National Consumer Disputes Redressal
M/S. Dhl Worldwide Express Now It Known ... vs M/S. Goel Textiles (India) & 2 Ors. on 23 February, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 343 OF 2015 (Against the Order dated 11/02/2015 in Complaint No. 173/1997 of the State Commission Maharashtra) 1. M/S. DHL WORLDWIDE EXPRESS NOW IT KNOWN AS DHL EXPRESS (INDIA) PVT. LTD., THROUGH ITS AUTHORISED REPRESENTATIVE, OLD OFFICE AT: AIRFREIGHT HOUSE, LOK BHARTI COMPLEX, MOARL MAROSI ROAD, ANDHERI (EAST) MUMBAI-400059 MAHARASHTRA ...........Appellant(s) Versus 1. M/S. GOEL TEXTILES (INDIA) & 2 ORS. A PARTNERSHIP FIRM CARRING ON BUSINESS AT 402, SHARDA CHAMBERS, NEW MARINE LINES, MUMBAI-400020 MAHARASHTRA 2. SANJIV GOEL PARTNER OF M/S. GOEL TEXTILES (INDIA), CARRYING ON BUSINESS AT 402, SHARDA CHAMBERS, NEW MARINE LINES, MUMBAI-400020, MAHARASHTRA 3. VINOD GOEL A CANADIAN CITIZEN THROUGH HIS CONSTITUTED ATTORNEY, SANJIV GOEL, HAVING OFFICE AT, 402, SHARDA CHAMBERS, NEW MARINE LINE, MUMBAI-400020, MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Appellant : Ms. Sapna Bhuptany, Advocate For the Respondent : Ms. Ambika Singh, Advocate and Mr. S. K. Srivastava, Advocate Dated : 23 Feb 2018 ORDER
1. This first appeal has been filed under Section 19 of the Consumer Protection Act, 1986 against the order dated 11.02.2015 passed in complaint case No. 173 of 1997 by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, 'the State Commission') whereby the State Commission partly allowed the complaint and directed the OP to pay to the complainants an amount of Rs.2,10,000/- as interest @ 9% p.a. on the amount of Rs.1.40 crores alongwith Rs. 14,320/- towards expenses.
2. The complainant No. 1-M/s Goel Textiles (India) is a partnership firm and the complainants No. 2 and 3 are the partners of the firm. The complainant No. 1 dispatched one demand draft for US $ 388523.56 (around Rs. 1.40 crores) to New York on 20.2.1997 on the address of Aidpro Finance INC. The said consignment did not reach the destination. On enquiry, it was learnt that the consignment was lost in the transit. The OP has informed the complainant about the status of the consignment and also informed that they were trying to trace the consignment. The complainant took precautionary steps to prevent misuse of the demand draft. The State Bank of India, Churchgate Branch was informed and they advised their New York Branch to stop the payment of the said demand draft. For taking duplicate demand draft, the complainants are required to execute a letter of indemnity with sureties and it has to be verified by Indian Consulate in Canada. Thus, it was alleged that the opponent did not take proper care despite knowing that the consignment contained demand draft. Therefore, the complainants had suffered huge loss and mental agony. They lost interest on the amount of demand draft from 20.02.1997 to 20.4.1997 on which date, the duplicate demand draft was issued. Also, the complainants had incurred Rs.10,000/- towards cheque for the Chartered Accountant. Being aggrieved, the complainants have filed the complaint before the State Commission for deficiency in service and negligence and claimed Rs.9,34,320/- from the OP.
3. The OP resisted the complaint by filing written version and submitted that the complaint was frivolous and motivated. The complaint was not maintainable because it was a commercial transaction and the complainants were not consumers according to Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The complainant did not reveal the contents of the consignment to the OP. The OP is liable to the extent of $100 as per limited liability clause mentioned in the consignment note. The OP had booked the consignment subject to the terms of Airway Bills and Services, thus, there was limited liability and parties are bound by the contract.
4. The State Commission after hearing the parties, partly allowed the complaint and directed the OP to pay Rs.2,10,000/- as interest, calculated @9% per annum on the amount of Rs.1.40 crores within 90 days from the date of order and also awarded Rs.14,320/- towards expenses incurred by the complainants.
5. Being aggrieved, the OP has filed first appeal before this Commission.
6. We have heard the learned counsel for both the parties. Learned counsel for the complainants submitted that, OP had informed them that, if the demand draft is not traceable, they will have to execute a letter of indemnity with two sureties. A letter of indemnity was to be verified by Indian Consulate Canada and on receipt of the same, the bank will consider the request to issue duplicate demand draft, but the OP did not stand itself as surety for issuance of duplicate demand draft. The complainants suffered huge loss and mental agony; also loss of interest on the amount of demand draft from 20.2.1997 to 20.4.1997, on which date, the duplicate demand draft was issued.
7. Learned counsel for the OP vehemently argued that an International Carriage transaction is governed by the Carriage by Air Act, 1972 and the Warsaw Convention is applicable in India by virtue of India being signatory. Under referral Act/Convention, the carriage has its liability limited and calculated on weight of shipment and not on value of the shipment. The complainants have the Credit Account with Opposite Party. The Complainants have gone through and duly signed terms and conditions of liability towards shipment, mentioned in Airway Bill, and the same was signed while booking this shipment. The Complainants, therefore, were well aware about contractual obligation of both the parties for the shipment. The counsel further submitted that the complainants never made any declaration towards the contents of consignment being demand draft. The complainants have not suffered any loss due to the alleged loss of consignment. The complainants had already obtained duplicate demand draft of the same value from the bank as the demand draft was never misused. Therefore, it was a frivolous and vexatious complaint.
8. The complainants have given details of the expenditure of Rs.14,320/- incurred by them. The complainants paid Rs.100 towards stamp duty, an indemnity bond of Rs.220/- for issuing the duplicate demand draft in the State Bank of India, Rs.10,000/- to the Chartered Accountant, Rs. 4,000/- towards Telephone charges. So far as mental agony and the loss of interest for two months on the amount of demand draft of Rs. 1.4 crores is concerned, the State Commission has calculated it at 9% per annum and awarded the amount of Rs.2,10,000/-, which, in our view, was a just and proper compensation awarded by the State Commission.
9. On the basis of foregoing discussion, we do not find merit in the instant appeal. There is no error apparent in the impugned order to call for any interference. The first appeal is hereby dismissed. However, the parties shall bear their own cost.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER