State Consumer Disputes Redressal Commission
Surpreet Kaur Aged 29 Years D/O Sh. ... vs Dhl Express India Pvt. Ltd., Sco ... on 12 December, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 36 of 2012
Date of institution: 15.05.2012
Date of Decision : 12.12.2013
Surpreet Kaur aged 29 years D/o Sh. Balbir Singh, R/o House No. 119,
Sector 35-A, Chandigarh
.....Complainant
Versus
1. DHL Express India Pvt. Ltd., SCO 443-444, Sector 35-C,
Chandigarh through its branch manager.
2. DHL Express India Pvt., Ltd., 8th floor, Dheeraj Arma, AK Marg,
Bandra (East), Mumbai through its Managing Director/General
Manager/President..
.....Opposite Parties
Complaint U/s 12 of the Consumer Protection
Act, as amended up to date.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member Argued By:-
For the complainant : Sh. Balwinder Singh, Advocate For the O.Ps : Sh. Sanjay Judge, Advocate JASBIR SINGH GILL (MEMBER) The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against the O.Ps with the allegations that she was doing her M.Sc.
International Health Services & Hospital Management from London in the year 2010 to 2012. After attending the compulsory classes in university and successfully passing the written examination, the complainant came back to India to pursue the thesis on the approved topic/subject and to submit to the university in the month of January 2012. It is pleaded that in case the thesis were submitted on or before 09.01.2012 then the case of Consumer Complaint No. 36 of 2012 2 the complainant will be considered in the Winter Postgraduate Award & Progression Boards meeting held on 11.01.2012, then the degree of the complainant will be awarded in January, 2012, otherwise the award of the degree is to be delayed till summer board i.e. July, 2012. The complainant contacted the O.P. office at Chandigarh on 05.01.2012 and fully explained the urgency and mandatory date for submission of thesis to the university i.e. 09.01.2012. The official of the O.Ps assured the complainant that the documents would be delivered on due date through its time bound service for which additional charges had to be paid. After having been assured, the complainant handed over the thesis, documents containing a set of three files and paid Rs. 4231/- to O.P. No. 1 against the receipt dated 05.01.2012 which was duly stamped and signed by O.P. No. 1 with the endorsement. It is further pleaded that when the courier containing the thesis of the complainant was not delivered in time to the faculty administrator, then the complainant contacted the O.Ps. The Manager of the O.Ps replied that the shipment booked by the complainant was misplaced in transit and they are trying to trace out the shipment. Once the shipment is traced out, they will deliver the shipment. On 13.01.2012, the courier was delivered by the O.P and the same was confirmed by the faculty members through email on 13.01.2012. But due to late delivery of the courier, the case of the complainant could not be considered for the Winter Postgraduate Award & Progression Boards meeting held on 11.01.2012 and thus the award of the degree has been delayed till July 2012 i.e. after six months and the complainant could not apply for PSW visa and job in February 2012 which is also delayed till July 2012 i.e. after 6 months and the minimum expected salary was 4500-5000 GBP per month. It is submitted that the late delivery of the courier which was delayed award of degree has also caused the total stoppage of Consumer Complaint No. 36 of 2012 3 employment of the complainant in the U.K. as per the latest policy announced by U.K. Government. Government of U.K. has changed the policy and due to change in the policy of U.K. government now the complainant will not get chance to work in U.K., due to the late delivery of the thesis by the O.Ps, the future of the complainant was fully spoiled. Hence the complainant filed the complaint with the prayer that the O.Ps be directed to pay a. the courier charges of Rs. 4231/-
b. to pay @ GBP 56000 per annum for 6 months as loss of employment and other facilities.
c. To pay @ GBP 74000 for loss of employment for one and half year.
d. Rs. 10,0000/- as mental and physical harassment. e. Rs. 15000/- as cost of travelling and providing additional copies of documents to the office of the opposite party. f. Rs. 11,000/- as litigation expenses.
2. Upon notice, the O.Ps contested the allegations of the complainant and filed the written reply with the objections that the complainant has not approached this Hon'ble court with clean hand, that the present complaint is wholly misconceived, groundless and unsustainable in law; that the Hon'ble Court has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint and that the dispute raised by the complainant in the present complaint is manifestly outside the purview of the Act.
3. On merits, it was admitted that the endorsement as per the desire of the complainant was made on the consignment with regard to its delivery on or before 09.01.2012. But this does not entitled the complainant to seek any kind of damages. It is submitted that the Consumer Complaint No. 36 of 2012 4 complainant was made aware that in the event of any delay for making time definite delivery for reasons exclusively for opposite party default. The O.P. shall be liable to the extent of shipment freight charges received from the complainant and nothing beyond that. It is further submitted that the delay in the instant case also for few days which could have been due to operational reasons which are purely beyond reasonable of the O.Ps. Eventually the said consignment was delivered safely on 13.01.2012 and there is no deficiency in service on the part of the O.Ps. It was prayed for dismissal of the complaint.
4. The parties produced evidence in support of their respective versions.
5. The complainant has tendered into evidence affidavit of Ms. Sukhpreet Kaur as CW1/A, shipment cash receipt Ex. C-1, letter dated 11.01.2012, E-mails Ex. C-2 to Ex. C-13, The Tribune newspaper cutting Ex. C-14 and closed the evidence on behalf of the complainant.
6. The O.Ps tendered into evidence affidavit of Aneeket Rane, Asstt. Legal Manager Ex. OP1/A and closed the evidence on behalf of the O.Ps.
7. We have gone through the pleadings of the parties, complaint and heard the arguments of the counsel for the parties including written arguments submitted by the parties.
8. As per the complainant it has been submitted that it was very crucial to honour the date for submission of documents to the university on or before 09.01.2012. The O.Ps assured the complainant that the documents would be delivered on due date through its time bound delivery services for which additional charge had to be paid. But these thesis were not delivered in time to the faculty administrator. It was also admitted in letter Ex. C-2 that due to some reasons shipment number Consumer Complaint No. 36 of 2012 5 AWB2555208412 was misplaced in transit and they are trying to transit the shipment. Once shipment is traced out, they will deliver the shipment. The shipment was delivered on 13.01.2012 instead of 09.01.2012. It was submitted that due to late delivery of the courier, the case of the complainant could not be considered by the Winter Postgraduate Award and Progression Board meeting held on 11.01.2012 and thus the award of the degree has been delayed till July 2012 i.e. after six months. The complainant therefore was unable to apply for PSW Visa and job in February 2012 which was also delayed till July 2012. If the courier containing the thesis of the complainant would have been delivered in time then it would have facilitated the complainant to apply and obtain the post study visa for two years and also have got employment on that visa basis. But late delivery of the courier which has delayed award of degree has caused the total stoppage of employment as per the latest policy announced by the UK government.
9. On the other hand, learned counsel for the O.Ps has argued that the endorsement as per the desire of the complainant was made on the consignment with regard to its delivery on or before 09.01.2012 but this does not entitle the complainant to seek any kind of damages. It is submitted that the complainant was made aware that in the event of any delay for making time beyond delivery for reasons exclusively on O.Ps default, the O.Ps shall be liable to the extent of the shipment fright charges received from the complainant and nothing beyond that. The delay in the instant case is just a few days which could have been due to operational reasons which are purely beyond reasonable control of the O.Ps or due to human error for which the O.Ps are not responsible. Eventually the said consignment was delivered safely on 13.01.2012. It is further submitted that there is no international error or delay with regard to the delivery of the Consumer Complaint No. 36 of 2012 6 said consignment. Even if it is purported that there was delay in delivery of the consignment, O.Ps would be held liable in breach of contractual agreed limited law i.e. as per the AWB in delayed shipment which pre supposes that DHL will make every reasonable effort to deliver the shipment according to the DHL requirement delivery schedule but these are not guaranted and are not part of the contract. DHL is not liable for damages or loss caused due to the delay. Hon'ble Supreme Court in case "Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. AIR 1996 Supreme Court 2508" has held that consignment delayed and reaching to consumer when seas was over, Liability of consignee limited to certain amount by contract between parties. Contract specifically excluding liability of consignee for any damages or any indirect loss that may occur including loss of market or profits. Parties are bound by such terms of contract-Award of damages for deficiency in service to extent of liability undertaken in contract between parties. Hon'ble National Commission has also held in case M/s Bluedart courier services and another Vs. Ms/ Modern Wool Ltd III (1993) CPJ 308 (NC) a packet containing two licenses without declaration that these were important documents were lost by the courier in the transit-whether the complainant was under obligation to declare complete description of the contents? (Yes)
10. In view of the above discussion, we are of the view that there is deficiency in service on the part of the O.P. No. 1 as the courier was delayed from 09.01.2012 to 13.01.2012 as there was endorsement made by the courier company that delayed delivery beyond 9.01.2012 and loss was suffered by the complainant on not reaching her thesis on or before 09.01.2012. But as per the terms and conditions limit of damages had been upon terms of the contract and facts in each case. A person who Consumer Complaint No. 36 of 2012 7 signed the documents containing contractual terms is normally bound by them even though he has not read them and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arise, whether the terms of contract were adequately brought to the notice. As per Ex. R-9 the terms and conditions. Relevant condition No. 9 is reproduced as under:-
9. Delayed Shipments DHL will make every reasonable effort to deliver the shipment according to DHL's regular delivery schedules, but these schedules are not binding and do nor form part of the contract. DHL is not liable for any damages or loss caused by delays. Certain services have a money-back guarantee which provides for a credit or refund for delay of all or part of the shipments transport charges in some cases.
11. Similarly in case, "Airpack Couriers (India) Pvt. Ltd Vs. S. Suresh" 1 (1194) CPJ 52 (NC)" it was held by the Hon'ble National Commission that a consignment of important papers was entrusted by the complainant's Head Office to a courier, consignment did not reach the complainant. The matter was taken up by the complainant with the courier but in vain, State Commission awarded compensation.
12. In view of above discussion, we partly accepted the complaint and direct the O.Ps to pay Rs. 4231/- to the complainant which were taken at the time of consignment and Rs. 15000/- as compensation and litigations expenses.
13. The arguments in this appeal were heard on 04.12.2013 and the order was reserved. Now the order be communicated to the parties as per rules.Consumer Complaint No. 36 of 2012 8
14. The complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member December 12, 2013. (Jasbir Singh Gill) RK Member Consumer Complaint No. 36 of 2012 9