State Consumer Disputes Redressal Commission
M/S. Prakash Exports, Rep. By Its ... vs The Lakshmi Vilas Bank Limited, Rep. By ... on 11 April, 2012
Date of filing : 16.05.2005
Date of order: 11.04.2012
BEFORE THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, CHENNAI
Present: Honble Thiru Justice R.REGUPATHI, - President,
Thiru.A.K.Annamalai, - Judicial
Member
Thiru.S.Sambandam, - Member
C.C.No.44/2005
WEDNESDAY, THE 11th
DAY OF APRIL 2012.
M/s. Prakash Exports,
Rep. by its Partner Mr.P.Baskar,
No.15, Vivekananda Nagar,
Senkunthapuram 12th Cross,
Karur 639 002. . Complainant
Vs.
The Lakshmi Vilas Bank Limited,
Rep. by its Chief Manager,
Karur West Branch,
118-119, Jawahar Bazaar,
Karur. .. Opposite
party
This
complaint coming on before us for hearing finally on 27.03.2012, upon perusing the material documents, and upon hearing the arguments of both sides and having stood over till this day for consideration, this Commission made the following order.
Counsel for the Complainant :
M/s.S.R.Rajagopal, Advocate.
Counsel for the opposite party :
A.V.Radhakrishnan, Advocate.
A.K.ANNAMALAI, JUDICIAL MEMBER The complaint filed under Section 17 of the Consumer Protection Act- 1986
1. The details of complaint in brief as follows : Complainant filed a complaint against the opposite party claiming relief for payment of Rs.43,30,956/- being the balance amount of realization of bills including Rs.5,76,684/- being the interest on the above sum at 12% and Rs.1,00,000/-
towards the expenses in this regard and Rs.50,000/- towards compensation for mental agony with 12% interest and for costs.
2. The complainant engaged in the business of exports of textile goods to various countries and during the course of business to supply the orders obtained from Handicrafts & More Inc, having their office at No.90, Dayton Avenue, Building 3A, Passaic, New Jersey, U.S.A. As per the invoice dated 14.8.03, 29.8.03 and 16.9.03 for the value of Rs.86,398.80 US dollars were sent by submitting the bill of lading through the opposite party for the term of payment 25% at the time of side and balance 75% within 30 days from the date of bill of lading for which the importing company nominated PNC Bank, New Jersey as their collecting bank. The bill of exchange were drawn to the order of opposite party and all the documents, bill of exchange, invoices and packing list were submitted to the opposite party by the complainant for collection as stated in detail in the complaint. The opposite party charges commission for the services that are entered to the complainant. As per the bills sent for collection the opposite party collected only a sum of Rs.6,560/- US dollars alone leaving the balance of Rs.79,740.60 US dollars and the opposite party duly deducted their commission for the amount collected and credited for Rs.2,95,363/- in to the complainants account. Regarding the balance amount concerned when the opposite party was contacted since there was no response for a long period that the goods were delivered to the importer without realizing the entire amount due and liable to be paid under the documents and the opposite party claimed that those original documents have been missed and the copy of the notice sent by them to the carrier company postal authorities and importer and foreign bank disclosed courier company had sent the documents to the foreign bank and that they received return of some fabricated documents and the originals were missing because of this complainant had been put to severe hardship and heavy loss due to deficiency of service of the opposite party. The legal notices issued to the courier company postal authorities and the foreign bank by the opposite party was kept secretly about the own transaction and only after undue delay and much persuasion, the opposite party provided the information. The amount ought to have been credited to the clients account within 30 days from the date of bill of lading and thereby the opposite party is liable to make payment of Rs.36,04,275.12 with 12% interest and claiming the same along with other reliefs the complainant filed this complaint.
3. The opposite party denied the allegations of the complainant in their written version and contended that they have acted only as agents for the collection of bills and under specific instructions of the complainant and the opposite party has forwarded the special export bills for collection with other relevant documents to PNC Bank at U.S.A as per the name and address provided by the complainant through DHL Worldwide Express (India) Pvt. Ltd., Couriers during August, September 2003 to the consignee M/s. Handicrafts & More Inc, U.S.A. The collection of bills have been handled in accordance with uniform rules for collection, International Chamber of Commerce Publication No.522 and as per the rules the collection of bills sent at the risk of member/complainant and only if the amount received from the collecting bank, the opposite party is entitled for collection charges and in this case the sum of 6560 US dollars alone was collect for which alone the Commission was received. The complainant has given the PNC bank USA address by the drawee information and to those address alone the documents were sent. But it is not of the banks address and only some residential address and there may be a wrong address furnished by the complainant purposely and intercepted the mail, stolen the bills of lading, forged the bills and replaced their collection schedule with forged one this could be confirmed when the opposite party opened the returned cover from the foreign bank and found that the documents sent by them were not the same and the original bill of lading was found missing in the set of documents returned. Hence the opposite party taken steps by issuing notices to the courier company for wrong delivery and caused legal notice to all concerned dated 14.1.2004 claiming damages for the loss caused. For the notice the courier company replied that the delivery was made to one Mr.Syed and thereby it is admitted that the shipment was wrongly delivered. Hence the complainant was advised to initiate legal proceedings before the appropriate forum against the courier company. The bank has acted transparently in this regard and thereby opposite party had taken all possible steps and sincere efforts at no point of time any evasive attitude was shown by the opposite party. There was no commitment or assurance by the opposite party to realize the amount from the drawyee importer or other concern. The complainant is to realize the expert proceedings within the statutory period in terms of undertaking declaration given to the customs authorities while making shipment of goods. The Export Credit Guarantee Corporation, Salem on 12.10.2004 has admitted the complainants claim for Rs.13.47 lakhs being 37.50 % of value loss due to original buyer colluding with the carrier services and intercepting the original documents and took delivery of goods without making payment. Having received the claim from ECGC the complainant filed this false claim and the opposite party was not liable to pay any amount and no negligence or malafide on the part of the opposite party. Complaint to be dismissed.
4. On the side of the complainant documents Exhibit A1 to A39 and on the side of the opposite parties documents Exhibits B1 to B60 are marked and no oral evidence was let in.
5. Points for consideration are :-
1) Whether the complainant is a consumer ?
2) Whether there is any deficiency or negligence on the part of the opposite party in dealing with the complainants transaction ?
3) Whether the complainant is entitled for any relief ?
6. Point No.1 : The complainant has come forward with the Consumer complaint claiming direction for payment of Rs.43,30,956/- being the balance of realization of bill of lading amount and Rs.5,70,684/- being the interest for the above sum with 12% interest and Rs.1,00,000/- towards expenses and Rs.50,000/- towards compensation for mental agony on the grounds that the complainant engaged in the exports of textile goods to various countries and during the course of business in order to supply the cotton material goods to the purchaser Handicrafts and more incorporation having their office at No.90, Dayfon Avenue, Building 3A, Passaic New Jerscy USA. During the course of transaction a part of the bill through the opposite party was also realized for a sum of Rs.6,560 US $ for Rs.2,95,363/- after payments of the due commission to the opposite party, under the transactions were taken place during the period between 14.8.2003 to December 2003. As per the provisions under the Consumer Protection Act 1986 Section 2(d)(ii) Consumer means any person who hires or avails of any services for consideration which has been paid or promised or partly paid and promised or under any system of deferred payment and includes any beneficiary of such services other than the person (hires or avails of) the services for consideration paid or promised when such services are availed of with the approval of first mentioned person (but does not includes a person who avails of such services for any commercial purpose) for which under the clause explanation it is mentioned commercial purpose does not include used by the person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.
This provision was inserted by way of amendment by Act 62 of 2002 dated 17.12.2002 w.e.f 15.3.2003. In this case admittedly the complainant had raised the bill of exchange through the opposite party under exhibit B1 to B5 only on 25.8.2003. Admittedly after 15.3.2003 and the very nature of claim and the details of business averred in the complaint by doing export of textiles goods to the extent of Rs.43,00,000/- would certainly will not amount to earning by self employment for livelihood. Hence it is clear that the complainant even though availed the service of opposite party being service provider in view of the commercial nature of business the complainant cannot be brought in under purview of consumer under Section 2
(d)(ii). Even though the opposite party has not raised this plea in their written version or arguments since the matter being the legal issue this Commission can always decide the same at any point of time and thereby we are of the view this complaint is not maintainable as the complainant not being the consumer as defined under the Consumer Protection Act Sec2(d). Hence this point is answered against the complainant.
7. Point No.2 :- In this case the complainant had sent 3 sets of bills of lading through the opposite party for collection from the purchaser Handicrafts and more incorporation having their office at No.90, Dayfon Avenue, Building 3A, Passaic New Jerscy USA and thereby the opposite party acted as an agent for the same to collect the dues payable as per the terms and conditions of the complainant on delivery of documents to the buyer through the PNC Bank, New Gercy USA nominated for the purpose of collection of those amount by delivering the documents at sight after collection of 25% of the value of the goods to be supplied and after receipt of documents within 30 days on the payment of balance 75% from the purchaser and the realized amount to be credited to the complainants account after deducting certain amount towards commission by the opposite party. Accordingly when the complainant has sent 3 sets of bill of ladings to the buyer through the opposite parties acting as an agent for collection and through the PNC Bank, USA out of which only a part of one set of bill of lading was honored for Rs.6,658.20 US $ and after realization and deducting the commission a sum of Rs.2,95,363/- was given credit to the complainants account. Regarding the other amount relating to the bill of lading as they were not realized for various reasons especially as per the contentions of both sides due to alleged fraud played by the purchaser and courier service agencies with or without the knowledge of the foreign bank the documents were intercepted, meddled with and replaced with forged documents and the materials were taken delivery without making payments to the complainant. For this the complainant claimed the unrealized amount from the opposite parties by stating as they have not taken steps against the concerned authorities and not interested to proceed with the concerned persons to realize the amount even after the requests made by the complainant by calling back the documents relating to the unrealized amounts. In this regard the opposite parties had taken steps by issuing legal notice dated 14.1.2004 under Exhibit A31 and Exhibit B49 by the opposite parties against DHL Worldwide Express Pvt. Limited, Mumbai, Chennai, Karur and against Postal Department at New Delhi, Karur and against PNC Bank, New Gercy, USA and against M/s.Handicrafts and more incorporation, USA (buyer) in which in para 6 it is stated that the party serial No.6 PNC Bank returned the first lot of two bills and replied that they never received second lot of those bills and on opening the returned cover opposite party found the forged documents instead of original documents and other papers actually sent for collection and thereby it was alleged that the purchaser party No.7, had played fraud upon the bills in collusion with the serial No.3, the DHL Courier service and thereby the opposite party took every effort to find out to whom exactly first lot of bills delivered and the attempt went in vain. Further as per the letter sent by the complainant under Exhibit B46 dated 22.12.2003 which narrates everything relating to the happenings in this matter and in the letter addressed to the opposite party it is stated as follows :-
2) Some one has received the mail, removed the II Original Bill of Lading, forged the bank schedule and bill of exchange and sent the remaining documents to the above bank, PNC Bank, 505 Thronall Street, 4th Floor, Edison NJ 08837 U.S.A.
4) Further the documents as returned by PNC Bank 505 Thronall Street, 4th Floor, Edison NJ also clearly indicate the forgery as stated in point NO.2 and also as per your messages dated November 05th to the PNC Bank, 505 Thronall Street, 4th Floor, Edison NJ, upon receipt of the returned documents.
5) Upon Further Enquiry, the underlying goods relating to the above bills, have indeed been taken delivery by M/s.Handicrafts & More Inc. 90 Dayton Avenue, Bldg 3-A, Passalc NJ 07055 U.S.A without no making no payment to the Bank/us.
Had DHL, returned the documents stating that there is no PNC Bank address this delivery of goods could not have been taken place, and also we would not have incurred the loss.
8. From these averments it is clear that the DHL Courier Service wrongly delivered the documents instead of delivering to the real addressee delivered to a 3rd party having residential address and the purchaser Handicrafts and more incorporation having their office at No.90, Dayfon Avenue, Building 3A, Passaic New Jerscy USA.
Taken delivery of the goods by meddling with the wrongly delivered documents and thereby deprived the complainant from collecting the amount and in which there is no active part or foul played by the opposite party was exposed. But from the documents relied upon by both parties it is seen from the date of knowledge of such forged transactions the opposite party had taken various steps by addressing to the concerned authorities under Exhibit B49 in order to help the complainant to get the documents back without realization of amount as seen from the above document details. In those circumstances we cannot find any negligence or deficiency on the part of the opposite parties in this regard. Further the opposite party only acted as an agent in transacting the business by delivering the documents to the buyer on realization of amount after receiving certain amount by way of commission and in those circumstances for the value of unrealized bill of lading goods the complainant cannot claim the entire value for such alleged loss and if at all if any loss to be compensated only by way of compensation for negligence or deficiency in service by the opposite party against the complainant and this case to prove such negligence or deficiency the complainant has not placed any reliable materials.
Already complainant has also was compensated by the Export Credit Guarantee Corporation in respect of the bills for 37.5% of the claim as settlement under the no claim scheme.
As far as the steps taken by the opposite party is concerned after complainant addressed for recalling documents due to non realization of bills on 4.11.2003 under Exhibit B27 opposite party immediately taken steps by sending letters to the PNC Bank on 5.11.2003 and after receiving reply from the same relating to the non receipt of documents and partly returned the documents which were replaced with forging documents as per Exhibit B31 to 38 correspondences and also addressing the courier service under Exhibit B39 and there after various steps taken in this regard under Exhibit B49 issuing legal notice and addressing the ECGC regarding the claim made by the complainant under Exhibit B56 to B58 we find that there is no reason to allege any lapse or negligence on the part of the opposite party in helping the complainant to settle the claim or to retrieve the Bill of lading for unrealized amounts. Further from the materials available and the documents placed before this in this case, it is clearly proved that the purchaser or the buyer to whom the bill of lading were sent through the opposite party to realize the money through the PNC foreign bank after delivering the documents at site for realization of 25% of amount and after 30 days for the remaining 75% of the amount the fraud was played with the help of courier service in the delivery of those documents meant for collection of money and the goods were taken delivery by using the original documents by way of intercepting the mail or postal meddled with and by sending the forged and fabricated documents in order to cheat the complainant and made him to suffer the loss without realization of amounts for which the complainants remedy lies only before the proper civil and criminal forums and not before the consumer forum and thereby we are of the view that there is no deficiency or negligence on the part of the opposite party in dealing with the complainants transaction and this point is answered in favour of the opposite party accordingly.
9. Point No.3 :- In view of the foregoing findings the complaint is liable to be dismissed as not maintainable and thereby the complainant not entitled for any relief as prayed for.
10. In the result, the complaint is dismissed as not maintainable. There will be no order as to costs in this complaint.
S.SAMBANDAM A.K.ANNAMALAI, R.REGUPATHI, MEMBER JUDICIAL MEMBER PRESIDENT LIST OF DOCUMENTS Exhibits of the complainant A1 27.06.03 Xerox copy of Purchase order No.0138/2003.
A2 03.07.03 Xerox copy of Purchase order No.0142/2003.
A3 25.07.03 Xerox copy of Purchase order No.0173/2003.
A4 14.08.03 Xerox copy of Invoice No.007 and Packing list A5 14.08.03 Xerox copy of Invoice No.008 and Packaging list.
A6 22.08.03 Xerox copy of Bill of lading A7 25.08.03 Xerox copy of Letter A8 25.08.03 Xerox copy of Bill of Exchange A9 25.08.03 Xerox copy of Letter A10 29.08.03 Xerox copy of Invoice No.009 and packaging list.
A11 31.08.03 Xerox copy of Bill of Lading.
A12 08.09.03 Xerox copy of Letter.
A13 08.09.03 Xerox copy of Letter.
A14 08.09.03 Xerox copy of Letter.
A15 08.09.03 Xerox copy of Bill of Exchange.
A16 08.09.03 Xerox copy of Letter A17 13.09.03 Xerox copy of Purchase order No.0219/03.
A18 16.09.03 Xerox copy of Invoice No.011 with packing list.
A19 19.09.03 Xerox copy of Bill of Lading.
A20 20.09.03 Xerox copy of Letter.
A21 20.09.03 Xerox copy of Bill of Exchange.
A22 22.09.03 Xerox copy of Telegram A23 22.10.03 Xerox copy of Letter.
A24 29.10.03 Xerox copy of Letter.
A25 30.10.03 Xerox copy of Party Credit Advice.
A26 05.11.03 Xerox copy of Letter.
A27 10.11.03 Xerox copy of Letter.
A28 12.11.03 Xerox copy of Letter.
A29 22.11.03 Xerox copy of Letter.
A30 22.11.03 Xerox copy of Letter.
A31 14.01.04 Xerox copy of Notice issued by the opposite party.
A32 04.02.04 Xerox copy of Letter.
A33 21.01.04 Xerox copy of Letter.
A34 30.03.04 Xerox copy of Letter.
A35 05.04.04 Xerox copy of Letter.
A36 30.04.04 Xerox copy of Reply.
A37 28.06.04 Xerox copy of Letter.
A38 02.11.04 Xerox copy of Legal Notice with Ack. Card.
A39 22.12.04 Xerox copy of Reply.
Exhibits of the opposite party B1 08.09.03 Xerox copy of Covering letter for tendering documents.
B2 08.09.03 Xerox copy of First Bill of exchange to PNC Bank, USA.
B3 08.09.03 Xerox copy of Second bill of exchange to PNC Bank, USA.
B4 08.09.03 Xerox copy of Covering Schedule or handling documents.
B5 08.09.03 Xerox copy of Shippers copy of Shipment Airway bill No.3355864 282.
B6 25.08.03 Xerox copy of Covering Letter for tendering documents.
B7 25.08.03 Xerox copy of First Bill of exchange.
B8 25.08.03 Xerox copy of Second Bill of exchange.
B9 25.08.03 Xerox copy of Covering Schedule for handling documents.
B10 25.08.03 Xerox copy of Shippers copy of shipment Air Way Bill No.140 9369 942.
B11 20.09.03 Xerox copy of Covering letter for tendering documents.
B12 20.09.03 Xerox copy of First Bill of Exchange complainant to PNC Bank, USA.
B13 20.09.03 Xerox copy of Second Bill of Exchange complainant to PNC Bank, USA.
B14 22.09.03 Xerox copy of Covering Schedule for handling documents.
B15 24.09.03 Xerox copy of Shippers copy of Shipment Air Way Bill No.337 3778 925.
B16 08.09.03 Xerox copy of Acknowledgement for receipt of documents.
B17 08.09.03 Xerox copy of Acknowledgement for receipt of documents.
B18 19.09.03 Xerox copy of Acknowledgement for receipt of documents.
B19 18.10.03 Xerox copy of Letter seeking fate of collection bills from opposite party to PNC Bank B20 18.10.03 Xerox copy of Shippers copy of shipment Air way bill No.336 6593 252.
B21 22.10.03 Xerox copy of Letter from PNC Bank to complainant.
B22 29.10.03 Xerox copy of Letter informing non-payment and non-acceptance/ Payment from PNC Bank to opposite party.
B23 29.10.03 Xerox copy of Telex Message.
B24 30.10.03 Xerox copy of Statement of account.
B25 01.11.03 Xerox copy of Letter seeking fate of collection bills from opposite party.
B26 04.11.03 Xerox copy of Letter informing to extend co-operation to the complainant B27 04.11.03 Xerox copy of Letter for recalling collection documents from complainant.
B28 04.11.03 Xerox copy of Letter from PNCX Bank to opposite party.
B29 5.11.03 Xerox copy of Letter requesting permission for sending representative.
B30 5.11.03 Xerox copy of Letter for return of Collection bill.
B31 5.11.03 Xerox copy of Letter for return of collection bill.
B32 5.11.03 Xerox copy of Letter for return of collection bill.
B33 10.11.03 Xerox copy of Letter informing return of collection bill.
B34 10.11.03 Xerox copy of Covering schedule for return of collection bill.
B35 10.11.03 Xerox copy of Covering schedule for return of collection bill.
B36 12.11.03 Xerox copy of Letter seeking clarification for collection bills from opp.party B37 22.11.03 Xerox copy of Letter seeking clarification for collection bills from opp.party B38 22.11.03 Xerox copy of Letter seeking clarification for collection bills from opp.party B39 25.11.03 Xerox copy of Letter for wrong delivery of collection documents.
B40 27.11.03 Xerox copy of Letter informing non delivery of registered airmails.
B41 27.11.03 Xerox copy of Letter informing non delivery of registered airmails.
B42 27.11.03 Xerox copy of Letter informing non delivery of registered airmails.
B43 27.11.03 Xerox copy of E-mail tracking response from DHL Worldwide to opp.party.
B44 27.11.03 Xerox copy of Letter from opposite party to Department of posts.
B45 05.12.03 Xerox copy of Letter from opposite party to DHL Worldwide Express.
B46 22.12.03 Xerox copy of letter of request to initiate legal action.
B47 24.12.03 Xerox copy of Reply letter from DHL Worldwide Express to opposite party.
B48 30.12.03 Xerox copy of Reply letter from Department of Posts to opposite party.
B49 14.01.04 Xerox copy of Legal notice from Counsel of opposite party.
B50 23.01.04 Xerox copy of Claim form of ECGC from complainant to ECGC.
B51 21.02.04 Xerox copy of Letter from complainant to opposite party.
B52 04.03.04 Xerox copy of Reply letter from opposite party to complainant.
B53 05.03.04 Xerox copy of Letter informing return of collection bill.
B54 05.04.04 Xerox copy of Letter from complainant to opposite party.
B55 30.4.04 Xerox copy of Reply to legal notice from counsel of DHL to opposite party.
B56 12.10.04 Xerox copy of Settlement of claim from ECGC to complainant.
B57 13.10.04 Xerox copy of Settlement of ECGC claim from opp. party to complainant.
B58 13.10.04 Xerox copy of Receipt from opposite party to ECGC.
B59 02.11.04 Xerox copy of Legal notice from counsel of complainant to opp. party.
B60 22.12.04 Xerox copy of legal notice from opposite party to complainant.
S.SAMBANDAM A.K.ANNAMALAI, R.REGUPATHI, MEMBER JUDICIAL MEMBER PRESIDENT INDEX : YES / NO sg/B-II/aka/ Bank