Appeared at the time of arguments For Trade Wings Logistics : Mr. P. Sureshan, Advocate For Shivex Courier& Cargo : Ms. Usha Nandini V., Advocate For MSS Asan Exports : Mr. S. Hariharan, Advocate For DHEL Express India Ltd. : Mr. Sudeep Dey, Advocate for Mr. Sanjeet K. Trivedi, Advocate For DHL Express : Ex parte vide Order dated 27.08.2015 Pronounced on: 28th January, 2022 ORDER PER DR. S. M. KANTIKAR, MEMBER 1. Both the Appeals have been filed under Section 21 (a) (ii) read with Section 19 of the Consumer Protection Act, 1986 challenging the Order dated 16.07.2014 passed in C.C. No. 29 of 2006 by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (hereinafter referred to as the ‘State Commission’) whereby the complaint was allowed and the Appellant was held liable for deficiency in service. 2. For the convenience, the Parties are referred to as their position in the Consumer Complaint No. 29 of 2006 filed before the State Commission. The facts are drawn from F.A. No. 1438 of 2014. 3. Brief facts of the case are that the Complainant/Respondent effected a consignment of sea shipment for 140 bales kasturi methi leaves and 12 cartons of spices to M/s Somya Inc., USA. On 18.11.2005, the Complainant handed over the original shipping documents in a sealed cover to M/s Trade Wings Express Couriers Pvt. Ltd. (hereinafter referred to as the “Opposite Parties -1 & 3/Respondent-2”). Opposite Party-1 received the consignment from one M/s Shivex Courier & Cargo Pvt. Ltd. (hereinafter referred to as the “Opposite Party-2/Appellant”) and routed the shipment documents to USA. The Opposite Party-3 entrusted the cover containing original shipping documents to DHEL Express (India) Ltd. (hereinafter referred to as the “Opposite Party-4/Respondent-3”) and DHL Express (hereinafter referred to as the “Opposite Party-5/ Respondent-4”) for onward delivery to the addressee in USA. However, the consignee informed the Complainant that the consignment could not be lifted from the cargo section as it had not been received in time. The cover containing original shipping documents was not delivered to the addressee in time for which the Complainant took up the matter to Opposite Party-2 & 3 vide e-mail dated 13.12.2005 and 14.12.2005 respectively. When the cover could not be traced even after a lapse of 50 days, the Complainant sent a legal notice dated 19.01.2006 to call upon Opposite Parties-2 to 6 to pay a sum of Rs. 17,24,714/- for their deficiency in service. The said notice was acknowledged by the Opposite Parties. 4. Aggrieved by the alleged deficiency in services of the Opposite Parties-2 to 6 for loss of cover containing shipping documents as well as for failing to deliver the consignment in time, the Complainant filed Complaint no. 29 of 2006 filed before the State Commission praying for direction to the Opposite Parties-2 to 6 to pay a sum of Rs.17,24,714/- for the loss of goods; Rs.10,00,000/- for demurrage charges; Rs.10,00,000/- as compensation for deficiency in service and Rs.10,000/- towards litigation costs. 5. The Opposite Parties contested the Complaint before the State Commission by filing their respective written statements. The Opposite Party-1 adopted the written statement filed by Opposite Party-3. The preliminary objection on maintainability was raised that since the cause of action arose at Trivandrum and not Chennai. It was commercial transaction and there was no direct relation or transaction between the Complainant and the Opposite Party-1. The Opposite party -3 denied about the knowledge of the cover containing shipping documents which was booked through its agent Opposite Party-2. In fact, Opposite Party-2 was neither a franchisee nor authorized to issue consignment note of Opposite Party-3. It was further submitted that the shipping documents neither handled by Opposite Party-1 nor received any consignment from Opposite Party-2. As the Opposite Party-2 forwarded the cover to Opposite Party-3, the same was duty fully handed over to Opposite Party- 4, 5 & 6. Therefore, Opposite Party-3 was not responsible for the alleged deficiency in service. The claim of the Complainant was highly exaggerated. As per the terms and conditions of the consignment note, in case of loss of cover, the liability of the Opposite Party-3 was restricted only up to the amount as stated in the consignment note. 6. Opposite Party-2 filed its written version and raised same preliminary objections. It was further submitted that the consignee M/s Somya Inc. was a necessary party to the proceedings; thus the Complaint was bad for non-joinder of a necessary party. The Opposite Party-2 had no knowledge about the contents of the consignment of original shipping documents. As soon as the consignment was booked with Opposite Party-2, it was forwarded to Opposite Party-1, who, in turn, forwarded it to Opposite Party-3 at Mumbai, who further forwarded it to Opposite Party-4 & 5 for its final destination at USA. On 13.12.2005 the Opposite Party-2 made an enquiry, immediately after information received from the complainant. On 14.12.2005 the Opposite Party-5 sent an e-mail about the shipment/consignment was lost in transit and they were ready to redress the damage suffered by Complainant. Accordingly, one e-mail was sent by Opposite Party-2 to the Complainant and requested to reconstitute duplicate copies of the documents in order to avoid delay and demurrage, but the Complainant did not comply with. Therefore, there was no deficiency from Opposite party-2, but the Opposite Party-5 & 6 were responsible for loss of the consignment. 7. The Opposite Party-4 in its reply denied about the knowledge of the alleged transaction between the Complainant and the Opposite Parties. It neither dealt with the alleged consignment nor forwarded the consignment to USA. The alleged consignment was never given to Opposite Party-4 and instead Opposite Party-3 might have handed over the consignment directly to Opposite Party-5 & 6 for delivery to the final destination. The Opposite Party-4 stated that it was a separate legal entity and not having any control over the affairs of Opposite Party-5 & 6 and moreover, vide letter dated 06.02.2006 the Opposite Party - 4, informed that the alleged Airway Bill relied by the Complainant was not issued by the Opposite Party-4 and no communication was made with to the Complainant about the status of the consignment. 8. After hearing the averments from both the parties, the State Commission partly allowed the Complaint and ordered as: “16. In the result, the complaint is allowed in part directing the opposite parties 1 & 3 jointly and severally to pay a sum of Rs. 3 Lac (Rupees Three Lac only) to the complainant as compensation for deficiency in service and for mental agony; and to pay costs of Rs. 5,000/- to the complainant, and directing the 2nd opposite party to pay a sum of Rs. 1 Lac (Rupees One Lac only) as compensation for deficiency in service, and to pay costs of Rs. 5,000/- to the Complainant; and the complaint is dismissed as against the opposite parties 4 to 6. Time for compliance: Two months from the date of receipt of copy of this order.” 9. Being aggrieved by the Order of the State Commission, two Appeals have been filed by the Opposite Party - 1 and the Opposite Party - 2. 10. We have heard the Learned Counsel for the Parties, perused the material on record. The learned Counsel for the Appellant argued that the State Commission has no territorial jurisdiction to entertain the complaint since the entire cause of action had arisen at Trivandrum and not in Chennai. The State Commission has already dealt with this issue and we agree the same. It is pertinent to note the 2nd opposite party, received the cover (consignment) from the Complainant at Nagercoll, near Trivandrum and it was sent the 1st opposite party at Chennai. The receipt, the consignment was of Opposite Party -1. Second objection that the transaction was commercial in nature, therefore the complainant has no locus standi as a Consumer under Sectin-2 of the Act, 1986. Admittedly, the Opposite Parties failed to deliver the consignment at USA, thus the complaint was filed for the negligence and deficiency in service on the part of the opposite parties and not for loss of goods/products. Thus in our view, the Complainant was consumer as under the Act, 1986. 11. The contention of the Appellants that they have no knowledge about the contents or enclosure of the consignment and it was not declared by the Complainant that it contains the original shipping documents. It is important to note that the Complainant is exporting medicinal herbs and grains from India to USA after due certification from the both the Government authorities which consists of Phytosanitary Certificate and Fumigation Certificate for proper import/export. The Complainant had sent all such essential Original certificates through the Opposite Party (ies) to the buyers in USA which were lost. We further note that the 4th Opposite Party sent an e-Mail dated 13.12.2005 stating that; "accept my sincere apology for any inconvenience this may have caused you, please provide the following information so I may initiate an inquiry to research this further. Further E-Mail sent by the 4th Opposite Party stating that your inquiry has been received by the DHL Customer Service department. Our goal is to respond to your inquiry within one business day. A copy of your submission is included below, should you need to provide additional details to help us resolve this request." In our considered view, it was casual approach of the opposite parties who lost the important documents pertains to the short spanned medicinal herbs and grains. It was gross negligence and deficiency in service from the Opposite parties. 12. Based on the foregoing discussion we do not see any error in the reasoned Order of State Commission and the same is affirmed. Both the Appeals are dismissed. | 
