BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.177 of 2015

Date of Instt. 28.04.2015

Date of Decision: 04.10.2017

Amit Mahajan partner M/s Hans Raj Mahajan and sons G.T. Road Suranassi Jalandhar, Punjab.

..........Complainant

Versus

1. TNT India Pvt. Ltd. 305 Western Edge, Western Express Highways Borivali, (East) Mumbai 400066 through its Managing Director.

2. TNT India Pvt. Ltd. Delhi gateways, Room No.21, First Floor, EICI Terminal, IGI Airport adjacent to cargo complex New Delhi-110037. Through executive officer.

3. TNT Officer 194, Master Tara Singh Nagar, Jalandhar, through its manager.

….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. Rajneesh Dev, Adv Counsel for the complainant.

Sh. RS Sarna, Adv Counsel for the OP No.1 to 3.

Order

Karnail Singh (President)

1. The instant complaint filed by the complainant, wherein alleged that complainant firm is a partnership firm and carrying on the business of manufacturing and export of sports goods by the name of M/s Hans Raj Mahajan and Sons. Sh. Amit Mahajan is one of the partners of M/s Hans Raj Mahajan & Sons, who is fully conversant with the facts of the present complaint. The OPs are doing the business of logistic-service provider having head office at Mumbai and branch offices through out India. The OPs had been providing services for the shipment of exports of sport goods, complainant used to get drawbacks as per bills through OPs, which were the subsidies available to exporters since long as such, complainant is a consumer as per law.

2. The complainant sent shipment documents of bill No.4106 dated 01.05.2010 through OP No.2, but the complainant did not receive drawback of Rs.46,421/- and focus @ 7% on FOB Value (7,36,535) Rs.51,557/-. These incentives are available to exporters for shipment of goods. Complainant contracted the officials of the OPs and requested them to remit drawback of Rs.46,421/- and focus Rs.51,557/- with 12% interest per annum, but they procrastinated the payment on one or other pretext, ultimately complainant made representation through email account to OPs and their officers, which passed on to Ketan (Customer Service Executive), Aman Arora (Area Manager), Nitin Dave, Raina (Jalandhar Office), Ajay Kumar Rawal, P.Jain, Rahul, Ranjit Singh etc. Thus, the OPs earlier informed that drawback of the said bill was wrongly sent to M/s Hans Raj Mahajan Worldwide. However, the complainant has no connection with the said firm, the said reply was sent by Ketan on 16.12.2013 through email while asking for tracking details, then email dated 26.12.2013 was sent to Ketan with said report, CC to Aman Arora again. Another email was sent to Ketan regarding incentive amount alongwith compensation for mistake. Ketan forwarded this complaint to Aman Arora to sent email on 10.03.2014 by giving vague reply that it was old case and TNT will not be able to help the complainant and direct the complainant to take up the matter to custom directly and assured assistance from TNT staff at airport. Emails were received on 08.04.2014 from Aman Arora, who again directed the complainant to seek help of TNT Staff at New Delhi airport, which was replied on same day by reminding Ludhiana office that TNT officers should follow up the case, otherwise the complainant shall be constrained to file a legal action against TNT. The OPs did not follow up the case, rather they made lame excuses, which amounts to unfair trade practice and deficiency in service. It was the duty and responsibility of the logistic company i.e. OPS to file the documents and to represent complainant for claim for incentive but the OPS have played unfair trade practice and as such, the complainant suffered both mental and physical harassment and accordingly, this present complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay incentive i.e. drawback Rs.46,421/- and focus Rs.51,557/- and further be directed to pay compensation of Rs.1,00,000/- and litigation expenses of Rs.11,000/-.

3. Notice of the complaint was given to the OPs and accordingly all the OPs appeared through their counsel and filed written reply, whereby controverted the factum as narrated in the complaint and further alleged by taking preliminary objection that the present complaint is not maintainable in the eyes of law and same has not been properly verified as required under law. It is further averred that the complainant in the complaint, clearly made out that the complainant had availed the services of the OPs for commercial purpose, as the complaint is liable to be dismissed on this ground itself as the same is not maintainable and further alleged that the instant complaint has been filed by the complainant with the sole motive of pressurizing and harassing the answering OPs and further alleged that the complaint is not maintainable, since the complainant has concealed the material facts from the Forum and even the complaint of the complainant is time barred and further submitted that the complainant has deliberately failed to make the Clearing House Agent (CHA) as a necessary party in this complaint. The Clearing House Agent (CHA) handles the clearance and customs issues, as it was the CHA's responsibility to mention the names and addresses of the complainant with the customs and getting the drawbacks in favour of the complainant. Instead the CHA erroneously mentioned the name of the complainant as Hans Raj Worldwide and despite being informed about the same, the complainant slept over the issue till it was time barred. The CHA is solely liable for the loss of the complainant and the complainant has failed to make it as a necessary party to this complaint. Due to this non-joinder of necessary parties, this complaint is also liable to be dismissed on this ground. On merits, the entire allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, counsel for the complainant tendered into evidence two affidavits Ex.CA and Ex.CB alongwith some documents Ex.C1 to Ex.C19 and closed the evidence.

5. Similarly, counsel for the OPs tendered into evidence duly sworn affidavit Ex.DW1/A alongwith document Ex.D1 and closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. In nutshell, the complainant raised an issue that the complainant firm is a partnership firm and carrying on the business of manufacturing and export of sports goods by the name of M/s Hans Raj Mahajan & Sons and used to get the services from OPs for the shipment of exports of sports goods and in lieu of that the complainant used to get drawbacks as per bills through OPs, which were the subsidies available to exporters since long and as such, the complainant is a consumer as per law and entitled to receive drawback of Rs.46,421/- and Rs.51,557/-, as these incentives are available to exporters for shipment of goods but for the best known reason, the OP has not sent the said drawback of Rs.46,421/- and Rs.51,557/-.

8. The allegation of the complainant is refuted by the OP by denying all the facts, on the ground that the said incentive is to be provided by Clearing House Agent (CHA) and as such, the complainant is entitled to get the said incentive drawbacks from Clearing House Agent and not from the OPs. We have gone through the entire file and find that the complainant has brought on the file his own affidavits, Some Emails, Invoice/Bills, Form-A for registration of firm and Packing/Weight List and House Air Waybill, but no such like document has been brought on the file by the complainant to establish that there was any agreement with the OPs for return of drawbacks in the shape of incentive upon sending a sport goods through shipment. So, in the absence of any agreement between the complainant and OPs for return of any drawback/incentive, the complainant is not entitled to demand the said drawback/incentive from the OPs as a matter of right.

9. We have also considered the plea taken by the OPs that the complaint of the complainant is time barred and also took a plea that the complainant had availed the services of the OPs for commercial purpose and on these two legal aspect, the OPs have made a request for dismissal of the complaint. The factum in regard to availing services for commercial purpose and claim of the complainant is time barred, shows the light of sun by the OPs through reply and accordingly at this stage, we considered these factum and find that the complainant itself stated in the complaint that the complainant is a partnership firm and carrying on the business of manufacturing and export of sports goods by the name of M/s Hans Raj Mahajan & Sons and used to get the services of the OPs for the shipment of exports of sports goods and from that commercial business, the complainant has been getting the services from the OP for giving incentives to the complainant by way of drawback, the said incentive/drawback is demanded by the complainant for the activities of commercial transaction and as such, we are of the opinion that whenever any commercial transaction is come in the picture, then complaint under the Consumer Protection Act is not maintainable. So, for the question of limitation is related, for that the complainant has alleged that one Aman Arora, employee of the OP sent a last email on 10.03.2014 and if, we reckon the period of limitation from 10.03.2014, then we find the instant complaint filed on 28.04.2015 within a stipulated period of two years. Therefore, the complaint is not time barred.

10. In nutshell, the above discussion itself established that the counsel for the complainant could not able to put any substantive circumstances, where from we can construe that the case of the complainant is proved, if so then, it is apparently established that the complaint of the complainant fails and accordingly, the same is dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.

11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

04.10.2017 Member President