State Consumer Disputes Redressal Commission
Sunil Prakash & Anr. vs Dhl Express Inda on 18 May, 2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:28.02.2013
Date of hearing: 21.03.2022
Date of Decision: 18.05.2022
COMPLAINT CASE NO. 95/2013
IN THE MATTER OF
DR. SUNIL PRAKASH & ANR. .... COMPLAINANT
VERSUS
DHL EXPRESS INDIA
PVT. LTD. & ANR. ...OPPOSITE PARTIES
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MR. RAJAN SHARMA, (JUDICIAL MEMBER)
Present: Ms. Annie Rais, Counsel for Complainant.
Mr. Manoj Kumar, Counsel for the Opposite Party.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The Present Complaint has been filed by the Complainant under Section 17 of the Consumer Protection Act, 1986 against the Opposite Parties and have prayed the following reliefs:
a) Direct the Opposite Parties, jointly as well as severally to pay a sum of Rs. 50,00,000/- in terms of the details provided in Para -13, towards the actual losses suffered CC No.95/2013 Dr. Sunil Prakash & Ors. v. DHL Express India Pvt. Ltd. & Anr. Page 1 of 7 by the complainants and also for loss of mental peace, harmony, loss of repute and goodwill alongwith interest @24% per annum accrued thereon for the period of delay; and
b) Direct the Opposite Parties, jointly as well as severally, to pay pendente-lite and future interest @24% per annum w.e.f. February 2012 till the date of payment of compensation to be by the Opposite Parties; and
c) Award costs of proceedings, in favour of the complainant and against the Opposite Parties; and
d) Pass such other and further order or orders as this Hon'ble State Commission may deem fit and proper in the facts and circumstances of the case.
2. Brief facts of the case necessary for the adjudication of the present complaint are that Complainants took the services of the opposite party no. 1 for sending their shipments with an understanding that necessary documentation for the custom clearances in relation to draw back etc. will be handled by the Opposite Party no. 1. However, in February 2012, it came to the knowledge of the Complainants that a major fault has been committed by the Opposite Parties, wherein one consignment was sent under the wrong name of the consignee. The complainants reported the matter to the opposite parties and the representatives of the Opposite Parties assured the complainants that necessary rectification will be done. It was requested by the Opposite Party No.1 not to use the said papers for the purpose of draw back or for issuance of export licenses and in lieu thereof assured the complainants to compensate them for the loss of import licenses but the same was never done by the opposite party no.1.
3. Thereafter, the complainants applied for import licenses in relation to previous year shipments for the period from CC No.95/2013 Dr. Sunil Prakash & Ors. v. DHL Express India Pvt. Ltd. & Anr. Page 2 of 7 1.04.2010 to 31.03.2011 and were shocked to know that the documentation for the shipments handled by the Opposite Parties for the said period were not in order and various fault had been committed by the Opposite Parties. The Complainants came to know from the Director General of Foreign Trade that the HS code mentioned in the copy was incorrectly filled by the Opposite Parties and therefore, the consignments in which the said fault was committed would not be considered for Export License. The complainants immediately reported the matter to the Opposite Parties, to which the representatives of Opposite Parties assured rectification. The complainants duly sent the documents as demanded by the opposite party no. 1 in order to get the rectification. However, despite submission of documents, letters, invoices etc. by the Complainants, the Opposite Party no. 1 on 06.09.2012 informed the Complainants that the rectification could not be done. The opposite party no. 1 further sought details of all the cases where wrong HS code had been mentioned and assured the complainants to resolve the matter through its claims settlement department. The Opposite Party no. 1, thereafter, rather than compensating for the losses suffered by the Complainants offered a sum of Rs. 9,800/- for the purposes of resolution and settlement of claims. It was further surprising that only three claims out of list of more than 18 claims were approved by the Opposite Parties. The Complainants submitted that they had suffered a loss of Rs. 1,26,546/- in addition to loss of repute and goodwill due to deficient services by the Opposite Parties. The complainant sent legal Notice to the Opposite Parties seeking compensation of Rs. 50 Lacs for the actual loss, loss of repute, goodwill, CC No.95/2013 Dr. Sunil Prakash & Ors. v. DHL Express India Pvt. Ltd. & Anr. Page 3 of 7 harassment and mental agony suffered by the Complainants but was of no avail.
4. The opposite parties have contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that the Complainants are not consumer as the said consignments were being used for commercial purposes. He further submitted that the complainants provided them wrong detail due to which error had occurred and there is no deficiency in service on their part.
5. The counsel for the opposite parties contended that the Complainants admittedly suffered a loss of Rs. 1,26,546/-, however, they have claimed an exaggerated sum of Rs. 50,00,000/-, which is unjustified and irrational. He further submitted that the present complaint has been filed against the Opposite Party No. 2 to 7 being employees of the Opposite Party No. 1, therefore, the same is not maintainable against them and liable to be dismissed.
6. The Complainants have filed the Rejoinder rebutting the written statement filed by the Opposite Parties. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
7. We have perused the material available on record and heard the counsel for the parties.
8. The first question of consideration before us is whether the complainants fall under the category of consumers provided by the Consumer protection Act, 1986. To comment on this, we deem it appropriate to refer to Section 2(d) of the Act, which provided as under:
CC No.95/2013 Dr. Sunil Prakash & Ors. v. DHL Express India Pvt. Ltd. & Anr. Page 4 of 7"2(d) - "consumer" means any person who,-- (i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly 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 services 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 services 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 services for any commercial purpose] [Explanation.--For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]
9. Perusal of the above statutory provision reflects that commercial purpose does not include use of goods or services exclusively for the purposes of earning his livelihood by means of self-employment. Returning to the facts of the present case, though the Opposite Parties had contended that the shipments were commercial in nature, the Opposite Parties failed to provide us any evidence which shows that the complainants are not earning their livelihood by means of self-employment. In absence of any legit evidence, we cannot rely on the mere allegation of the opposite parties that the complainants do not CC No.95/2013 Dr. Sunil Prakash & Ors. v. DHL Express India Pvt. Ltd. & Anr. Page 5 of 7 fall in the category of consumers provided by this Act. Consequently, the said contention of the Opposite Parties is without any merit.
10. The next question of consideration is whether the Opposite party no. 1 is deficient in providing its services to the complainants. On perusal of record before us, it is clear that the Complainants had sent various mails to the Opposite Party no. 1 informing wrong reporting of their shipments and the Opposite party had also assured the complainants to get the amendments/ rectification done. However, suddenly on 06.09.2021 the opposite party no. 1 informed the complainants that amendments could not be done and they have forwarded the details to claims and compensation department. The mail dated 06.09.2021 sent to the complainants is provided hereunder for ready reference:
"Dear Dr. Prakash:
This is further to our conversation in the afternoon, we regret the inconvenience caused to you. We had made efforts in making amendments to the HS code on shipping documents by requesting to the customs official at Delhi, but the outcome was not possible.
We have forwarded the details to our claims and compensation department, so that they can review and get back to you on priority."
11. Perusal of the above said mail sent by Opposite Party no. 1 to the complainants reflects that the Opposite party no. 1, after failing to get the amendments, sent the claims of the complainants to their claim and compensation department. Therefore, it is clear that the Opposite party no. 1 is deficient in CC No.95/2013 Dr. Sunil Prakash & Ors. v. DHL Express India Pvt. Ltd. & Anr. Page 6 of 7 providing its services to the complainants and due the fault of the Opposite Parties, the complainants could not get the draw back and import license on the shipments sent by them.
12. Keeping in view the facts and circumstances of the present case, we direct the opposite party no. 1 to :
a) Pay Rs. 1,26,546/- towards the actual loss suffered by the Complainants
b) Pay Rs. 2,00,000/- as compensation for mental agony and harassment suffered by the complainants.
c) Pay Rs. 50,000/- as litigation cost.
13. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
15. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER (JUDICIAL) Pronounced On:
18.05.2022 CC No.95/2013 Dr. Sunil Prakash & Ors. v. DHL Express India Pvt. Ltd. & Anr. Page 7 of 7