Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant  has filed the instant complaint under section 35 of  the Consumer Protection Act, 2019 on the allegations that the complainant sent a parcel containing 'Punjabi Jutti, Sherwani, some Shagun Envelops' through the courier service of opposite parties for the marriage of his friend Tarun Gandhi, resident of Scholard Crescent, Bridgeman, Queensland, Australia. The complainant purchased above said articles for the marriage ceremony of his above mentioned friend, which was scheduled to be held on 05.02.2021. Approximate value of the above mentioned articles was Rs.22,749/-. Further alleges that Mr.Gaurav Bajaj is the real brother-in-law/Jija of above said Tarun Gandhi. Opposite Party no. 1 issued Receipt No. 4445, dt.26.01.2021 to the complainant. Opposite party No. 1 also assured the complainant that the above said parcel containing above said articles will reach its destination at Australia within a period of 7 to 10 days. The opposite party no. 1 charged an amount of Rs. Rs.5740/- for delivery of said parcel to Australia. On above said assurance of the opposite party no. 1, complainant informed his friend Tarun Gandhi and to Gaurav Bajaj that the above said articles will reach them, before the marriage ceremony of Tarun Gandhi and for that reason Tarun Gandhi did not purchase the said articles from Australia. The complainant has been taking the information from opposite party no. 1 regarding the movement of said parcel. Further alleges that in order to check the movement of the parcel, the complainant also asked opposite party no. 1 to provide tracking no. and at the insistence of the complainant, opposite party no. 1 sent a tracking no. i.e. 638256758 to the complainant, which was actually incorrect. After using the above said tracking number provided by the opposite party no. 1, it transpired to the complainant that the parcel is going on a wrong address and when the complainant contacted the customer care of opposite party no.2 through customer care number, it was told by the customer care operator that the tracking number used by the complainant is wrong one. When the complainant told the above said matter to opposite party no.1, they sent a new tracking number i.e.638257016 and told the complainant that they have earlier given a wrong tracking number to the complainant. There has been complete carelessness, unprofessional act and conduct on the part of the Opposite Parties  and there is lack of efficiency of services on the part of the Opposite Parties. From the tacking record, it is clear and evident that the parcel sent by the complainant to Australia through courier service of opposite parties bearing Shipment No. 638257016 reached its destination on 15.02.2021 i.e. after 10 days of marriage function of complainant's friend Tarun Gandhi. Further alleges that the carelessness and deficient services on the part of opposite parties is also evident from the fact that courier services was availed from the opposite party vide Receipt No.4445, dt. 26.01.2021 and said parcel was in New Delhi on 01.02.2021, meaning thereby that from 26.01.2021 to 01.02.2021 i.e. within the 5 days, the parcel in question could only reach from Moga to New Delhi. Due to carelessness and deficiency of services on the part of opposite parties, the complainant had to cut sorry figure to his friend and his family. The complainant has also undergone mental stress agony due to carelessness, misrepresentation, wrong information and deficiency in services and unfair trade practices adopted by opposite parties. The legal notice dt. 15.03.2021 was also sent to opposite parties, but the same was never replied. Legal notice dt. 15.03.2021 was also sent to opposite party no. 2 through e-mail, but the same were never replied. Hence this complaint. Vide instant complaint complainant has sought the following relief:-

a)       Opposite Parties may be directed to pay Rs.One Lac as compensation on account of deficiency in service and for adopting unfair trade practices.

2.       Opposite Party No.1 appeared through counsel and filed written reply taking preliminary objections therein inter alia that the present complaint is also not maintainable in the present form as there is no deficiency in service on the part of the answering Opposite Party. Complainant has no locus standi to file this complaint and moreover, the complainant has not come to this District Consumer Commission with clean hands, and rather concealed the true and hard facts from this Court. The Complainant has produced the receipt of the booking of the courier dated 26.01.2021, but he has not produced the backside of the said receipt ntentionally and knowingly on which the terms and conditions of the carriage have been mentioned. Moreover, at the time of booking of the article, there was a national holiday and it was informed to the Complainant that no booking is possible on national holiday, but inspite of the fact, the Complainant had booked the article. Moreover at the time of booking of the article, it was informed to him by answering Opposite Party that International Flights are disturbed due to Covid-19 and there is every possibility of delay in the flights and this fact has also not been disclosed by the Complainant intentionally and knowingly. It was duly informed to the Complainant at the time of booking of the article and as mentioned on the backside of the receipt which was duly accepted by the Complainant at that time that 'every efforts is made to adhere to the delivery schedule, but things can get delayed in abnormal circumstances beyond their control'. After admitting the above mentioned terms and conditions of carriage, the Complainant booked the articles. Moreover, at the time of booking of the article, the Complainant never disclosed about any marriage nor any such note has been given on the booking receipt and no such note has been given on the parcel. So, there is no fault on the part of the answering Opposite Party. Moreover, answering Opposite Party is only the booking agent of Opposite Party No.2. The entire delivery system is in the hands of the Opposite Party No.2. So, no complaint against answering Opposite Party is maintainable according to the law. The amount has been charged as per the rate prescribed by Opposite Party No.2 and these rates have been confirmed by the Complainant from Opposite Party No.2 at the time of booking of the article/ parcel. Further alleges that it is clearly mentioned in the terms and conditions of the carriage that "Our liability in case of any loss or damage will not exceed Rs. 100/- per documents & Rs.100/- per kg in case of packet. And the company would not be liable for any loss incurred due to causes beyond our control, such as floods, accidents, fire, arson, loot civil commotion, terrorists acts .etc.". As such, there is no deficiency in service on the part of the answering Opposite Party and the complaint deserves to be dismissed with costs. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Opposite Party No.2 appeared through counsel and filed written reply taking preliminary objection therein inter alia that at the very outset it is respectfully submitted before this Commission that from bare perusal of the contents of the compliant it is apparent that the present Complaint has been filed by the Complainant being aggrieved by the alleged deficiency in services on the part of the Opposite Party No. 1. It is submitted that in his entire Complaint the Complainant has not uttered even a single word qua the Opposite Party No. 2 (hereinafter referred to as the 'Answering Opposite Party') and therefore the Complainant has miserably failed to prove any deficiency in services on the part of the Answering Opposite Party. Further alleges that the present Complaint has been filed by the Complainant without having any cause of action either in his favour or against the Answering Opposite Party. It is noteworthy that the consignment in question was booked by the Complainant with the Opposite Party No. 1 and thereafter on 01.02.2021, the Opposite Party No. 1, being freight forwarder, booked the said consignment with the Answering Opposite Party. It is submitted that at the time of booking the terms and conditions of shipment of the said consignment was duly agreed / accepted by the freight forwarder i.e. the Opposite Party No. 1. Moreover, at the time of booking no such urgency as alleged in the present complaint was informed to the Answering Opposite Party in any manner whatsoever. More so, it is an admitted case of the Complainant that he had never approached the Answering Opposite Party in reference to the consignment in question and all the communications were exchanged only between the Complainant as well as the Opposite Party No. 1. Hence, it is submitted that the Answering Opposite Party was never a part of the communications exchanged between the Complainant as well as the Opposite Party No. 1, either at the time of booking of the said consignment or otherwise and there was no privity of contract between the Complainant as well as the Answering Opposite Party. Further alleges that the present complaint has been filed against the Answering Opposite Party just to cause it a wrongful loss and the Complainant is not entitled for any relief from this Commission qua the Answering Opposite Party. It is noteworthy that the freight forwarder i.e. the Opposite Party No. 1, who booked the consignment in question with the Answering opposite Party on behalf of the Complainant herein, was well aware of the fact that during the testing times of COVID-19 outbreak, the entire world was facing strict lockdowns and various other restrictions, therefore a reasonable delay in delivery of the goods and services was highly expected. However, despite that fact, the Answering Opposite Party at regular intervals had updated the tracking report of the consignment in question at its website, which was duly accessible by the Complainant. It is therefore submitted that the Complainant was duly and timely informed about the reasons for delay in delivery of the shipment in question. More so, it is an admitted case of the Complainant that upon contacting the customer support representatives of the Answering Opposite Party, the Complaint was duly assisted with his queries related to the shipment in question and his all other concerns in respect thereof. Further alleges that the alleged delay caused in delivery of the consignment in question was an outcome of withholding of the said consignment by the Government Authorities/Agencies in China as well as in Singapore, due to impact of Covid-19 pandemic. It is further submitted that the Answering Opposite Party being a freight carrier does not hold any right to interfere with the working of any Government Authorities/Agencies around the world. Moreover, it would not be out of place to mention herein that as per the Conditions of Carriage of the Answering opposite Party, it cannot be held liable for delays caused in deliveries due to withholding of shipments by Customs and other Government Agencies. Complainant has approached this Commission with unclean hands and his present Complaint qua the Answering Opposite Party does not merit indulgence of this Commission. Further alleges that the Complainant has made a deliberate attempt to cause wrongful loss to the Answering Opposite Party by allegedly holding them liable in the events of Force Majeure. Further alleges that complainant herein is not entitled to claim any relief in any manner whatsoever from this Commission qua the Answering Opposite Party. The consignment in question was governed by the service guide duly agreed by the Opposite Party No. 1 on behalf of the Complainant at the time of booking of the said consignment. Moreover, the Complaint is guilty of suppressing a material fact from this Commission that the consignment in question was duly delivered to the desired destination on 15.02.2021, despite inordinate delays caused in the event of Force Majeure i.e. outbreak of the COVID-19 pandemic. On merits, all other allegations mentioned in the complaint are denied and a prayer for dismissal of  the complaint is made.

4.       In order to prove his case, complainant has tendered in evidence his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C12, CD Ex.C13 and copy of another document Ex.C14.

5.       To rebut the evidence of complainant, Amrinder Singh, Properiter of Gambhir Courier/opposite party no.1 tendered in evidence his affidavit Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/4. Whereas, opposite party no.2 tendered in evidence copy of authority letter Ex.OP2/1 and affidavit of Sh.Rajat Dixit, Manager Operations, FedEx Express Ex.OP2/2.

6.       During the course of arguments ld. counsel for the both the parties have mainly reiterated the same facts as narrated in the complaint as well as written reply respectively. We have perused the rival contentions of both the parties and also gone through the record. The case of the complainant is that he sent a parcel containing ‘Punjabi Jutti, Sherwani, Some Shagun Envelops to Australia through the courier service of opposite parties for the marriage of his friend which was to be held on 05.02.2021, to prove this fact complainant has placed on record bill/invoice Ex.C1 to Ex.C4. The opposite party no.1 issued receipt no.4445 dated 26.01.2021 against the booked courier, copy of which is Ex.C5. Further contended that at the insistence of the complainant, opposite party no. 1 sent a tracking no. i.e. 638256758 to the complainant, which was actually incorrect. Thereafter, complainant contacted the customer care of opposite party no.2 and it was told by the customer care operator that the tracking number used by the complainant is wrong one. When the complainant told the above said matter to opposite party no.1, they sent a new tracking number i.e.638257016. To prove this fact complainant placed on record documents Ex.C7 and Ex.C8 When the complainant tracked the said parcel through new tracking number, he was shocked to know that the said parcel reached its destination on 15.02.2021 i.e. after 10 days of marriage function of complainant’s friend. Ld. counsel for the complainant further contended that courier service was availed from the opposite parties on 26.01.2021, but however the said parcel was in New Delhi on 01.02.2021 meaning thereby that from 26.01.2021 to 01.02.2021 i.e. in five days, the parcel in question could only reach from Moga to New Delhi. To prove this fact complainant has placed on record Track & Trace report Ex.C9. On this, plea of opposite party no.1 is that at the time of booking of article, there was a national holiday and International Flights are disturbed due to Covid-19 and there is every possibility of delay in the flights. However, the opposite party no.1 has not placed on record any document showing the reason for delay in courier. On the other hand pleas of opposite party no.2 is that opposite party no.1 booked the parcel of the complainant with them on 01.02.2021 so, the delay of seven day on the part of the opposite party no.1. The other plea of opposite party no.2 is that the alleged delay caused in delivery of the consignment in question was an outcome of withholding of the said consignment by Government Authorities/Agencies in China as well as Singapore, due to impact of Covid-19 pandemic. However, opposite party no.2 has placed on record affidavit of Sh.Rajat Dixit, Manager, FedEx Express.

7.       In view of the above, we are of the view that complainant has succeeded to prove his case by cogent and convincing evidence. However, the aforesaid evidence produced by the complainant has gone unrebutted and unchallenged through any cogent and convincing evidence on record by the opposite party no.1. So, from the entire unrebutted and unchallenged  evidence produced by the complainant on record, it stands fully proved on record that  the Opposite Party no.1 has adopted unfair trade practice and deficient in service. 

 8.      In view of the aforesaid facts and circumstances of the complaint, the present complaint is dismissed against opposite party no.2 and  we, partly allow, the complaint of the complainant against opposite party no.1 and direct the opposite party no.1 to pay an amount of Rs.10,000/- (Rupees Ten thousands only) as lump sum compensation to the complainant  alongwith interest @ 8% per annum from the date of filing of this complaint i.e. 02.07.2021 till its actual realization. Compliance of this order be made by the Opposite Party no.1 within 60 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to  get the order enforced through the indulgence of this Commission.   Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.  

Announced in Open Commission.