Haryana

Ambala

CC/263/2018

Kanwar Singh - Complainant(s)

Versus

Value Ex Worldvide Pvt Ltd - Opp.Party(s)

10 Dec 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  263 of 2018.

                                                          Date of Institution           :   16.08.2018.

                                                          Date of decision    :   10.12.2019.

                     

Kanwar Singh son of Shri Anil Kumar, resident of H.No.183,  Khanpur, Ambala Cantt (Haryana).

                                                                                      ……. Complainant.

Versus

 

1. Value Ex Worldvide Pvt. Ltd. through its Branch Manager/authorized agent, Amit Arora, B-10, Mahesh Nagar, Babyal Road, Ambala Cantt.
2. Value Ex Worldvide Pvt. Ltd., A-81, Street No.4, Road No.6, Adjoining to Arrow Look Hotel, Mahipalpur Extension, New Delhi, through its Branch Manager.
3. DHL Express India Pvt. Ltd., 801-A, Silver Utopia, 8^th Floor, Cardinal Gracious Road, Chakala, Andheri, East Mumbai-400099.

                                                                            ….…. Opposite Parties.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Smt. Ashok Vats, Advocate, counsel for complainant.

OP No.1 proceeded against ex parte vide order dated 29.01.2019.

None for OP No.2.

Shri Mohinder Bindal, Advocate, counsel for the OP No.3.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay in total Rs.1,27,000/- for loss of consignment.  (Rs.1,20,000/- the value of goods+7,000/- freight charges) alongwith interest @ 18% per annum.

 

2. To pay Rs.1,50,000/- as compensation for the mental agony and physical harassment suffered by the him alongwith interest @ 18% per annum.
3. To pay Rs.33,000/- as litigation charges
   382.  

                   Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant had purchased clothes worth Rs.1,20,000/-, for sending the same to his brother-in-law namely Sahil Bains, resident of H.No.135, Hill End Road, Doon Side, New South Ways, 2767, Sydney, Australia. On 18.06.2018, he booked a consignment containing 100% polyster ladies suit, weighing 3.2 Kg in one piece vide with OP No.1 who is providing services on behalf of OPs No.2 and 3, vide bill No.530714299, shipment No.3050102521. He came to know from his brother-in-law namely Sahil Bains that the shipment was not delivered to him. He contacted the OP No.3, through various e-mails about the fate of shipment and the OP no.3 replied vide e-mail dated 25.06.2018 that ‘shipment bearing No. 3050102521 was delivered on 21.06.2018 at 13:53’. Vide E-mail dated 26.06.2018, his brother-in-law replied, that he did not get any parcel and proof of delivery as provided by the OP No.3, is having signatures of some unknown person and requested to look into the matter. The OP No.3 registered the complaint of his brother-in-law and informed about the same to him vide e-mail dated 27.06.2018. The OP No.3 illegally, without any right and authority  has taken the false plea that the parcel was dropped at the door steps without signatures of the consignee. The OP No.3 shifted the onus of negligence upon the OPs No.1 & 2, for not delivering the shipment to the consignee, whereas, all of the OPs are jointly responsible for the loss of parcel of the complainant. By not delivering the parcel to the consignee the OPs have committed deficiency in service. Hence, the present complaint.  

2.                Upon notice, none has appeared on behalf of the OP No.1 before this Forum, therefore, OP No.1 was proceeded against ex-parte vide order dated 29.01.2019.

                    Upon notice, the OP No.2 appeared through counsel and filed written version and has raised preliminary objections regarding concealment true & material facts and maintainability. On merits, it is stated that the one shipment booked from Ambala Franchisee of value Ex., a venture of 3 Aces Cargo and Courier Solutions International. Vide AWB No.7864440634 dated 16.06.2018 by the complainant to be delivered to Sahil Bains, 135, Hill End Road, Doonside, New South Wales, 2767, Sydney-Australia. After receiving the same at new Delhi office on the very next working day (as 17^th was Sunday), the said shipment,  subsequently on 18.06.2018, delivered to Committed Worldwide Express, situated at ‘A-Road No.4, Street No.3, Mahipalpur Extension, New Delhi, vide its AWB No.3034680, which is an authorized wholesalers of DHL. Said shipment subsequently, connected to DHL Worldwide vide AWB No.3050102521, whereas on dated 19.06.2018, invoice was amended as per international terminology of goods with weight i.e. 8.2 KGs. As per DHL website said shipment has been delivered to clients premises signed for by ATI. Denying rest of the averments made by the complainant, prayer has been made for dismissal of the complaint with costs.

                   Upon notice, the OP No.3 appeared and filed written version and has raised preliminary objections regarding maintainability, bad for mis-joinder of necessary parties, not coming to this Forum with clean hands and suppressed the true & material facts. On merits, it is stated that the shipment was packed when brought to it for its booking, alongwith supporting documents like invoice cum packaging list and KYC documents etc., which are required for shipment booking. As per supporting documents the shipment was alleged to contain “clothes’ and value of the shipment was declared as Rs.3850/- on AWB for customs duty purposes by the complainant himself thus he cannot be allowed to take “U” turn from his own declaration. The OP No.1 & 2 are not its agent or associates. It has no concern and dealing with OP No.1 & 2 and has not provided its service through OP No.1 & 2 at Ambala Cantt. The complainant booked the said shipment with it on credit account number 530714299 which is neither owned nor operated by the shipper, nor by the OP No.1 & 2. No privity contract existed between the complainant/shipper and OP No.3. No consideration was paid by the complainant to the OP no.3. M/s Committed Worldwide Express Pvt. Ltd. who own and operate the credit account number 530714299 is directly involved with this consignment, which is required to be impleaded being necessary party in the present complaint. The complainant has admitted that delivery report was provided by the OP No.3. Thus the statement made by complainant is contradictory and not supported by any document to prove the non-delivery of shipment. As per DHL website said shipment has been delivered to the client premises signed by ATL. There is no deficiency on its part and the complaint filed by the complainant against it, may be dismissed.

3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-14 and closed the evidence on behalf of complainant. On the other hand evidence of OP No.2 was closed by order dated 27.09.2019, passed by this Forum. The learned counsel for OP No.3 tendered affidavit of Shri Chandrasen Upadhyay, authorized signatory, DHL Express (India) Pvt. Ltd., Mumbai as Annexure OP3/A and closed the evidence on behalf of OP No.3.

4.                We have heard the learned counsel for the parties and carefully gone through the case file.

5.                The first question which arises for consideration is as to whether the complainant is consumer qua the OP No.3?

                   The learned counsel for the complainant has argued that complainant is a consumer of the OP No.3, because it had booked the consignment with the OP No.1 who is providing services to deliver the consignment/shipment through OP No.3. The Learned counsel for the OP No.3 argued that the complainant is not his consumer as he had not paid any consideration to it. Even, it has no relation with the OP No.1 and 2. From the perusal of receipt dated 18.06.2018 Annexure C-5, it is evident that on the top of the said receipt it is mentioned that ‘DHL standard terms and conditions apply’. From the E-mails dated 27.06.2018 and 03.07.2018 Annexure C-8 & C-11 respectively, it is apparent that the OP No.3, went to deliver the consignment in question to the consignee at Australia. The version of the complainant is that he had booked the consignment in question with the OP No.1 at Ambala. This version of the complainant has gone unrebutted as the OP No.1, instead of contesting the case has preferred not to appear before this Forum. It may be stated here that, if the OP No.3 had no concern with the consignment which was booked by the complainant with the OP No.1, then why its official went to deliver the said consignment to the consignee at Australia. Thus, this contention of the learned counsel of the OP No.3 is not tenable and we hold that the complainant is consumer qua the OP No.3 along with the OP No.1 and 2.

                   Second question which falls for consideration is as to whether the OPs delivered the consignment to the consignee?

                   Our answer is in negative because on the basis of documents placed on record it cannot be inferred that the OPs had delivered the consignment in question to the consignee. From the delivery receipt Annexure C-6, it is borne out that the consignment in question was delivered on 21.06.2018 and the said receipt was signed by ATL. However, from the perusal of the E-mail dated 27.06.2018 Annexure C-8, it is evident that the parcel was left without taking signatures because shipper Kanwar Singh had requested to left the parcel without signatures, but there is no documentary evidence in this regard. In the E-mail dated 03.07.2018, it is mentioned that a freight account holder (shipment agency) has a permanent agreement that no signature is required for delivery. No such agreement has been placed on record by the OP No.3. It is further mentioned that they have confirmed from their driver that consignment was left at the front door of 135 Hill End Road Doonside 2767 at 13:53 on Thursday, 21^st June. All the documents referred to above are contradictory to each other. No other document has been placed on record by the OPs to establish that the consignment was delivered to the consignee. Thus, in the absence of any cogent and convincing evidence, it cannot be said that the consignment in question was delivered to the consignee by the OPs. In this situation, we do not hesitate to conclude that the OPs have committed deficiency in service by not delivering the consignment to the consignee, and are thus liable to compensate the complainant for the loss suffered by him.

                   Now, the question which arises for consideration is what should be the quantum of compensation?

                   The learned counsel for the complainant argued that complainant is entitled to get Rs.1,20,000/- (i.e. value of the good contained in the consignment) + Rs.7,000 (i.e. freight charges) = Rs.1,27,000/-. On the contrary, the learned counsel for the OP No.3 has argued that from the Annexure C-5, it is quite clear that the declare value of the consignment in question is Rs.3850/-. Therefore, the complainant is entitled to get the insured declared value of Rs.3850/- and not Rs.1,20,000/- as sought by him. He further argued that  complainant has not placed on record any document to show that he had paid Rs.7,000/- as freight charges to the OP No.1, therefore he is not entitled to get Rs.7,000/-. On the receipt dated 18.06.2018, Annexure C-5, in the column meant for product, the name of the Express Worldwide has been mentioned and the declared value of the product is Rs.3,850/-, which shows that complainant had booked the consignment with the OPs No.1 & 2 by declaring the value of the product as Rs.3,850/. Thus, complainant is entitled to get declared value of the product i.e. Rs.3,850/- alongwith interest. The complainant is also entitled to get compensation for the mental agony and physical harassment suffered by him alongwith litigation expenses. Since, the complainant has not placed on record any document with regard to payment of Rs.7,000/- as freight charges to the OP No.1, therefore, no liability can be fastened against the OPs to pay the said amount. Taking all the facts and circumstances of the present case into consideration, we are of the view that end of justice would be met, if the OPs shall pay a lump sum amount of Rs.8,000/- to the complainant. 

6.                In view of the aforesaid discussion, we hereby allow the present complaint, and direct the OPs to pay lump sum amount of Rs.8,000/- jointly and severally to the complainant within 45 days from the date of receipt of the certified copy of this order. Failing which they shall pay interest @ 9% per annum on the awarded amount, from the date of filing of the complaint i.e 16.08.2018, till its realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :10.12.2019.

(Vinod Kumar Sharma)            (Ruby Sharma)     (Neena Sandhu)

              Member                                  Member             President