Smt. Shampa Ghosh, Hon’ble Member:-

The fact of the case in brief is that the complainant Sk. Hakim S/o. Sk Rafik is a proprietor of the firm namely ‘Ms. Printing and Tailoring’ and carries on business at C.S. – 6/1 New Santoshpur Mosjidpara Road, P.O. – Sontashpur, South 24 Parganas.  The complainant has a business of export and import goods where the complainant is a duty bound to pay import duty to custom house for the domestic consumption through various demand drafts for depositing such duties.  For that purpose of sending demand drafts dated 2^nd July, 2021 being No.”501015" to the concerned Custom House for a shipment which is on hold due to payment clearance, complainant has preferred a courier services from “Vrajavasi Enterprises” (OP-2) being a franchise of “Delivery Private Ltd” (OP-1).  That due to 2^nd wav3e of Pandemic Situation and restricted travelling guidelines the complainant having full faith in the brand name of the Op No.1. Book a consignment on 2^nd July, 2021 with a racking ID 5956810039620 to be shipped to clearing and forwarding agent namely Mr. Biplab Sarkar residing at Paschimpara, Mathabangha, Cooch Behar Pin – 736 146 and the said courier charge paid by the complainant was Rs.100/- only.  The said consignment contains a demand draft of ICICI Bank from complainant being No.501015’ amounting Rs.1,18,879/- in favour of “Major Head -0037 Customs” which required to be handed over to the Customs Department within 21^st July, 2021.  The consignment was assured to be delivered by the OP Party No.2 to the recipient address within a period of 3-4 days.  Complainant stated that as per customs rules if the complainant fails to pay the duty (via Demand Draft) of such shipment to the Customs Department by 21^st July, 2021, the complainant shall be black listed by the Customs Department by withholding the good which can cause an irreparable loss to the complainant.  Considering the urgency other complainant checked the regular on line status of the courier dated 2^nd July, 2021.  After 3 weeks the complainant saw that the courier lastly reached Siliguri on 4^th July, 2021.  Complainant found no further update of the courier and being aggrieved to contact the customer service via telephone and in return to those requests the franchisee ‘Vrajabasi Enterprise’ sent e-mail dated 15ht July, 2021 to the OP No1. i.e “Delhivery Private Ltd.” for an update of the courier and the said email was shared with the complainant by the Op No.2.  Complainant stated that after waiting for a considerable period no action was taken by the company and that clearly shows negligent act of the OPs.  After that the complainant sent a legal notice at the head quarter of the OP No.1 and to OP No.2 through Advocate dated 19^th July, 2021 explaining the urgency.  As per online track the said notice was delivered to the OP No.1, but notice upon OP-2 was returned by the Postal Department with a remark ‘in sufficient” address.  Complainant again checked on-line status on 1^st August, 2021, which was showing that the said item shall be delivered on 2^nd August, 2021.  On 1^st August, 2021 the complainant again sent Advocate Notice via e-mail i.e. vrajabasith August, 2021 by declaring themselves as an agenct of OP No.1 as they are not liable and default and the parent company OP No.1 should be contacted.  Finally an email dated 4^th August, 2021 was forwarded by the OP No.2 received by OP No.1 which states that the said courier was considered to be lost and the same is ‘closed as lost’ in the panel.  Complainant was also stated that he issued a new cheque in favour of custom department amounting to Rs.1,18,879/- due to the failure of the OPs.  Complainant had never defaulted any payment till date and the goods of the complainant are still hold by the Customs Department due to delay in payment of D.D. as mentioned.  The complainant is unable to continue his business due to unavailability of such goods.  The complainant had suffered grave mental agony and harassment.  If the consignment reached on time, complainant could not have suffered this unforeseen loss.  That since the demand draft was prepared from ICICI Bank Maheshtala Branch ‘being No.501015’amounting to Rs.1,18,879/- dated 2^nd July, 2021 and due to negligence of OPs Demand Draft was lost where in the said amount is still not drawn and it is in the custody of the Bank, the complainant make the Bank an additional party to the said complaint case being C.C. No.93/2021 as OP No.3.  Finding no other alternative complainant filed instant complaint case before the Commission on the reliefs sought for the petition of complainant.

Only the added OP No.3 contested by filing W/V and the instant complaint  case was heard ex-parte against OP Nos.1 & 2 by Order being No.4 dated 02.11.2021 and Order No.10  dated 10.05.2022. 

It was contended by the OP No.3 that the complainant is not entitled to get any relief against the OP Bank.  Complainant said SK. Hakim being a proprietor ‘Printing and Tailoring’ maintain a current account with ICICI Bank being A/C. No:26910500031 with Maheshtala Branch.  OP No.3 Bank issued a Demand Draft in favour of the ‘Custom Bhubri” basis which a Demand Draft was issued in favour of the concerned beneficiary on 2^nd July, 2021 and the same was handed over to the complainant.  The complainant obtained the Demand Draft of Rs.1,18,879/- on 2^nd July, 2021.  And the OP Bank issued the Demand Draft in favour of the ‘Customs’ after deducting the amount from the current account maintained by the complainant with the OP Bank.  The said D.D. was duly handed over the complainant on the same day.  The Op Bank also stated that the said D.D. is still showing unpaid in their system and till date no such request have been received from the complainant along with NOC from the beneficiary to cancel the said D.D. and reverse the same in the said current account.  Once again a request for cancellation was made and the amount has been refunded after deducting charges, as per RBI guidelines.  However, for the cancellation of the same NOC would be required.  OP Bank respectfully submitted that the instant complaint case be dismissed against the OP Bank. 

Points for consideration :-

1. Is the complainant a consumer?
2. Are the OPs guilty of deficiency in service and unfair trade practice?
3. Is the complainant entitled to get relief as prayed for?

Decisions with reasons :-

Points No.1 :-

On perusal of the case record along with the copies of documents, it appears that for the purpose of sending a Demand Draft dated 2^nd July, 2021 the complainant preferred courier services from ‘Vrajabasi Enterprise’ and thereby booked the item on 2^nd July, 2021 and said courier charge paid by the complainant was Rs.100/- only and the OP ‘Vrajabasi Enterprise’ acknowledged the same. Therefore, the complainant is a consumer U/S 2(7) of the Consumer Protection Act, 2019.

As such, the 1^st point is decided in favour of the complainant and against the OPs.

Points No.2 & 3 :-

Both points are taken up together for the sake of convenience and as they are interlinked.

For the purpose of sending a Demand Draft being No.501015 amounting to Rs.1,18,879/- dated 2^nd July, 2021 made in favour of ‘Major-Head-0037-customs’. Complainant preferred the courier services under the name of Vrajabasi Enterprise at Ghoshpara, Kolkata-700066 (OP No.2).  OP-2 is the franchisee under the OP No.1 “Delhivery Private Limited’. Thereby the complainant booked the consignment on 2^nd July, 2021 with tracking I.D. 5957810039620 to be shipped to the clearing and forwarding agent namely Mr. Biplab Sarkar residing at Paschimpara, Mathabhanga Cooch Bihar.  The consignment contained demand Draft of ICICI Bank Maheshtala i.e. Op No.3.  The said Demand Draft being No. 501015 amounting to aRs.1,18,879/- dated 2^nd July, 2021 had to be deposited to the Customs Department within 21^st July, 2021. The said consignment was assured to be delivered within a period of 3 to 4 days, otherwise the Customs Department will make black listed such person for default of payment of duty by withholding goods.  However, till today the said consignment had not been delivered.  During this period the complainant contacted to the OPs through e-mail, over phone, legal notice.  OP-2 declaring themselves as an agent of OP No.1 and they are not liable for any default.  Parent Company OP No.1 should be contacted.  Finally, an e-mail dated 4^th August, 2021 was received by the complainant which was forwarded by OP No.2 from OP No.1 which states that the consignment was considered to be lost and the same is ‘closed as lost’ in the panel. 

It is clear from the above averment that the complainant’s consignment which was booked on 2^nd July, 2021 was lost in the transit.  Non-delivery of the parcel within specific time is considered as deficiency in service when the parcel is sent under the same consignment and the courier is under legal obligation to deliver the said consignment to the addressee.  And if they fail to do so they are guilty of deficiency in service. Therefore, we conclude that the OP No.1 and OP No.2 are guilty of deficiency in service and unfair trade practice. On the other hand the complainant was harassed by the OP Nos.1 & 2 by various ways.  Therefore, the complainant is entitled to get the relief as prayed for.

Therefore, Point Nos.2 & 3 are decided in favour of the complainant and against the  OP Nos. 1 & 2. 

In the result, the complaint case succeeds.

Fees paid is correct.

Hence, it is,

ORDERED

that the instant complaint case be and the same is hereby allowed ex-parte as against the OP Nos.1 & 2 with cost of Rs.10,000/- (Rupees Ten Thousand) only and dismissed without cost against the added OP No.3.

The OP Nos.1 & 2 are jointly and severally liable and are directed to pay Rs.1,18,879/-  in the form of compensation along with Simple Interest @9% per annum w.e.f. 02.07.2021 (said courier consignment date) till the date of final realization within 60 days from the date of passing this order.

The OP Nos.1 & 2 are jointly and severally liable and are also directed to pay litigation cost of Rs.10,000/- (Rupees Ten Thousand) only within 60 days from the date of passing this order.

The complainant is at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the OP No.1 within 60 days from the date of passing this order.

Let a copy of this order be supplied free of cost to the parties concerned.

That the final order will be available in the following website:www.confonet.nic.in.