Karnataka

Bangalore 4th Additional

CC/14/1835

Ashok NG S/o. Gangaprasad. N. on Behalf of Madhu Aged about 31 Years - Complainant(s)

Versus

Head customer service TNT Courier - Opp.Party(s)

Inperson

21 May 2018

ORDER

Complaint filed on: 31.10.2014

                                                      Disposed on: 21.05.2018

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027    

CC.No.1835/2014

DATED THIS THE21^stMAY OF2018

PRESENT

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Party directing to pay a sum of Rs.30,060/- for defect in deficiency of service, inefficiency, delay and wasted time, wasted money on numerous phone calls, postage etc., to pay interest at 9.5% from the date of closure till date of realization on Rs.30,060/-, to pay cost of the proceedings.

2.       The brief facts of the case of the complainant are that the Complainant had imported Lithium Polymer batteries from Hong Kong using the TNT Express as Courier Option, the consignment value being $98 (around INR 6009) and courier charges being $55( around INR 3373). The tracking number of courier being 195256471. As per the tracking website, the courier was picked up on 9.10.2014 from Kowloon Bay Depot. It has reached Bangalore on 13.10.2014 and till date (as on 30.10.2014) the status of tracking is shown as “Held Customs, Awaiting Clearance Instructions from Receiver”. There was no written communication sent to the consignee aboutwhat instructions it is waiting from the receiver. Many calls to customer care by Complainant went in vain and one of the calls of customer care, which reveals the irresponsible talks, has been recorded. From the customer care, it has come to notice that the Complainant has to pay brokerage charge of Rs.5500 for IEC, apart from the customs duties and other charges levied by customs. IEC is Import Export Code, which has to be registered with Government of India by a registered trader. The above said consignment is sent to an individual as sample for personal use and not to any company and hence there is no need to have an IEC for custom clearance. Henceforth, this cost would be referred to as excess charges. The Opposite Party also threatens the Complainant that the parcel will be destroyed if IEC is not applied paying INR 5500. The Complainant submits that he had sent a registered letter dt.28.10.2014 to Head Customer Service requesting the reason for delay in parcel delivery and mentioning the request for excess charge over telephone conversation with customer service. Further to this, many email conversations to customer service also reveals the courier company expects excess charge for delivering the parcel. The e-mails from customer care are misleading to the Complainant as it refers get an IEC even though the parcel is for personal use. The Complainant also submits that the quality of consignment (Lithium Polymer Batteries) would deteriorate over time as the days proceed. The delay is due to the incompletely and inefficiency of the Opposite Party in clearing the parcel from the customs and not providing the customs with details of its customers with “KYC” form (Know your Customer Form). The Complainant submits that the Opposite Party has declined to deliver the parcel unless the Complainant pays excess charge. These charges were not even mentioned to the sender when the parcel was being accepted at the origin. If these details were given when the shipment was accepted, the Complainant would have chosen an alternative courier company with better services.All these amounts to defect in deficiency of service under section 2 (g) of the Consumer Protection Act.Hence, this complaint.

3.       Notice was ordered issue to the Opposite Party. The Opposite Party did appear and filed the version.

4.       The sum and substance of the version filed by the Opposite Party are that the complaint is not maintainable either in law or on facts and the complaint is liable to be dismissed as the Complainant does not come under the definition of consumer as he has availed the services of the Opposite Party for commercial purposes. The Opposite Party submits that the Complainant had imported some goods from Hongkong using TNT express as courier option. The consignment charge being $98 (around INR 6009) and courier charges being $55 (around INR 3373) is accepted as true and correct. It is true that Lithium Polymer Batteries were purchased and imported by the Complainant. It is true to the extent that the courier was picked up on 9.10.2014. It is not true that courier was picked up from Kowloon Bay Depot, it was picked up from TENTO INERNATIONAL TRADING LTD RM 1507, 15/F, 95 CHAI WAN KOKSTREET TSUENWAN, HONG KONG. The Opposite Party submits that on 13.10.2014 consignment reached Bangalore and till 30.10.2014 status in the tracking is shown as “Held customs, Awaiting clearance instructions from Receiver”. It is the case of the Opposite Party that when consignment is received from foreign countries, it cannot be delivered to the customers directly without getting any clearance from customs department, hence consignment was kept as “Held customs, Awaiting clearance instructions from Receiver” To get the clearance, receiver/consignee required to send few documents like KYC documents and IEC and authority letter to the custom department through TNT. After receiving the product from Hongkong, the Opposite Party made many calls to the Complainant to collect the documents, however, the Complainant neither answered the calls made by Opposite Parties, nor he called the Opposite Parties. After many follow ups with the Complainant, he has given all the documents on 23.10.2014 and after clearance goods were delivered on 3.12.2014. As he failed to send documents within time the consignment could not be delivered to him within stipulated time. One of the employees of the Opposite Party had informed the Complainant about the documents which are required for custom clearance. The Opposite Party did not ask for any brokerage charge from the Complainant. Moreover, the Complainant did not pay any charges to the Opposite Party, all the charges were paid by the sender country i.e.TNTHongkong.  The Opposite Party submits that IEC is Import Export Code, which has to be registered with Government of India by a Registered trader is a general comment, hence not traversed. It is denied that consignment was sent for personal use. It was not known to the Complainant that consignment was sent for personal purpose only. The Complainant is barred from filing this complaint as he was involved in a commercial transaction. He has failed to establish that the said goods were being imported for his personal use. The Opposite Party did not receive any letter from the Complainant regarding the delay in parcel delivery. The Opposite Party did not ask for any extra charges for the parcel delivery. Annexure-D clearly states that “customs have given an option to custom clear it through special permission” as its not done by Opposite Party, one who does the activity will charge his charge. Moreover, the Complainant did not pay any charges to the Opposite Party, all the charges were paid by the sender country i.e., Hong Kong. Hence, the Complainant cannot claim any amount on this ground. The Complainant has failed to establish that the consignment was for personal use, hence, the goods are purchased for personal use are completely denied as false. The Complainant has purchased Lithium Polymer Batteries, it would deteriorate as it is delayed by the Opposite Party is denied as false. Moreover, the Complainant did not send documents which were required for custom clearance within time, he has sent all the documents on 25.11.2014, once all the documents are received from the Complainant, clearance was given by the custom department and consignment were delivered on 3.12.2014. The delay is not due to incompetency/inefficiency from the Opposite Party, it is because of the delay in sending the documents from the Complainant.The Complainant has imported goods using TNT Hongkong as a courier service. It is pertinent to note that consignment charges were paid by the sender in Hong Kong, hence, any settlement related to any delay has to be raised to TNT Hongkong. Moreover, in the present case, the Complainant did not make Hongkong TNT courier service as necessary party on this ground along complaint has to be dismissed. There is no privity of contract between the Complainant and Opposite Party. The complaint will not fall within the scope of consumer protection act. Hence, complaint has to be dismissed. On this ground and other grounds, prays for dismissal of the complaint.

          5.       The Complainant to substantiate his case filed his affidavit evidence. Though documents produced, did not got marked. TheOpposite Party has alsofiled affidavit. None of the documents got marked. Both Complainant and the Opposite Party filed written arguments. Heard both sides.

          6.       The points that arise for our consideration are:

          1) Whether the Complainant has locus standi to file a complaint?

2)Whether the complainant proves the deficiency in service on the 

part of the OPs, if so, whether he isentitled for the relief sought

for?

          3) What Order?

          7.Our answers to the above points are as under:

Point No.1 :Negative

Point No.2 :Does not survive for consideration

Point No.3 :As per the final order for the following

REASONS

          8. POINT NO.1:    At the outset, we have placed reliance on the contents of the cause title of the complaint wherein the present complaint is filed by one Ashok N.G., S/o Gangaprasad.N., on behalf of Madhu. In this context, we have placed reliance on the document at Enclosure No.2 wherein E-mail message has been sent to the name of MadhuNuggehalli on whose behalf, this complaint has been filed by Ashok.N.G. The said text read thus:

Anjali Das

Said parcel is containing Lithium Battery which is considered as Dangerous goods, hence Airlines don’t us to carry such parcels in courier mode. It has to travel in Cargo mode for the safety reasons. Once it lands in Cargo, IEC & Authority letter, KYC documents is a must for custom clearance. However as this is on personal name, customs have given an option to custom clear it through special permission/one time IEC.

Our broker involved in doing this activity will charge his charges as INR 5500

Apart from this, duty, warehousing, handling, taxes & fine & penalties (if levied by customs) will be applicable.

Further, we have also placed reliance on the Consignment Note available which is part of the document at Enclosure No.5 produced by the Complainant which is the relevant portion is extracted read thus:

Name: MADHU.NUGGEHALLI,

Address: ASHOK N G, DEEPIKA RESIDENCY,

C BLOCK, 301, NAGAVARAPALYA MAIN ROAD,

C V RAMAN NAGAR POST,                                  Postal/Zip Code:560093

City: BANGALORE                                                Country: India

Province:KARNATAKA                                        Tel No:919480477732

Contact Name: MADHU NUGGEHALLI

Further, the Commercial Invoice is also made available which is part of Enclosure No.5 is in the name of MadhuNuggehalli which is titled as Commercial Invoice.

          9.       As to know whether the said MadhuNuggehalli authorized Ashok N.G., has filed this complaint before this Forum is to be taken into consideration. Looking into the available materials on records, the said MadhuNuggehalli never authorized by executing the power of attorney or letter of authorization to Ashok N.G. to file this complaint. So the present complaint is filed by unauthorized person who has no locus standi to claim against the Opposite Parties. In this context, we have placed reliance on the decisions reported in Amita Sharma V/s B.H.E.L&Ors., II (2013) CPJ 505 (NC) wherein it is held that:

Locus standi- Petitioner not been authorized by her husband to file complaint on his behalf-Complainant is not consumer.

Consumer Protection Act, 1986-Sections 2 (1) (b), 2 (1)(c), 2 (1)(b)-complaint-Locus standi-Consumer-Nothing to show that petitioner’s husband had been incapacitated in any manner or was prevented in any manner whatsoever, from filing the complaint-Petitioner had not been authorized by her husband to file complaint on his behalf-Complainant is not consumer.

In the above said case, the wife has filed the petition on behalf of her husband without any authorization. Hence, the National Commission was of the opinion that the said Complainant is not a consumer. In the instant case, the Complainant herein is neither the relative, nor the authorized representative of MadhuNuggehalli,hence, in the light of the decisions cited supra, we come to the conclusion that the complaint is filed by one Sri.Ashok.N.G. on behalf of MadhuNuggehalli without there being any authorization has no legs to stand. Hence, the very complaint is not maintainable and liable to be dismissed.   Accordingly, we answer the Point No.1 in the negative.

10.     POINT NO.2:  In view of our finding on Point No.1, this issue does not arise for our consideration.

11.     POINT NO.3: In the result, we proceed to pass the following:

ORDER

        The complaint filed by the Complainant is dismissed as not maintainable.

Looking to the circumstances of the case, we direct both the parties to bear their own cost.

Supply free copy of this order to both the parties.

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open forum on 21^st May 2018).

1. Witness examined on behalf of the complainant/s by way of affidavit:

Ashok N.G., who being the Complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RamyaUthappa, Legal Head,who being the Opposite Party was examined.

Copies of Documents produced on behalf of OPs