<br /> <br /> <br /> <br /> BY SRI.K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> This is a complaint filed by the complainant seeking compensation of Rs. 5,00,000/- and other reliefs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is a registered Dental Surgeon having his own dental clinic with high reputation. The complainant who is ambitious of securing higher heights in his career as a dental surgeon has successfully completed his OET [Occupational English Test] conducted by language Australia on 25.11.2003. His certificate of assessment was over on 3.12.2003 by the Australian Dental Council as part of his ambitious effort for his higher education, migration and for the sake of a prestigious job as Dental Surgeon in Australia. Since the complainant had qualified for appearing for the stage I examination he had obtained the application form and prospectus.. The application form ought to have reached the Australian Dental Council at Melbourne Australia within 10th December 2003 . It was clearly specified by the Council that the late application will not be accepted. On 5.12.2003 the complainant approached the 1st opp.party and narrated on these aspects and the first opp.party and his staff assured him that the application will positively reach Australia on 8th December 2003. Believing the assurance given by 1st opp.party the complainant booked the application and a fee of Rs.1,589/- was collected from him by the 1st opp.party.. They have also given the complainant a track No. [3365747092] so that the complainant can verify the situation of application through internet. The complainant using the track No., verified the details of the application and it was noticed that the application which was intended to be sent to Victoria Australia , was mis-directed to Vienna, Austria . The complainant thereupon contacted the opp.party and informed them of the mistake. The above acts occurred due the negligence on the part of the opp.party which resulted in heavy mental agony and monetory loss to the complainant. The complainant has correctly addressed the destination in his booking slip. Due to the irresponsible attitude of the opp.party the delivery of the application was delayed and the complainant had to give an additional amount of 5,000/- dollars to the agent at Australia. Even though the complainant’s choice of examination centre was New Delhi, the Dental council in Australia allotted Cairo in Egypt as the centre due to the late delivery of the application form.. All the other candidates from India who choose their examination centre at New Delhi were given the same as their centre for examination as their applications reached the destination in time . On 29.12.2003 the complainant received a letter from Australian Dental Council confirming him as a candidate at the next ADC preliminary exam scheduled to be held during the first week of March 2004. The examination centre allotted to him was Cairo in Egypt though he opted New Delhi. Due to continuous request and due to the strenuous effort made by the agent at Australia, the Australian authorities finally agreed to adjust and reschedule the complainant’s exam centre as New Delhi. This was reached through E-mail only on 4th February 2004. During this period the complainant’s precious time in preparing for the above exam was wasted. The complainant’s work at the clinic was also totally disrupted during this period. Due to the deficiency in service on the part of the opp.party the complainant has suffered irreparable loss and mental agony and it further adversely affected the carrier of the complainant as a Dental Surgeon. Hence the complaint.<br /> <br /> <br /> The 2nd opp.party filed version contending, interalia, that the complaint is not maintainable either in law on or facts. The claim is not substantiated on facts or on evidence. The claim involves adjudication of complicated and disputed facts to decide as to tortuous liability requiring adducing and appreciation of elaborate evidence. In view of the complexity of dispute the matter will be outside the scope of Consumer Protection Act procedure. Therefore, the complaint is not maintainable . The averments in para 1 and 2 are not admitted. It is revealed from records that on 5.12.2003 forenoon a Consignment stated to be documents weighing 0.5 k.g was received with the Kollam Franchisee of this opp.party addressed to one Mr. Thomas Mathew, in Australia. No guarantee or assurance was given at the time of receipt of consignment that the same would be delivered on or before 10th December 2003 considering various eventualities being experienced by courier service like delay, cancellation of flight etc. but assurance of best possible service in the matter was given. The track number was also given in good faith. Even though the consignment was directed to Australia with the destination code MEL at the terminal sorting point at Bombay on account of an absolutely genuine and bonafide human error the destination code for Austra was assigned which happened very rarely . The opp.party had to handle hundred and thousands of consignments at a time to different international destinations . On being alerted of the mistake on 9.1.2003 immediately steps were taken to route the shipment to the correct address. Consequently the consignment was off loaded at Amsterdam and it was forwarded to Melbourne under a fresh shipment. The consignment was finally delivered at the correct address at Australia on 12.12.2003 and it was acknowledged by Ms. Teresa the authorized representative of the consignee. The consignment was misdirected as a result of human error but immediately on noticing the mistake effective and expeditious steps were taken to correctly route the consignment which was delivered without undue delay. The short delay occurred on account of the genuine human error cannot be termed as unfair trade practice. In the absence of willful negligence which is clearly absent in the instant case the carrier cannot be hold liable for damages or compensation. There is no basis for the compensation and damages claimed by the complainant. The complaint is preferred without any good faith but on an experimental basis . The complainant has not suffered any loss or hardship as averred award. Since the complainant has not suffered any legal injury he is not entitled to get any damages. The complainant has booked the consignment after understanding and accepting the inherent limitations of the carrier and opted to send the consignment without reserving any claim for compensation or damages occurred on account of delayed delivery due to genuine reasons. Hence the opp.party prays to dismiss the complaint.<br /> <br /> <br /> Points that would arise for consideration are:<br /> [I] Whether there any deficiency in service on the part of the opp.party.<br /> [2] Whether the complainant is entitled to any compensation as claim.<br /> [3] Reliefs and costs.<br /> <br /> For the complainant PW.1 and r are examined and Ext. P1 to P17 are marked.<br /> <br /> Points 1 to 3: As a matter of fact the entrustment of the cover by the complainant with the opp.parties for forwarding the same to the Australian Dental Council at Melbourne Australia is not disputed. It is also not in dispute that the cover was misdirected to Vienna – Austria instead of Victoria – Australia and that the same was retrieved Austerdam and sent to Australia on the information given by the complainant himself and that <br /> the cover reached the destination on 12.12.22003, 2 days after the last date fixed for the receipt of the same by the Australian Dental Council.<br /> <br /> The contention of the complainant is that the cover was misdirected to Austria solely due to the negligence on the part of the opp.party. According to the opp.party this happened due to genuine and bonafide human error and there was no negligence on the part of the opp.party. The opp.party have no case that the address furnished was not legible or wrong. According to opp.party they are handling hundreds of thousands of consignments every day and such incident happened very rarely and they have made every attempt to re -direct the consignment to the destination on being alerted of the mistake. It is true that the opp.parties are handling hundreds of thousands consignment of every day but merely because they are handling so much consignment they cannot escape their liability by saying that such mistakes are genuine and bonafide human error. <br /> <br /> According to the opp.party they have not given any assurance to the complainant that the consignment would be delivered at Australia before the due date where as the definite contention of the complaint is that the officials in the office of the 2nd opp.party assured him that the consignment would be delivered at Australia on 8.12.2003. The learned counsel for the opp.party would argue that such an undertaking cannot given in view of the fact that the consignment would be delayed due to cancellation of flight or other transporting medium or due to delay and in ext. P4 it is clearly stated that the consignment are likely to be delayed due to the above reasons. If the delay here in was due to any reason as stated above the complainant would have been estopped from raising such a contention. But herein the delay occurred due to misdirection of the consignment due to the negligence of the staff of the 2nd opp.party and therefore the arguments of the opp.party cannot be accepted. From the available evidence in this case we find that the delay herein is due of the negligence of the staff of this opp.party. <br /> <br /> The complainant would argue that he had spent huge sum in making arrangements with his agent at Australia to get the belated cover accepted by the Australian Dental Council and allotting him examination centre at New Delhi. Ext.P12 shows that an amount equivalent to 4910/- Dollars have to be spent by the complainant under this count. Ext.P13 series telephone bills also would show that the complainant had to make 33 telephone calls to Australia in connection with the belated receipt of the consignment Ext. P15 relates to the E mail charges incurred by the complainant in this regard. As argued by the complainant had the consignment reached the Australian Dental council within the stipulated time these expenses could have been avoided.<br /> <br /> Another contention of the complainant is that he suffered mental agony due to the belated delivery of the cover. The complainant is a young Dental Surgeon and he was seeking employments at Australia for which he was making preparation for appearing for the necessary examinations. If the application for admission to the examination conducted by the Australian Dental Council for qualifying himself contained in the consignment is rejected due to the belated delivery it is quite probable that he would not be able to appear for the examination with the result that he may have to wait for another year or years and in such circumstances it cannot be said that a person would not suffer mental agony. The contention of the complainant that he was apprehending change/ examination centre to Cairo from New Delhi due to the belated delivery of the consignment. In such circumstances every human being would suffer mental agony and the complainant in our view is eligible to get compensation for the mental agony he suffered . On a careful consideration of the entire evidence in this case we are of the view that there is deficiency in service on the part of the opp.party. Point found accordingly.<br /> <br /> In the result the complaint is allowed, directed the opp.party to pay the complainant Rs.2286/- towards telephone charges, Rs.4596/- towards E-mail charges, a sum of Rupees equivalent to 4910 dollars being the payment for the emergency work with ADC and a sum of Rs.30,000/- towards compensation and costs. The order is to be complied with within one month from the date of receipt of this order. <br /> <br /> Dated this the 14th day of May, 2008.<br /> <br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant:<br /> PW.1. – Dr. Jayan James<br /> PW.2. – Joseph<br /> <br /> List of documents for the complainant<br /> P1. – Advocate notice<br /> P2. – Acknowledgement card<br /> P3. – Cash memo<br /> P4. –Shipment Airway bill<br /> P5. – Authorisation by applicant<br /> P6. – Language Australia issued pan certificate<br /> P7. –Demand Draft<br /> P8. –Letter sent by Australian Dental Council to the complainant<br /> P9. – Exam application<br /> P10. – International tracking result<br /> P11. – Letter sent by Australian Dental Council dt. 15.12.2003.<br /> P12. – Demand statement<br /> P13. series – Telephones bills<br /> P14. – PSC Interview Card<br /> P15. – E-mail bill<br /> P16. – Exam Centre Shifted from Egypt to Delhi<br /> P17. –Information book from Australia<br /> <br /> <br />