| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR. Complaint No.304 of 2018 Date of Instt.24.07.2018 Date of Decision: 20.04.2021 Mrs. Uma Sharma wife of Sh. Sukhwinder Singh resident of House No.20/16, Sehgal Colony, Ladowali Road, Jalandhar. ….. Complainant Versus 1. DHL Express (India) Pvt. Ltd., 5, BMC Chowk, Opp. McDonald’s Jalandhar, Punjab through its Incharge/Director/Partner etc. 2. DHL Express (India) Pvt. Ltd., New Express Courier Terminal, Adjacent to International Cargo Terminal I.G.I. Airport, New Delhi-110037 through its Director/Partner/Prop. 3. DHL Express (India) Pvt. Ltd., Head Customer Service, DHL Courier Services, 7th Floor, DeerajArman Building, Bandra East, Mumbai, Maharashtra-400051 through its President. ..…Opposite parties Complaint Under the Consumer Protection Act. Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) Present: Sh. H. S. Kalra, Adv. Counsel for Complainant. Sh. Navjot Singh, Adv. Counsel for the OPs No.1 to 3. Order Kuljit Singh (President) The present complainthasbeen filed by complainantagainst the OP on the averments that in the month of December 2017, the complainant and her husband were going to Canada on Tourist Visa in order to attend some function of their relatives and it was visit of few days. The complainant and her husband planned that it will be good if they take everything with them of their needs, requirements and gifts for relatives because these items are very costly in Canada. That the complainant had sent one parcel of 3 boxes having weight 81 KG with Invoice No.000000311N having AWB No.8912677686 dated 21.12.2017 from Jalandhar to Ottawa (Canada) through OP No.1. That in order to clear the utility of the goods sent through OP No.1 vide three boxes, the complainant had also given certificate in writing that these parcels contains old and used goods, cloths, kitchen utensils being sent for personal use and not for sale. That out of the above mentioned three parcels/boxes, the OP No.1 delivered only two boxes at destination i.e. Ottawa (Canada) and kept one box pending with them without any reason. Even the OP No.1 did not inform the complainant about the reason for kept pending the said third box with them. That due to non-reaching of the said third box at the destination, entire planning of the complainant and her husband got unbalanced and the complainant and her husband did not enjoy the function due to non-availability of their personal articles and gifts. Even the complainant did not open the said two boxes which were reached at destination. The articles send by the complainant were also not used by her at Canada due to the non-reaching of third box. The said two boxes were also sent back to India by the complainant after paying Rs.40,700/- as huge courier charges alongwith custom duty on the same. That due to non-reaching of articles sent through DHL, the complainant failed to enjoy the said function, for which she and her husband had gone to attend at Canada. All the articles remained unopened there at Canada and the complainant was too much harassed mentally at the hands of the OPs. That the said third box was sent back to India by the OP No.1 on 24.01.2018 with consent of the complainant and the complainant was forced to stay extra time at Canada just to receive the delivery of the remaining parcel at Canada and for sending the same back to India as all the functions were already over. The complainant had to buy fresh return ticket from Canada to India after paying $1200 CADdollar for ticket i.e. too much late from her return just to take delivery of the said parcel. The said third parcel was received by her in India on 05.03.2018 after paying custom duty of Rs.3688/- on the same, whereas the said third box was returned to India due to the reason that the same was undelivered in Canada due to fault of OP No.1 and the said amount of custom duty has been wrongly and illegally charged from the complainant by the OP No.1. That after suffering too much at the hands of the OP No.1, the complainant moved a complaint to the OP No.2 through email, but all in vain and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay total amount of the claim of Rs.1,50,858/- alongwith interest @ 18% per annum and further OPs be directed to pay Rs.10,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.50,000/- as litigation expenses. Notice of the complaint was given to the OPs, who filed reply and contested the complaint of the complainant by raising preliminary objections thatthe OPs are not different but a single legal entity registered under the Companies Act, 1956 and having its branch offices and retail counters at different locations including Jalandhar and Mumbai. In such view, this written statement is submitted for and on behalf of all three OPs being a single legal entity with different addresses. That the OP is a company duly incorporated under the Companies Act, 1956, having its Registered Office at 801 A, 8th Floor, Silver Utopia, Cardinal Gracias Road, Chakala, Andheri (East), Mumbai-400 099. The OP is engaged in the business of rendering international courier services. The allegations in the complaint are hereby vehemently denied save those that are specifically admitted. The complaint is not maintainable either in law or on facts and it is totally speculative. The complainant has filed the instant complaint against the OP inter-alia alleging deficiency in service and unfair trade practice against the OP on false and baseless grounds. That the present reply has been filed by the OPs through their authorized representative ChandrasenUpadhayay who is duly authorized to file the present reply and is well conversant and acquainted with the facts of the present case. It is further alleged that the complaint has made false and baseless averments in order to mislead this Forum. The complaint is not maintainable against the OPs. The complainant is not a consumer as defined in the Consumer Protection Act. That the instant complaint filed by the complainant is totally speculative, untenable in law and is an abuse of the process of this Forum. The written reply is based on the limited information provided by the complainant in the complaint, but before rebutting the contents of the complaint, the OP craves leave to place on record the preliminary submission/objections, and material facts which are without prejudice to the rights and contentions of the OP, but which go into the root of the matter and require to be decided first by the Hon’ble Forum before adjudicating upon the matter. The said submissions/objections and facts, as stated hereinafter for the consideration of the Hon’ble Forum for proper determination of the issue involved, shall show that the said complaint is totally irrational and baseless, hence, frivolous and vexatious both in law and fact. That the complainant instant complaint is not maintainable, as no cause of action has arisen in the instant case, either wholly or partly against the OP. The entire complaint is based on conjectures and surmises and in completely devoid of any cause of action against the OP. The instant complaint is devoid of any merits as the complainant has failed to make out any credible case in support of the allegations of negligence qua these OPs. That the OP craves leave to set out the broad factual premise relating to the present matter in order to enable the Forum to truly appreciate the totality of circumstances and the perversity of the present complaint. That the OPs is international courier company and it is one of the most preferred courier companies for international courier services in India. That the complainant approached to the OP at its Jalandhar branch and requested for carriage of Shipment to Canada on the address as mentioned on the boxes which were duly sealed and packed by the complainant herself. That the shipment was accepted by the OP on Air Waybill No.8912677686 on 21st December 2017 contained three boxes which was picked up from Jalandhar for delivery at given address in Canada subject to the DHL’s standard terms and conditions of carriage printed on Ari Waybill which was duly accepted and acknowledged by the complainant before handing over the shipment to the OP. The OP relies upon DHL’s standard terms and conditions of carriage as printed on original Air Waybill which is in custody of complainant. That shipment of any shipper is accepted by the OP only if the DHL’s Air Waybill is signed by the shipper and not otherwise, and it is pertinent to note that the Air Waybill bears certain terms and conditions of carriage of shipment. That complainant while handed over shipment to the OP for its delivery in Canada, had signed some document required for export including the AWB and had accepted the DHL’s terms and conditions as printed thereon. That complainant avoided and she was not in position to comply with requirements of customs department at Canada so she instructed to the OP quietly, that please return back the last box of shipment to India.Since OP was neither a shipper nor a consignee but just a courier, so it was impractical and beyond its scope to fulfill the requirement of customs at destination. That the OP has always acted bonafidely as per laws of respective nations and as per instructions received from the complainant. It is clarified that OP never committed for any time bound delivery of the Shipment and despite this the two boxes of the shipment admittedly, were received by the complainant without any delay or damage. It is submitted that the last box was stuck at customs due to customs authority had some queries/requirement as it might be a concern for their customs duty and safety and security of their nation where OP had limited role as only to inform to the complainant which it discharged by informing in writing through email successfully. The OP acted in good faith and bonafidely and followed the instruction of the complainant. The OP has no locus to understand the reason as why the complainant instructed for return of shipment to India. The OP followed instruction of the complainant and acted accordingly. Since there was no deficiency in service of the OP, it did not entertain any undue claim of complainant who actually wanted to have unlawful gain from the OP as inferred from here repeated demands in her emails. That OP as per instruction of the complainant, delivered back the shipment to complainant in India without any damage. The OP charged for its diligent services like carrying shipment from India to Canada and its return as per instruction of complainant. The complainant paid customs duty, if any, to the customs authority (not to the OP) is subject to prevailing customs law of either India and/or Canada hence if the complainant feels it was inappropriate, she has legal right to ask for refund of customs duty from the customs department as per customs rules and prescribed process. That further there is no deficiency proved by the complainant in rendering services by the OP hence this complaint does not fall in the purview of this Forum hence this Forum has no jurisdiction under the Consumer Protection Act to adjudicate this case. That OP cannot be burdened with liability and thereby putting it to the expense of defending itself ought to be dismissed by the Hon’ble Forum in limine with cost under Section 26 of the Consumer Protection Act, 1986. In this regard, reliance is placed on the judgment of the Hon'ble National Commission in the case of K. Jeyaraman v. Poona Hospital & Research Centre (1994) 1 CPR 23 (NC) wherein the Hon'ble National Commission categorically stated the above point. In view of the foregoing paragraph, it is submitted that the instant complaint OP nowhere in the said complaint can be held even remotely responsible for the alleged hardship of the complainant. The redressal sought by the complainant towards his alleged grievance is absolutely baseless and evinces a total lack of understanding the matter under consideration. It is held in a catena of judicial precedents that any point made by a complainant that is outside his/her pleadings cannot be taken into consideration and as such is set-aside with cost. In this regard, reliance is placed on the decision of the Hon'ble National Commission in S.Gurunathan (Decd.) v. Jaya Health Centre 1 (2002) CPJ 211 (NC) wherein the above point was categorically upheld.On merits, the factum in regard to sending theparcel, is admitted and further submitted that complainant was informed by OP with request to complete documentation formalities with customs at Canada as the customs authority had some doubt on the last box and went on for formal clearance but the complainant did not support to customs at all. It is earlier observed that complainant also mislead the customs authority by making false declaration on packaging invoices/export documents. It is not the concern of OP whether complainant did open the two boxes or not, hence it is denied. There is no logic seems why the two boxes were not opened and used by the complainant and she is put to strict proof thereof. It is further submitted that service charge paid by the complainant to the OP was a prior agreed price in India which was charged. Further OPs contractual obligation was limited upto deliver of Shipment at Canada which was done successfully. Last box was not cleared by customs which was informed to complainant but she did not adhere with compliance requirement of customs at Canada hence there was no option but it had to return back to India which Op did diligently as per its standard process. Complainant also instructed OP through her email to return the last box to India. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed. In order to provehercase, the counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex.CA-1 to Ex.CA-9 and closed the evidence. In order to rebut the evidence of the complainant, the counsel for the OPs tendered into evidence affidavit as Ex.OPA, alongwith some documents Ex.OP-1 to Ex.OP-4 and closed the evidence. We have heard the learned counsel for the respective partiesand have also gone through the written arguments submitted by counsel for the OPs as well ascase file very carefully. Counsel for complainant has argued that the complainant and her husband planned that it will be good if they take everything with them of their needs, requirements and gifts for relatives because these items are very costly in Canada. That the complainant had sent one parcel of 3 boxes having weight 81 KG with Invoice No.000000311N having AWB No.8912677686 dated 21.12.2017 from Jalandhar to Ottawa (Canada) through OP No.1. That in order to clear the utility of the goods sent through OP No.1 vide three boxes, the complainant had also given certificate in writing that these parcels contains old and used goods, cloths, kitchen utensils being sent for personal use and not for sale. That out of the above mentioned three parcels/boxes, the OP No.1 delivered only two boxes at destination i.e. Ottawa (Canada) and kept one box pending with them without any reason. Even the OP No.1 did not inform the complainant about the reason for kept pending the said third box with them. Due to non-reaching of the said third box at the destination, entire planning of the complainant and her husband got unbalanced and the complainant and her husband did not enjoy the function due to non-availability of their personal articles and gifts. Even the complainant did not open the said two boxes which were reached at destination. The articles send by the complainant were also not used by her at Canada due to the non-reaching of third box. The said two boxes were also sent back to India by the complainant after paying Rs.40,700/- as huge courier charges alongwith custom duty on the same. That due to non-reaching of articles sent through DHL, the complainant failed to enjoy the said function, for which she and her husband had gone to attend at Canada. All the articles remained unopened there at Canada and the complainant was too much harassed mentally at the hands of the OPs. That the said third box was sent back to India by the OP No.1 on 24.01.2018 with consent of the complainant and the complainant was forced to stay extra time at Canada just to receive the delivery of the remaining parcel at Canada and for sending the same back to India as all the functions were already over. The complainant had to buy fresh return ticket from Canada to India after paying $1200 CAD dollar for ticket i.e. too much late from her return just to take delivery of the said parcel. The said third parcel was received by her in India on 05.03.2018 after paying custom duty of Rs.3688/- on the same, whereas the said third box was returned to India due to the reason that the same was undelivered in Canada due to fault of OP No.1 and the said amount of custom duty has been wrongly and illegally charged from the complainant by the OP No.1. That after suffering too much at the hands of the OP No.1, the complainant moved a complaint to the OP No.2 through email, but all in vain. On the other hand, counsel for OPs has argued that the OPs is international courier company and it is one of the most preferred courier companies for international courier services in India. It is admitted that the complainant approached to the OP at its Jalandhar branch and requested for carriage of Shipment to Canada on the address as mentioned on the boxes which were duly sealed and packed by the complainant herself. That the shipment was accepted by the OP on Air Waybill No.8912677686 on 21st December 2017 contained three boxes which was picked up from Jalandhar for delivery at given address in Canada subject to the DHL’s standard terms and conditions of carriage printed on Ari Waybill which was duly accepted and acknowledged by the complainant before handing over the shipment to the OP. The OP relies upon DHL’s standard terms and conditions of carriage as printed on original Air Waybill which is in custody of complainant. That shipment of any shipper is accepted by the OP only if the DHL’s Air Waybill is signed by the shipper and not otherwise, and it is pertinent to note that the Air Waybill bears certain terms and conditions of carriage of shipment. Complainant while handed over shipment to the OP for its delivery in Canada, had signed some document required for export including the AWB and had accepted the DHL’s terms and conditions as printed thereon. That complainant avoided and she was not in position to comply with requirements of customs department at Canada so she instructed to the OP quietly, that please return back the last box of shipment to India. Since OP was neither a shipper nor a consignee but just a courier, so it was impractical and beyond its scope to fulfill the requirement of customs at destination. That the OP has always acted bonafidely as per laws of respective nations and as per instructions received from the complainant. It is clarified that OP never committed for any time bound delivery of the Shipment and despite this the two boxes of the shipment admittedly, were received by the complainant without any delay or damage. It is submitted that the last box was stuck at customs due to customs authority had some queries/requirement as it might be a concern for their customs duty and safety and security of their nation where OP had limited role as only to inform to the complainant which it discharged by informing in writing through email successfully. The OP acted in good faith and bonafidely and followed the instruction of the complainant. The OP has no locus to understand the reason as why the complainant instructed for return of shipment to India. The OP followed instruction of the complainant and acted accordingly. Since there was no deficiency in service of the OP, it did not entertain any undue claim of complainant who actually wanted to have unlawful gain from the OP as inferred from here repeated demands in her emails. That OP as per instruction of the complainant, delivered back the shipment to complainant in India without any damage. The OP charged for its diligent services like carrying shipment from India to Canada and its return as per instruction of complainant. The complainant paid customs duty, if any, to the customs authority (not to the OP) is subject to prevailing customs law of either India and/or Canada hence if the complainant feels it was inappropriate, she has legal right to ask for refund of customs duty from the customs department as per customs rules and prescribed process. That further there is no deficiency proved by the complainant in rendering services by the OP hence this complaint does not fall in the purview of this Forum hence this Forum has no jurisdiction under the Consumer Protection Act to adjudicate this case. That OP cannot be burdened with liability and thereby putting it to the expense of defending itself ought to be dismissed by the Hon’ble Forum in limine with cost under Section 26 of the Consumer Protection Act, 1986. In this regard, reliance is placed on the judgment of the Hon'ble National Commission in the case of K. Jeyaraman v. Poona Hospital & Research Centre (1994) 1 CPR 23 (NC) wherein the Hon'ble National Commission categorically stated the above point. In view of the foregoing paragraph, it is submitted that the instant complaint OP nowhere in the said complaint can be held even remotely responsible for the alleged hardship of the complainant. The redressal sought by the complainant towards his alleged grievance is absolutely baseless and evinces a total lack of understanding the matter under consideration. It is held in a catena of judicial precedents that any point made by a complainant that is outside his/her pleadings cannot be taken into consideration and as such is set-aside with cost. In this regard, reliance is placed on the decision of the Hon'ble National Commission in S.Gurunathan (Decd.) v. Jaya Health Centre 1 (2002) CPJ 211 (NC) wherein the above point was categorically upheld. On merits, the factum in regard to sending the parcel, is admitted and further submitted that complainant was informed by OP with request to complete documentation formalities with customs at Canada as the customs authority had some doubt on the last box and went on for formal clearance but the complainant did not support to customs at all. It is earlier observed that complainant also mislead the customs authority by making false declaration on packaging invoices/export documents. It is not the concern of OP whether complainant did open the two boxes or not, hence it is denied. There is no logic seems why the two boxes were not opened and used by the complainant and she is put to strict proof thereof. It is further submitted that service charge paid by the complainant to the OP was a prior agreed price in India which was charged. Further OPs contractual obligation was limited upto deliver of Shipment at Canada which was done successfully. Last box was not cleared by customs which was informed to complainant but she did not adhere with compliance requirement of customs at Canada hence there was no option but it had to return back to India which Op did diligently as per its standard process. Complainant also instructed OP through her email to return the last box to India. Further, it is crystal clear from the documents produced by OPs that Ops have provided their services to the complainant as required by her as per standard terms and conditions of the Ops. The Ops have acted upon as per instructions of complainant for return back the articles to India. In view of the above said discussion, the present complaint is without merits and same is dismissed. No order as to costs. Copies of the order be sent to the parties, as permissible, under the rules.This complaint could not be decided within stipulated time frame due to rush of work and spread of covid-19. File be indexed and consigned to the record room after due compliance.
Announced in open Commission 20th of April 2021 Kuljit Singh (President) Jyotsna (Member) | |
