Date of Filing : 21.06. 2006
Date of Order : 08.03.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A,D.Min.PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.81/2006
TUESDAY THIS 8th DAY OF MARCH 2016
City Union Bank Ltd.,
International Banking Division,
Rep. by its Manager,
Mount Road,
Chennai 600 002. ..Complainant
..Vs..
TNT India Private Ltd.,
The Customer Service Manager,
No.82/1, Richmond Road,
Bangalore 560 025.
At Branch T.N.T. India Private Ltd.,
The Customer Service Manager,
No.25, 3rd Cross Street,
Nandanam, Chennai – 35. ..Opposite parties
For the Complainant : M/s. R.Sivaraman
For the Opposite parties : M/s. Poornima & Saradha
Complaint under section 12 of the Consumer Protection Act 1986. Complaint is filed seeking direction against the opposite parties to pay a sum of Rs.6,50,000/- being the actual damages on account of the demurrage incurred on account of non delivery of consignment with interest and also to pay a sum of Rs.1,00,000/- as compensation and Rs.10,000/- as cost of the complaint to the complainant.
ORDER
THIRU. T.PAUL RAJASEKARAN :: MEMBER-II
1.The case of the complainant is briefly as follows:
The complainant submit that he had sent an export document bill by courier on 30.12.2003, the said bill drawn by K.B. Exports Madurai to be delivered at Bank Muamlat Malaysia Berhad, in Kolalumbur, Malaysia under consignment note No.GD 124 743 722 WW. dated 30.12.2003. The said consignment was not delivered to the intended address, where the opposite party had not given any proof of delivery. To ascertain factum of delivery the complainant themselves enquired with the foreign bank which the consignment was addressed to and established the said consignment was not delivered to the addressee mentioned in the consignment note. The complainant also submit that this non delivery of consignment resulted in incurring heavy demurrage and soft damage from the opposite party. The complainant wrote a letter to the opposite party on 21.4.2004 that the consignment sent by the courier had reached the destination point, from 30.4.2004 the opposite party that they could not delivered the consignment and had returned the document back to the complainant. On 14.7.2004 the complainant sought for the evidence proof of delivery. On 27.8.2004 the opposite party had shown the photo copy of letter where return document were given back to the complainant but it does not belong to the complainant’s signature. The complainant contended that the documents sent by the complainant to Malasiya neither delivered nor returned to the complainant. The complainant pleads that the demurrage and damages had incurred to him because of the deficiency of service uttered by the opposite party. The complainant claims due to the non delivery of the consignment at the destination point that he had incurred 6.7 lakhs damages on account of demurrages and the foreign buyer had settled this bill 5000 Us $ as against the 18,000 US $ this loss was only due to the deficiency of service made by the opposite party. Despite of many communications were made to the opposite party they had not responded properly,. As such the complainant sought for claims for a sum of Rs.6,50,000/- being the actual damages on account of the demurrage incurred on account of non delivery of consignment with interest and also to pay a sum of Rs.1,00,000/- as compensation and Rs.10,000/- as cost of the complaint to the complainant. Hence the complaint.
Written version opposite parties are briefly as follows:
2. The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The opposite parties submit that the consignment was accepted by the opposite parties herein only subject to the terms and conditions of carriage printed on the reverse of the Airway bill. In terms of conditions No.3, thereof the complainant by handling over the shipment to the opposite parties had accepted the terms and conditions set out in the contract of carriage. As admitted by the complainant by its letter dated 14.7.2004 the consignment was sent on 30.12.2003 and it was only on 21.4.2004 that it was first brought to the notice of the opposite parties herein, about the non-delivery of the consignments i.e. nearly after four months which is in clear violation of clause 16. The complainant has not paid the consignment charges to the opposite party pertaining to the consignment as stipulated in Clause -16 of the terms and conditions and hence the complainant has till date i.e. nearly after three years not lodged any valid claim with the opposite parties in keeping with the above clause. Therefore the claim is barred by limitation. There has been no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.
3. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A11 were marked on the side of the complainant. Proof affidavit of Opposite parties filed and no document were marked on the side of the opposite parties.
4. The points that arise for consideration are as follows:-
1) Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to the reliefs asked for?.
5. POINTS 1 & 2 :
Perused the complaint filed by the complainant and his proof affidavit and documents Ex.A1 to Ex.A11 were marked on the side of the complainant. Written version and proof affidavit filed by the opposite parties and no document was marked on the side of the opposite parties and also considered the both side arguments.
6. The complainant had sent an export document bill by courier on 30.12.2003, the said bill drawn by K.B. Exports, Madurai to be delivered at Bank Muamlat Malaysia Berhad, in Kolalumbur, Malaysia under consignment note No.GD 124 743 722 WW, dated 30.12.2003. The said consignment was not delivered to the intended address, where the opposite party had not given any proof of delivery, to ascertain factum of delivery the complainant themselves enquired with the foreign bank which the consignment was addressed to and established the said consignment was not delivered to the addressee mentioned in the consignment note.
7. This non delivery of consignment resulted in incurring heavy demurrage and soft damage from the opposite party. The complainant wrote a letter to the opposite party on 21.4.2004 that the consignment sent by the courier had reached the destination point, from 30.4.2004 the opposite party that they could not delivered the consignment and had returned the document back to the complainant. On 14.7.2004 the complainant sought for the evidence proof of delivery. On 27.8.2004 the opposite party had shown the photo copy of letter where return document were given back to the complainant but it does not belong to the complainant’s signature. The complainant contended that the documents sent by the complainant to Malasiya neither delivered nor returned to the complainant. The complainant pleads that the demurrage and damages had incurred to him because of the deficiency of service uttered by the opposite party. The complainant claims due to the non delivery of the consignment at the destination point that he had incurred 6.7 lakhs damages on account of demurrages and the foreign buyer had settled this bill Rs.5000 Us $ as against the 18,000 US $ this loss only due to the deficiency of service made by the opposite party. Despite of many communications were made to the opposite party they have not responded properly, hence he claimed loss of 6.5 lakhs and compensation of Rs.1,00,000 and litigation charges for Rs.10,000/-.
8. On the other hand the opposite parties contended that he cited the claim procedure how a claim should be lodged with the opposite party a notification has to be given to the opposite parties in writing either within two days after delivery of the shipment or within 21 days of the date the shipment should have been delivered and then within 21 days document the claim by sending all the relevant information about the shipment and the loss, damage or delay suffered. Admittedly the opposite parties states that the complainant informed the opposite party nearly after four months which is clear violation of clause -16 of the conditions stipulated their way. The opposite parties states that the complainant gave an insufficient address hence the consignment could not be delivered which is beyond their control. This was informed to the complainant on 20.1.2004 and the opposite parties states the return document was given back to the complainant on 20.1.2004 which was acknowledged by their employee. Hence they are not liable to pay any compensation.
9. In pursuant of the documents filed to this forum, and affidavit and written version submitted, it is obligatory on the part of the opposite party to honour the commitment to deliver the consignment at the destination point by receiving the consideration, which had not been adhered to. Skipping the burden stating that we have returned the consignment back to the complainant where the opposite party had not established any proof to that effect. The complainant stated that he had to pay demurrages at the destination point for non delivery of this document resulted in to a loss of Rs.6.5 lakhs, the complainant had not submitted any evidence that he had paid the demurrage at destination point. Had the documentary evidences were submitted to this forum this could have been accepted. Since the opposite parties have not proved the deficiency of service, we are of the considered view that the complainant could have suffered a mental agony in search of the document sent through the courier resulting in mental torture. Since the complainant had not proved the demurrages paid by him we are not inclined to grant the reimbursement of demurrages but direct the opposite parties to pay a compensation of Rs.25,000/- and litigation charges of Rs.5,000/- to the complainant.
In the result the complaint is partly allowed. The opposite parties 1 & 2 are jointly and severally directed to pay a sum of Rs.25,000/- (Rupees Twenty five thousand only) as compensation and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) as litigation charges to the complainant within six weeks from the date of this order, failing which the above said compensation amount (Rs.25000/-) will also carry interest at the rate of 9% p.a. from the date of this order to till the date of payment.
Dictated directly by the Member-II to the Assistant, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the day of February 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents :
Ex.A1- 30.12.2003 - Copy of bill schedule
Ex.A2- 30.12.2003 - Copy of the Airway bill.
Ex.A3- 10.3.2004 - Copy of complainant message to the foreign bank.
Ex.A4- 16.3.3004 - Copy of message by the foreign bank.
Ex.A5- 21.4.2004 - Copy of the letter by the complainant.
Ex.A6- 30.4.2004 - copy of the reply letter by the opposite party
Ex.A7- 14.7.2004 - Copy of the letter by the complainant.
Ex.A8- 21.8.2004 - Copy of letter by the complainant.
Ex.A9- 21.8.2004 - Copy of letter by the opposite party.
Ex.A10- 27.8.2004 - Copy of the letter by the opposite party enclosing the
Letter dated 212.1.2004.
Ex.A11- 7.3.2005 - Copy of the legal notice.
Opposite parties’ side documents:
.. Nil ..
MEMBER-I MEMBER-II PRESIDENT.
