Order-25.

Date-18/11/2015.

In this complaint Complainant Mrs. Anjali Agarwal by filing this complaint has submitted that she booked a consignment on 19.12.2014 which was to be shipped to her married daughter Priyanka Chokhani who is a permanent resident of Australia. The net weight of consignment was 2.73 Kg. The ops charged a sum of Rs.7,684/- as freight charge and assumed the complainant that the consignment would be delivered positively by 23.12.2014. The Ops issued a way bill No.7808234781. Complainant kept a close watch on the website of the ops and came to know that the consignment was in HongKong since 21.12.2014.On 23.12.2014, complainant wanted to know why her consignment was not delivered to Australia.The ops did not call back complainant for informing the reason of delay.After repeated calling, complainant came to know that the ship was held by Hong Kong Customs Authority because one of the consignments carried some chemicals.There was no hope of reaching the consignments to Australia latest by 25.12.2014.Instead of reaching Australia, the ship was returning back to the shipper.Complainant stated that ops should have taken the notes of requests for forwarding the consignment to the destination.Ops have not rendered proper service to complainant.Complainant served legal notice on 24.12.2014 and 26.12.2014 for refund of freight charge and for compensation of Rs.50,000/- only due to harassment, mental agony.Op was not ready to refund the amount of compensation but sought for complainant’s bank details for refund of the freight charge of Rs. 7,684/-.But complainant is yet to get the back the charge of consignment, i.e. Rs. 7,684/- only.Complainant was to send flags of India for her daughters and some Christmas gift.But the consignment failed due to sheer negligence of the op.The op has acted in callous manner in executing their duties as a courier.The customer care division of the op is very non-co-operative.There is serious deficiency of service on the part of the op for which they are solely responsible.As a result, complainant and her daughter suffered mental pain and agony.Complainant’s daughter could not use the flags on the Boxing Day, i.e. on 26.12.2014.Op has not followed international rules of safety, so the consignments could not be forwarded towards destination.Op failed to keep outrace where he committed to send the consignment against a charge.One of the packs contained chemicals for which the whole consignment cancelled, but complainant has no fault of her own.Op apologized for the inconvenience, but complainant’s consignment could not be sent.Complainant prayed for a sum of Rs. 74,684/- of which Rs. 7,684/- for refund of freight charge, compensation of which Rs.50,000/-, interest at the rate of 18 percent p.a., amount to Rs. 9,500/- and cost of litigation of Rs.7,500/

Op in its written version denied and disputed all the allegation made in the complaint.The complaint is not maintainable in the eye of law.In this complaint, there is total departure of truth, facts are distorted.Op did not commit to complainant that the things goods reached complainant’s daughter before 24.12.2014, because op was not aware of the fact that the flags were made to be used by her daughter in the India-Australia Match.Op stated that if there was time limit, the things would have been sent by Air.The op informed complainant of the non-delivery of article and return of shipment back to complainant on 31.12.2014.Op also shocked confirmation of her bank account for refund of shipment charge.This activities proved that the ops staff extended full co-operation to complainant.Things were returned to complainant in safe and sound condition.Ops stated that complainant refused to accept the refund of shipment charge.Complainant brought false allegation against the op.Op is not liable to pay compensation, because for non-delivery of articles in time many factors are responsible for the ship crosses water bodies of various countries.Op did not assure complainant to reach the articles on 23.12.2014.

Op received legal notice of complainant on 02.01.2015, instead of 24.12.2014.Before Mumbai Head Office of DHL Express could investigate the matter and answer, complainant lodged a complaint in the Forum.But op was ready to refund the shipment charge which op took for transporting article to Australia, because ops’ liability is strictly limited to direct loss only.The article which was to send to Australia was not damaged.Op is liable for any other indirect loss which complainant might fails due to non-delivery of articles to Australia, Victoria.The ship passed through different territories across the globe.Customs & Security Rules are different in different countries.So, the ship is detained for check-up.As a result the ship cannot maintain time.Further op stated that the claim of compensation of Rs.74,684/- is exaggerated and baseless.Op stated that there was no deficiency in service on the part of the op.Complainant for some unlawful gain demanded a hefty amount as compensation.Her articles have not shifted to Australia, for this complainant had not faced financial loss.So, the claim of compensation is also totally vexatious.Op stated that complainant is not entitled to get any relief.Op prayed for dismissal of complaint for the interest of justice.

Decision with reasons

On comparative study of the complaint and written version and further hearing the argument of the Ld. Lawyer, we have gathered that it is undisputed fact that Anjali Agarwal sent one item (goods) to Mrs. Priyanka Chokhani of Australia, weight of the goods was 2.73 Kg. and date of shipment 19.12.2014 and for such service, complainant paid Rs. 7,684/- as service charge.

Fact remains that the shipment could not be delivered to the receiver in Australia due to technical reason while the complainant’s shipment was in transit and complainant was no doubt informed by e-mail and trace system about the status of the shipment and it is evident from the document that op informed the complainant vide e-mail dated 31.12.2014 about return of the shipment back to complainant on 31.12.2014 at 12.24 hours and sought for confirmation of the complainant’s bank account details to arrange refund of the freight charges of Rs. 7,684/- in keeping with the ops’ policy of promptly refunding freight charges if shipment was not delivered for any reason and in this regard all the documents which are filed by the complainant to op supports that fact.

Fact remains that complainant already received back the said item and op already expressed their eagerness to pay the entire freight charges and complainant informed the details of her account and no doubt in respect of the article, no damages is caused and complainant has failed to prove any direct and indirect loss however arising out of the said article.

On proper consideration of the materials, we find that there was no loss or damages to shipment handled by the op.But fact remains that the shipment could not be delivered at a specific time that is the main allegation of the complainant.But after proper consideration of the materials, it is found that the shipment after leaving the hands of the shipper is consolidated and travels within different transit hubs of the op across different countries and pases the governing regulations of customs and security inspection.In the process the consolidated shipment passes the hands of various authorities in both points i.e. of origin and destination including governmental authorities.The delay in transit and subsequent return of shipment to the shipper in this case is not attributable to fault or negligence of the op and therefore without prejudice to all contentions on maintainability, the op cannot be held to have done any acts resulting in deficiency in service as per the C.P. Act 1986.

Anyhow the complainant by any means has failed to prove any deficiency in service on the part of the op or any fault on the part of the op.But fact remains that the articles which was sent for shipment, the ship was detained by the Custom Department and the said ship did not proceed to Australia and returned back to Kolkata and thereafter it was returned to the complainant.

Complainant received the same intact without any damage.But admitted position is that complainant ultimately by e-mail dated 05.09.2015 agreed to accept the freight charges without prejudice her rights and contentions of claim and damages and that was accepted.But op has not yet refunded the same. At the same time it is admitted position that op failed to deliver the item to the destination due to non-movement of the said ship to Australia on the ground that it was detained by the Customs.But such a detention was not caused by the op.Furthermore there is no such document to show that there was any commitment offered by the complainant to the op for the time being defined period of delivery and as per booking receipt time was not essence against time of booking shipment and there was no such commitment undertaken by the op while accepting such booking for shipment.But it is proved that ops made every reasonable efforts to deliver the shipment as per ops usual course of business and there was no covenant between the complainant and the op about time bound delivery.Complainant executed the conclusive contract and agreed the terms and conditions expressly mentioned on the Shipment Waybill and the shipment was carried by op in accordance with the terms and conditions therein.Complainant has acknowledged the STC by signing the same on 19.12.2014.Those STC are in line with applicable international connections. As per the STC, op contracts with shipper on the basis that op’s liability is strictly limited to direct loss and further the liability shall not exceed the declared value or US$ 25 per Kg. whichever is lower, in case of parcels or non-document shipment and in the present case by virtue of the Montreal Protocol Treaty wherein India is a signatory is applicable in the International Carriage transaction.

Further it is proved that op informed the complainant vide e-mail dated 31.12.2014 about return or shipment back to complainant on 31.12.2014 at 12.45 hours and sought confirmation of the complainant bank account details that complainant received back the same without any damage only the freight charge has not yet been received of Rs. 7,684/- and op is willing to pay the same.

Considering all the above fact and materials, we are convinced to hold that no loss or damage was caused by the ops and complainant has not suffered any loss when entire articles were received back without any damage and about freight charge op is willing to refund the freight charge.But op has not yet credited to the complainant’s bank account though they are willing to refund the same except non-payment of the same within time but other allegations had been made by the complainant are not maintainable on the ground the deficiency on the part of the op is not proved.But detention of the ship by the Customs was not entertained on repeated request for leaving the ship by the op so at last the said ship returned back to Kolkata and invariably for that reason op cannot be liable for any damage or deficiency of service because the situation was out of control of the ops.

From the description of the articles contained in the packet it is found that there were one wrist watch, one T-Shirt, 2 pairs of cap, 14 nos. Indian National Flag and one show piece.Anyhow complainant submitted that her money as paid is now a waste money due to ops’ deficiency of service.But as per term waste, it must be proved that complainant has not got back the said money and op is not willing to pay it.But in the present case, op is willing to pay.So, there is no question of wasting of money by the complainant and as because it was a Christmas gift for Boxing Day on 26.12.2014 and when same is returned back to the complainant, in fact complainant has not suffered any loss and op as courier service has not damaged it.The reason for not delivering the said article is not the direct or indirect loss to the complainant by the op.But due to different governmental theorization the ship was detained and ultimately returned back to Kolkata.

So, apparently no direct or indirect negligence or deficiency on the part of the op is proved.In the result, we find that complainant can only get back the freight charges of Rs. 7,684/- along with a sum of Rs. 3,000/- as litigation cost, but no other relief can be granted when deficiency and negligence on the part of the op is not at all proved.

Hence, it is

Ordered,

That the complaint be and the same is allowed on contest with cost of Rs. 3,000/- against ops.

Ops jointly and severally are hereby directed to refund the freight charges of Rs. 7,684/- to the complainant along with litigation cost of Rs. 3,000/- i.e. total Rs. 10,684/- within one month from the date of this order positively, failing which for non-compliance of the Forum’s order, ops jointly and severally shall have to pay penal damages at the rate of Rs. 100/- per day till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.

Even if it is found that ops are unwilling to comply this order, in that case ops shall be prosecuted u/s 25 read with section 27 of C.P. Act 1986 for which further penalty and fine shall be imposed upon the ops.