CC No.1144.2015

Filed on 16.06.2015

Disposed on 16.12.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 16^th DAY OF DECEMBER 2016

CONSUMER COMPLAINT NO.1144/2015                                                                                                                                                                                                                                                   

PRESENT:

     Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

            PRESIDENT

                 Smt.L.MAMATHA, B.A., (Law), LL.B.

                        MEMBER

                 Sri.  BALAKRISHNA V.MASALI B.A., LL.B

                          MEMBER

                                  V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 16.06.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to reimbursement of Rs.15,596/-, to pay compensation of Rs.30,000/- and to pay Rs.5,000/- towards legal proceedings and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that he booked his shipment which included Smart Phone worth of Rs.13,999/- plus Power Bank worth of Rs.899/- totaling to Rs.14,898/-, Track Nos.773436085223, on 23.04.2015 at FedEx for delivery to his home town.  All formalities including shipment Invoice valuation shown as approx. Rs.15000/- in their record and freight charges of Rs.596/- during the booking day of shipment and was assured that the shipment will be delivered to its destination in Jhansi on 2^nd May 2015.  But notice the leniency and unreliability of FedEx services that even taking all formalities, when shipment already transit on its way on 24^th April 2015 for delivery and travelled through different cities for almost a week, then these Guys suddenly realized somewhere at end location Gurgaon, Haryana and mailing and troubling the Complainant on 4^th May 2015, that the shipment cannot be delivered to its destination due to requirement of document Form 39 and delivery of the shipment was put on hold and was finally left stranded in Gurgaon Local FedEx facility.  The Complainant informed them in mail that since he was not at all informed about such requirements on the day of booking the shipment, and ultimately since it is a mistake from FedEx end, he requested them to kindly deliver the shipment along with the freight charges as taken, back to its source i.e., Bangalore as soon as possible.  They agreed in mail for the reverse shipment and various complaint Nos.0516002759, 0503000082 and 0516002759 were raised for it but even repeated requests for a reverse shipment have fallen on deaf ears.  The Complainant had written half a dozen mails to the FedEx and called them several times.   All that the Complainant got was a false reassurance from them that their operations team are in process of shipping back the shipment and kept asking the Complainant to grant then more & more time.   They kept delaying the matter and on 26^th May 2015, they mailed giving an embarrassing news that shipment is declared as lost by our operations team and asked the Complainant to share his account detail so that they can process the refunds. At this point itself considering their negligence, the Complainant shared them account details and made them very clear that the full reimbursement for the lost shipment along with the freight charges taken should be done then only the refund will be accepted.  But see the heights of fraud, no details about the reimbursement amount was mentioned till then, so that they can get freedom to reimburse the amount of their choice, if even by mistake consumer would have simply agreed to it and replied to their false trap in mail without explicitly mentioning them the actual amount of losses. Finally on 2^nd June 2015 they concluded that they have lost the shipment and mailed that they will refund only Rs.5,427.40/- only Rs.5,000/- as compensation to lost shipment plus only Rs.427.30/- as the freight charges instead of Rs.596/- to which the Complainant never agreed.  Hence this complaint.  

3. In response to the notice, the Opposite Party No.1 put their appearance through their counsel and filed their version. In the version pleaded that the Opposite Party is the Authorized Ship Center of FedEx Express Transportation & Supply Chain Services Private Limited.  The Complaint is misconceived, frivolous and vexatious and is liable to be dismissed.  The complaint is not maintainable. The Complainant has failed to demonstrate any deficiency in service of the Opposite Party No.1. The Complainant’s had booked his consignment via Opposite Party No.1 through Opposite Party No.2, vide FedEx Airway Bill No.773436085223 on 24^th April, 2015.  That, the subject consignment was held up for the requirement of Form No.39 (Sales Tax) at Gurgaon and the same was duly informed by the representative of the Opposite Party No.1 to the Complainant.  Subsequently, the Opposite Party No.2 requested to return the shipment.  However, in meantime the shipment went missing and the same was not traceable.  Therefore, the Opposite Party No.1 duly informed the Opposite Party No.2 regarding the loss of consignment on 21.05.2015 and agreed to recompense the Complainant as per the Conditions of Carriage.   All consignments shipped through the Opposite Party are subject to the conditions of Carriage and the Opposite Party accepts shipments for carriage upon Conditions of Carriage.    These conditions of Carriage excludes liability on the part of the Opposite Party No.1 and its employees or agents for loss and damage in certain circumstances and limits liability to stated amounts where liability is accepted.  As per the said Conditions of Carriage, specifically Clause-14 which deals with Declared Value and Limits of Liability of Opposite Party No.1 for any loss or damage to any shipment shall be the lowest of Rs.5,000/- in case of non-documents as in the case of the Complainant.  Clause 14 of the Conditions of Carriage is set out as under:

14. Declared Value & Limits of Liability

14.1. The liability of FedEx for any loss or damage to any shipment shall be the lowest of (a) INR 1,000/- in case of documents and INR 5,000/- in case of non-documents, or (b) The amount of loss or damage to the shipment actually sustained or (C) The actual value of the shipment as determined, without regard to the commercial utility or special value to the shipper.

 14.2. The declared Value for Carriage cannot exceed the invoice value.

14.3. The maximum Declared Value for Carriage and invoice value is limited as follows: FedEx Priority Overnight TM:INR 5000/- per shipment; FedEx Standard Overnight TM: INR 50,00,000/- per shipment and FedEx Economy TM: INR 1,00,00,000/- per shipment.  Goods with a value (actual or declared) exceeding these amounts should not be sent using these services.

14.4. Any declaration of a value in excess of the maximums allowed by FedEx is null and void.  FedEx’s inadvertent acceptance for carriage of any shipment bearing a declared value in excess of the allowed maximums does not constitute a waiver of any provision of or limits as to such shipment. 

14.5. If the Declared Value for Carriage or Invoice Value for a shipment exceeds the Authorized Limits, such value shall automatically be reduced to the Authorized limits for such shipment.

14.06. the actual value of a shipment (\which term shall include any item of commercial value which is carried hereunder) shall be ascertained by reference to the cost by repair or replacement/resale or fair market value not exceeding the original cost of the article actually paid by the shipper, always within the overall limit of INR 1,000/- in case of documents and INR 5,000/- in case of non-documents. 

Accordingly, the Opposite Party No.1 settled the claim with the Opposite Party No.2 as per Limit of Liability clause.  The Opposite Party has credited Rs.5,000/- as per the Limit Liability Clause to the Opposite Party No.2 for full and final settlement for the loss of consignment.   Under the circumstances, the Opposite Party has always acted as per terms and conditions and there is no deficiency on the part of the Opposite Party No.2. The Opposite Party denies that there is any fraud, negligence on the part of the Opposite Party.  The Opposite Party has always acted as per terms and conditions of the agreement and credited Rs.5,000/- along with the freight charges accordingly for the full and final settlement for the subject consignment.  Therefore submitted that by crediting Rs.5,000/- along with freight charges to the Opposite Party No.2 as compensation for loss of consignment in transit, the Opposite Party has discharged its liability under the conditions of Carriage.  The Complainant has failed to provide any documentary proof to show that he is entitled to the compensation claimed by him. The Opposite Party has duly compensated Printo as per the said Conditions of Carriage and discharged its liability under the Conditions of Carriage.  For the aforesaid reasons, the Complainant is not entitled to any relief, cost or compensation from the Opposite Party 1.

4. The Complainant filed application to implead the Opposite Party No.2, the impleading application was allowed and notice was issued to the Opposite Party No.2. 

In response to the notice, the Opposite Party No.2 put their appearance through their counsel and filed their version. In the version pleaded that Opposite Party No.2 is an agent of Opposite Party No.1 i.e., Authorized Ship Centre of FedEx Express Transportation and Supply Chain Services Private Limited.  There is an agreement between Opposite Party No.1 and Opposite Party No.2, the limits of liability of this agreement are governed by first Opposite Party’s conditions of carriage. The Complainant’s had booked his consignment via Opposite Party No.1 through Opposite Party No.2, vide FedEx Airway Bill No.773436085223 on 24^th April, 2015.  That, the subject consignment was held up for the requirement of Form No.39 (Sales Tax) at Gurgaon and the same was duly informed by the representative of the Opposite Party No.1 to the Complainant.  Subsequently, the Opposite Party No.2 requested to return the shipment.  However, in meantime the shipment went missing and the same was not traceable.  Therefore, the Opposite Party No.1 duly informed the Opposite Party No.2 regarding the loss of consignment on 21.05.2015 and agreed to recompense the Complainant as per the Conditions of Carriage.   All consignments shipped through the Opposite Party are subject to the conditions of Carriage and the Opposite Party accepts shipments for carriage upon Conditions of Carriage.    These conditions of Carriage excludes liability on the part of the Opposite Party No.1 and its employees or agents for loss and damage in certain circumstances and limits liability to stated amounts where liability is accepted.  As per the said Conditions of Carriage, specifically Clause-14 which deals with Declared Value and Limits of Liability of Opposite Party No.1 for any loss or damage to any shipment shall be the lowest of Rs.5,000/- in case of non-documents as in the case of the Complainant.  Clause 14 of the Conditions of Carriage is set out as under:

14. Declared Value & Limits of Liability

14.1. The liability of FedEx for any loss or damage to any shipment shall be the lowest of (a) INR 1,000/- in case of documents and INR 5,000/- in case of non-documents, or (b) The amount of loss or damage to the shipment actually sustained or (C) The actual value of the shipment as determined, without regard to the commercial utility or special value to the shipper.

 14.2. The declared Value for Carriage cannot exceed the invoice value.

14.3. The maximum Declared Value for Carriage and invoice value is limited as follows: FedEx Priority Overnight TM:INR 5000/- per shipment; FedEx Standard Overnight TM: INR 50,00,000/- per shipment and FedEx Economy TM: INR 1,00,00,000/- per shipment.  Goods with a value (actual or declared) exceeding these amounts should not be sent using these services.

14.4. Any declaration of a value in excess of the maximums allowed by FedEx is null and void.  FedEx’s inadvertent acceptance for carriage of any shipment bearing a declared value in excess of the allowed maximums does not constitute a waiver of any provision of or limits as to such shipment. 

14.5. If the Declared Value for Carriage or Invoice Value for a shipment exceeds the Authorized Limits, such value shall automatically be reduced to the Authorized limits for such shipment.

14.06. the actual value of a shipment (\which term shall include any item of commercial value which is carried hereunder) shall be ascertained by reference to the cost by repair or replacement/resale or fair market value not exceeding the original cost of the article actually paid by the shipper, always within the overall limit of INR 1,000/- in case of documents and INR 5,000/- in case of non-documents. 

Accordingly, the Opposite Party No.1 settled the claim with the Opposite Party No.2 as per Limit of Liability clause.  The Opposite Party has credited Rs.5,000/- as per the Limit Liability Clause to the Opposite Party No.2 for full and final settlement for the loss of consignment.  The Complainant has very well agreed on the terms and conditions mentioned on the Invoice.  Under the circumstances, the Opposite Party No.2 had always acted as per terms and conditions and there is no deficiency on the part of the Opposite Party No2. The Opposite Party No.2 has completed the claims process as instructed by the Opposite Party No.1, by refunding Rs.5,427/- vide NEFT on 12.06.2015.  The Opposite Party No.2 has failed to settle the matter, but he could not non-cooperation of the Complainant, the representative of the Opposite Party No.2 had issued an email to the Complainant.  Inspite of such genuine attempts of the Opposite Party No.2, the Complainant did not come forward for a settlement by providing the required documents.  For the aforesaid reasons, the Complainant is not entitled to any relief, cost or compensation from the Opposite Party No.2.  Hence prays to dismiss the complaint.

 5.    The Complainant, Sri.Nickey Agarwal has filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party No.1, the affidavit of one Mrs.Roopa, working as Authorized Representative and Signatory has been filed.  On behalf of the Opposite Party No.2, the affidavit of one Mr.Prethish Nandi working as Authorized Signatory has been filed.  Heard the arguments of both parties.  

6.     The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

7.     Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

8.   POINT NO.1:- As looking into the averments of the complaint and version filed by the Opposite Party Nos.1 & 2, it is not in dispute that the Complainant had booked his shipment No.773436085223, on 23.04.2015.  Further to substantiate this, the Complainant in his sworn testimony, he had reiterated the same and also produced the Shipment Receipt.  As looking into the Shipment Receipt, it is very clear that the Complainant had booked a Shipment bearing No.7734 3608 5223 through in AA Economy from Bangalore to Suresh Chandra Agarwal, Jhansi, Uttar Pradesh, Invoice Value of Rs.15,000/-. 

9. Further even in the version itself, the Opposite Party No.2 had clearly admitted that the said shipment consignment was held up for the requirement of Form No.39 at Gurgaon and the same was duly informed by the representative of the Opposite Party No.1 to the Complainant.  Subsequently, the Opposite Party No.2 requested to return the shipment.  However, in the meantime the shipment went missing.   From this evidence, it is very clear that the Opposite Party No.2 had not delivered the shipment to the concern person i.e., Suresh Chandra Agarwal of Jhansi.  But the said shipment was lost even the Opposite Party No.2 had made efforts to trace the shipment but failed in their attend. 

10. Now the defence of the Opposite Party No.1 is that as per the said Conditions of the Carriage, specifically Clause 14 which deals with Declared Value & Limits of Liability, the liability of Opposite Party for any loss or damage to any shipment shall be the lowest of Rs.5,000/- in case of non-documents as in the case of the Complainant.   The liability of FedEx for any loss or damage to any shipment shall be the lowest of INR 1000/- in case of documents and INR 5,000/- in case of non-documents, or the amount of loss or damage to the shipment actually sustained or the actual value of the shipment as determined, without regard to the commercial utility or special value to the shipper.  Even looking into this contention also Opposite Parties have to pay actual value of the shipment i.e., Rs.13,999/-.  But the Opposite Party No.1 is not consulted to settle that amount as per Clause 14 of the Conditions of Carriage. On the other hand, they ready to settle the matter only for Rs.5,000/-but this was refused by the Complainant.   By looking into this, it is crystal clear that there is deficiency of service on the part of the Opposite Parties.  Since the Opposite Parties have not render proper service by delivering the shipment to the proper person i.e., Suresh Chandra Agarwal at Jhansi.  Therefore, it amounts to deficiency of service on the part of the Opposite Parties.  Hence, this point is held in the affirmative.  

11. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency of service by the Opposite Party No.1 & 2.

The Opposite Party No.1 & 2 are directed to reimburse a sum of Rs.15,596/- to the Complainant.

The Opposite Party No.1 & 2 are directed to pay a compensation of Rs.25,000/- for causing mental agony to the Complainant.

The Opposite Party No.1 & 2 are directed to pay a sum of Rs.5,000/- towards cost of this litigation to the Complainant.

The Opposite Party No.1 & 2 are directed to pay the aforesaid amount within 30 days from the date of this order.  Ailing which the said amount will carry interest at 18% p.a. from the date of order till the date of payment.

Supply free copy of this order to both the party. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 16^th day of December 2016)

   MEMBER                 MEMBER              PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Nickey Agarwal, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. FedEx shipment receipt,
2. HDFC Statement for freight charges,
3. FedEx Online tracking status,
4. Various mails that he had written to the FedEx, along with their replies
5. MI3 Smart Phone Plus MI Power Bank Invoice,
6. Display change receipt. 

Witness examined on behalf of the Opposite Parties:

1. Mrs.Roopa, on behalf of the Opposite Party No.1 by way of affidavit.
2. Sri.Prethish Nandi, on behalf of the Opposite Party No.2 by way of affidavit.

  List of documents filed by the Opposite Party:

1. The template of Invoice along with typed version of the exact of Terms and conditions.
2. Proof of NEFT dt.12.06.2015
3. The Print of the email dt.17.06.2015

 MEMBER                 MEMBER                 PRESIDENT