IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 28th day of September, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 54/2022 (filed on 15-03-2022)
Petitioner : M/s. Tharakan and Company,
Parambil Buildings,
Olessa, Kottayam
Rep. by its Proprietor
Mr. John P.John,
S/o. P.V. John
Residing at Parambil House,
Olassa, Kottayam – 686014.
(Adv. Sajan A Varghese and
Adv. Blesson)
Vs.
Opposite Parties : (1) M/s. FedEX Express Transporation Supply Chain Services (India)
Pvt. Ltd. a Company incorporated
under the Companies Act 1956
and having its registered office at
Boomerang, Unit No.801
Wings A&B 8th Floor, Chandivali,
Farm Road, Andheri East,
Mumabi – 400072
Rep. by its Managing Director.
(2) M/s. FedEx Express Transportation
Supply Chain services (India)
Pvt. Ltd.
Rep. by Territory Manager.
O R D E R
Sri. K.M. Anto, Member
The case is filed under Section 35 of the Consumer Protection Act, 2019.
The complainant had booked a consignment to Sharjah with the second opposite party as per invoice No.272212729 and shipment No.992959335108. The consignment was 50 kg of natural vanilla extracts and 15 kg of natural vanilla powder. The customs value of the consignment was declared as Rs.8,60,400/-. The consignment was entrusted to the opposite party on 11-03-2021 for delivery to Pure Ice Cream Co. Al Wasit Road, Post Box No.51-52, Sharjah, U.A.E. The opposite party had charged an amount of Rs.19,019/- as freight and delivery charges as per invoice dtd.01-04-2021.
The complainant had an account with account No.4747750202 with the opposite party since there was continuing transaction of goods of the complainant to opposite party. The complainant had submitted all the necessary documents about the consignment to the opposite party. When the consignment reached Dubai, the opposite party informed the complainant that their Sharjah office was closed and could not deliver at Sharjah and delivery could be done only in Dubai. The complainant was having factory licence and food processing licence for Sharjah only. Even though license for Sharjah was produced the opposite party asked the complainant to produce licence for Dubai. The complainant did not have a license at Dubai and is not expected to possess a licence in Dubai.
Then the complainant requested the opposite party to handover the consignment to another courier service, but the opposite party refused this request. The opposite party informed that they have decided to send the consignment back to India. But the complainant has not received the consignment back. Due to the non-delivery of the consignment, the complainant had lost his further business with the company at Sharjah. The opposite party FedEX is expected to file bill of entry with the customs of the port of entry before 24 hours of arrival of the consignment, which they have not done. The opposite party had accepted the consignment from the complainant for door delivery and realized freight and delivery charges as per the practice and agreement between the parties, but not delivered the consignment to the party at Sharjah or not returned back to the complainant. This act of the opposite party is deficiency in service on their part. The first opposite party is the Indian Counter part of the multinational company FedEx Corporation and the 2nd opposite party is Managing and Controlling its operations in Kerala. The opposite parties are jointly and severally liable for their acts to the complainant. Hence this complaint.
On admission of the complaint, copy of the complaint was duly served to the opposite parties, but the opposite parties failed to file their version or to appear before the Commission to defend their case. The opposite parties were set exparte.
The complainant filed proof affidavit and documents and Exts.A1 to Ext.A11 were marked.
Ongoing through the complaint, proof affidavit of the complainant and evidence adduced, we would like to consider the following points.
- Whether there is deficiency in service or unfair trade practice on the part of the opposite parties?
- If so, what are the reliefs and costs?
For the sake of convenience, we would like to consider Point No.1 and 2 together.
Point No.1 and 2
On the basis of the complaint, proof affidavit of the complainant and evidence on record, it is clear that the complainant had entrusted a consignment with invoice No.5015/2020-21 dated 11-03-2021 having 50 kg of natural vanilla extract 15 kgs of natural vanilla powder to the second opposite party on 11-03-2021. The opposite party had charged an amount of Rs.19,019/- being the freight and delivery charges as per the invoice dtd.01-04-2021. The opposite party had debited the amount from the complainant’s account with No.4747750202 maintained with the opposite party.
Ext.A1 is the invoice issued by the complainant with invoice No.5051/2020-21 dated 11-03-2021 for the export of 50 kgms of natural vanilla extract and 15 kgm of natural vanilla powder to Pure Cream Co. LLC Sharjah, UAE having cost $11950 US dollars.
Ext.A2 is the shipping bill summary dated 17-03-2021 issued by the Customs for the export of the consignment with invoice No.5015/2020-21 dated 11-03-2021 for the export of the items from Cochin to Sharjah.
Ext.A3 is the E-way bill issued by the complainant for the export of items as per invoice No.5015/2020-21 dated 11-03-2021 having value Rs.8,60,400/- with transporter FEDEX EXPRESS TRANSPORATION AND SUPPLY CHAIN SERV.
Ext.A4 is the Freight / Tax invoice issued by the opposite party having invoice No.272212729 dated 01-04-2021 for an amount of Rs.19,019.70/- being the peak surcharge, transportation charge, fuel surcharge and third party billing including GST.
Ext.A5 is the Airway bill issued by the opposite party for the export of the consignment having customs value 860400.00INR with third party billing with export reference No.992959335108.
Ext.A6 is the Airway bill issued by the third party shipping Agent Jeena for the export of items in invoice No.50115/2020-21 dtd.11-03-21 with FEC No.992959335108.
Ext.A7 is the legal notice dt.d20-09-2021 issued by the complainant to the first opposite party stating that the export of items as per invoice No.5015/2020-21 dtd.11-03-2021 and export reference No.992959335108 were not delivered at the destination or not returned to the complainant and demanding compensation for the loss and damages.
Ext.A8 is the postal receipt dtd.29-09-2021 and ext.A9 is the acknowledgement card which shows that the first opposite party received the notice on 05-10-2021.
Ext.A10 is the legal notice dtd.10-02-2022 issued by the opposite party to the complainant demanding to pay Rs.1,46,298.20 being the outstanding amount due in the account No.474775020 of the complainant and Ext.A11 is the legal notice dtd.24-02-2022 issued by the opposite party demanding to payRs.1,28,873.80 due in the No.474775020 of the complainant.
It is clear that the consignment as per Ext.A1 invoice was accepted by the opposite parties for transportation to Sharjah and charged Rs.19,019/- for the freight and delivery charges as per Ext.A4. The opposite parties failed to do the customs clearance at Sharjah and to give delivery of the consignment to the buyer at Sharjah.
Section 2(11) of Consumer Protection Act 2019 defines deficiency.
“Deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-
- any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
- deliberate withholding or relevant information by such person to the consumer.
From the above discussed evidence, it is clear that the opposite parties accepted goods as per Ext.A1 invoice for the transportation to Sharjah charged Rs.19,019/- for the freight and delivery charges of the goods as per Ext.A4. The opposite party exported the consignment with Ext.A2 shipping bill issued by the customs, Ext.A5 Airway bill issued by the opposite party and Ext.A6 Airway bill issued by the third party shipping agent. The opposite parties failed to give delivery of the consignment to the consignee Pure Ice Cream Co. LLC, Sharjah, U.A.E. There is no evidence before us to show that the goods were not delivered to the consignee at Sharjah due to any fault on the part of the complainant. This act of the opposite party amounts to deficiency in service on their part as per Consumer Protection Act 2019. The opposite party is liable to compensate for the loss occurred to the complainant.
Hence Point No.1 and 2 are found in favour of the complainant. The complaint is allowed and we pass the following Orders.
- The opposite parties are directed to pay Rs.8,60,400/- to the complainant along with 6% interest per annum from 15-03-2022, the date of filing of this complaint.
- The opposite parties are directed to pay an amount of Rs.50,000/- being the compensation for the mental agony and hardship suffered by the complainant with cost Rs.5,000/-
The Order shall be complied within 30 days from the receipt of the copy of this Order. If not complied, the amounts will carry 6% interest from the date of this Order till realization.
Pronounced in the Open Commission on this the 28th day of September, 2022
Sri. K.M. Anto, Member Sd/-
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Invoice No.5015/2020-21 dtd.11-03-21 issued by Tharakan & Company
A2 – Copy of shipping bill dtd.15-03-21 by Indian Customs EDI System
A3 – Copy of E-Way bill
A4 – Invoice dtd.01-04-21 for Rs.19,019.70
A5 – Copy of Airway bill
A6 – Original copy of airway bill issued by Jeena Delivering Service Excellence
A7- Copy of lawyers notice dtd.20-09-21 to opposite party
A8-Postal receipt
A9-Postal acknowledgement card
A10-Copy of notice dtd.10-02-2022
A11-Copy of notice dtd.24-02-22
Exhibits marked from the side of opposite party
Nil
By Order
Sd/-
Assistant Registrar
