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since the matter related to non-dispatch of parts of the body organs e.g. lungs and brain fluid of the deceased son of the appellant for the purpose of research, which has been dismissed by the State Commission-= The complainant has claimed a compensation of Rs.9.75 Lakhs for the loss and the injury occasioned to him. Having regard to the mental state in which the complainant would have been at the relevant time just after the death of his young 19 year old son and the noble cause of research for the humanity at large, the episode must have been a life-time setback to the complainant. No amount of money can suitably compensate the complainant for the kind of loss and injury suffered by him and it is almost impossible to quantify the same. We, therefore, find it a fit case where we must award a lump sum compensation of Rs.5.00 Lakhs to the complainant, which should adequately meet the ends of justice. The compensation shall be payable by respondents no. 1 to 3 jointly and severally, respondent no.4 having been dropped from the array of parties and no relief having been claimed against respondent no.5.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

Thiruvananthapuram

NEW DELHI

 

 

 

 

FIRST APPEAL NO. 502 OF 2004

[Against the order dated 26.08.2004 in Complaint No. 61/2000 of the

Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram]

 

K. Venkata Rao

“Om Shakthi”

19/1898, K.N. Road, Poojapura

Thiruvananthapuram-695012

Presently residing at

“Om Sri Sai Ram”

449, 24th Main, 8th Cross,

HSR Layout 1st Sector

Agara, Bangalore-560034                                       …      Appellant

Versus

1.       M/s Federal Express Corporation

942, South Shady Grove Road

Memphis, TN 38120, USA

901-369-3600

 

2.       Mr. Suraju Dutta

Senior Country Manager

Federal Express Corporation

Chemtex House

Hiranandani Garden Main Road, Powai

Mumbai-400076

 

3.       Mrs. Ajanta Chakraborty

Manager, Customer Service

Federal Express Corporation

Chemtex House

Hiranandani Garden Main Road, Powai

Mumbai-400076

 

4.       Mr. Pramod Agarwal

Manager, Operations

Federal Express Corporation

Chemtex House

Hiranandani Garden Main Road, Powai

Mumbai-400076

 

5.       Mr. Babu Jacob

Executive Sales

Bluedart Express, Federal Express Call Centre

9/1069, Sasthamangalam

Thiruvananthapuram-695010                        …      Respondents

 

 

BEFORE :

 

          HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER

          HON’BLE MR. S.K. NAIK, MEMBERS

 

For Appellant                            :  Mr. Santosh Paul, Amicus Curiae

Ms. Astha, Tyagi, Advocate

Ms. Mohita Bagati, Advocate &

Appellant in person

 

For Respondents No. 1 to 3       :  Mr. A.V. Haksar, Sr. Advocate with

Ms. Vatsala Suhota, Advocate &

Mr. Akshay, Advocate

 

For Respondent No. 5               :  Mr. Sumeet Lall, Advocate with

Mr. Arjun Garg, Advocate &

Ms. Ankita, Advocate

 

Pronounced on :  16th January, 2012

 

O R D E R

 

PER S.K. NAIK, MEMBER

 

 

1.       Original complainant K. Venkata Rao has filed this appeal against the order dated 26th of August, 2004 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short the State Commission), vide which the State Commission has dismissed the complaint and has also imposed a cost of Rs.1000/- to be paid by him to each of the opposite parties except opposite party no.4 holding that he had unnecessarily dragged them to a litigation.

2.       The facts, as alleged by the appellant in his complaint filed before the State Commission are that, due to some obscure neurological disorder his 17 year old son Om Prakash had died on the 10th of May, 2000.  Before his death, he was under the treatment of various Medical Institutions, such as Sree Chitra Tirunal Institute of Medical Science & Technology (SCTIMST), Trivandrum; Christian Medical College & Hospital (CMC), Vellore; National Institute of Mental Health and Neurological Science (NIMHANS), Bangalore for the preceding three years (i.e. from 1997). That apart, the appellant was also in touch with many foreign experts for getting periodical opinions.  In spite of all this, the medical problem of his son could not be diagnosed.  Therefore, the appellant decided to donate his deceased son’s brain and lungs for carrying out a comprehensive research for the benefit of humanity.  In this regard, one Dr. Bruce H. Cohen of USA showed his interest to undertake the research.  His associate, Dr. Steven J. Zullo advised the appellant to send the organs through the international courier M/s Federal Express Corporation (Fedex for short). The appellant contacted Mr. Babu Jacob, Executive Sales, Bluedart Express of Federal Express Call Centre, opposite party no.5, at Trivandrum for the purpose.  Though opposite party no.5 was ready to accept the consignment of the organs but advised the appellant to take the commercial invoice form and go to Mumbai directly since the consignment needed special packing with dry ice and some customs formalities were required to be completed at Mumbai.

3.       In order to have some idea regarding packing adequacy with dry ice, exact hours of transit time and the condition in which the shipment would be delivered to the recipient, the complainant/appellant decided to send the organs in two batches and accordingly prepared the first batch of few grams of lung, cerebro-spinal fluid (CSF) and blood.

4.       On 19th of June, 2000, when the complainant/appellant reached the Fedex Service Centre at Adarsh Industrial Estate, Chakala,Andheri (East), Mumbai, for having an idea in this regard, he was advised to pack the consignment with 3 kg. dry ice and was instructed regarding special packing procedure for such shipments.  The complainant/appellant packed the first batch with 3kg. dry ice on the said date and on 21st of June, 2000 informed the Fedex representative about the adequacy of 3 kg. dry ice for 48 hours of travel time.  On 22nd of June, 2000 respondent no.3 Ms. Ajanta Chakraborty finally consented to accept the consignment and thereafter international airway bill no. 400-8732-6691 was prepared and the two packages of the consignment were handed over to the Fedex Service Centre atAdarsh Estate, Mumbai, who assured the appellant that the consignment will be dispatched the next day.  On 23rd of June, 2000, the date on which the consignment was supposed to be put on board for transmission, the complainant/appellant was requested by the respondents to pack the consignment with fresh 3 kg. dry ice since there was some delay in dispatch and he acted accordingly.  At this juncture, the appellant was promised by respondent no.3 Ms. Ajanta Chakraborty, Manager Customer Service that in case of any subsequent delay, they would take care of the consignment of their own but again, since there was some delay due non-clearance by the Customs to the consignment, the complainant arranged for the clearance and handed over the same to the respondents.  At the airport the consignment was finally accepted by respondent no.4 Mr. Pramod Agarwal, Manager Operations after a thorough inspection. But subsequently, respondent no.2 Mr. Suraju Dutta, Sr. Country Manager refused to send the consignment saying that dispatch of human organs was in contravention of the Fedex policy.  At this stage, allegedly, respondent no.4 Mr. Pramod Agarwal, Manager Operations removed the copies of the airway bill from the package in order to leave no trace of any record/evidence of having accepted the consignment for dispatch and the packages were kept at the Bluedart/Fedex premises at Adarsh Estate, Mumbai.  Disappointed with the sudden turn of events, the appellant made a complaint to the principal office of the respondents in USA but except for an apology in the matter no action was taken by the respondents to send the consignment.

5.       In this background, alleging (i) deficiency in service, (ii) deliberate and willful spoiling of the precious diagnostic material, (iii) refusal to even send the second packet which contained documents only, including the MRI of the patient, without any reason, (iv) forceful removal of the copies of the airway bill from the package by respondent no.4, (v) mental agony, torture and harassment, besides loss of precious tissues/organs, the appellant filed complaint praying for a compensation of Rs.9.75 Lakhs under different heads before the State Commission, who vide the order impugned has dismissed the same holding that the appellant/complainant was not a ‘consumer’ and had no locus standi to file the complaint despite holding that it lacked the pecuniary jurisdiction to entertain the complaint.

6.       Hence, this appeal by the appellant/complainant.

7.       At the outset, it may be stated that since the matter related to non-dispatch of parts of the body organs e.g. lungs and brain fluid of the deceased son of the appellant for the purpose of research, which has been dismissed by the State Commission and he is in appeal before us, and considering that the matter for the appellant may involve emotive overtones and on his request to appoint an amicus curiae, we had requested Shri Santosh Paul, learned Advocate, to assist this Commission on behalf of the appellant/complainant as Amicus Curiae, which he had readily accepted and has argued the case.

8.       Respondents no. 1 to 3 are represented by Mr. A.V. Haksar, Sr. Advocate, assisted by Ms. Vatsala Suhota, Advocate and Mr.Akshay, Advocate, and Mr. Arjun Garg, Advocate, assisted by Mr. Sumeet Lall, Advocate and Ms. Ankita, Advocate, has appeared on behalf of respondent no.5.  Respondent no.4 had already been struck off from the array of parties even before the State Commission.

9.       It may be stated here that respondent no.5 Mr. Babu Jacob, Executive Sales, Bluedart Express of Federal Express Call Centre, Thiruvananthapuram had not filed his written version nor contested the complainant’s claim that he was part of Fedex call centre at Thiruvananthapuram before the State Commission.  He had ‘not mounted the witness box’ as per the State Commission’s own version to testify that Exhibit A-6, commercial invoice, was not given by him.  Yet he had filed IA No. 645 of 2001 to get his name deleted from the array of opposite parties as the complainant had not claimed any relief qua him and the State Commission had dismissed the same. Respondent no.5 even thereafter did not file any written version to clarify his stand.  Strangely, however, a reply has now been filed before this Commission on behalf of Blue Dart seeking permission also to file certain documents received from the appellant.  We cannot permit/allow filing of any written version or additional documents as they have foreclosed their right to do so in view of their previous conduct which amounts to a conscious decision not to contest the complainant’s version before the State Commission.

10.     We have carefully perused the rather detailed order passed by the State Commission and have carefully gone through the evidence placed on record by the parties and their written submissions. We have also heard learned counsel for the parties and the learned amicus curiae at great length.  Learned counsel for the appellant/complainant has contended that the complainant having availed service of Fedex and M/s Bluedart with the promise of payment from Dr. Zullo, is a ‘consumer’ as per Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, which the State Commission has failed to appreciate.  On the question of territorial jurisdiction, he contends that Blue Dart Express of Fedex Call Centre at Thiruvananthapuram having provided the commercial invoice, which bears the column of Fedex Express AWB No., the process of dispatch started at Trivandrum.  The commercial invoice having been verified by Mr.Babu Jacob, part of cause of action arose at Trivandrum also where the Fedex office combined with Blue Dart was functioning.  He further submits that the existence of Blue Dart/Fedex office at Trivandrum is established from the fact that when he went with the commercial invoice issued by Mr. Babu Jacob to the Blue Dart/Fedex office at Adarsh Service Centre of Fedex, Mumbai, the same was entertained by the Adarsh Service Centre of Fedex.  On the question of not being a beneficiary as contended by the opposite parties, the learned counsel has submitted that even though the complainant has not claimed to be a beneficiary of either Dr. V.V.Radhakrishnan or of Dr. Zullo as the main consumers and he has himself claimed to be the consignor/complainant, the fact cannot be ignored that the complainant was to be the first beneficiary of any outcome from the research to be undertaken on the body parts of his deceased son as it was his other two living daughters and their children who would be at great risk if the disease of his deceased son is not diagnosed.  Thus, on all the three counts, he contends that the State Commission totally with a pre-conceived notion has dismissed the complaint arbitrarily.

10A.   Learned counsel for respondents/opposite parties no. 1 to 3 has fully justified the order passed by the State Commission and has reiterated the view expressed by the State Commission that the complainant was not a ‘consumer’ nor was he a beneficiary nor was there any cause of action at Thiruvananthapuram to file the complaint before the State Commission in Kerala.

10B.   In view of the submissions of learned counsel for the complainant and the learned counsel for the opposite parties, it would be necessary for us to consider as to whether the order passed by the State Commission in the facts and circumstances of the case is legal and justified.

11.     The State Commission has dismissed the complaint of the appellant summarizing its views in the operative para which reads asunder :-

“30.    Considering the facts and circumstance of the case, we are of the considered view that the complaint is not entertainable on the ground that complainant is neither a consumer nor a beneficiary or has locus standi to file the complaint.  Further ground is that no part of cause of action arose within the territorial jurisdiction of this commission.

 

In the result the complaint is dismissed.  Having regard to the facts and circumstance of the case we direct the complainant to pay to the opposite parties 1 to 3 and 5 cost of Rs.1000/- each for unnecessarily dragging them to a litigation knowing fully well that he is not a consumer as defined in the Act and no part of cause of action arose within the territorial jurisdiction of this Commission for making unlawful gain by way of compensation,”

 

 

12.     In substance, it may be seen that the State Commission has dismissed the complaint of the appellant/complainant holding (a) that the complainant was neither a ‘consumer’ nor a beneficiary nor had he the locus standi to file the complaint and (b) that no part of cause of action arose within the territorial jurisdiction of the State Commission.  We have, therefore, to examine as to whether the State Commission was correct in its approach to arrive at the aforesaid conclusion.

13.     A ‘consumer’ is defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as under :-

“(d)    “Consumer” means any person who,

(i)           ….

(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.”  

 

14.     As can be seen, under this definition of a ‘consumer’ a person himself hiring or availing any service for a consideration whether paid, promised, partly paid, partly promised or under any system of deferred payment will qualify to be a ‘consumer’.  Additionally, any person who is a beneficiary of such services with the approval of the former also qualifies to be a ‘consumer’.  The only exception is that a person who avails of such services for any commercial purpose would not qualify to be a ‘consumer’.  In the case in hand, we find that the State Commission in para-10 of its order has stated that the complainant did not qualify to be a ‘consumer’ as he had not pleaded in the complaint that he hired or availed the services of respondent/opposite party no.1 for a consideration.  The State Commission has also held in para 13 that the complainant was not even a beneficiary of Dr. V.V. Radhakrishnan and Sree Chitra Tirunal Institute of Medical Science & Technology, who according to Exhibit A-7 was the consigner, as the said Dr. V.V. Radhakrishnan had not paid any consideration in any manner to the respondent/opposite party no.1.  The State Commission further goes on to hold that Dr. Steven J.Zullo, who had provided his account number with M/s Federal Express Corporation, had no privity of contract with the respondent/opposite party no.1 with regard to the dispatch of the consignment in question and, therefore, did not qualify to be a ‘consumer’ and the complainant cannot claim to be a beneficiary of Dr. Zullo as well.  Thus, the State Commission has held that the complainant does not qualify to be a ‘consumer’ as he had directly paid no consideration to the respondent/opposite party no.1 nor does he qualify to be a beneficiary authorized by Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology, who is stated to be the consigner in the airway bill nor can the complainant claim to be a beneficiary authorized by Dr.Zullo.  The State Commission, however, in para 12 of its order referring to only a part of Exhibit A-4, i.e. mail of the complainant addressed to Dr. Zullo, states that “it was the complainant who had decided to send the consignment through Federal Express” but ignores the other part of the exhibit, which is the reply of Dr. Zullo to the complainant, in which he has given his Federal Express Account No.  The import of this response from Dr. Zullo has not been appreciated in its correct perspective by the State Commission, inasmuch as through this response Dr. Zullo in unambiguous terms undertook to defray the expenditure on the remittance of the consignment on its receipt at his end.  If this was not an agreement for a deferred payment, then what would it be?  To be noted that the airway bill Exhibit A-7 was prepared by the Fedex employee who himself has entered Dr. Zullo’s Fedex Account Number on the airway bill.

15.     The case set up by the complainant/appellant is that in order to dispatch the body parts of his deceased son for research purposes to U.S.A., he first approached Mr. Babu Jacob of the Bluedart, Federal Express Call Centre at Trivandrum.  The said BabuJacob provided the commercial invoice, which the complainant got filled up from Dr. V.V. Radhakrishnan, Head of Sree Chitra TirunalInstitute of Medical Science & Technology, under whose custody the body parts were preserved for obvious reason.  Thereafter the said commercial invoice was verified by Mr. Babu Jacob, who, however, advised the complainant to proceed to Mumbai as the dispatch of body organs required some special facility and procedure, which his office was not equipped with.  The same commercial invoice which had been verified by Mr. Babu Jacob was presented by the complainant at Mumbai before the Fedex office, which was entertained by the respondent/opposite party no.1.  The airway bill was thereafter prepared by them.  A perusal of the said airway bill (Exhibit A-7) even though mentions the name of Dr. V.V. Radhakrishnan and Sree Chitra Tirunal Institute of Medical Science & Technology; in column-10 of the said airway bill, the name of the complainant K. Venkata Rao appears as the sender.  The signature of the complainant has been obtained by the Fedex authorities on the said bill.  It has further been stated in columns 7 and 8 thereof that the bill will be paid by the recipient i.e. Dr. Steven J. Zullo.  While the State Commission has erroneously held that the said bill is not authenticated by anybody from the Fedex, we find that a Fedex employee whose employee number is 25480 appears on the airway bill, which cannot but be said that it was an employee of Fedex who had prepared and authenticated the said bill.  In the absence of any specific averment that the said bill was not prepared by anyone of their employees, it was not correct on part of the State Commission to have taken the view that it has.  Further, the respondent/opposite party no.1 having asked the complainant to undertake the exercise of packing the tissue/organ with adequate quantity of dry ice, not once but four times and further having solicited his assistance to get the customs clearance and having dealt with him from 19th of June to 23rd of June, 2000 when finally he was informed that the consignment cannot be accepted, could not be heard to take the plea that K. Venkata Rao (the complainant) was not the consigner and it was Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology.  We do not find any averment that respondent/opposite party no.1 ever questioned the locus of the complainant or having asked the complainant to explain as to how was he concerned with the dispatch when Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology was the consigner.  By their own conduct, it has to be held that the respondent/opposite party no.1 had forfeited/waived their right to challenge the locus of K.Venkata Rao as the real consigner/complainant.  The State Commission, in our view, has misdirected itself in holding that K. VenkataRao was not the consigner.

16.     We find from the order passed by the State Commission that it has devoted a large part of its order in dealing with the subject whether the complainant was a beneficiary either of Dr. V.V. Radhakrishnan of Sree Chitra Tirunal Institute of Medical Science & Technology or Dr. Steven J. Zullo.  In our view, this was totally unnecessary and uncalled for as the complainant had placed himself in the position of the consigner with a deferred payment to be made by Dr. Zullo and, therefore, he was fully qualified to be a consumer to file the complaint.  Total reliance placed by the State Commission only on the incorporation of the name of Dr. V.V. Radhakrishnan and the Sree Chitra Tirunal Institute of Medical Science & Technology on the airway bill (who were only the custodian of the body parts of the deceased son of the complainant) could be of technical consideration, which does not change the character of the complainant being the real sender/consigner, which is clearly borne out from the airway bill and the subsequent conduct of the Fedex authorities.

17.     The State Commission in its order has also held that “It is not possible to draw any inference from his evidence (i.e. evidence of the complainant) that any part of the cause of action arose at Thiruvananthapuram within the territorial jurisdiction of this Commission.”  The State Commission has taken this view despite the fact that the complainant in his evidence had clearly asserted that he went to the office of Mr. Babu Jacob, opposite party no.5, on the 14th, 15th and 16th of June, 2000, first to collect the commercial invoice and subsequently to submit the same but after its verification he was advised by respondent/opposite party no.5 to go to Mumbai.  The State Commission has ignored the endorsement on the business card of Mr. Peter D’Souza, Assistant Manager, which, apart from Bluedart, clearly mentions the name of Fedex.  In the absence of the said Mr. Babu Jacob or the Bluedart having filed any written version or appearing before the State Commission to explain their stand, despite their interim application for deletion from the array of parties having been dismissed, it was not proper on part of the State Commission to have ignored this unrebutted piece of evidence and hold that the Fedex neither had any branch office or call centre at Trivandrum nor any cause of action arose there.  Being a consumer complaint, it was, in our view, the bounden duty of the State Commission to have drawn an adverse inference against opposite party no.5 and should have held that the said Babu Jacob was representing not only the Bluedart but Fedex also at the callcentre at Trivandrum as well.  As already stated, respondent no.5 Mr. Babu Jacob has not denied the issuance of proforma of commercial invoice Exhibit A-6 to the complainant from their Trivandrum call centre.  In the reply filed on behalf of respondent no.5 Blue Dart before this Commission even at this belated stage, the stand of respondent no.5 is that till the year 2002 Fedex amongst others had a principal to principal relationship with Blue Dart in India, inasmuch as Blue Dart was responsible for delivery of international cargos received from outside India, which were couriered through Fedex and that Blue Dart was one of the many companies, who has such arrangement with Fedex on non-exclusive basis.  Despite our repeatedly asking the counsel representing respondent no.5 to file the document evidencing what kind of relationship/arrangement they had with Fedex, they have failed to produce any agreement/MOU between them.  Adverse inference is liable to be drawn for non-production of such relevant and important piece of evidence.  We have, therefore, no hesitation in holding that Blue Dart must be acting for Fedex at the Trivandrum service centre besides other places.  Had Blue Dart office at Trivandrum no connection with Fedex, the proforma of commercial invoice could not be in position of Mr. Babu Jacob and he could not have handed it over to the complainant for completing the same.  This handing over of the commercial invoice by Mr.Babu Jacob with instructions to the complainant to approach the Bombay office was the foremost/starting point in the process of sending the consignment but for the said commercial invoice the complainant could not have taken pains to complete the same from the concerned authorities of Sree Chitra Tirunal Institute of Medical Science & Institution and to present it to Mr. Babu Jacob for verification.  It was the same commercial invoice which was ultimately used and presented in Bombay office for the preparation of the airway bill.  This bundle of facts is sufficient to show that the cause of action or at least a part of cause of action arose at Trivandrum on 15th of June, 2000 when Mr. Babu Jacob after verification handed over the proforma of commercial invoice with certain instructions to the complainant.  The State Commission has totally erred and misguided itself by ignoring these important aspects, which had great bearing on the question of territorial jurisdiction.  In this respect, learned counsel for the complainant has correctly drawn support from the judgments of the Hon’ble Apex Court in the cases of (i)   Atyam v. Pechitti [AIR 1966 SC 629]; (ii)       Baljit v. S.; (iii) Ramdas Oil Mills v. Union of India [AIR 1977 SC 638]; and (iv) Khushalbhai Mahijibhai Patel v. Mohamadhussain [AIR 1981 SC 977].  In our view, the State Commission was wrong in holding that it had no territorial jurisdiction to entertain the complaint.

18.     Learned counsel for the respondents have laid great emphasis on a communication dated 02.08.2000 sent by the complainant to respondent no.5, by which the complainant had thanked respondent no.5 for the assistance afforded by him and expressed regret for impleading him.  This communication cannot be taken as to mean that the complainant had impleaded respondent no.5 only with a view to confer jurisdiction on the consumer fora at Trivandrum.  The law on the subject is settled.  No party to a suit or proceeding can confer or take away the jurisdiction of a court, tribunal or forum, which is vested in it.  The letter appears to be nothing but acknowledgment of the service/assistance rendered by respondent no.5 in the process.

19.     However, be that as it may, once the State Commission rightly or wrongly came to the conclusion that it had no territorial jurisdiction, it ought to have laid its hands off the complaint and returned it to the complainant for presentation before the appropriate consumer forum/tribunal.  In fact, it was incumbent upon the State Commission to have decided the question of territorial jurisdiction at the threshold and only thereafter ventured to dwell on the merits of the case.  Strangely, however, we note that the State Commission has not only gone ahead and considered the question of whether the complainant was a ‘consumer’ or a ‘beneficiary’ and a bona fide consumer but has even gone further to decide the matter with regard to the eligibility of any compensation for the alleged deficiency and has dismissed the complaint on merit imposing cost on the complainant.  This, in our view, was totally unwarranted and legally impermissible course.  We, therefore, have no hesitation in setting aside the order passed by the State Commission.

20.     On a perusal of the records and after hearing the learned counsel for the parties at length, we are of the view that after having entertained the request of the complainant to accept the body parts of his deceased son for dispatch to Dr. Zullo in U.S.A. and having sought the complainant’s assistance to pack and repack the consignment with dry ice repeatedly and after opposite party no.3 Ms. Ajanta Chakraborty, Manager Customer Service having satisfied herself and referred the samples to opposite party no.4 Mr. PramodAgarwal, Manager Operations, who had himself assured that the complainant can rest assured that the consignment would be uplifted for dispatch, the volte face at the very last moment by Mr. Suraju Dutta, respondent/opposite party no.2, who was the Senior Country Manager on the specious ground of dispatch of such consignment being against Fedex policy definitely amounts to gross-deficiency in service.  The utter disappointment to the complainant is quite understandable.  The fact that opposite party no.4 being a senior functionary of the Fedex removed the airway bills from the package to eliminate any proof of the consignment having been processed and further that the said consignment alongwith the MRI film/report not having been returned to the complainant was deplorable and further compounds the negligence and deficiency on part of the opposite parties.  We also note with dismay that when the complainant brought the unsavory episode to the notice of Fedex office in the USA, only a letter of regret was issued without any direction for the dispatch of the consignment.  The defence, vehemently argued by the learned counsel for respondents/opposite parties no. 1 to 3 is that the consignment could not have been dispatched in contravention of specific legislation dealing with transportation of such goods, which fell in the category of ‘organs and dangerous goods’.  This argument appears to be only an afterthought as their own brochure at Exhibit A-5 provide instructions for use of proper packaging with regard to shipment of blood, urine or diagnostic specimens.  Besides, after having subjected the complainant with repeated exercise of packing and repacking the material with dry ice, it is too late in the day for them to advance a plea that there were legal impediments in entertaining the consignment.  In any case, if in the view of the respondents such dangerous goods could not be shipped, the complainant should have been informed about that position when the complainant approached the respondents on 19th of June, 2000, which would have saved the complainant of all the trouble he had to take in connection with packing with dry ice etc.  The fact that the larger consignment of the deceased’s organs was in fact transshipped by another courier, namely M/s World Courier without any hitch, to the same destination exposes the fallacy of the stand taken by the learned counsel for respondents/opposite parties no. 1 to 3.

21.     An attempt has been made by the learned counsel for respondents/opposite parties no. 1 to 3 to pick holes in the airway bill Exhibit A-7 by first stating that it has been manipulated by the complainant.  We have examined the Exhibit A-7.  Fedex does not disown the airway bill nor does it say that the same is fabricated.  They contend that the exhibited airway bill is only a manifest or billing copy and not the consigner copy and that there were no signatures of any authorized person of Fedex.  This has been satisfactorily explained by the learned counsel for the complainant that this was provided by the Fedex ‘as it is’ and the filling up of the signature on the airway bill were the original ball point impressions and not the carbon copy impressions.  It was the first and topmost leaf of airway bill no. 40087326691.  With regard to the objection that it bears no signature, we find that there is an entry with regard to the Fedex employee number being 25480, which cannot but be held to be the signature specially when the airway bill has been filled up by the employee of the respondents/opposite parties.  Its authenticity has not been denied.

22.     An attempt has also been made by the learned counsel for respondents/opposite parties no. 1 to 3 that Dr. Zullo in a communication claimed to be dated 21st of June, 2000 had informed the complainant that he will arrange for a courier to pick up the consignment which the complainant had suppressed as in that eventuality there was no need for the complainant to dispatch the consignment through Fedex.  This contention of the learned counsel does not stand substantiated as would be obvious from the series of emails exchanged between the complainant and Dr. Zullo as well as the opposite parties.  We further take note of the reply addressed by Ms. Ajanta Chakraborty, respondent/opposite party no.3, to the complainant, which is though dated 28th of June, 2000, was posted on the 4th of July, 2000 narrating the sequence of events culminating in their inability to dispatch the consignment and advising the complainant to remove the package from the premises of Blue Dart Express at Adarsh Industrial Estate immediately, failing which, it has been stated, Fedex will have to abandon the package within 24 hours.  This letter is Exhibit A-11 of the paper-book.  To us, it appears that this letter has been addressed to the complainant to cover up the ill-treatment meted out to the complainant after he had addressed an email on the 25th of June, 2000 to the Fedex office at Memphis, USA.  The sequence of events narrated therein only goes to prove that neither Ms. Ajanta Chakraborty, respondent/opposite party no.3, nor Mr. Pramod Agarwal, respondent/opposite party no.4, had stated that the consignment being dangerous goods could not be transshipped.  On the contrary, they have entertained the same and taken advantage of the anxiety of the complainant by asking him to pack and repack the consignment till their satisfaction.  This piece of communication, therefore, does not help the respondents/opposite parties in any way.

23.     On the basis of the above discussion, we have no hesitation in holding that respondents no. 1 to 4 have committed deficiency of service on several above noted counts by their several acts of omission and commission, which in turn also amounts to adoption of unfair trade practice.  This is not expected from a premier courier agency of the world like Fedex.  A great deal of argument has been advanced by Mr. Haksar, learned Sr. Advocate appearing on behalf of respondents no. 1 to 3, that the complainant is not entitled to any compensation because he has suffered no injury or loss, which is a condition precedent for claiming the compensation.  Our attention has been invited to the fact that the complainant himself has stated in the commercial invoice that the consignment was of no commercial value.  In any case, the submission is that it was a trial run containing only part of specimen in the consignment only to experiment if the substantial consignment which was to follow could be safely transmitted to its destination, which in fact was later transshipped through another courier and, therefore, no loss or injury or harm has been caused to the complainant.  We have noted this submission only to be rejected because the consignment contained the total crucial CSF (cerebro spinal fluid) and MRI films, which were lost forever.  The kind of inconvenience, mental torture and harassment besides expenditure incurred by the complainant at Bombay in running about for five days for arranging the dry ice repeatedly for the packaging purpose are nothing but injury caused to the complainant.

24.     Now we come to the aspect relating to the extent of compensation which should be awarded in the present case.  The complainant has claimed a compensation of Rs.9.75 Lakhs for the loss and the injury occasioned to him.  Having regard to the mental state in which the complainant would have been at the relevant time just after the death of his young 19 year old son and the noble cause of research for the humanity at large, the episode must have been a life-time setback to the complainant.  No amount of money can suitably compensate the complainant for the kind of loss and injury suffered by him and it is almost impossible to quantify the same.  We, therefore, find it a fit case where we must award a lump sum compensation of Rs.5.00 Lakhs to the complainant, which should adequately meet the ends of justice.  The compensation shall be payable by respondents no. 1 to 3 jointly and severally, respondent no.4 having been dropped from the array of parties and no relief having been claimed against respondent no.5.

25.     In the result and for the above stated reasons, the appeal is partly allowed.  The order of the State Commission is hereby set aside.  Consequently, the complaint is allowed and respondents no. 1 to 3 are directed to pay the lump sum compensation of Rs.5.00 Lakhs to the complainant.  Besides, we award cost of Rs.50,000/- to the complainant as he was then based in Thiruvananthapuram and had to travel to Delhi on several dates of hearing. The amounts shall be payable within a period of six weeks from the date of this order, failing which it shall carry interest @ 12% per annum from the date of default.

Before parting with the matter, we would like to put on record our deep sense of appreciation for the assistance rendered by Mr.Santosh Paul, learned Amicus Curiae.  As a special case, we direct the Registry to disburse a sum of Rs.25,000/- to Mr. Santosh Paul for his services.

 

 

Sd/-

( R. C. JAIN, J. )

PRESIDING MEMBER

 

 

 

Sd/-

     (S.K. NAIK)

(MEMBER)

Mukesh

 

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