KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 329/2023
JUDGMENT DATED: 24.07.2023
(Against the Order in C.C. 54/2022 of CDRC, Kottayam)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI. AJITH KUMARD. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANT:
Fedex Express Transportation and Supply Chain Services (India) Private Limited, having its registered office at Boomerang, Unit No. 801, Wings A and B, 8th Floor, Chandivali, Farm Road, Andheri East Tower, Mumbai-400 072 represented by its Authorized Representative Mr. Leo Christy.
(By Adv. Reetha D.)
Vs.
RESPONDENTS:
- Tharakan and Company, Parambil Buildings, Olessa, Kottayam represented by its Proprietor Mr. John P. John.
- Fedex Express Transportation and Supply Chain Services (India) Pvt. Ltd., having its territorial office at Jubilee Road, Nettoor, Cochin-682 040.
JUDGMENT
SRI. RADHAKRISHNAN. K.R.: MEMBER
This is an appeal filed under section 41 of the Consumer Protection Act, 2019, by the 1st opposite party in C.C. No. 54/2022 before the District Consumer Disputes Redressal Commission, Kottayam (District Commission for short). The District Commission by its order dated 28.09.2022 allowed the complaint and directed the opposite parties to pay Rs. 8,60,400/- to the complainant along with 6% interest per annum from 15.03.2022, the date of filing the complaint. The opposite parties are further directed to pay Rs. 50,000/- as compensation for the mental agony and hardships suffered by the complainant and Rs. 5,000/- as costs of the proceedings to the complainant within 30 days of the receipt of the order, failing which the amounts shall carry interest @ 6% per annum from the date of the order till realisation.
2. The complaint relates to the alleged deficiency in service on the part of the opposite parties in respect of despatch of a consignment sent to Sharjah through the opposite parties. The complainant had entrusted a consignment containing 65 kg natural Vanila extract and powder to the second opposite party, on 11.03.2021 for delivery to Pure Ice Cream Co. LLC at Sharjah city, UAE. The second opposite party is managing and controlling the operations of the first opposite party in Kerala. All required documents pertaining to the consignment was submitted to them. Customs value of the consignment was declared as Rs. 8,60,400/-. When the consignment reached Dubai on 25.03.2021, the opposite party informed the complainant that they have closed their Sharjah office and hence it could be delivered only in Dubai. This was not informed at the time of booking the consignment. The complainant was having required licence only for Sharjah and not for Dubai. Hence he requested to send it through another courier which was refused by the opposite party. Due to the non-delivery of the consignment the complainant lost his further business with the consignee in Sharjah. The consignment was neither delivered nor returned, which amounts to deficiency in service on the part of the opposite parties. Hence the complaint was filed claiming value of the consignment with compensation and costs.
3. Complainant filed proof affidavit and Exts. A1 to A11 were marked on his side. Though notice had been issued to the opposite parties, they did not appear before the District Commission. Therefore, they were set ex-parte. As the opposite parties were declared ex-parte, there was no oral or documentary evidence on their side. The complaint has been allowed by the District Commission placing reliance on the unchallenged evidence available in the case against them. Aggrieved by the said order, first opposite party has filed this appeal.
4. We have heard the learned counsel for the appellant and perused the records. The learned counsel for the appellant submitted that they were not served with notice in the complaint. Second opposite party/second respondent was their warehouse cum branch office. This was partially closed subsequently in January, 2022 and completely closed in June, 2022. Appellants came to know about the order of the District Commission only when a copy of the order was received by them on 03.01.2023.
5. According to the appellants all shipments destined for the UAE land first in Dubai and thereafter taken to respective destinations for delivery. The non clearance of the consignment is directly attributable to the consignee. It is the responsibility of the consignor to ensure compliance of the customs regulatory requirements of the destination country and clear the goods providing all documents required for delivery. The appellant cannot be held liable for non-compliance of statutory requirements by the respondent and their consignee. There was no intentional lapse on their part in not appearing before the District commission. The appeal is filed praying to set aside the impugned order of the District commission.
6. The significant issue in this case is regarding service of notice to the opposite parties and their non appearance before the District Commission. The District Commission has stated in the order appealed against that though notice had been served on the opposite party they did not turn up and hence they were set ex-parte. The said paragraph is reproduced below:
“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 ex-parte.”
7. Absolutely no evidence has been produced by the appellant/ first opposite party to show that the observation of the District Commission is erroneous in any manner. The order of the District commission is as per section 38(3) (b)(ii) of the Consumer Protection Act, 2019, which is reproduced below:
“38 (3) The District commission shall, if the complaint admitted by it under sub-section (2) of section 36 relates to goods in respect of which the procedure specified in sub-section (2) cannot be followed, or if the complaint relates to any services,-
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District commission;
(b): if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District commission, it shall proceed to settle the consumer dispute –
- on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
- ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission.”
In view of the above specific provision, we do not find any error in the order of the District Commission.
8. As discussed above, this is a case in which no version has been filed by the appellant, though they had received notice from the District Commission. Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for them to file a written version now. For the above reason, there is no point in admitting this appeal or calling for the Lower Court Records. This appeal is therefore dismissed.
The amount of statutory deposit made by the appellant shall be refunded to them, on proper acknowledgment.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
AJITH KUMAR D.: JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
RADHAKRISHNAN K.R. : MEMBER
Jb
