National Consumer Disputes Redressal
Malti Exports vs Natvar Parikh Industries Ltd. & Anr on 18 March, 2005
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 92 OF 1997 Malti Exports Complainant Vs. Natvar Parikh Industries Ltd. & Anr. Opposite Parties BEFORE: HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER. For the complainant : Mr. Kamal Mehta, Advocate. For the Opposite Parties : Mr.K.K.Rai, Advocate. Date : 18th March, 2005 O R D E R M.B.SHAH, J. PRESIDENT It is the say of the complainant that it is doing business in the name and style of Malti Exports and is engaged in the business of manufacturing, sale and export of carpets and allied items. Opposite Party No.1 is engaged in the business of clearing, forwarding and shipping agents and inter alia engaged in the business of providing services for transportation of goods by sea. Opp.party No.1 is the agent of Opp.party No.2, namely, Natpar Lines. It is submitted that one Rossweiner Teppichfabrik Traugott Bauch GmbH, Germany, had placed an order on the complainant for purchase of carpets. The buyer specifically stipulated shipment through the opp.party in its order. Thereafter, the complainant paid ocean freight amounting to Rs.51,328/- for shipment of the consignment for which a receipt dated October 4, 1996 was issued by the opp.party. Ocean Bill of Lading is dated 4.10.1996. The bill of lading specifically provides : Consignee Unto Order; Notify Party Rossweiner Teppichfabrik Traugott Bauch GmbH, Germany; Marks & Numbers : ME/RT/Harmburg, 3822/3965; No. of Pkgs. Or Shipping Units : 144 Rolls; Description of Goods & Pkgs : Indian Handknitted Woollen Carpets (1719.89 Sq. Mts.) (1728 Pcs.); Gross Weight : Gr. Wt. 7945.00, Net Wt. 7657.00. It was also agreed that the delivery of the said consignment to the foreign buyer was to be made after negotiation of documents through the bank. The complainants bank is State Bank of India, Bhadhoi and the purchasers bank is Volksbank Ochtrup eG, Germany. As per the terms and conditions the foreign buyers could only take delivery of the consignment by presenting the original bill of lading which the foreign buyer was to obtain from its foreign bank after furnishing the bank guarantee in the sum of DM 58,474.56 being the value of the said consignment. It has been pointed out that as per the terms of bill of lading which was a document of title, it was made clear that the goods were to be delivered to the order of the consignee subject to his making the payment or providing a bank guarantee by way of negotiations with the bank, namely, Volksbank Ochtrup eG, Germany. It is alleged that in breach of the said condition, the opp.party wrongfully delivered the consignment to the foreign buyer without the production of original documents and the foreign buyer had not given any bank guarantee or made any payment in respect of the consignment. Thereafter opp.party No.1 by its communication dated November 20, 1996 alleged that the consignment in question has been delivered to the buyers against original bill of lading. However, complainant again received a copy of the communication dated November 26, 1996 from the foreign bank to its banker that foreign bank was still holding all documents including the original bill of lading. In this view of the matter, the complainant by its letters dated 28th and 29th November 1996 called upon the opp.party No.1 to confirm the delivery status of the consignment. There was no response from the opp.party. Hence, legal notice dated 3rd December 1996 was given. It is contended that because of the wrongful delivery of the consignment in breach of the condition and without obtaining the original bill of lading, Opposite Party No.1 acted negligently and therefore they are liable to pay the loss suffered by the complainant. It is stated that consignment was worth DM 58,474.56 and the same in Indian rupees works out to Rs.14,61,850/-. It is therefore prayed that opp.parties are liable to pay the said amount with interest and damage, in all, Rs.22,31,485/- with interest @ 18% p.a. Evidence in support: (a) The ocean bill of lading dated 4.10.1996 is produced on record wherein there is a specific condition If required by the Carrier one (1) original Bill of Lading must be surrendered duly endorsed in exchange for the Goods or delivery orders. It is signed on behalf of opp.party No.2. (b) There is also a letter dated 10th October 1996 written by the complainant to the Manager, State Bank of India, stating that the documents pertaining to the shipment of 144 rolls of woolen carpets to Hamburg, A/c. M/s. Rossweiner Teppichfabrik Traugott Bauch GmbH, Germany, were forwarded and a request was made to negotiate the documents with buyers bank by courier and credit the proceeds into its Current Account No. C/A-2/140 under advice to them after purchasing the above bill. (c) Thereafter there is another letter dated 20th November 1996 written to the opp.party No.1 informing that the goods were delivered against original bill of lading dated 5.11.1996. (d) As against this, there is a letter dated 26.11.1996 written by the Manager of State Bank of India, Bhadhoi, to the foreign banker which reads as under: Dear Sirs, We have been informed by Drawer Malti Exports Bhadhoi that Drawee Rossweiner Teppichfabrik had received the delivery of goods against original B/L. But till today we have not received the Bank Guarantee of our captioned collection as per our tenor. Kindly send the Bank Guarantee immediately and confirme it to us by FAX. Immediately on 29.11.1996 complainant wrote a letter to opp.party No.1 that its bank has informed that the original bill was still lying with them, therefore, confirmation may be sent whether No.1 Consignment is actually delivered against orignal B/L. No.2 - Copy of original B/L against which consignment was delivered to buyer must be faxed and sent by Post to us. We need above confirmation a.s.a.p. without any further delay to avoid all losses and for bank purpose. Thereafter on 3.12.1996 legal notice was given. Submissions of the Opposite Parties: It is contended by the opposite parties that (i) there is non-joinder of the necessary party. The consignee (notified party), i.e. M/s. Rossweiner Teppichfabrik Traugott Bauch GmBh, Germany, was deliberately not made party to the complaint. It was added only after the order dated 26.2.2002 passed by this Commission; (ii) the Complainant has suppressed the fact that there was settlement of the dispute as stated by one Bhanu Shankar Choudhary by his affidavit dated 17.1.2004. He has stated that he accompanied Mr.Pradeep Kumar Barnwal (partner of the complainant) to Germany for settlement of the dispute; (iii) it has come on record that the carpets were of substandard qulity (p.118-119); (iv) the settlement between the Complainant and the consignee has been indicated in the documents filed by the Complainant along with the affidavit of Mr.Radhey Shyam filed in July, 2004; (v) as per Section 3 of the Carriers Act, the liability of the carrier is only to the extent of Rs.100/- as the value of the goods was not declared to the Respondent; (vi) even the conditions of bill of lading at the package or shipping unit limitation provides that, where the Hague Rules or any legislation making such Rules compulsorily applicable to this bill of lading apply the carrier shall not unless a declared value has been noted in accordance with (c) below, be or become liable for any loss or damage to or in connection with the goods in an amount per package or shipping unit in excess of the package or shipping unit limitation as laid down by such Rules or legislation. If no limitation amount is applicable under Rules or legislation, the limitation shall be US $ 500. (vii) As complicated disputed question of facts are involved, the complaint should not entertained and decided by this Commission. (viii) finally, though not admitting that there is deficiency on the part of the Respondent, while awarding damages the doctrine of apportionment has to be kept in mind as there was settlement of the case between the consignee and the Complainant; and, (ix) in any case, Respondent No.2 is a declared agent of Respondent No.1 and in view of Sec.270 of the Indian Contract Act, the recovery of any amount has to be made from the Respondent No.1. Findings: Undisputedly, the Complainant had handed over the goods for shipment to the Opposite Parties for which Ocean Bill of Lading No.0724 dated 4.10.1996 was given to the Complainant. In the said bill, in the column for consignee - Unto Order and in the column for Notify Party - M/s. Rossweiner Teppichfabrik Traugott Bauch GmBh are mentioned. It is pointed out that the Complainant despatched the documents with regard to shipment in question to its bankers on 10.10.1996. The bill of lading specifically provides : in witness whereof one (i) original bill of lading has been signed if not otherwise stated above, the same being accomplished the other(s), if any, to be void. If required by the carrier one (1) original bill of lading must be surrendered duly endorsed in exchange for the goods or delivery orders. The Complainant despatched documents with the regard to the goods in question to its banker, The Manager, I.B.D., State Bank of India, Bhadohi 221401 with a specific statement to negotiate the documents with buyers bank by courier and credit the proceeds into their current account under advise to them after purchasing the above bill. Thereafter by letter dated 20th November, 1996, the opposite party No.2 received a communication from Wm.H.Muller & Co., Zweigniederiazsung der internet .d-Muller (Deutsciand) GmbH 20457 Hemburg, which, inter alia, states ICSU 176.575-9 B/L No.07242 discharged 05/11/1996 ex. RAJIV GANDHI voy. 020 delivered against original B/L 05/11/96. This would clearly reveal that information was conveyed to opposite party No.2, NPIL, Mumbai, that goods were despatched against original bill of lading on 5.11.1996. Hence, in view of the aforesaid communication the Manager, State Bank of India, wrote a letter dated 26.11.1996 to the foreign bank, Volksbank Ochtrup eG Post Fach 1347, 48602 Ochtrup, Germany, which reads as under: Dear Sirs, We have been informed by Drawer, Malti Exports, Bhadohi that Drawee Rossweinel Teppichfabrik had received the delivery of goods against original B/L. But, till today we have not received the bank guarantee of captioned collection as per over tenor. kindly send the bank guarantee immediately and confirmed it us by FAX. Thereafter, on 28.11.1996 the Complainant sent a fax message to M/s. NPIL, Mumbai, to send the message of confirmation with regard to, inter alia, delivery of the goods against original bill of lading dated 5.11.1996 i.e. the goods in question. Again, on 29.11.1996, the Complainant wrote a letter to M/s. NPIL, Mumbai, stating that they were informed on 21.9.1996 by fax that consignment was delivered to the buyer against original bill of lading of 5.11.1996. However, their bank has informed that original bill of lading was still lying with them. Therefore sent the confirmation (i) consignment is actually delivered against original bill of lading; (2) copy of the original BL against which the consignment was delivered to the buyer. Thereafter, on 3.12.1996, the Complainant sent a notice informing the shipper that the goods shipped were valued at DM 58,474.56 and that the goods were to be delivered against the original bill of lading and the original documents were to be delivered against payment/bank guarantee negotiated through the bank. The banker at Germany has informed that the original documents were still lying with them. After receipt of the said letter, M/s. NPIL, inter alia, replied as under: .
As per our contract with our agents in Hamburg, our agents are only authorised by us to give delivery only against surrendering of original B/L (Bill of lading).
We are already in the process of investigating the facts of the case and also issued notice to our agents in Hamburg.
Thereafter, the shipper, M/s. NPIL, sent telefax message on 17.12.1996 (reply to Advocates notice) taking apparently a contradictory stand informing that there was a dispute between the Complainant and the consignee. The relevant portion is as under:
The subject to consignment is under dispute between your shipper and the consignee, we understand from our counterparts that the consignee is not willing to take delivery of the cargo, presumably even the consignee has informed your client M/s. Malti Exports about the same.
Also over telecon of the buyer release to us that the buyer has got a stay order from the German Court disallowing us to act on the cargo until this matter is resolved between M/s. Malti Exports and the consignee.
Keeping in view the above, wherein it is clearly established that M/s. Malti Exports is aware that the consignee is not going to take delivery of the cargo until matter is resolved between M/s. Malti Exports and the consignee.
It is for M/s. Malti Exports to inform us when the problem is resolved between them and the consignee, so as to enable as process final delivery documents.
Thereafter, the complainant through its attorney, Abacus Legal Group, sent a registered letter dated 20.12.1996 informing that the communication dated 17th December 1996 was contradictory, misconceived and was an attempt to camaflouge the true and correct facts. In any case even if there was any dispute between the Complainant and the consignee, the carrier has nothing to do with it. Therefore for any breach of the contract of carriage the shipper would be liable for all the claims.
It was reiterated that the goods could be delivered only on presentation of bill of lading or in the alternative on valid bank guarantee.
The complainant has also produced on record a letter written by the foreign bank, Volksbank Ochtrup eG, Germany to the State Bank of India, Bhadohi, stating that we refer to our letter dated 29.1.1997/14.10.97/26.11.96. The drawee has not paid the above mentioned collection. We still hold the documents at your disposal, but we will return them to you on 21.03.1997 if we get no instructions from you. A copy of this letter was marked to the Malti Exports, with endorsement : Please give your disposal instructions for the documents.
It appears that thereafter the Opposite Parties have taken a different stand to the effect that the consignment was delivered to the notified party. Letter dated 24.6.1999 from the notified party reads as under:
M.V. Rajiv Gandhi Hamburg 05.11.1996 B/L 07241 130 Carpet Roll/B/L 07242 142 Carpet Rolls Claimed amount = USD 16985 Ladies & Gentlemen, We hereby confirm to you that the above mentioned consignment from container was received by us.
Mr.Baranwal from Malti Co. was also here during the offloading at our premises.
We had agreed with our supplier. The payment against invoice which we had a justified claim.
The concerned goods belongs to Malti Exports Invoice ME/14196-97 dated 24.09.1996 which we crossed balance with our Debit Note No.70196-AV dated 28.04.1997 to Malti Exports. The difference resulted from the Malti Invoice and our Debit Note was void by Swift Bank Germany to Malti on 28.4.1997. Hence, this consignment is for us paid and the file closed.
This is apparently an inconsistent and frivolous stand taken by the Opposite Parties. It is sought to be stated that the consignment was delivered to the notified party; the amount claimed for the carpets rolls was US 16,985 and that the goods were received by the consignee in the presence of Mr.Barnwal of M/s. Malti Exports.
In support, the Opposite Party has relied upon the evidence of one Mr.Bhanu Shankar Choudhary, who has stated that he was appointed as Quality Controller by M/s. Rossweiner Teppichfabrik Traugott Bauch GmbH, (notified party). He was also engaged in the business of export and import and was Director of another Company, namely, M/s. Intexco Textiles Pvt.Ltd., having registered office at Varanasi and that he was regularly exporting woollen carpets to various importers including M/s. Rossweiner Teppichfabrik Traugott Bauch GmbH in Germany and Austria. It is his say that their consignment sent by the Complainant was sent along with his consignment under bill of lading dated 4th October, 1996. He was asked by M/s. Rossweiner Teppichfabrik Traugott Bauch GmbH that he should inspect the goods of Complainant, M/s. Malti Exports, and approve if their quality was in conformity with the order dated 14.7.1996. As the consignment was in conformity with the specification he approved the same. However, when he went to the office of M/s. Rossweiner Teppichfabrik Traugott Bauch GmbH on 14.11.1996, his attention was drawn to the goods exported by the Complainant where he found that the carpets which were actually sent by the Complainant were of different quality from that of what were shown to him at the time of inspection. It is his say that at the relevant time on 14.11.1996 he was accompanied by Mr. Pradeep Kumar Barnwal who was the partner of M/s. Malti Exports. It is his further say that Mr.Pradeep Kumar Barnwal persuaded him to accompany him to Germany as there was a dispute between the consignor and the consignee. At the request of Mr.Banrwal, for settling the dispute he had gone to Germany along with Mr.Barnwal to negotiate and settle the dispute. It is his say that Mr.Barnwal agreed to a settlement by stating that substandard carpets would be taken back and would be replaced with proper quality of carpets as per specification; other carpets conforming to the specification were agreed to be retained; the payment of the good quality carpets was to be made as the value of the rejected goods was to be adjusted against the payment due to their consignment. It is his say that Mr.Barnwal told him in the hotel that he had no option but to agree to whatever was dictated by the Director of M/s. Rossweiner Teppichfabrik Traugott Bauch GmbH and that he would recover the losses from the ship agent.
It is his further say that later on Mr.Barnwal and M/s. Rossweiner Teppichfabrik Traugott Bauch GmbH had conspired to get the delivery of the third consignment without presenting original bill of lading, that is, by juxtaposing his original bill of lading No.07241 with that of bill of lading No.07242 issued in the name of the Complainant.
In our view, the entire story narrated by Mr.Choudhary is baseless, concocted and is denied by Mr.Barnwal by filing his affidavit. He has stated that he was not present in Hamburg on 5.11.1996 and that he had no visa for Germany for the period from 27.7.1996 to 7.11.1996. He has produced on record a photocopy of the Passport having no endorsement for Visa for a period from 8.11.1996 to 7.11.1997 and 27.7.1995 to 26.7.1996.
Apart from this aspect, the story narrated by him that the shippers (Opposite Party) container was released by giving his bill of lading is on the face of it unbelievable and no reliance can be placed. It is also to be stated that this story was concocted for the first time by filing the affidavit on 23.1.2004.
Further, in support of the contention that Barnwal, partner of M/s.Malti Exports, had not gone to Germany on 5.11.1996, reliance is placed on affidavit of Radhey Shyam Mishra, Import Manager of the Complainant Company. He has stated that the entire story of alleged understanding between the Complainant and the notified party is built up to evade its liability. He has stated that only due to the gross negligence and on account of fraudulent conduct of the shipping liner, the consignments are delivered without negotiation of documents. After receipt of the consignment, the consignee refused to pay the amount. It is his say that delivery of consignment could not be possible without connivance of the shipping liner, and it could not be delivered to the consignee without negotiation of documents, and, mere deposit of DM 139 in the Complainants account would not establish that there was any settlement. It is submitted that Bhanu Shankar Choudhary himself has filed complaint against the consignee and thereafter for some obvious reason as quid pro quo that the ship liner as well as the consignee was trying to give a clean certificate to the consignee of the shippers.
In support of this contention reference is made by him to the complaint filed against the consignee for which reliance is placed vide fax message dated 20th November, 1997 wherein it has been stated that Four Indian Companies have filed complaints against the consignee for non-payment of export proceeds for the goods imported by the Company. In the said message reference is made to the Malti Exports complaint, which reads as under:
They have informed us that they have sent a consignment of carpets worth DM 58,474.56 (Invoice No.ME-141/96-97 dt. 24.9.1996) against your order dated 14.07.96 on payment term of 150 days of D/A under bank guarantee from B/L date. They have also mentioned that while all the original Bill of Landing and original documents are lying in the bank you have managed to get the container released illegally with the assistance of the shipping line. They have also added that their representative had been forced by your company to sign on certain papers during his visit to your company.
The above payment have not been credited b your company so far.
Request was made by them to the Embassy to settle and make the payments. The Embassy also referred the matter to the Chamber of Commerce and Industry of Leipzig for their intervention and assistance.
M/s. Malti Exports had also filed complaint before the Ministry of Finance, Government of India, New Delhi, stating that there were wrongful delivery of consignment without bill of lading by the opposite parties to the notified party, and, therefore, to take appropriate action against M/s. Natvar Parikh Industries Ltd., Mumbai. Similar complaint was filed to the Registrar of Companies, Ministry of Textiles, Government of India; Ministry of External Affairs, Government of India; the Secretary, C.E.P.C. From the aforesaid evidence on record, it is apparent that the goods were delivered by the Opposite Party, Shipper, without having the original bill of lading. However, the Opposite Party informed that the goods were delivered against the original bill of lading dated 5.11.1996. On further inquiry by the Complainant, it was found that the goods were delivered without presenting the original bill of lading as the bank at Germany had informed that the original bill of lading was still lying with them.
After the receipt of the notice from the Complainant, the Opposite Party again reiterated that as per the contract their agent in Hamburg was only authorised to give delivery against surrender of original bill.
Thereafter, to the legal notice issued by the Advocate, a reply was sent stating that there was a dispute between the consignor and the consignee; that the consignee was not willing to take delivery of the cargo; and that the buyer had obtained a stay order from Germany Court disallowing the shipper to act on the cargo until the matter was resolved between M/s. Malti Exports and the consignee. This also would reveal that the initial stand taken by the Opposite Party that goods were delivered on presentation of original bill of lading was a false plea. Further, this plea of stay order from the court in Germany is not supported by any document. In any set of circumstances, if there was a stay order by the Court in Germany, there is nothing on record to show that there was any subsequent order passed by the Court to deliver the goods to the notified party.
This would also reveal that the goods were delivered by the shipper or his agent at Hamburg without obtaining the original bill of lading, as agreed.
In this view of the matter, it is apparent that there is total deficiency on the part of the carrier. In such cases, the Apex Court, in Patel Roadway Ltd. Vs. Birla Yamaha Ltd., (2000) 4 SCC 91, has discussed the carriers responsibility under Section 9, under the Carriers Act. The Court referred to passage from Halsburys Laws of England, Vol.IV, at pp.143-144, which is as under:
This responsibility as an insurer is imposed upon a common carrier by the custom of the realm, and it is not necessary to prove a contract between him and the owner of the goods in order to establish liability. Failure on the part of the carrier to deliver the goods safely is a breach of the duty placed upon him by the common law; and therefore an action of tort lies against him for such breach, the owner not being bound to prove any contract. Where, however, there is a contract, liability may arise either at common law or under the contract, and the contract may limit the carriers responsibility.
A common carrier is liable for loss or injury caused wholly by the negligence of other persons over whom he has no control; as where the carriers barge runs against an anchor wrongfully left in the water by a stranger, or where the goods which he is carrying are destroyed by accidental fire or by rats, or where they are stolen from him, even though taken by force.
Finally, the Apex Court held :
Coming to the question of liability of a common carrier for loss of or damage to goods, the position of law has to be taken as fairly well settled that the liability of a carrier in India, as in England, is more extensive and the liability is that of an insurer. The absolute liability of the carrier is subject to two exceptions: an act of God and a special contract which the carrier may choose to enter with the customer.
And, thereafter, the Apex Court referred to the earlier decisions and held that:
From the conspectus of views taken in the decisions of different High Courts noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in Section 9, in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time and have been crystallised into an accepted position of law. No good reason has been brought to our notice to persuade us to make a departure from the accepted position.
Quantum of damages:
In view of the aforesaid settled law the carrier (Opposite Parties Nos. 1 and 2) are liable to reimburse the loss suffered by the Complainant. The question is about quantum of damages. It has been pointed out that as per the invoice which was sent along with the bill of lading the value mentioned therein is DM 58,474.56. Further, it is specifically mentioned that : No. of Pkgs. Or Shipping Units : 144 Rolls; Description of Goods & Pkgs : Indian Handknitted Woollen Carpets (1719.89 Sq. Mts.) (1728 Pcs.); Gross Weight : Gr. Wt. 7945.00, Net Wt. 7657.00.
Taking the loss suffered by the Complainant, the Complainant is entitled to have the amount of DM 58,474.56. But, it was contended that as per the Carriage by Sea Act, 1925, the Complainant is entitled to 100 Pounds per packet. In any case, even if there is any doubt, with regard to invoice under the Indian Carriage of Goods by Sea Act, 1925, the shipper, i.e. Opposite Parties No.1 and 2, would be liable to pay damages as per the schedule under the Act. For the responsibilities and liabilities of the shipper the relevant rules are mentioned in Article III of the Carriage of Goods by Sea Act, 1925. Further, with regard to Rights and Immunities of Shipper, Rule 5 of Article IV provides as under:
5. Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with goods in an amount exceeding 100 Pounds per package or unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.
This declaration if embodied in the bill of lading shall be prima facie evidence, but shall not be binding or conclusive on the carrier.
By agreement between the carrier, master or agent of the carrier and the shipper another maximum amount than that mentioned in this paragraph may be fixed, provided that such maximum shall not be less than the figure above named.
Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with goods if the nature or value thereof has been knowingly misstated by the shipper in the bill of lading.
Learned Counsel for the Complainant submitted that if we take each carpet to be one unit or package, then the Opposite Parties are required to pay 1,72,800 Pounds, i.e. 1,728 pieces x 100 Pounds per piece.
If we take each roll as one package, then also the opposite parties are required to pay 14,400 pounds, i.e. 144 rolls x 100 Pounds per roll.
As against this, learned Counsel for the Opposite party submitted that the goods which were set by the Complainant were in one package, and, therefore, at the most, the complainant is entitled to recover only 100 Pounds. Reliance is placed upon the conditions of bill of lading. There is a specific condition for carriers responsibility. Clauses (iii) (a), (b), (c) and (d), read thus:
(iii) General Provisions:
(a) Delay Consequential Loss:
Save as otherwise provided herein, the Carrier shall in no circumstances be liable for direct, indirect or consequential loss or damage caused by delay or any other cause whatsoever and howsoever caused. Without prejudice to the foregoing, if the Carrier is found liable for delay, liability shall be limited to the freight applicable to the relevant stage of the transport.
(b) Package or Shipping Unit Limitation:
Where the Hague Rules or any legislation making such Rules compulsorily applicable to this Bill of Lading apply, the Carrier shall not unless a declared value has been noted in accordance with (c) below, be or become liable for any loss or damage to or in connection with the Goods in an amount per package or shipping unit in excess of the package or shipping unit limitation as laid down by such Rules or legislation. If no limitation amount is applicable under Rules or legislation, the limitation shall be US $ 500 .
(c) Ad Valorem : Declared Value of Package or Shipping Unit:
The Carriers liability may be increased to a higher value by a declaration in writing of the value of the Goods by the shipper upon delivery to the Carrier of the Goods for shipment, such higher value being inserted on the front of this Bill of Lading in the space provided and, if required by the Carrier, extra freight paid. In such case, if the actual value of the goods shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and the Carriers liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted prorata on the basis of such declared value.
(d) Definition of Package or Shippin Unit:
Where a Container is used to consolidate Goods and such Container is stuffed by the Carrier, the number of packages or shipping units stated on the face of this Bill of Lading in the box provided shall be deemed the number of packages or shipping units for the purpose of any limit of liability per package or shipping unit provided in any international convention or national law relating to the carriage of Goods by sea. Except as aforesaid the Container shall be considered the package or shipping unit.
The words shipping unit shall mean each physical unit or piece of cargo not shipped in a package. Including articles or things or any description whatsoever, except Goods shipped in bulk, and irrespective of the weight or measurement unit employed in calculating freight charges. As to Goods shipped in bulk, the limitation applicable thereto shall be the limitation provided in such convention or law which may be applicable, and in no event shall anything herein be construed to be waiver of limitation as to goods shipped in bulk.
In view of the bare reading of Clause (iii)(d) makes it clear that the words shipping unit shall mean each physical unit or a piece of cargo not shipped in a package. Admittedly, the goods are not shipped in bulk. Hence, we have to accept that at least there were 144 packages (carpet rolls) which were delivered to the carrier for shipment.
In this view of the matter, the Opposite Parties Nos. 1 and 2 (Carrier) would be liable to pay DM 58,474.56 which was equal to Rs.14,61,850/- as claimed by the Complainant. However, considering the maximum limit prescribed under the Rules, the Complainant cannot get more than 100 Pounds per package or unit. Hence, in the present case, he is entitled to the amount upto 144 packages x 100 Pounds, which comes to 14,400 Pounds. He is also entitled to interest at the rate of 6% p.a. from the date of the complaint.
The value of the pound shall be calculated as per the market price as on 18th March, 2005.
In the result, the complaint is allowed. The Opposite Parties No.1 and 2 are directed to pay the above said amount with interest at the rate of 6% p.a. from the date of filing of the complaint till the date of realisation. The Opposite Parties are also directed to pay costs assessed at Rs.10,000/-.
..J. (M.B.SHAH) PRESIDENT .
(RAJYALAKSHMI RAO) MEMBER.