Punjab

Ludhiana

CC/21/151

Karnail Singh - Complainant(s)

Versus

DHL Express (I) Pvt.Ltd - Opp.Party(s)

Vishal Kumar Adv.

12 Aug 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 151 dated 18.03.2021.                                                        Date of decision: 12.08.2022.

 

Karnail Singh aged 56 years S/o. Sh. Ajaib Singh, R/o. House No.1607/3, St. No.4, Shimlapuri, Ludhiana.                                                                                                                                                              ..…Complainant 

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1. DHL Express (I) Pvt. Ltd., Express Courier Terminal IGI Airport, New Delhi-110037, through its Authorized Signatory;
2. Blue Dart Sahar Airport Road, Near Hyatt Regency, Ashok Nagar, Andheri East, Mumbai, Maharashtra-400099, through its Authorized Signatory.                                                                                                                                                                    …..Opposite parties 

Complaint under Section 35 of the Consumer Protection Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Vishal Kumar Dua, Advocate.

For OP1                         :         Sh. Suresh Kumar Shounik, Advocate.

For OP2                         :         Sh. Sudhir Gakhar, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                In brief, the case of the complainant is that his son Gurdit Singh is living in Malaysia and he sent a consignment/parcel to the complainant vide AWB No.4129909486 dated 19.12.2020. The complainant also received a letter from the OPs regarding the consignment but till date the said consignment has not been delivered to the complainant. The employees of the OPs many times informed the complainant and demanded certain documents such as Aadhar card etc. The complainant delivered all the relevant documents to the OPs but even after submitting the documents, the OPs have failed to deliver the parcel to the complainant. A legal notice dated 09.02.2021 served through Sh. Vishal K. Dua, Advocate failed to elicit a positive response from the OPs. This amounts to deficiency of service on the part of the OPs. In the end, it has been requested that the Ops be directed to deliver the parcel to the complainant and be also made to pay compensation of Rs.1,00,000/- for deficiency of service and causing harassment to the complainant.

2.                Upon notice, the OPs did not appear despite service and were proceeded against exparte vide order dated 16.07.2021. Subsequently, OP1 and OP2 appeared and filed separate applications for setting aside/recalling the order dated 16.07.2021 and vide order dated 12.10.2021, the OPs were permitted to join the proceedings from the stage where the case was pending at when the said applications were filed.

3.                In evidence, the complainant submitted his affidavit Ex. CA along with documents Ex. C1 to Ex. C15 and closed the evidence.

4.                On the other hand, the counsel for OP1 submitted affidavit Ex. OP1/A of Sh. Chandrasen Upadhyay, Legal Manager of OP1 along with documents Ex. OP22 to Ex. OP27 and closed the evidence.  The counsel for OP2 submitted affidavit Ex. OP2/A of Sh. Kush Srivastava, Manager Legal of OP2 along with documents Ex. OP1 to Ex. OP22 and closed the evidence.

5.                In his affidavit Ex. CA, the complainant has reiterated his case as set forth in the complaint.

6.                On the other hand, the stand taken up by OP1 in affidavit Ex. OP1/A, Sh. Chandrasen Upadhyay, Legal Manager of OP1 affirmed that the complainant is not a consumer of OP1. According toOP1, the shipment was booked by one Gurdit Singh with DHL Malaysia in Kuala-Lumpur. The consideration amount was also paid by Gurdit Singh. There is no privity of contract between the complainant and OP1. Moreover, the complaint is bad for non-joinder of necessary parties as the complainant has not impleaded Gurdit Singh who booked the consignment. Moreover, there has been no deficiency of service on the part of OP1. The shipment could not be delivered as the complainant himself failed to comply with the statutory requirements within the stipulated time period. OP1 has further pleaded that as per AWB and commercial invoice details, the declared value of the shipment was MYR 132.25 equivalent to Rs.2317/- as on 29.07.2021. The shipment contains shoes and watch. The shipment arrived in India on17.11.2020. The OP1’s customs clearance team contacted the complainant for uploading KYC documents on the portal. KYC documents were uploaded only on 29.12.2020 after much delay. Though the KYC was approved but the complainant failed to approve the checklist shared by OP1 which was a mandatory document for filing Bill of Entry. The complainant also did not approve the amount of import customs duty claimed by Government of India despite repeated requests. OP1 has further imposed that every imported goods in India are subject to clearance from the Customs Department and governed by the Customs Act, 1962. Such imported goods are required to be sent to custodian warehouse directly from the aircraft post after its landing in India under supervision of Customs Officials. The custodian Warehouse is supervised and regulated by the Customs Department, Government of India under licence. The courier Company, who is carrying the shipment, is required to inform the importer about arrival of the shipment in India and share some web-link with the importer for uploading his KYC documents and after its acceptance, the courier company files Bill of Entry for the shipment for its import duty assessment under Section 46 of the Customs Act, 1962. It also seeks approval on import checklist and import duty amount from the importer. The courier company only facilitates the import process and acts as an authorized courier whereas the import duty, if not, paid by the shipper in advance, has to be paid by the importer for clearance of import shipment at destination. If the KYC documents are not uploaded and bill of entry is not filed by the importer and the import customs clearance formalities is not completed within 30 days from the day of arrival of the shipment, the customs department have the right to declare it as abandoned shipment and in that event, importer has to pay extra charge for late presentation of bill of entry. In this case, the complainant was informed by OP1 for uploading his KYC documents on 17.11.2020 whereas the documents were uploaded only on 29.12.2020. As the stipulated period of 30 days for uploading and filing of bill of entry expired, the shipment was transferred to the custodian warehouse where it is still lying. After the uploading of KYC documents, the complainant was asked to approve the import checklist/details of bill of entry along with customs duty/ware housing charges etc. which was never approved by the complainant. Therefore, the bill of entry has not been filed till date with the customs department for customs clearance. As the prescribed period of 30 days expired, the customs department has treated the shipment as abandoned which is presently lying in the warehouse for its sale/auction/destroy as per the applicable rules and regulations. If the complainant wishes to receive the shipment, he needs to pay the customs duty/delay charges/penalty as per applicable law to the Government of India. OP1 has been continuously following up the matter with the complainant over email and telephone but the complainant never turned up for approval of checklist for filing bill of entry nor he agreed to pay the import customs duty. Instead the complainant informed OP1 over telephone that he is not interested in receiving the shipment and OP1 may return the shipment to the sender Gurdit Singh. However, return of shipment was not possible in the absence of requisite documents from the complainant and permission of the customs authority. Moreover, due to delay, the shipment could not have been returned without the permission of the customs authorities and the complainant never applied for such permission before the customs authority. Therefore, the present complaint is not maintainable and has been filed with a malafide intention. The deponent further deposed that there has been no deficiency of service and the complaint be dismissed with costs.

7.                We have heard arguments advanced by the counsel for the parties as well as written arguments submitted by OP1 and have also gone through the record carefully.

8.                During the course of arguments, the counsel for the complainant has vehemently argued that the OPs have not delivered the parcel sent by the son of the complainant to him from Malaysia on 19.12.2020 through the OPs despite the fact that the complainant delivered all the relevant documents to the OPs. The counsel for the complainant has further contended that this clearly amounts to the deficiency of service on the part of the OPs.

9.                On the other hand, the counsel for the OPs have argued that at a matter of fact, the complainant himself has been negligent as he did not submit the KYC documents which were eventually uploaded by the complainant only on29.12.2020. The counsel for the OPs have further argued that the imported goods are subject to import custom clearance. According to the OPs, the courier company simply facilitates the import process and acts as an authorized courier and if the import duty is not paid by the shipper in advance, then the same has to be paid by the importer for clearance of import shipment at destination. It has also been argued by the counsel for the OPs that if the KYC documents are not uploaded and bill of entry is not filed by the importer and the import customs clearance formalities are not completed within 30 days from the day of arrival of the shipment, the customs department have right to treat the same abandoned shipment and in that event, importer is required to pay extra charge for late presentation of bill of entry. In this case, the complainant was informed by OP1 for uploading his KYC documents on 17.11.2020 whereas the documents were uploaded only on 29.12.2020. As the stipulated period of 30 days for uploading and filing of bill of entry expired, the shipment was transferred to the custodian warehouse where it was still lying. Thus, no case of deficiency of service n the part of the OPs is made out.

10.              We have weighed the contentions raised by the counsel for the parties and have gone through the record.

11.              It is not disputed that the consignment was sent from Malaysia to India and it was sent by Gurdit Singh son of the complainant from Malaysia. The complainant has not, however, mentioned anything in the complaint as to what goods were sent by his son Gurdit Singh from Malaysia. However, as per the case of the OPs, parcel contained a pair of shoes and watch. It is a matter of common knowledge that all the goods received from foreign country are subject to customs clearance for which KYC documents are to be uploaded and the custom duty, if leviable is also required to be paid. The OPs asked the complainant to upload the KYC documents on many occasions. In this regard, a reference can be made to the copies of emails sent to the complainant which are Ex. OP1 to Ex. OP22. As the complainant failed to up-load the documents within time, the period of 30 days within which the formalities were required to be completed lapsed with the result that the customs department put the shipment as abandoned. The consignment can be got released only if the delay charges of customs duty/penalty is paid to the Government of India and these facts were also brought to the notice of the complainant through an email Ex. OP3 that vide circular dated 31.03.2017 issued by the Customs Department, if the bill of entries not filed within time specified in sub-regulation, the importer/consignee is liable to pay the charges for late presentation of the bill of entry at the rate of INR 5000/- per day for the initial 3 days of default and at the rate of INR 10,000/- per day for each day of default thereafter. The complainant has not led any tangible evidence to prove that he had done the needful so far as the submission of KYC documents and bill of entry is concerned. In these circumstances, the OPs cannot be held at fault nor it can be said to be a case of deficiency of service on the part of the OPs.

12.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:12.08.2022.

Gobind Ram.

Karnail Singh Vs DHL Express                                                CC/21/151

Present:       Sh. Vishal Kumar Dua, Advocate for the complainant.

                   Sh. Suresh Kumar Shounik, Advocate for the OP1.

                   Sh. Sudhir Gakhar, Advocate for OP2.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:12.08.2022.

Gobind Ram.