Tamil Nadu

South Chennai

CC/129/2016

Mr.R.S.M.Manoharan - Complainant(s)

Versus

M/s.The Blue Dart Express Ltd - Opp.Party(s)

M/s.R.Ramakrishnan

25 Oct 2018

ORDER

                                                                        Date of Filing  : 22.03.2016

                                                                          Date of Order : 25.10.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge 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.                                : MEMBER-I

 

C.C. No.129/2016

DATED THIS THURSDAY THE 25^TH DAY OF OCTOBER 2018

                                 

1. Mr. R.S.M. Manoharan,

S/o. Mr. David Muthiah,

2.Mrs. Joy Manoharan,

W/o. Mr. R.S.M. Manoharan,

Both residing at:-

No.23/1090, Jeevan Bhima Nagar,

Anna Nagar West Extension,

Chennai -600 101.                                                      .. Complainants.                                                    

 

                                                                                             ..Versus..

 

1. The Blue Dart Express Ltd.,

No.11, Status Quo, Sterling Road,

Nungambakkam,

Chennai – 600 034.  

 

2. The Blue Dart Express Ltd.,

Blue Dart Centre,

Sahar Airport Road,

Anderi (East),

Mumbai – 400 099.

 

3. M/s. VFS Global Services Pvt. Ltd.,

Fagun Towers, Second Floor,

No.74, Ethiraj Salai,

Egmore,

Chennai – 600 008.

 

4. M/s. VFS Global Services Pvt. Ltd.,

9^th  Floor, Urmi Estate,

No.95, Ganpatrao Kadam Marg,

Lower Parel (West),

Mumbai – 400 013.                                                 ..  Opposite parties.

          

Counsel for complainants               :  M/s. R. Ramakrishnan & another

Counsel for opposite parties 1 & 2 :  M/s. A. John Britto

Opposite parties 3 & 4                    :  Exparte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.3,28,000/- towards monetary loss suffered by the complainants and to pay a sum of Rs.5,00,000/- towards compensation for injury of untold mental agony, negligence and deficiency in service.

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

The complainants submit that they have planned to go for a pilgrimage to Italy and sightseeing trip to Switzerland from 24.07.2015 to 30.07.2015 as a religious tour and arranged the tour through M/s. FOJ Tours and Pilgrimage, Chennai and paid a sum of Rs.3,28,000/- towards tour expenses and for other process.  Further the complainants submit that they have applied visa for Italy through the 3^rd opposite party on 13.07.2015 vide file No.CHEA/130715/0006 and the same was forwarded to the 4^th opposite party at the complainant’s cost towards visa charges.  Further the complainants submit that the 3^rd & 4^th opposite parties despatched the visa to the 1^st opposite party related to the opposite parties 1 to 4 and was received by opposite parties 1 & 2.   Thereafter, the opposite parties 1 & 2 consigned the visa through its flight to the complainants was not reached in the relevant time but reached only on 28.07.2015.  Hence, the entire tour programme was compelled to be cancelled resulting huge financial loss and mental agony.  Hence, the complainants sent letters dated:18.08.2015 & 18.09.2015 and Advocate notice dated:27.11.2015 and the opposite parties 2 & 4 sent irrelevant reply dated:30.09.2015, 10.12.2015 respectively but the opposite parties has not come forward to settle the demands of the complainant.   The act of the opposite parties caused great mental agony.   Hence, the complaint was filed. 

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

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.    The opposite parties 1 & 2 state that this complaint is not maintainable either in law or on facts.  The complainants admitted the facts that the consignment was booked with the Blue Dart Express Limited at Mumbai by the 4^th opposite party, the consigner M/s. VFS Global Services Private Limited, Mumbai – 400 013.  The opposite parties 1 & 2 state that the 4^th opposite party is the credit customer of the opposite parties 1 & 2 and all carriages of shipments booked by the opposite parties 3 & 4 as per the Agreement.  The opposite parties 1 & 2 state that all the shipments of opposite parties 3 & 4 are accepted by the opposite parties 1 & 2 subject to the terms and conditions. 

As per clause 31. 1.1 and 1.2 it reads as follows:-

“31. Liability and Limitation of Liability

Direct, Indirect and Consequential Loss

31.1.1.  Neither Party shall be liable for

(a) Any indirect, special or consequential loss or damage or

(b) Loss of business opportunities or damage to goodwill (whether direct or indirect)

31.1.2.  Service Provider (Blue Dart) notwithstanding anything stated herein above, it is explicitly agreed between the parties that carriage of the shipments will be governed by the terms and conditions mentioned on this agreement and liability of the Blue Dart including indemnity and deductions, if any shall be limited to Rs.5,000/- per shipment or cost of reconstruction whichever is lower”.

3.     The opposite parties 1 & 2 state that there is no specific instruction given by the 4^th opposite party at the time of booking the consignment.  The consignment booked by the 4^th opposite party was initially reported as not traceable.  On 18.07.2015 after detailed search, the consignment was traced only on 27.07.2015 and delivered positively on 28.07.2015.   The opposite parties 1 & 2  have no knowledge regarding for the purpose and the tour related to the complainant.   The pleadings related to the awareness of opposite parties 3 & 4 regarding the importance of passport and visa has not been explained to the opposite parties 1 & 2 at any point of time.   There is no negligence on the part of the opposite parties 1 & 2.   Hence the complaint is liable to be dismissed.

4.     The notice sent to the 3^rd opposite party is returned as refused and hence the 3^rd opposite party is set Exparte. 

5.     Inspite of receipt of the notice the 4^th opposite party has not come forward to appear before this Forum and hence the 4^th opposite party is set Exparte.

6.    To prove the averments in the complaint, the complainants had filed proof affidavit as their evidence and documents Ex.A1 to Ex.A20 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B3 are marked on the side of the opposite parties 1 & 2.

7.      The points for consideration is:-

1. Whether the complainants are entitled to a sum of Rs.3,28,000/- towards monetary loss suffered by the complainants as prayed for?

2. Whether the complainants are entitled to a sum of Rs.5,00,000/- towards compensation for mental agony and deficiency in service with cost as prayed for?

8.      On point:-

The opposite parties 3 & 4 remained Exparte.  The complainants, 1^st & 2^nd opposite parties filed their respective written arguments.  Heard the opposite parties 1 & 2 Counsel also.  Perused the records namely the complaint, written version, proof affidavits, documents etc. The complainants pleaded and contended that they have planned to go for a pilgrimage to Italy and sightseeing trip to Switzerland from 24.07.2015 to 30.07.2015 as a religious tour and arranged the tour through M/s. FOJ Tours and Pilgrimage, Chennai and paid a sum of Rs.3,28,000/- towards tour expenses and for other process.  But on a careful perusal of records from Ex.A1 to Ex.A6, it is seen that tour programme started from 24^th July 2015 to 30^th July 2015 as per Ex.A4.  Ex.A12 is the invoice for travellers’ flight booking.    M/s. FOJ Tours Pilgrimage received a sum of Rs.1,64,000/- each in total of Rs.3,28,000/- by way of cash.  Due cash Memo also produced.  Further the contention of the complainants is that they have applied visa for Italy through the 3^rd opposite party on 13.07.2015 vide file No.CHEA/130715/0006 and the same was forwarded to the 4^th opposite party at the complainants’ cost towards visa charges.  Ex.A7 to Ex.A10 are the documents related to visa.   Further the contention of the complainants is that the 3^rd & 4^th opposite parties admittedly despatched the visa to the 1^st opposite party as per Ex.B1, Agreement related to Opposite parties 1 to 4 and was received by opposite parties 1 & 2.   Thereafter Opposite parties 1 & 2 consigned the visa through its flight to the complainants was not reached in the relevant time but reached only on 28.07.2015 as per Ex.A19.  Hence, the entire tour programme was compelled to be cancelled resulting huge financial loss and mental agony.        Hence, the complainants sent letters and Advocate notice which was duly acknowledged by the opposite parties but sent a reply with untenable contentions.   The opposite parties has not explained the inordinate delay in delivery of the consignment containing the visa for the due performance of pilgrimage on 24.07.2015.   Hence, the complainants were constrained to file this case claiming compensation.  But on a careful perusal of records, it is seen that the complainants had cancelled the flight.  The FOJ tours travellers also cancelled the tour related to the complainants.  The complainants had not whispered anything about the cancellation of ticket and refund of the amount.  Equally, the complainants had totally suppressed the refund towards the cancellation of tour by FOJ Tours and travels.  On the other hand, the complainants are claiming the total sum of Rs.3,28,000/- paid towards tour expenses and an another claim of Rs.5,00,000/-  towards compensation. 

9.     The learned Counsel for the opposite parties 1 & 2 contended that this complaint is not maintainable in law or on facts.  The complainants admitted the facts that the consignment was booked with the Blue Dart Express Limited at Mumbai by the 4^th opposite party, the consigner M/s. VFS Global Services Private Limited, Mumbai – 400 013 proves that the complainants  had not booked any consignment.   But the consignment is related only to the complainants.  Further the contention of the opposite parties 1 & 2 is that the 4^th opposite party is the credit customer of the opposite parties 1 & 2 and all carriages of shipments booked by the opposite parties 3 & 4 as per the Agreement.   Further the contention of the opposite parties 1 & 2 is that all the shipments of opposite parties 3 & 4 are accepted by the opposite parties 1 & 2 subject to the terms and conditions stipulated in Ex.B1. 

As per clause 31. 1.1 and 1.2 it reads as follows:

“31. Liability and Limitation of Liability

Direct, Indirect and Consequential Loss

31.1.1.  Neither Party shall be liable for

(a) Any indirect, special or consequential loss or damage or

(b) Los of business opportunities or damage to goodwill (whether direct or indirect)

31.1.2.  Service Provider (Blue Dart) notwithstanding anything stated herein above, it is explicitly agreed between the parties that carriage of the shipments will be governed by the terms and conditions mentioned on this agreement and liability of the Blue Dart including indemnity and deductions, if any shall be limited to Rs.5,000/- per shipment or cost of reconstruction whichever is lower”.

The complainants are claiming a sum of Rs.3,28,000/- towards the monetary loss suffered by the complainants and a compensation of Rs.5,00,000/-.

10.    The learned Counsel for the opposite parties 1 & 2 cited the decision reported in:

Hon’ble Supreme Court of India

AIR 1996 SC 2508

Between

Bharti Knitting Company

-Versus-

DHL

Held that

“If a person sign a document containing contractual terms and when there is a specific term in the contract, the parties are bound by the terms of the contract”.

Hence the opposite parties 1 & 2 are liable to pay only a sum of Rs.5,000/- alone towards compensation.  But in this case, the Ex.B1, Courier Service Agreement is between the opposite parties 1 to 4 also not with the complainants.

11.    Further the contention of opposite parties 1 & 2 is that there is no specification instruction given by the 4^th opposite party at the time of booking the consignment.  The consignment booked by the 4^th  opposite party was initially reported as not traceable.  On 18.07.2015 after detailed search, the consignment was traced only on 27.07.2015 and delivered positively on 28.07.2015.   The opposite parties 1 & 2  have no knowledge regarding for the purpose and the tour related to the complainant.   The pleadings related to the awareness of opposite parties 3 & 4 regarding the importance of passport and visa has not been explained to the opposite parties 1 & 2 at any point of time.   There is no negligence on the part of the opposite parties 1 & 2; is not acceptable.   Since admittedly, the consignment was booked on 17.07.2015 by 3^rd & 4^th opposite parties with the 1^st & 2^nd opposite parties.  Equally, it is an admitted fact that the consignment was found missing on 18.07.2015 on the side of the opposite parties 1 & 2 and it was traced out on the part of opposite parties 1 & 2 only on 27.07.2015.  There is no explanation on the part of opposite parties 1 & 2 and on what circumstances the consignment was found missing and on what circumstances it was traced out proves negligence in service.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties  1 & 2 shall pay a sum of Rs.5,000/- towards compensation for the delay in delivery of the consignment with a cost of Rs.10,000/-.

In the result, this complaint is allowed in part.  The opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards compensation for  the delay in delivery of the consignment with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainants.  The complaint against the opposite parties 3 & 4 is dismissed.

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 25^th day of October 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANTS’ SIDE DOCUMENTS:

Ex.A1		Copy of travel summary of the 1st complainant
Ex.A2		Copy of travel summary of the 2nd complainant
Ex.A3	07.07.2015	Copy of communication from Worldwide travel Services for booking & tour package
Ex.A4	08.07.2015	Copy of receipt from FOJ Tours & Pilgrimage to the 1st complainant
Ex.A5	10.07.2015	Copy of cash memo issued by Dilkush Forex solutions Pvt. Ltd. to the 1st complainant
Ex.A6	10.07.2015	Copy of cash memo issued by Dilkush Forex solutions Pvt. Ltd. to the 2nd complainant
Ex.A7	13.07.2015	Copy of invoice issued by visa services Pvt. Ltd. for Italy visa charges
Ex.A8	13.07.2015	Copy of invoice issued by visa services Pvt. Ltd. for Italy visa charges
Ex.A9	24.07.2015	Copy of visa of the 1st complainant
Ex.A10	24.07.2015	Copy of visa of the 2nd complainant
Ex.A11	24.07.2015	Copy of E-mail from the 1st complainant to the visa Office, Italian Consulate, Mumbai
Ex.A12	06.08.2015	Copy of invoice issued by Travelerstop for flight booking
Ex.A13	18.08.2015	Copy of letter sent by the complainant’s to opposite parties 1 & 2
Ex.A14	18.09.2015	Copy of letter sent by the complainant’s to opposite parties 1, 2 & 4
Ex.A15	30.09.2015	Copy of reply sent by the 2nd opposite party to the complainant
Ex.A16	23.11.2015	Copy of legal notice sent  by the complainant’s Counsel to all the opposite parties
Ex.A17	27.11.2015	Copy of acknowledgement card of the 1st opposite party
Ex.A18	27.11.2015	Copy of returned cover of the 3rd opposite party
Ex.A19	10.12.2015	Copy of reply sent by the 2nd opposite party
Ex.A20	10.12.2015	Copy of reply sent by the 4th opposite party

 

OPPOSITE  PARTIES 1 & 2 SIDE DOCUMENTS: 

Ex.B1		Copy of Courier services Agreement
Ex.B2	30.09.2015	Copy of reply to the complainants
Ex.B3	10.12.2015	Copy of reply notice

 

 

 

MEMBER –I                                                                      PRESIDENT