Tamil Nadu

South Chennai

CC/327/2015

M/s.Stephan Marie Selvanathan - Complainant(s)

Versus

M/s.Fed Express India Pvt ltd - Opp.Party(s)

M/s.Achari

10 Jan 2019

ORDER

                                                                        Date of Filing  : 20.08.2015

                                                                          Date of Order : 10.01.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B., PGDCLP.               : MEMBER-I

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER-II

 

C.C. No.327/2015

DATED THIS THURSDAY THE 10^TH DAY OF JANUARY 2019

                                 

Mr. Stephan Marie Selvanathan,

S/o. Mr. Alphonse,

No.3, 1^st Cross,

Natesan Nagar (East),

Nellithope P.O.,

Puducherry  - 605 005.                                                  .. Complainant.                                                 

 

                                                                                                 ..Versus..

 

1. M/s. FedEx Express India Pvt. Ltd.,

Head Office,

Rep. by its Manager,

No.100, L.B. Road,

Next to Ganapathiram Cinema Mall,

Near Addidas Showroom,

Adayar,

Chennai – 600 020.

 

2. M/s. FedEx Express (India) Pvt. Ltd.,

Branch Office,

Phase I, New Courier Terminal,

Old Airport,

Meenambakkam,

Chennai – 600 027.

 

3. M/s. FedEx Express (India) Pvt. Ltd.,

Boomerang, Unit No.801,

Wing A & B1, 8^th Floor, Chandivali Form Road,

Near Chandivali Studio,

Andheri (E),

Mumbai – 400 072.

 

4. M/s. Jas Exports,

Plot No.818/1, Kamarajar Street,

Jaladompet,

Chennai – 600 100.                                                 ..  Opposite parties.

          

 

Counsel for complainant                          :  M/s. Achari & Antoni

                                                                     Associates

Counsel for the opposite parties 1 to 3  :  M/s. V.S. Manjula

4^th opposite party                                    :  Dismissed for default on

                                                                    29.08.2016

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 to 3 under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.7,00,000/- towards compensation for mental agony, loss and sufferings with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he ordered 24 navigation devices worth Rs.1,00,000/- from France on 10.02.2014, from a company name M/s. BeNomad, France through M/s. Jas Exports Ltd.   The complainant submits that the said navigation devices are of high quality when compared to other devices.  Several companies from Puducherry were not able to purchase.  The complainant submits that M/s. BeNomad, France sent the navigation devices through M/s. Fedex Espress and it reached India on 14.02.2014.   All the clearing works including paper works done by the agent M/s. Jas Exports Ltd.  The complainant’s clearing agent approached the 2^nd opposite party for due delivery of shipment.  But the opposite party falsely stated that there are some paper works pending.   After getting all the papers ready repeatedly the complainant approached the 2^nd opposite party.   But there was no proper response.   The complainant submits that later he came to know that the opposite parties had wrongly delivered the navigation devices to HCL Pvt. Ltd since the way bill number has been wrongly affixed in the consignment.  After two months, the complainant received the parcel in a damaged condition.  Thereby, the complainant was put to great loss to the tune of Rs.1,50,000/-.  The complainant submits that since the opposite parties has not come forward to compensate the loss, legal notice dated:29.10.2014 was sent to the opposite parties for which, the opposite parties has not sent any reply.  The act of the opposite parties caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by the  opposite parties 1 to 3 is as follows:

The opposite parties 1 to 3 specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.     The opposite parties 1 to 3 state that one M/s. Be Nomed France booked the Navigation device through M/s. Jas Exports Ltd. which is renamed as M/s. FedEx Express was duly delivered to the complainant at the end of March 2014 without any damages.  The alleged delay acquired is reasonable and shall not cause any damage to the complainant.  The article sent is not perishable and safely delivered to the complainant.   The steps taken by the opposite parties has to be appreciated by the complainant instead of dragging the matter to the Consumer Forum.  Since the consignment was delivered to HCL by mistake after taking appropriate steps, the consignment was rightly delivered to the complainant.  Even it is wrongly delivered to HCL, there was no damage to the consignment.  Thereby, there is no deficiency in service.    The opposite parties 1 to 3 state that as per the terms and conditions under section 18 which reads as follows:

18. DECLARED VALUE AND LIMITS OF LIABILITY

18.1 Unless the Sender enters a higher Declared Value for Carriage on the (Air) Way bill and pays the required fee, the liability of FedEx is limited to the higher of a) the amount provided by the applicable international treaty or local law; or b) € 22 per kilogram; or c) US$ 100 per Shipment.  For FedEx Economy, FedEx 1 Day Freight, FedEx Priority Overnight and FedEx Standard Overnight Shipments within Austria, Belgium, Denmark, Luxembourg, the Netherlands, Switzerland and the United Arab Emirates, the liability of FedEx is limited to the higher of a) the amount provided by the applicable local law; or b) € 10 per kilogram; or c) US$ 100 per Shipment, unless the Sender enters a higher Declared Value for Carriage on the (Air) Waybill and pays the required fee.  For FedEx Economy, FedEx 1 Day Freight, FedEx Priority Overnight and FedEx Standard Overnight Shipments within Germany, the liability of FedEx is limited to the higher of a) € 4 per kilogram in accordance with the German Commercial Code (HGB); or b) US$ 100 per Shipment, unless the Sender enters a higher Declared Value for Carriage on the (Air) Waybill and pays the required fee.

18.2 FedEx does not provide cargo liability or all-risk insurance but the Sender may pay an additional charge for Declared Value for Carriage above the limits referred to in Section 18.1 above.  The Sender should refer to the FedEx rate sheets in effect at the time of shipment or call FedEx for an explanation of the additional charge.  The Declared Value for Carriage of any Package represents FedEx maximum liability in connection with a shipment of that Package, including but not limited to, any loss, damage, delay, misdelivery any failure to provide information, or misdelivery of information relating to the Shipment.  Exposure to and risk of any loss in excess of the Declared Value for Carriage is assumed by the Sender.  Customers are advised to contact their insurance agent or broker for insurance coverage.   EVEN IF A HIGHER VALUE FOR CARRIAGE IS DECLARED, THE LIABILITY OF FEDEX FOR LOSS OF OR DAMAGE TO THE CONTENTS OF A SHIPMENT WILL NOT BE MORE THAN THE ACUTAL VALUE OF THE CONTENTS OF THE SHIPMENT AND FEDEX SHALL BE ENTITLED TO REQUIRE INDEPENDENT PROOF OF THE VALUE OF THE CONTENTS OF A SHIPMENT FOR WHICH A CLAIM IS MADE.

18.3 The maximum Declared Value for Customs and Carriage is limited and may vary per location.  If applicable, the Declared Value for Carriage cannot exceed the Declared Value for Customs.  The maximum Declared Value for Customs and Carriage for the contents of a FedEx Envelpe or FedEx Pak, regardless of destination, is US$ 100 per Shipment or US$ 9.07 per pound, whichever is greater.  Goods with a value (actual or declared) exceeding these amounts, should NOT be shipped in a FedEx Envelope or FedEx Pak.  Unless otherwise specified by FedEx, the maximum Declared Value for Carriage is US$ 50,000 per Shipment except for FedEx International Priority Freight and FedEx International Economy Freight which have a maximum Declared Value for Carriage limit of US$ 100,000 per Shipment to most destinations.  The Sender should refer to the FedEx rate sheets in effect at the time of shipment or call FedEx for an explanation of the declared value limits.

18.5 When the Sender has not specified the Declared Value for Carriage of each Package on the (Air) Waybill but has specified a total decalred value for all Packages, the declared value for each Package will be determined by dividing the total declared value by the number of Packages on the (Air) Waybill.  In no event may the declared value of any Package in a Shipment exceed the declared value of the Shipment.

18.6 FedEx is not liable for any loss of, damage to, or delay, misdelivery or non-delivery of unacceptable Shipments, including but not limited to cash or currency.

18.9 Regardless of the Declared Value for Carriage of a Package, FedEx liability for loss, damage, delay, misdelivery, non-delivery, misinformation, any failure to provide information, or misdelivery of information, will not exceed the Shipment’s repair cost, its depreciated value or its replacement cost, whichever is less”

Therefore, there is no deficiency in service on the part of the opposite parties 1 to 3 and hence, the complaint is liable to be dismissed.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A8 are marked.  Proof affidavit of the opposite parties 1 to 3 is filed and no document was produced and marked on the side of the opposite parties 1 to 3.

4.      The point for consideration is:-

Whether the complainant is entitled to a sum of Rs.7,00,000/- towards compensation for mental agony and loss as prayed for with cost?

 

 

5.      On point:-

Both parties filed their respective written arguments.  Heard both Counsels also.  The complaint against the 4^th opposite party was dismissed for default on 29.08.2016. The learned Counsel for the complainant contended that he placed order 24 navigation devices worth Rs.1,00,000/- from France on 10.02.2014, from a company name M/s. BeNomad, France through M/s. Jas Exports Ltd. as per Ex.A1.  Further the contention of the complainant is that the said navigation devices are of high quality even compared to other devices.  Several companies from Puducherry were not able to purchase.  But the complainant has not produced any document.  Further the contention of the complainant is that M/s. BeNomad, France sent the navigation devices through M/s. Fedex Espress and it reached India on 14.02.2014.   All the clearing works including paper works done by the agent M/s. Jas Exports Ltd. also accepted.  The complainant’s clearing agent approached the 2^nd opposite party for due delivery of shipment.  But the opposite party falsely stated that there are some paper works pending.   After getting all the papers ready repeatedly the complainant approached the 2^nd opposite party.   But there was no proper response.   

6.     Further the contention of the complainant is that later he came to know that the opposite parties had wrongly delivered the navigation devices to HCL Pvt. Ltd since the way bill number has been wrongly affixed in the consignment.  After two months, the complainant received the parcel in a damaged condition.  Thereby, the complainant was put to great loss to the tune of Rs.1,50,000/-.  The wrong delivery by the 2^nd opposite party is apparently shows delay in delivering the parcel proves the deficiency in service.   The complainant has expended a sum of Rs.50,000/- towards several means of travel, stay etc.  Similarly, in the absence of navigation devices the complainant lost the reputation which caused irreparable loss and hardship but no record.  Further the contention of the complainant is that since the opposite parties has not come forward to compensate the loss, legal notice dated:29.10.2014 was sent to the opposite parties for which, the opposite parties has not sent any reply.  Hence, the complainant has filed this case claiming compensation of Rs.7,00,000/- with cost.   But the complainant has not taken any suitable steps to prove the said huge imaginary amount of compensation.

7.     The learned Counsel for the opposite parties 1 to 3 would contend that admittedly, one M/s. Be Nomed France booked the Navigation device through M/s. Jas Exports Ltd. which is renamed as M/s. FedEx Express.   was duly delivered to the complainant.  The alleged delay acquired is reasonable and shall not cause any damage to the complainant.  The article sent is not perishable and safely delivered to the complainant.  In real, the steps taken by the opposite parties has to be appreciated by the complainant instead of dragging the matter to the Consumer Forum.  Since the consignment was delivered to HCL by mistake, after taking appropriate steps, the consignment was rightly delivered to the complainant.  Even it is wrongly delivered to HCL, there was no damage to the consignment.  Thereby, there is no deficiency in service.  But admittedly, there is an inordinate delay in delivering the consignment to the complainant.  Equally, the wrong delivery is due to the wrongly affixing of the way bill number in the consignment by the officials of the opposite party proves the negligence in service resulting deficiency in service.   Further the contention of the opposite parties is that as per the terms and conditions under section 18 which reads as follows:

18. DECLARED VALUE AND LIMITS OF LIABILITY

18.1 Unless the Sender enters a higher Declared Value for Carriage on the (Air) Way bill and pays the required fee, the liability of FedEx is limited to the higher of a) the amount provided by the applicable international treaty or local law; or b) € 22 per kilogram; or c) US$ 100 per Shipment.  For FedEx Economy, FedEx 1 Day Freight, FedEx Priority Overnight and FedEx Standard Overnight Shipments within Austria, Belgium, Denmark, Luxembourg, the Netherlands, Switzerland and the United Arab Emirates, the liability of FedEx is limited to the higher of a) the amount provided by the applicable local law; or b) € 10 per kilogram; or c) US$ 100 per Shipment, unless the Sender enters a higher Declared Value for Carriage on the (Air) Waybill and pays the required fee.  For FedEx Economy, FedEx 1 Day Freight, FedEx Priority Overnight and FedEx Standard Overnight Shipments within Germany, the liability of FedEx is limited to the higher of a) € 4 per kilogram in accordance with the German Commercial Code (HGB); or b) US$ 100 per Shipment, unless the Sender enters a higher Declared Value for Carriage on the (Air) Waybill and pays the required fee.

18.2 FedEx does not provide cargo liability or all-risk insurance but the Sender may pay an additional charge for Declared Value for Carriage above the limits referred to in Section 18.1 above.  The Sender should refer to the FedEx rate sheets in effect at the time of shipment or call FedEx for an explanation of the additional charge.  The Declared Value for Carriage of any Package represents FedEx maximum liability in connection with a shipment of that Package, including but not limited to, any loss, damage, delay, misdelivery any failure to provide information, or misdelivery of information relating to the Shipment.  Exposure to and risk of any loss in excess of the Declared Value for Carriage is assumed by the Sender.  Customers are advised to contact their insurance agent or broker for insurance coverage.   EVEN IF A HIGHER VALUE FOR CARRIAGE IS DECLARED, THE LIABILITY OF FEDEX FOR LOSS OF OR DAMAGE TO THE CONTENTS OF A SHIPMENT WILL NOT BE MORE THAN THE ACUTAL VALUE OF THE CONTENTS OF THE SHIPMENT AND FEDEX SHALL BE ENTITLED TO REQUIRE INDEPENDENT PROOF OF THE VALUE OF THE CONTENTS OF A SHIPMENT FOR WHICH A CLAIM IS MADE.

18.3 the maximum Declared Value for Customs and Carriage is limited and may vary per location.  If applicable, the Declared Value for Carriage cannot exceed the Declared Value for Customs.  The maximum Declared Value for Customs and Carriage for the contents of a FedEx Envelpe or FedEx Pak, regardless of destination, is US$ 100 per Shipment or US$ 9.07 per pound, whichever is greater.  Goods with a value (actual or declared) exceeding these amounts, should NOT be shipped in a FedEx Envelope or FedEx Pak.  Unless otherwise specified by FedEx, the maximum Declared Value for Carriage is US$ 50,000 per Shipment except for FedEx International Priority Freight and FedEx International Economy Freight which have a maximum Declared Value for Carriage limit of US$ 100,000 per Shipment to most destinations.  The Sender should refer to the FedEx rate sheets in effect at the time of shipment or call FedEx for an explanation of the declared value limits.

18.5 When the Sender has not specified the Declared Value for Carriage of each Package on the (Air) Waybill but has specified a total decalred value for all Packages, the declared value for each Package will be determined by dividing the total declared value by the number of Packages on the (Air) Waybill.  In no event may the declared value of any Package in a Shipment exceed the declared value of the Shipment.

18.6 FedEx is not liable for any loss of, damage to, or delay, misdelivery or non-delivery of unacceptable Shipments, including but not limited to cash or currency.

18.9 Regardless of the Declared Value for Carriage of a Package, FedEx liability for loss, damage, delay, misdelivery, non-delivery, misinformation, any failure to provide information, or misdelivery of information, will not exceed the Shipment’s repair cost, its depreciated value or its replacement cost, whichever is less” proves that minimum 100 US$ can be paid for such delay or wrong delivery of consignment.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 to 3 are jointly and severally liable to pay US $ 100 i.e. a sum of Rs.5,997/- with cost of Rs.5,000/-.

In the result, this complaint is allowed in part.   The opposite parties 1 to 3 are jointly and severally liable to pay US$ 100 i.e. a sum of Rs.5,997/- (Rupees Five thousand nine hundred and ninety seven only) towards compensation and to pay the cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 10^th day of January 2019. 

 

MEMBER-I                           MEMBER-II                     PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	10.02.2014	Copy of Shipment Order
Ex.A2		Copy of letter of appointing Jas Exports for Shipment clearance
Ex.A3	12.02.2014	Copy of Booking Receipts
Ex.A4		Copy of Email conversations
Ex.A5	03.04.2014 & 25.02.2014	Copy of custom Duty invoice
Ex.A6		Copy of Expenses proof (17 Nos.)
Ex.A7	29.10.2014	Copy of legal notice
Ex.A8		Proof of legal notice

 

OPPOSITE  PARTIES 1 TO 3 SIDE DOCUMENTS:-  NIL

 

 

MEMBER-I                           MEMBER-II                     PRESIDENT