STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :

                                           At  HYDERABAD

                                                            FA 337 OF 2014

                                                   AGAINST

                 CC No. 648/2012, DISTRICT FORUM – II, HYDERABAD

Between :

M/s. Fairy Rose Enterprises

Rep. by its  Proprietor: KBR Prasad

12-13-437/1, Street No.1, Tarnaka,

Hyderabad -17                                    ..        Appellant/complainant

And

1. R.S. Subramanian,

Country Manager,

DHL Express India P Ltd

A.K.Marg, Bandra East,

Mumbai – 400 051.

2. Sarbani Sengupta

Director, Customer Service

DHL Express India P Ltd

A.K.Marg, Bandra East,

Mumbai – 400 051.

3. Anil Gautam

Head – Direct Business Unit Sales

DHL Express India P Ltd

A.K.Marg, Bandra East,

Mumbai – 400 051.

4. D. Muralidharan,

DHL Express (I) Pvt.Ltd

6/1/17 Awalker Town

Padma Rao Nagar, Secunderabad

Hyderabad – 500 026           .. Respondents/opposite parties

Counsel for the Appellant                    :       Party-in-person

Counsel for the Respondents                 :       Sri N. Mohana Krishna for R1 to R4

Coram                :

                 Honble Sri Justice B. N. Rao Nalla         …      President

                                           And

                          Sri Patil Vithal Rao              …      Member

                          Friday, the Third Day of November

                                  Two Thousand Seventeen

Oral order : ( per Hon’ ble Sri Justice B.N.Rao Nalla, Hon’ble President )

                                                            ***

1)       This is an appeal  filed under Section 15 of the Consumer Protection Act by the unsuccessful complainant  praying this Commission   to set aside the  impugned order dated 29.04.2014 made in CC 648/2012 on the file of the  DISTRICT FORUM-II, Hyderabad   and allow the appeal.

2)       For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.

3).      The case of the complainant ,   in brief, is that he  has booked shipment from USA on 23^rd July, 2012 and the same was received by him on 11^th September, 2012 delaying 40 days in delivery of the cargo, for which, the opposite parties demanded warehouse charges of Rs.72,795/- on account of delay in taking delivery and later after enquiry it was reduced to Rs.10,000/-. At the time of delivery of the shipment, few boxes were found in open condition and some contents of the shipment were missing, for which, he claimed Rs. 18 lakhs  as damages. Further, in response to his letter dated 24^th September, 2012,  the opposite parties replied on 13^th October, 2012 stating that   they have agreed to offer Rs.33,000/- for missing items,  apart from Rs.62,795/- which was already waived off, but, later it was also reduced to Rs.438/-  Hence the compliant to direct the opposite parties to pay compensation of Rs.18 lakhs for loss of items, mental agony and  cheating with false promises etc.

4)       The opposite parties opposed the above complaint by way of written version contending that the complainant is not a consumer as per Section 2(1)(d) of C P Act as the shipment was imported from USA to Hyderabad for commercial purpose. The value of the missing contents in the shipment as per the delivery sheet was Rs.438/-.  The opposite parties liability, if any, in respect of any shipment consigned to the opposite parties  under its air way bill is limited and shall not exceed the declared value  or US $925  per kg and if the complainant is aggrieved, it must make a special declaration of value and request for insurance or make its own insurance arrangements or the complainant in place has to make a special declaration of value  of his shipment and the complainant in the present case has not made any special declaration of value of his shipment and requested for insurance and did not make any arrangements for getting shipment insurance.  There is no deficiency in service on their part. Hence prayed to dismiss the complaint.

5)       During the course of enquiry before the District Forum, in order to prove his  case, the complainant   filed his evidence affidavit and got marked Ex.A1 to A-41 and the opposite parties  filed evidence affidavit by reiterating the contents of the written version and also got marked Ex. B1 to B9.   Heard both sides.

6)       The District Forum, after considering the material available on record,  allowed the complaint in part and directed the opposite parties to pay  a sum of Rs.25,000/- towards delay caused by the opposite parties in delivering the shipment to the complainant, to pay Rs.5,000/- towards compensation for mental agony and costs of Rs.3,000/- within 30 days.

7)       Dis-satisfied with  the said order, the complainant   preferred this appeal before this Commission.

8)       Both sides have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof. The appellant/complainant filed written arguments.   Heard both sides. 

9)       The points that arise for consideration are,

(i)       Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?

(ii)      To what relief ?

10).   Point No.1 :

There is no dispute that the appellant/complainant  has booked shipment from USA on 23^rd July, 2012 and the same was received by him on 11^th September, 2012 with a delay of  40 days in delivery of the cargo, for which, the opposite parties demanded warehouse charges of Rs.72,795/- and later after enquiry it was reduced to Rs.10,000/- on account of delay in taking delivery of the cargo.

11)     The contention of the appellant/complainant is that at the time of delivery of the shipment, few boxes were found in open condition and some contents of the shipment were missing, for which, he claimed Rs. 18 lakhs  as damages but the respondents/opposite parties initially agreed to offer an amount of Rs.33,000/- for missing items  vide letter  13^th October, 2012 but later it was reduced to Rs.438/-. Counsel for the respondents/opposite parties argued that the value of the missing contents in the shipment as per the delivery sheet was Rs.438/- and further argued that  the appellant/complainant has not made any special declaration of value of his shipment and made  insurance for the shipment and hence the appellant/complainant is not entitled for any further amount. We have perused the letter dated 13^th October, 2012 under Ex. A-31, from the respondents/opposite parties to the appellant/complainant, wherein, it was  mentioned that the following contents were missing from the shipment.

                    Copter Rubber Powered           96 USD

                    Lite Flite Flashing Glider          268.8 USD

                    Space Shuttle Launcher           235.2 USD

Therein, it is also mentioned that they confirm to offer USD 600 equivalent to INR 33000 apart from INR 62795/- which was  already waived off as full and final settlement of the claim. In view of the admission of missing of the above three items and confirmation in offering  an amount of Rs.33,000/- towards the said missing items, the appellant/ complainant is entitled to the said amount. Despite the averment that  some items were missing and as a consequence of the same, he sustained loss of  an amount of Rs.18 lakhs , the appellant/complainant did not specify the items that were missed during the shipment  and failed to prove that he sustained the said loss  by adducing any cogent and tangible evidence and in view of the absence of evidence he is not entitled to any amount on this count. Further, the appellant/complainant averred that he had to pay an amount of Rs.10,000/- towards warehouse charges, keeping in view his business,  though, in fact,  there is negligence on the part of the respondents/opposite parties in delivering the shipment which amounts to deficiency in service.  It is to be inferred from the facts that the respondents/opposite parties  coming to know that there are latches on their part in delivering the shipment reduced the amount from  Rs.72,795/- to Rs.10,000/- and hence they cannot impose liability for  any amount on the appellant/complainant and the said amount paid by the appellant/complainant is liable to be refunded by them.

12).              After considering the foregoing facts and circumstances and also having regard to the contentions raised on both sides,   this Commission is of the view that the appellant/complainant is entitled to an amount of Rs.33,000/- towards the value of the missing items along with interest @ 9% PA  from the date of offer, i.e., 13.10.2012, along with Rs.10,000/- towards ware house charges paid by the appellant/complainant,  hence the impugned order is liable to be modified.

 13).   Point No. 2 :

In the result, the appeal is allowed in part and the order of the District Forum is modified directing the respondents/opposite parties to pay an amount of Rs.33,000/- towards the value of the missing items along with interest @ 9% pa from 13.10.2012 till the date of realization, to  refund an amount of  Rs.10,000/- towards warehouse charges paid by the appellant/complainant, to pay Rs.25,000/- towards delay caused in delivering the shipment to the appellant/complainant, Rs.5,000/-towards compensation and costs of Rs.3,000/-.  Time for compliance four weeks.

                                                            PRESIDENT                     MEMBER                                                                           Dated :  03.11.2017.