| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA CC No. 361 of 17.11.2022 Decided on : 22-06-2023 Manish Kumar Rana S/o Late Shri HP Singh Rana aged about 46 years, Address: 615 (Independent) Air Defence Signal Company, Pin-916615 C/o 56 APO, Bathinda Cantt, Bathinda, Punjab-151004. ........Complainant Versus FedEx Express Services (India) Pvt.Ltd., Address: Boomrang, Unit No.801, Wings A & B1, 8th Floor, Chandivali Farm Road, Andheri (E), Mumbai, Maharashtra Pin-400072, through its President/CEO Mr. Raj Subramaniam (President & CEO) and Mr. Vijay Trivedi (Customer Care Representative- Associate) .......Opposite party
Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM:- Sh.Lalit Mohan Dogra, President Sh.Shivdev Singh, Member Present:- Complainant : Sh.Manish Kumar Rana in person. For opposite party : Sh.Amandeep Singh Goraya, Advocate. ORDER Lalit Mohan Dogra, President The complainant Manish Kumar Rana (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against FedEx Express Services (here-in-after referred to as opposite party). Briefly stated the case of the complainant that on 18.4.2022, he purchased used Golf clubs (Quantity 02) online from www.3balls.com and made online payment of Rs.41,659.49/-. The seller (www.3balls.com) shipped the package through FedEx Express Services (India) Private Limited as the package was international shipment. It is alleged that after customs clearance, an amount of Rs.17,624/- was shown outstanding as Cash on Delivery by opposite party and complainant was not provided its details. After a query from opposite party, it was found that these charges are customs duty, duty IGST and other charges. The cumulative cost of used Golf Club was Rs.59,283.49/- that was equal to new set of Golf Clubs. As such, the complainant decided to return the package without getting a delivery and initiated a return on website of seller and requested opposite party through e-mail to return the package as undelivered to seller. The return request was accepted by seller as it was within the return window of 60 days from the date of placement of order. It is further alleged that opposite party sent reply to e-mail stating that request of complainant was processed and complainant has to pay the duty charges before return of package to seller and for claiming customs duty and GST charges, complainant needs to have a GST number as per new ruling by Dept of Customs, Ministry of finance, Govt of India. Since he bought used Golf Clubs for personal use and he is not involved in commercial activities, he does not have a GST number. As such, refund of duty charges could not have been claimed by him resulting in a loss of Rs.17,624/- to him. It is further alleged that during further e-mail communication of complainant with opposite party, it changed its decision five times for accepting the return request and further rejected the return request stating that it needs a confirmation from seller. Opposite party has also stated that the package will be disposed/destroyed or discarded, but it never provided any documentary proof about destruction, discard or abandonment of the package to complainant despite many requests through e-mail. At multiple occasions, representatives of opposite party have sent multiple e-mails that have never stated the clear status of the return of package. It is furtehr alleged that on 7.5.2022, the complainant officially raised a return request to opposite party for return of the package to seller. It has been more than five months since then, the status of return of package to seller has still been unknown to the complainant. The representatives of opposite party always e-mailed an altogether different reply for a simple query by the complainant. The complainant many times requested opposite party to provide documents for seeking redressel as it is not addressing to resolve the case, but to no avail. The complainant has further alleged that he has made a last try with opposite party through e-mail on 8.10.2022 and requested for status of the case alongwith requisite documents in case the package has been abandoned/discarded. Three replies were received from representatives of opposite party and all replies were not even relevant to the case and totally digressed from the case. Finally, it has been confirmed by opposite party that the package has been handed over to its overgoods section that proves that his request for return of package to seller is not being entertained and the return trace has been closed by opposite party. It is also alleged that after checking the return status of the order on the website of seller (www3balls.com), it is noticed that the return window has already expired and the items will not be accepted back for processing the refund. The financial loss and untoward harassment to complainant has taken place because of opposite party, as such, on 1.11.2022, opposite party was approached through e-mail to pay full amount for loss incurred to the complainant within 15 days. The e-mail reply of opposite party has neither confirmed any decision on its part nor loss amount has been received by the complainant. Apart from these replies, no other reply has been received from opposite party till expiry of 15 days. On this backdrop of facts, the complainant has prayed directions to the opposite party to refund the total cost of Rs.41,659.49/- alongwith upto date interest @ 12% p.a. from the date of raising the return request i.e. 7 May 2022 and Rs.1 lakh as compensation per month on account of harassment, stress and mental agony since the date of raising request for return of package i.e. 7 May 2022 and Rs.2 lakhs for equivalent value of time devoted by him. Upon notice, the opposite party put an appearance through counsel and contested the complaint by filing written version and raised the preliminary objections that this complaint has been filed just to cause it a wrongful loss and complainant has failed to prove any deficiency in services. The complainant was well aware of the fact that the shipment in question being an import transaction shall attract certain import duties in accordance with the relevant prevailing laws of India. The shipment could not be returned to origin since the source shipper could not provide confirmation for billing of freight charges for return of shipment. The employees/officials of FedEx have duly assisted the complainant with their concerns over the period of time. This complaint is devoid of merits and is liable to be dismissed. It is further pleaded that the complainant concealed the material facts from this Commission. Opposite party is just a freight carrier. As such, as per the agreed terms and conditions, the original shipper has to bear the cost of the return freight to the origin of the shipment. Since, the shipper of the consignment failed to share the relevant details pertaining to return of shipment, as such, as per FedEx's International Conditions of Carriage, the shipment was moved to over house facility by opposite party. Opposite party acted in good faith and in accordance with the agreed terms and conditions. It is further pleaded that the true facts are that the shipment in question was an import shipment from United States of America to India. Shipped on date 19 April 2022. The shipment arrived at New Delhi on 22nd April 2022. Since the invoice and documents pertaining to value evidence that are essential for classification of goods to adjudicate the import duty were missing the shipment was detained at the Indian Customs. The documents required for clearance of customs were to be provided by the complainant. The concerned team/officials of the opposite party contacted the complainant. Pursuant to completion of KYC of the complainant on 27.4.2022, the shipment was released from the customs on 3.5.2022 and was attempted to be delivered to the complainant on 6.5.2022, but it could not be delivered due to certain security constraints at the destination of delivery. Another attempt to deliver the shipment was made on 10.05.2022 wherein the consignee clearly refused to accept the shipment due to warehouse and duty advancement fees charges as per the agreed schedule by opposite party. It is further pleaded that the complainant instructed the officials of opposite party to return the shipment to the shipper in the United States of America. Acting upon the instructions of the complainant, the officials of opposite party duly followed up the shipper and requested for the billing details in order to bill for the return to source freight charges that are to be borne by the shipper. The foreign counterpart of opposite party was unable to receive any response from the shipper. As such, as per FedEx's conditions of carriage, the shipment has subsequently been moved to an over goods facility. As per these conditions of carriage, in case a sender is not contactable, opposite party has reserved its rights to dispose of the shipment. On 8.10.2022, the complainant enquired about the status of the shipment and he was duly informed that the shipment was moved to the over goods facility and in order to trace the shipment, the officials of opposite party shall be needing the copy of the e-way bill. Since, despite repeated follow-ups with complainant, he failed to provide the copy of e-way bill. As such, the query was subsequently closed at the end of opposite party. It is also pleaded that the complaint is merely an afterthought of the complainant. It is admitted case of the complainant that since the amount of the shipment in question after the value addition of import duty was not feasible for him, as such, he refused to accept the shipment despite attempted delivery by opposite party and subsequently had instructed for return of the shipment in question to the shipper. The claim of the complainant stating that he was not provided with the details of the cash on delivery outstanding towards opposite party at the time of delivery is false. Opposite party duly informed the complainant about the charges on account of import duty charged vide Bill of Entry issued by the Department of Customs and Central Excise, Government of India and charges levied by opposite party on account of warehousing and duty advancement fees. Since, the shipper did not confirm the payment return to source freight accruable therein upon the consignor, as such, the shipment was moved to over goods facility in accordance with the terms and conditions. It is further pleaded that the shipper of the consignment did not revert back to opposite party with regard to the account information for return freight of the shipment back to the consignor. As such, opposite party cannot be held liable for the negligence of a third party. The damages so caused to the complainant, if any, are to be recovered from the shipper and not from opposite party. The damages, if any, so incurred by the complainant are due to the misinformation provided by the original shipper and its negligence. On merits, opposite party has reiterated its stand as taken in the preliminary objections as detailed above and converted all other averments and prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 9.5.2023 (Ex.C63) and documents (Ex.C1 to Ex.C62). In order to rebut the evidence of complainant, the opposite party has tendered into evidence affidavit of Pardeep Kumar dated 23.1.2023 (Ex.OP1/1) and closed the evidence. We have heard the complainant and learned counsel for the opposite party and gone through the written arguments submitted by complainant. Complainant has argued that on 18.4.2022, he had purchased used Golf clubs (Quantity 2) online from www.3balls.com vide Ex.C1 on payment of Rs.41,659.49/- and said item was sent through opposite party. It is further argued that after customs clearance, an amount of Rs.17,624/- was shown outstanding as Cash on Delivery (COD) by opposite party. However, the complainant was not provided with details. Even opposite party had not sent any receipt regarding alleged payment of custom duty, rather self generated tax invoice, (Ex.C11) for Rs.17,485/- was sent. It is further argued that the cumulative cost of used Golf Club was equal to new one. As such, the complainant had decided to return the package and accordingly, vide e-mail dated 7.5.2022, (Ex.C8), he made a return request to opposte party and orginator. It is further argued that return request was accepted by the seller as same was within the return window of 60 days from the date of placement of order i.e. 18.4.2022. It is further argued that the complainant had sent e-mails to opposite party for processing the return request. However, opposite party kept on sending replies to the complainant, which were contradictory to each other and in this manner wasted the period of 60 days within which the return window was open. It is further argued that act on the part of opposite party of having kept the consignment with it for such a long period and failure to return the same to the seller had caused financial loss to the complainant, which amounts to deficiency in servces on the part of opposite party. It is further argued that opposite party never shared any receipt of excise duties, IGST and other charges paid to Excise and other Department of Government of India, which were repeatedly demanded by the complainant, rather on contrary, opposite party only shared self generated Bill of Entry and Tax Invoice and such invoice in no way proves that such duty was paid by opposite party. It is further argued that opposite party has no authority to charge warehousing charges inspite of fact that delay, if any, occurred due to internal issues of opposite party. It is further argued that the freight charges were paid by the complainant, which is itself evident from the perusal of Ex.C1 in which shipping charges are included and complainant has prayed for directions to opposite party to compensate him by paying the total cost of Rs.41,659.49, which could not be refunded by the seller due to negligence of opposite party and complainant has also demanded compensation of Rs.1 lakh per month on account of harassment, stress and mental tension and litigation expenses of Rs.2 lakhs. On the other hand, learned counsel for opposite party has argued that the complainant has concealed the material facts from this Commission and he was very very well aware of the fact that the shippment in question being import transaction shall attract certain import duties in the relevant prevailing laws in India. It is further argued that shippment in question could not be returned due to the reason since the source shipper could not provide confirmation for billing of freight charges for return of shipment. It is further argued that on account of failure of shipper to share relevant details pertaining to return of shippment as per FedEx interenal condition of carriage, said shipment was moved to over house facility by opposite party. It is further argued that opposite party duly followed up the shipper and requested for the billing details in order to bill for the return to source freight charges, which are to be borne by the shipper. It is further argued that claim of the complainant was not provided with the details of the cash on delivery outstanding towards opposite party at the time of delivery is false as opposite party had duly informed the complainant about the charges on account of import duty charged by vide Bill of Entry issued by the Department of Customs and Central Excise, which is Ex.C10 and further tax invoice, (Ex.C11) was also issued to the complainant. It is further argued that since the shipper did not confirm the payment return to source freight accruable therein upon the consignor, as such, the shipment was moved to over goods facility. It is further argued that there is no deficiency in services on the part of opposite party and the damages, if any so suffered by the complainant are due to the misinformation provided by the original shipper and its negligence and loss, if any, so incurrred by the complainant should be claimed from the shipper and not from opposite party. It is further argued that on 8.10.2022, the complainant had enquired about the status of the shipment in question vide e-mails, (Ex.C43 and Ex.C45) and he was duly informed that the shipment was moved to the over goods facility and in order to trace the shipment, copy of e-way bill shalll be required, which was never shared by him. As such, the query was closed at the end of opposite party. We have given careful consideration to these submissions. It is admitted fact that the complainant had purchased used Golf clubs (Quantity 02) online from www.3balls.com on payment of Rs.41,659.49 to the seller vide Ex.C1 and shipping charges were included in the total amount paid by him to the seller. It is further admitted fact vide e-mail dated 7.5.2022, (Ex.C8), the complainant had made a return request and opposite party was also requested to return the consignment to the seller. It is further admitted fact that opposite party raised bill of entry, (Ex.C10) and tax invoice, (Ex.C11) by way of which amount of Rs.17,624/- was shown recoverable from the complainant as cash on delivery charges, which was main reason for the complainant to return the consignment to the seller. It is further admitted fact that opposite party has moved said shippment to the over house facility as the shippment could not be sent to the shipper by opposite party. It is further admitted fact that said return of consignment was to be made within 60 days as the return window was open for said period from the date of placement of order, meaning thereby that product/consignment could be returned up to 18.6.2022. It is further admitted fact that the complainant had suffered a net loss of Rs.41,659.49/- on account of fact that the said consignment could not be returned to the seller within 60 days and as such, the complainant could not get refund of said amount from the seller. The disputed question before this Commission is whether the loss of Rs.41,659.49/- was suffered by the complainant due to negligence of opposite party or not. A perusal of order summary, (Ex.C1) shows that the complainant had paid Rs.41,659.49 to the seller in respect of used Golf clubs and said amount also included the shipping charges. A perusal of file shows that the said consignment reached at New Delhi on 22.4.2022 and remained for custom clearance and opposite party vide e-mail dated 26.4.2022, (Ex.C2) had directed the complainant to submit KYC document, which was provided to opposite party by the complainant and said consignment was got released from the custom. Interestingly for the first time, opposite party intimated the complainant vide e-mail dated 7.5.2022, (Ex.C7) that the package has been marked as COD i.e. Cash on Delivery, meaning thereby that the complainant was not having any knowledge regarding such cash on delivery charges prior to 7.5.2022 and on coming to know about the same, he had given decision to opposite party to return the package to the orginator. The complainant further replied opposite party vide e-mail, (Ex.C8) that he was not having prior intimation regarding COD. It is further established that although, opposite party has raised a tax invoice of Rs.17,624/- on the basis of bill of entry, (Ex.C10). However, opposite party had not been able to produce or share any receipt of excise, IGST and other charges paid to Excise and other department of Government of India inspite of fact that same were repeatedly demanded by the complainant. The complainant had further intimated opposite party vide e-mail dated 19.5.2022, (Ex.C20) that the package be returned to the shipper and as per custom, these charges are on credit system and had not been filed finally and opposite party was within its right to settle these duties and taxes without paying them as the package has not been imported and import was not successful. A perusal of evidence on record in the shape of e-mails show that instead of making efforts to return the package/consignment to the seller, opposite party vide e-mail dated 28.5.2022, (Ex.C24) had intimated the complainant that the shippment had already been sent to over goods for further process of disposed/distroy or return to the shipper and opposite party had directed the complainant to inform the shipper to share request to opposite party. A perusal of e-mail dated 13.6.2022, (Ex.C28) shows that opposite party had confirmed that return of subject package has been accepted and it is in process. However, vide e-mail dated 18.7.2022, (Ex.C32), the complainant came to know that the official of opposite party had intimated that case is not with him any more and intimated his own official that he will have to open fresh case or re-open clearance case, meaning thereby that due to internal mis-communication and internal non-cooperation between the official of opposite party, return of package could not be sent to shipper and as per return summary, (Ex.C54), return window in the meanwhile had expired on account of which the complainant could not get refund from the seller and suffered a net loss of Rs.41,659.49. The plea of the opposite party is that the original shipper has to bear the cost of return freight to the origin of the shipment and shipper failed to share the details, as such, shipment was moved to over house facility but this Commission is of the view that since the complainant had already paid the shipment charges at the time of purchase and the complainant was within his right to return the shipment anytime within 60 days subject to acceptance of return request by seller and in the present case, the complainant was not apprised before hand about the COD, which increased the cost, as such, complainant had made a return request to seller and request was duly accepted by the seller and intimation was also given to opposite party well within time and as per this Commission, the role of the complainant ended and thereafter it was the duty of the opposite party to return the shipment to the seller but in this case, opposite party indulged in such long correspondence with the complainant instead of sending back the shipment. Even inspite of lapse of more than 6 months, opposite party had not been able to correctly intimate the complainant about the status of return of package to the seller and thereafter opposite party started unnecessarily demanding e-way bill from the complainant to trace the parcel inspite of fact that return window had already expired and opposite party had indulged in unnecessary and futile correspondences with the complainant. Accordingly, it is proved on record that the complainant had promptly intimated opposite party of his intention to return the package/consignment to the seller vide e-mail, (Ex.C8) and lapse, if any, to return the parcel to the seller was on the part of opposite party and failure on the part of opposite party to return the package/consignment to the seller before the closure of return window amounts to deficiency in services and since the complainant has suffered the net loss of Rs.41,659.49 on account of negligence on the part of official of opposite party. As such, he is definitely entitled to receive compensation of Rs.41,659.49 from opposite party for the loss suffered. Accordingly, the complaint is partly allowed in favour of the complainant and against opposite party and opposite party is directed to pay Rs.41,659.49 to the complainant as compensation for the loss suffered alongwith interest @ 9% per annum from the date of filing of complaint i.e. 17.11.2022 till realization of amount. The complainant is further held entitled to compensation of Rs.10,000/- on account of mental tension, harassment and inconvenience and Rs. 3,000/- as cost of litigation. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced : 22-06-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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