ORDER
PRONOUNCED BY THIRU. U.KASIPANDIAN, PRESIDENT.
1. This complaint is filed by the complainants under Sec.35 of the Consumer Protection Act, 2019, against the opposite parties seeking direction, directing the opposite parties to pay a sum of Rs.48.00,000/- towards for the loss which the complainant has suffered on account of loss of the above consignment, loss of overseas business, reputation, other revenue losses and administrative issues, mental agony, solely caused owing to opposite parties' deficient services;
2. Brief averments in the complaint is as follows:-
The complainants are in the business of manufacturing of industrial equipment, and exporting to clients in America and in other countries. Considering the highly competitive nature of their business and to ensure timely delivery to their customers, they associated with the 1stopposite party since 2019, and ever since then they have been valued premium customer of 1stopposite party. That the complainant submits that, thus, in the course of their business they entrusted the despatch of a machine, namely, EXTRACTION MACHINE- 7.5 L BASKETS (HS :8479 9020) packed in one wooden package with dimensions 76 x 72 x 28 cm (LxBxH) and weighing 60.50 kilograms with Invoice ST-INV-2223-003 dt. 07.06.2022, Packing List and other export customs clearance documents and bearing shipping bill no. 1991702 dated 09.06.2022, to the 1stopposite party, for carrying the same to M/s THAR PROCESS INC, having delivery location at #150 Gamma Drive, Pittsburgh, PA, USA, vide consignment Note No. 7770 5932 9915, dated 08.06.2022, and the package was committed to be delivered on 13.06.2022, by the 1stopposite party. That the complainant further submits that the tracking provided in opposite party's portal showed that on Sunday, June 12, 2022, at 5:11 A.M., the package arrived at FedEx
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Hub, Memphis, Tennessee, USA. That the complainant submits that, but, even on 15.06.2022, the package was not delivered as per original delivery commitment of 13.06.2022, and therefore, the complainant lodged a complaint in opposite party portal for 'non delivery of the package' at consignee (customer) location. The complainant submits that, despite the lodging of the above complaint as the issue remained unresolved and the package was not delivered even on 17.06.2022 to their customer. They wrote an email to opposite party's executive namely, Mr.Hansel D'silva - FedEx Search team, attaching the Package Photos and Export Invoice, Packing List, so as to trace the package. Finally on 30.06.2022, at 4:06 PM, the opposite party's search team executive Mr.Hansel D'silva, responded by way of email, admitting the delay in processing the shipment and assuring that the package would be moved out for clearance and delivery, thereby, to their solace, confirming that package was traced and would be moved out for clearance and delivery. The complainant further state that, even on 03.07.2022, as the package was not still delivered to their customer, as re-assured on 30.06.2022. They were yet again constrained to write a reminder email on 05.07.2022 to the opposite party's executive Ms. Zainab Bakshi Regional Sales Manager, seeking for earlier resolution of the issue, and again on 08.07.2022 at 12.45 P.M. to the said executive Ms. Zainab Bakshi - Regional Sales Manager, expressing their dissatisfaction about opposite party's services. That The complainant submits while that being so and when thus things stood there, to their utter shock and dismay, on 08.07.2022 at 02.37 P.M. they received a mail from 1stopposite party's executive Mr.Lyndon Pereira stating that shipment was untraceable. That another incident had also happened to complainant's export package bearing FedEx TRK# 7772 0589 8064 booked on 23.06.2022, and the package supposed to be delivered on 29.06.2022, but delivered
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on 11.07.2022 after 12 days delay. That The 1stand 2ndopposite parties' negligence of service, has caused drastic reduction in receiving export orders from complainant's customer, Further the complainant submits that because of 1stand 2ndopposite parties' negligence of service have caused severe loss of business to the complainant. That opposite party's negligence not only caused revenue loss, but also other administrative issues like, answering caution listing notice from RBI due to the goods moved of the origin country (India) and customs updated goods movements in Export Data Processing and Monitoring System (EDPMS) and if the payment not received for the goods exported, Foreign Inward Remittance Certificate (BRC - Bank Realization Certificate) can't be issued by the bank, so RBI send caution listing notice for non receipt of payment. Apart from RBI caution listing, GST Input Tax Credit (ITC) can't be possible without BRC, and the complainant has to refund the duty draw back from the customs apart from losing other export incentives and the opposite party's negligence caused not only revenue loss and also other administrative issues as well considering the highly competitive nature of their business and to ensure 'timely delivery' to their customers only they associated with 1 and 2 opposite parties since 2019, but, opposite party's deficient services have resulted in loss of valuable customers. The complainant state that thus they have suffered huge business loss, therefore they claimed a compensation of Rs.48,00,000/- (Rupees Forty Eight Lakhs only), towards consequential losses and mental trauma caused due to deficiency of services, they have already made a higher claim vide their letter dated 07.09.2022 vide letter ref. ST/LR/2223/011 which is reduced now. That considering the highly competitive nature of their business and to ensure 'timely delivery' to their customers only they associated with 1stand 2ndopposite parties since 2019. But, opposite party's deficient services, have resulted in loss of valuable customers. The
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complainant state that thus they have suffered huge business loss, therefore they claimed a compensation of Rs.48,00,000/- (Rupees Forty Eight Lakhs only), towards consequential losses and mental trauma caused due to deficiency of services, they have already made a higher claim vide their letter dated 07.09.2022 vide letter ref. ST/LR/2223/011 which is reduced now. The complainant further states that the opposite party made payment of a paltry sum of Rs.1,38,134.81/- on 26-07-2022, which the complainant states to be grossly inadequate when compared to the quantum of loss suffered by them. Hence, the present complaint.
3. The brief contention of written version of the opposite parties 1 & 2 is as follows:-
It is averred that in the present complainant, the Complainant does not fall under the definition of consumer as provided under the Consumer Protection Act, 2019 (hereinafter referred to as, "The Act from bare perusal of the contents of the complaint it is apparent that the Complainant has itself admitted the fact that being a Private Limited Company, the same is inter-alia engaged into manufacturing of Industrial Equipment and exporting the same to its clients in America and other countries. Furthermore, the complaint qua its complaint has also admitted the fact that shipment in dispute was dispatched in the course of its day-to-day business activity whereby complainant had shipped a the machine namely EXTRACTION MACHINE 7.5 L BASKETS (HS :8479 9020) to its customer named M/s. That Process Inc, and the same was to be delivered to the consignee at Pittsburgh, PA, USA. Moreover, qua the said valuable machinery, contained in the said shipment, an Invoice was also raised by the complainant. Hence, being an exporter, the complainant is engaged in the commercial activities to generate huge profits by import/export of Industrial Equipment. Therefore, the complainant herein is not
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consumer under the Act and the present complaint is liable to be dismissed on this ground alone. That that the complainant herein has failed to prove any deficiency in services qua the Opposite Parties. It is pertinent to mention herein that the present shipment in dispute was governed by the Conditions of Carriage which were also agreed upon by the Complainant herein at the time of dispatching the aforementioned shipment. It is most respectfully submitted herein that despite implementation of thorough due diligence, care, and reasonable precautions for the safety, security and seamless delivery of the shipment in dispute. Unfortunately, during the course the consignment of carriage, regrettably been lost in transit, and was subsequently reported as missing to the Complaint by the employees of the Opposite Parties. The customer care team of the Opposite Parties has dutifully apprised the Complainant on multiple occasions that the aforementioned consignment was last traced at the storage unit of the Opposite Parties located in Memphis, Tennessee, USA subsequent to which it became unaccounted for during the transit process. Needless to say, that despite conducting exhaustive searches internally in order to locate the consignment, the said shipment was untraceable. More so, subsequent to the afore-stated, the Opposite Parties through its officials extended best of its support and offered to compensate the complainant in accordance with the stipulations outlined in the Conditions of Carriage governing the services provided to the Complainant by the Opposite Parties. It is noteworthy that subsequent to consideration of the claims of the Complainant,the Opposite Party in accordance with the conditions of carriage, an amount of Rs.1,38,134.81/- was promptly provided as per the Limit of Liability. In addition to the aforesaid, a credit note to the tune of Rs.48,566.10/- was also issued against the account for freight charges. In view of the averments made hereinabove, it is evident that the officials,
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staff and employees of the Opposite Parties has left no stone unturned in order to offer best of its cooperation and support to the complainant. Therefore, the complainant qua, the present complaint has failed to provide any deficiency of services, qua the Opposite Parties and the same is liable to be dismissed on this ground alone. That the answering opposite parties respectfully submit that the complainant herein is guilty of suppressing material facts from this Hon'ble Commission which are necessary for adjudication of the present complaint From perusal of the AWB consignment note the declared value of carriage was 0.00 USD (U.S. Dollars) whereas, the declared customs value is 2,960.20 USD. It is pertinent to mention herein that 2,960.20 USD when converted to Indian Rupees amounts to a total of Rs.2,47,000/- approximately whereas the claim lodged by the Complainant with the Opposite Party against the loss of the present shipment in dispute was amounting to a total of Rs.1,25,00,000/-. More so, the Complaint qua the present Complaint has claimed an unjust award of Rs.48,00,000/- which does not include the amount of goods shipped qua the disputed consignment. Rather to the contrary, the said amount has been arrived at by adding up unrealistic and hypothetical expenses which are not included in the ambit of the disputed transaction between the parties. It would be correct to state herein that the Complainant herein has failed to ascertain the alleged loss, if any and has filed the present complaint, merely to recover unjust amounts, from the Opposite Parties herein. Therefore, it is submitted that the present complaint is just an afterthought, to cause wrongful loss to the answering opposite parties by misleading this Hon'ble Commission, and the same is liable to be dismissed. For ready reference of this Hon'ble Commission the true facts are narrated herein below: -
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a) On 08.06.2022 the shipment in dispute was dispatched by the Complainant through the Opposite Parties vide Air Way Bill No. 777059329915 and the same was to destined to the consignee in Pittsburgh, PA, United States of America 15328; b). The complainant qua the said consignment had shipped a machine namely 'EXTRACTION MACHINE 7.5 L BASKETS (HS 8479 9020)' and the Consignee of the aforementioned shipment was one of its customer/client M/s.Thar Process Inc; c). The declared value of the aforesaid consignment was 0.00 USD whereas the customs declared value as well as the value of shipment as stipulated on the Invoice provided for clearance of the shipment from customs amounted to a total of 2,960.20 USD (Indian Rupees Two Lacs and Forty Thousand Approx.). A copy of the consignment note along with the copy of the Invoice and Packing List is Annexed herewith as Annexure OP/2 (Colly);
d). At the time of consigning of the aforesaid shipment the consignor, i.e., the Complainant duly agreed with the FedEx Conditions of Carriage. A copy of the FedEx Conditions of Carriage is annexed herewith as Annexure OP/3; e). The present shipment was last traced at Memphis, Tennessee, U.S.A. subsequent to which it became unaccounted in the transit process; f). Despite conducting exhaustive searches within the system to locate the consignment, no trace of it could be found, subsequently the shipment was eventually and officially declared as lost and the Opposite Party acting through its officials extended to offer compensation to the Complainant in accordance with the stipulations outlined in the Conditions of Carriage governing the services provided to the Complainant by the opposite Parties, i.e., FedEx;
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g) Adhering to the limit of liability of the Opposite Party. as the Conditions stipulated under clause 19 of Carriage, the liability of the Opposite Parties is limited to the higher of a) the amount Provided international treaty 22 per kilogram by the applicable or local law; or b) or C c) US$ 100perconsignment), Unless a higher value for carriage is stated on the Air Waybill. Clause 19 is reproduced below for your reference:
"19. DECLARED VALUE AND LIMITS OF LIABILITY
19.1 Unless the Sender enters a higher Declared Value for Carriage on the(Air)Waybill and pays the required fee, the liability of FedEx is limited to the higher of (a) the amount provided by the applicable international treaty or local law; or (b) € 22 per Kilogram; or c) US$ 100 per Shipment.
For Fed Ex Economy, FedEx1Day Freight, FedEx Priority Overnight, and FedEx Standard Overnight Shipment within Austria, Belgium, Denmark, Luxembourg, the Netherlands, Switzerland, and the United- Arab, Emirates, the liability of FedEx is limited to the higher of a)the amount provided by the applicable local law .orb)€10perKilogram; or c)US$100 per Shipment, unless the Sender enters a higher Declared Value for Carriage on the (Air] Waybill. Pays the required fee. For FedEx Economy, Fed ExI Day Freight, Overnight. FedEx Fed Ex and Priority Standard Overnight Shipments within Germany/the liability of FedEx is limited to the higher of a)€4perkilograminaccordance with the German Commercial Code (HGBJ;orb) US$100 per Shipment, unless the Sender enters a higher Declared Value for Carriage on the (Air) Waybill and pays the required fee."
h). Subsequently, a claim amounting to a total of Rs.1,25,00,000/- was filed by the Complainant qua the said shipment in dispute with the Opposite Parties; i). Adhering
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to the Limit of Loss and Conditions of Carriage, the Opposite Parties herein, an amount of Rs.1,38,134.81/- was promptly provided as per the Limit of Liability. In addition to the aforesaid, a credit note to the tune of Rs.48.566.10/- was also issued against the account for freight charges; Furthermore, on 12.07 2022 the complainant herein had submitted a request for issuance of COF (Non-Delivery Certificate) pertaining to the consignment in dispute for the purpose of Bank Documentation whereby the said certificate was issued by the Opposite Parties on the same day, i.e., 12.07.2022. It is hereby emphasized that the Opposite Parties herein have exhibited utmost cooperation with the Complainant throughout the entire ty of the matter, taking all necessary actions to facilitate resolution; k). In view of the factual matrix and averments stipulated hereinabove, it is evident that no cause of action ever arose, in favour of the complainant and the present complaint has been filed just to harass the Opposite Parties herein; In accordance with the clause 22.3 of the Conditions of Carriage, once the consignor of the shipment has accepted the payment of claim amount, the said acceptance shall extinguish any right to recover further damages or to claim further compensation with regards to the same shipment. Since, the complainant herein being the consignor of shipment in dispute, has accepted the amount of Rs.1,38,134.81/- from the Opposite Party therefore, in accordance with the Conditions of Carriage. Hence, the complainant herein has irrevocably extinguished its right to recover any further damages. It is evident that the complainant herein by filing the present consumer complaint subsequent to being in receipt of the claim amount, is clearly an afterthought. Furthermore, the complainant qua, its complaint has also admitted the fact that it has withheld the payment of invoices raised qua the shipment services availed from the Opposite Parties on alleged wrongful grounds of double invoicing. The conclusion of the averments made
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hereinabove clearly apprehends that the present complaint has been filed by the complaint just to wriggle out of their financial liability and cause wrongful loss to the complainant. In view of the above, the present complaint is liable to be dismissed.
4. In order to prove the case, proof affidavits have been filed by both parties as their evidence and Ex.A1 to Ex.A21 & Ex.B1 to Ex.B4 were marked. Written argument of both parties filed. Heard oral arguments of both.
5. At this juncture, the point for consideration before this Commission are:-
1. Whether the complaint is maintainable?
2. Whether there is any deficiency of service on the part of the opposite parties?
3. Whether the complainant is entitled to the relief sought for?
4. To what other reliefs the complainant is entitled to?
6. Point No.1 to 4 :- Heard both sides. Considered documents available on record.
The opposite parties had raised the issue of maintainablility stating that the complainant is not a consumer as defined under Sec.2 (7) of the Consumer Protection Act, 2019 as follows;
2 (7) "consumer" means any person who—
(i) buysanygoodsforaconsiderationwhichhasbeenpaidorpromisedorpartlypaidand partly promised, or under any system of deferred payment and includes any user of such goodsotherthanthepersonwhobuyssuchgoodsforconsiderationpaidorpromisedorpartly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service
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for any commercial purpose. Explanation.—For the purposes of this clause, —
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services"
includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;
7. In the present case, the complainant is a company incorporated under the Companies Act. However, it is the settled law that a corporate company can file consumer complaint before the Consumer Disputes Redressal Commission, provided the complainant have averred that the business carried on by the complainant was exclusively for the purpose of earning the livelihood of the complainant by way of self employment and the complainant should not involved in commercial scale. In the present case, the complainant admittedly had involved in the commercial activity and in addition to the consignment disputed on 07.06.2022, against which, the present complaint is filed in para 3 (k) of the complaint, the complainant admitted that,
"another incident had also happened to complainant's export package bearing FedEx TRK# 7772 0589 8064 booked on 23.06.2022, and the package supposed to be delivered on 29.06.2022 but delivered on 11.07.2022 after 12 days delay". The complainant had also claimed a sum of Rs.4,75,000/- towards administration expenses and a sum of Rs.89,208/- towards net commercial loss in the present complaint. Both of the claims are not permissible under Consumer Protection Act. Therefore, the complainant had admittedly involved in commercial transactions.
8. Even otherwise, the complainant had admitted that the opposite party had refunded a sum of Rs.1,38,134.81/- towards the loss all packages as per terms and conditions mentioned in the booking advice / Airway bill i.e., package bearing FedEx
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TRK# 7772 0589 8064 booked on 23.06.2022. In addition to the said amount, the opposite party had also given a credit note for Rs.48,566/-. Therefore, nothing remains in the complaint and the complaint is dismissed as not maintainable. No costs.
9. In the result, this complaint is dismissed as not maintainable. No costs. Dictated by the President to the Steno-typist, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this 6thday of November 2024.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
List of document(s) filed by the complainant(s):-
| Sl.No. |
Marked as |
Date |
Details |
Remarks |
| 1. |
Ex.A1 |
08.06.2022 |
Fedex consignment note No.TRK# 7770 5932 9915. |
Xerox |
| 2. |
Ex.A2 |
07.06.2022 |
FedEx’s consignment booking information. |
Xerox |
| 3. |
Ex.A3 |
12.06.2022 |
Screenshot of tracking provided in opposite party’s portal. |
Xerox |
| 4. |
Ex.A4 |
15.06.2022 |
Screenshot of complaint filed by the complainant in opposite party’s portal. |
Xerox |
| 5. |
Ex.A5 |
17.06.2022 |
Email sent by complainant to opposite party’s official Mr.Hansel D’silva. |
Xerox |
| 6. |
Ex.A6 |
21.06.2022 |
Email sent by complainant to opposite party’s sales team altering financial impact due to non- delivery of package. |
Xerox |
| 7. |
Ex.A7 |
27.06.2022 |
Reply email sent by complainant to opposite party’s official Ms.Sabina Swamy. |
Xerox |
| 8. |
Ex.A8 |
30.06.2022 |
Opposite party’s official Mr.Hansel D’silva’s reply mail admitting the delay and assuring clearance and delivery of the package. |
Xerox |
| 9. |
Ex.A9 |
05.07.2022 |
Email sent by complainant to opposite party’s executive Ms.Zainab Bakshi – Regional Sales Manager. |
Xerox |
| 10. |
Ex.A10 |
08.07.2022 |
2nd email sent by complainant to opposite party’s executive Ms.Zainab Bakshi – Regional Sales Manager. |
Xerox |
| 11. |
Ex.A11 |
08.07.2022 |
Email by opposite party’s executive Mr.Lyndon Pereira. |
Xerox |
| 12. |
Ex.A12 |
13.04.2022 |
Email sent by complainant to opposite parties seeking explanation and improvement plan for similar negligence of service for previous consignment note FedEx TRK# 7763 8471 2545. |
Xerox |
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| 13. |
Ex.A13 |
12.11.2022 |
Email from RBI’s EDPMS alerting the complainant on SOFTEX outstanding. |
Xerox |
| 14. |
Ex.A14 |
16.07.2022 |
Email from complainant’s AD Bank for documents required for write off due to loss of package. |
Xerox |
| 15. |
Ex.A15 |
31.05.2023 |
Complainant’s letter and challan to CUSTOMS for refund of DBK + RoDTEP refund for loss of package. |
Xerox |
| 16. |
Ex.A16 |
07.09.2022 |
Complainant’s letter to opposite party’s MD seeking compensation for their negligence service. |
Xerox |
| 17. |
Ex.A17 |
30.10.2023 |
Complainant’s Chartered Account’s letter for loss of package SB 1991702. |
Xerox |
| 18. |
Ex.A18 |
01.11.2023 |
Complainant’s CA invoice for issuing letter for loss of package SB 1991702. |
Xerox |
| 19. |
Ex.A19 |
29.03.2023 |
Notice sent by counsel for the complainant. |
Xerox |
| 20. |
Ex.A20 |
12.10.2023 |
Complainant’s letter FedEx CEO, EVP and opposite parties 1 & 2. |
Xerox |
| 21. |
Ex.A21 |
17.10.2023 |
Reply given by counsel for opposite party. |
Xerox |
List of documents filed by the opposite party(s):-
| Sl.No. |
Marked as |
Date |
Details |
Remarks |
| 1. |
Ex.B1 |
--- |
Certificate under Sec.65B of the Indian Evidence Act, 1872. |
Xerox |
| 2. |
Ex.B2 |
02.11.2023 |
Letter of authority. |
Xerox |
| 3. |
Ex.B3 |
08.06.2022 |
Consignment Note along with invoice and packing list. |
Xerox |
| 4. |
Ex.B4 |
--- |
FedEx’s International conditions of carriage. |
Xerox |
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT