of the freight charges which was not within the deciding authority of the person who had returned the consignment and hence the complainant was directed to the office for any further clarifications.
10. This opposite party responded to the claim of the complainant by e-mail dated 04.05.2015 wherein the Customer Relation Representative had informed the complainant that the Customer Care Department had recommended for a return of freight charges and also informed the complainant that he would receive the cheque from the Account-Credit and control Department.
11. At this stage, to the conditions of carriage which required strict compliance in conducting the affairs of this opposite party. Clause 11(1) of the condition of the carriage defines undelivered shipments as shipment detained or otherwise unable to clear local or state boundaries. It further envisage that Fedex shall not be liable for damages sustained in the event which the delivery is not completed due to the act default or omission of any public authority carried out in connection with the entry exit of transit of goods. Clause 16 of the condition of the carriage printed on the reverse o the Airway bill stipulates the liability of the sender in returning an undeliverable shipment unless said shipment was undeliverable due to the fault of Fedex.
12. That despite the stringent rules relating to undeliverable goods, it was purely on humanitarian grounds and to safeguard the goodwill of the company that the Customer Care Department had sent the mail dated 04.05.2015. Unfortunately the Accounts Credit and Control Department going strictly by the conditions of the carriage had declined the refund and the matter is still pending consideration. It is in the meantime that this opposite party had received notice in the above complaint. The complainant is fully aware of the true and correct facts and despite knowing the same, has tried his luck by way of present complaint.
13. The burden of proving the deficiency in service is upon the person who alleges it. The complaint has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of this Forum.
14. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the acts of that case for which no hard and fast rule can be laid down.
15. There is no deficiency of service on its part. This opposite party has been trying the help the complainant and is doing everything within its authority. The consignment could not be delivered due to a regulatory issue and by no stretch of imagination can such non-delivery could be attributed to the fault of this opposite party. When there is no deficiency of service attributable to this opposite party, this opposite party cannot be held responsible for any alleged severe mental agony for the complainant.
16. Without prejudice to the rights of this opposite party, this opposite party still offers the refund of freight charges of Rs.3693/- under the limited liability accepted by their mail dated 04.05.2015. Therefore there is no deficiency of service on the side of the opposite party and hence this complainant is not entitled to any cost, interest or compensation. Hence this may be pleased to dismiss.
17. In order to prove the case, on the side of the complainant, the proof Affidavit submitted as his evidence and Ex.A1 to Ex.A9 were marked. While so, on the side of the opposite parties as his evidence and Ex.B1 and Ex.B2 were filed.
18. At this juncture, the point for consider before this Forum is:-
1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint by the complainant?
2. To what other reliefs, the complainant is entitled to?
19. Written argument filed and oral arguments also on the side of the opposite parties, while the complainant written argument filed and also on his side oral argument was closed.
20. Point No.1:-
According to the case of the complainant, it is averred that all the documents furnished by the complainant to the 1st opposite party on 20.04.2015 at about 5.30pm and collected the parcel with freight charges of Rs.3693/- and for which issued necessary bills which is marked as Ex.A1 and also the bill for the purchase of the apple mobile phone is marked as Ex.A2 and also the ID proof of the complainant and a letter stating about contents of the parcel and its value and its requirement is marked as Ex.A3 and also it was informed that the complainant can be tracked in respect of movement of the parcel. It is further stated that in his proof Affidavit, on 22.04.2015 due to curiosity the complainant tracked the movement of the parcel on internet and still that the parcel is in Bangalore and immediately the complainant registered a complaint to the 1st opposite party and on 23.04.2015 the complainant again tracked the parcel to know its movement which shows that the parcel is back in Chennai and therefore the complainant has contacted the Customer service and enquired about the fate of the parcel, for which they replied that since there was some customs related problem it came to Chennai and the same sent back today itself and will reach its destination positively by 25.04.2015 without fail.
21. It is further seen from the evidence on 24.04.2015 and it is found that the parcel was still in Bangalore and on 25.04.2015it was at Chennai and thereby being frustrated with the act of the 1st opposite party the complainant tried to contact the 2nd opposite party but the complainant was unable to contact the person and on 25.04.2015 at about 2.30pm one Mr.Gopal had came to the complainant residence and returned the parcel after 5days of its booking and inturn the complainant asked about the refund of freight charges for which he replied that the refund will be made through cheque payment and the same will reach the complainant in two days but infact the complainant has not received the refund of freight charges as assured by the opposite party and therefore the complainant has duly filled up the claim form which is marked as Ex.A5 and on receipt of the same, the complainant received an e-mail 04.05.2015 from one Mr.Purnima Kerkar of the opposite party rendering their apology stating that consignment could not be sent to its destination and further informed the complainant that the refund will reach the complainant through cheque for Rs.3693/- from accounts credit and control department which is marked as Ex.A6.
22. It is further learnt from the evidence of the complainant that even thereafter the refund was not made to the complainant and therefore the complainant had made innumerous attempts to get the refund from the opposite party through Ex.A7, but all the efforts were ended in vain and thereby the complainant had compelled to sent notice Ex.A8 through RPAD and the same was received by the opposite party which is marked as Ex.A9, but they did not either return the freight charges or in order to any reply, which caused severe mental agony and hardship to the complainant, which leads to the deficiency of service on the part of the opposite parties.
23. While being so, on careful perusal of the averments made in the written version as well as evidence of the opposite parties it is stated that as per the Ex.B1 and Ex.B2 the opposite party shall not be liable for damages sustained in the event when the delivery is not completed due to the default or omission of any public authority carried out in connection with the entry exit of transit of goods and also in this case the opposite party still offers the refund of freight charges of Rs.3,693/- under the limited liability accepted by their mail dated 04.05.2015 but the claim of compensation cannot be entered since there is no deficiency of service on the part of the opposite parties.
24. At this juncture, on careful perusal of the rival submissions putforth on either side, it is crystal clear that the booking of the alleged parcel belong to by complainant and inturn the pickup man of the opposite party had collected the same by collecting freight charges of Rs.3693/- through Ex.A1 and also received the required documents Ex.A2 and Ex.A3 and after 5 days the alleged parcel has been returned for the reason because of the customs related problem and even then the opposite party ready to refund of the freight charges through cheque payment are all admitted facts, it is confirmed by the 2nd opposite party through Ex.A6 on various communication sent through e-mail which is marked as Ex.A4 and also on filing of Ex.A5 claim form. But infact the amount of freight charges has not refunded as per the assurance given by the opposite party through Ex.A6 and it is pertinent to note that the same was informed through Ex.A6 by the 2nd opposite party and even thereafter the admitted freight charges has not been sent to the complainant and thereby the complainant had forced to sent the notice Ex.A8 to the opposite party. Even receipt of the same, the said freight charges has not been refunded has assured by the opposite parties and also not reply to the notice Ex.A8.
25. At the outset, though it is averred in the evidence of the opposite that the alleged parcel could not be delivered because of some customs related problem but infact there is no relevant documents to show about the alleged customs related problems. It is further stated that unfortunately the accounts credit and control department going strictly by the conditions of the carriage had declined the refund and the matter is still pending consideration. If it is so, what further steps have been taken by the opposite party 1and2 to refund the alleged freight charges is in question. In respect of that not even a single documents placed before this Forum till today. In such circumstances, now the opposite parties have come forward and offered the refund of freight charges as per the mail dated 04.05.2015 which clearly shows that the action of the opposite party has not found to be in good faith. Therefore, if actually the opposite parties acted in good faith they ought to have refunded the freight charges as assured by the opposite party in Ex.A6 at this instance itself but the opposite parties have failed to do so and not come forward to any settlement till today.
26. It is further pertinent to note that the reason for refunding the freight charges is only an administrative delay cannot be accepted one, since it is a highly bleated one. Further, this Forum wants to enlighten that in respect of several demands has been made by the complainant but all are ended vain. Therefore, the contention raised by the opposite parties is that the complainant had moved this Forum without clean hands holds not good and devoid of merits.
27. In the light of the above other facts and circumstances it is crystal clear that the complainant has proved that the opposite parties have committed deficiency of service to the complainant by means of acceptable and consistent evidence and therefore the plea taken by the opposite parties holds not good. Thus the point no 1 is answered accordingly.
28. Point No.2:-
In view of the conclusion arrived in point No.1 the complainant is entitled for the refund of freight charges to the tune of Rs.3693/- and also for reasonable compensation with cost of litigation having suffered mental agony and hardships. Thus the point No.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the opposite parties1 and 2 jointly or severally are directed to refund a sum of Rs.3,693/-(Rupees three thousand six hundred ninety three only) with interest at the rate of 9% per annum from the date of the complaint i.e. (24.05.2016) till the date of this order (19.11.2018) and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards compensation to the complainant for causing mental agony and hardships due to the deficiency of service on the part of the opposite parties and also to pay a sum of Rs.2,000/- (Rupees two thousand only) towards cost of litigation to the complainant.
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.
Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 19th November 2018.
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MEMBER PRESIDENT
List of document filed by the complainant:-
Ex.A1 | 20.04.2015 | Airway bill of the opposite party | Xerox |
Ex.A2 | 16.04.2015 | Purchase bill for mobile | Xerox |
Ex.A3 | ……………… | Letter required by the opposite party | Xerox |
Ex.A4 | ……………. | Consignment tracking printout-3Nos. | Xerox |
Ex.A5 | 28.04.2015 | Claim form | Xerox |
Ex.A6 | 04.05.2015 | Email from the opposite party | Xerox |
Ex.A7 | 15.05.2015 | Email to opposite party | Xerox |
Ex.A8 | 01.06.2015 | Letter to opposite party with postal receipt | Xerox |
Ex.A9 | ……………….. | Acknowledgement card. | Xerox |
List of document filed by the opposite parties:-
Ex.B1 | ………….. | Letter of authority | Xerox |
Ex.B2 | ………….. | Conditions of carriage fedex express transportation and supply chain service(India) private limited. | Xerox |
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MEMBER PRESIDENT
