National Consumer Disputes Redressal
M/S Tulip Impex (P) Ltd. Co. & Anr. vs M/S Shipping Corporation Of India Ltd. & ... on 1 December, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 381 OF 2000 1. M/s Tulip Impex (P) Ltd. Co. S-388, Greater Kailash Part-I New Delhi-110048 Through Mr. Sanjeev Bhalla, M.D. 2. M/s Dhingra Metal Works B-70/3, Wazirpur Industrial Area Delhi-110052 Through Mr. Sanjeev Bhalla, A.R. ..... Complainant (s) Versus 1. M/s Shipping Corporation of India Ltd. Shipping House 245, Madame Cama Road Mumbai-400021 2. M/s Container Movement (Bombay) Transport (P) Ltd. J.P. House, Ground Floor 118, Shahpur Jat Opp. Asian Games Village New Delhi-11049 ...... Opp. Party (ies) BEFORE: HONBLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. S.K. NAIK, MEMBER For the Complainant (s) : Ms. Shikha Sapra, Advocate with Mr. Navneet Pawar, Advocate For the Opposite Party (ies) : Mr. Avneesh Garg, Advocate Dated: 1st December, 2011 PER S.K. NAIK, MEMBER ORDER
1. M/s Tulip Impex Pvt. Ltd. Co. and M/s Dhingra Metal Works are the complainants in this case. Both these firms are in the business of manufacturing and export of house-ware and kitchen-ware products. While M/s Tulip Impex Pvt. Ltd. Co. through its Managing Director Shri Sanjeev Bhalla provides the expertise, including the sourcing of foreign buyer to the manufacturers, M/s Dhingra Metal Works, the other complainant, is purely in the business of manufacturing the house-ware/kitchen-ware products. The complaint has been filed as a consortium of both the complainants through Mr. Sanjeev Bhalla, the Managing Director of the first complainant.
2. The allegations in the complaint against the opposite parties are that the complainants had booked two export consignments, one on the 5th of October, 1999 and other on the 7th of October, 1999 through the opposite parties for being delivered to their buyer/consignee at Berlin in Germany.
The port of discharge, however, was to be Hamburg. Even though the consignments had reached Hamburg on the 4th of November, 1999, there was some delay on part of their buyer to get the consignments released. When this delay was brought to the complainants notice, complainant no.1 visited Hamburg on the 24th of February, 2000 and found that the goods were in safe custody in the hands of the storage company, who is the agent of the opposite parties at Hamburg. He was assured by the company that on receipt of a proper direction from the opposite parties with regard to payment of demurrage and storage charges the goods would be delivered to their buyer/consignee. Meanwhile, complainant no.1 had approached the opposite parties for waiver/reduction of the demurrage charges as was the general practice prevalent in the shipping trade and was assured by the opposite parties that a favorable decision would be taken in the matter. However, when no concrete response was received from the opposite parties, the complainants as per the calculation given by the representative of the opposite parties deposited a sum of Rs.9,82,763.40 ps. towards the storage and demurrage charges on the 4th of March, 2000. The opposite parties thereafter informed their Hamburg agent vide a fax of the same day stating that they had already collected the entire demurrage and storage charges for both the consignments and advised the agent to release the consignments. On the basis of the opposite parties instruction to their agent at Hamburg, the complainants advised their buyer/consignee to take delivery of the consignments. However, when the consignee approached the storage company at Hamburg, he was informed that one of the containers had been auctioned by them to recover the storage and handling charges.
3. Surprised at this unwarranted, unethical and highly illegal action, a legal notice was issued asking the opposite parties to make good the loss suffered by the complainants amounting to Rs.23,80,159.30 ps. alongwith interest etc. The legal notice was duly replied by the opposite party no.1 denying any liability on their part, contending that the auction of the container was due to the acts of omission or commission on part of their client. Not satisfied with the reply to the legal notice that this complaint has been filed reiterating their stand that the opposite parties, despite having realized the full amount of demurrage and storage charges as per their own calculation, have allowed the consignment to be auctioned/sold in a totally illegal, unethical and malafide manner, which amounts to gross deficiency in service.
The complainants have, therefore, claimed compensation of Rs.23,80,159.30 ps. alongwith interest calculated @ 24% per annum from the date of loss of the consignment till realization and Rs.5,00,000/- as punitive and liquidated damages due to hardship and agony and loss of business reputation suffered by the complainant.
4. On receipt of notice on this complaint, the opposite parties have filed their written versions, which are identical in their contents. In the preliminary objection raised in the written version, they have submitted that the complaint was time barred, firstly in terms of Article 10 of the Bill of Lading, which prescribed the institution of a suit within nine months from the date of cause of action, which period expired before August, 2000, while the present complaint has been instituted in November, 2000. Further, under Article III Rule 6 of the Schedule of the Carriage of Goods by Sea Act, 1925 notice of loss or damage should have been given in writing to the carrier or its agent at the port of discharge within three days whereas it has been done after a period of twelve months. On this count also, the complaint is barred by limitation.
Thirdly, relying on Article 6(b) of the Bill of Lading, the opposite parties have contended that the delay in delivery of the consignment was due to negligence on part of the buyer as well as the complainants in not having the goods cleared for nearly four months and, therefore, no compensation for any loss or damage can be imposed upon them as the alleged loss is caused by their own acts of omission and commission.
5. In the other preliminary objection raised in their written version, it has been contended that the complainant does not come within the definition of a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 and in the last preliminary objection a plea has been advanced that the complaint is not maintainable on the ground of non-joinder of necessary parties, inasmuch as while the complainants admit the active role played by storage agency M/s Wallmann & Company, they have not impleaded them as a necessary party required for the proper adjudication of the complaint.
6. Responding to the complaint on merit, the opposite parties have denied that there was any deficiency on their part as the consignments entrusted to them had duly reached the port of discharge on the 4th of November, 1999 as admitted by the complainants themselves and thereafter it was the duty and responsibility of the buyer and the complainants to have ensured that the consignments were got released within a reasonable period but for reasons best known to the complainants their buyer did not take delivery of the consignments for a period of four months.
Under rules of the port authorities, the goods were taken possession of by their storage company and destuffed for auction to realize the storage and handling charges. In fact, they have suffered loss as the containers were unduly held up for the failure of the complainants buyer to take delivery of the goods in time. They have further contended that ample notice and opportunities were given to the consignee and the complainants to act in time and to get the consignments released, which they failed to do. The attempt to make a request for the waiver of the demurrage charges on the 28th of February, 2000 even though the complainants representative had visited Hamburg on the 24th of February, 2000 and was fully aware of the developments there is only a pretext to somehow make out a case against the opposite parties. They have, therefore, denied any liability to pay any compensation and have pleaded for the dismissal of the complaint, with exemplary costs.
7. In their rejoinder to the written version filed by the opposite parties, the complainants have countered the preliminary objection by contending that the Article 10 of Bill of Lading is not applicable to this case as it relates to deficiency of service and not a suit for tort or damages for negligence and even otherwise, there being no signature of the complainants on the Bill of Lading, it is not binding on them. In similar vein, they have denied that Article III Rule 6 of the Schedule of the Carriage of Goods by Sea Act, 1925 applies to the case as this is not a suit and there is no specific mention in the Bill of Lading that it would be subject to the provisions of the rules framed under the Indian Carriage of Goods by Sea Act, 1925. They have reiterated that being a case of deficiency in service, the limitation as prescribed by the Consumer Protection Act, 1986 only will be applicable.
Similarly, Article 6(b) of the Bill of Lading too would not be applicable as the opposite parties had been communicating with the complainants and the complainants were in constant touch with them throughout. The plea that complainants are not consumers and that the complaint suffered from non-joinder of parties has also been controverted. Lastly, it is submitted that the answering opposite party no.2 is ready and willing to return the amount of storage charges to the complainant no.2 upon suitable directions from the Commission. In the rejoinder the complainants have generally reiterated the averments and allegations made in the complaint.
8. In support of their respective pleas, the parties have largely relied upon the documentary evidence e.g. Bills of Lading and the correspondence exchanged between them.
On behalf of the complainants, affidavit of Mr. Praveen Dhingra, a partner of complainant no.2, has been filed while on behalf of the Shipping Corporation of India, the opposite party no.1, affidavits of Captain Yogesh Puri, DGM and Shri Vittal K. Shetty, AGM have been filed and on behalf of opposite party no.2 affidavit of Mr. Pramod Bhandari, Sr. Vice President has been filed.
9. We have carefully perused the entire evidence and material brought on record and have heard Ms. Shikha Sapra, learned counsel for the complainants, and Mr. Navneet Pawar, appearing for the opposite parties, and have given our thoughtful consideration to their submissions. In order to arrive at just and proper appreciation of the dispute, the following undisputed facts need to be noted.
10. At the outset, it may be stated that we do not find any merit in the preliminary objection raised by the opposite parties that the complainant is not a consumer, as service provided even for commercial purpose was within the domain of Consumer Protection Act, 1986 prior to its amendment vide Amendment Act 62 of 2002 effective from 15th of March, 2003. The other contentions too carry no weight as the remedy available under Section 3 of the Consumer Protection Act is in addition to any other remedy that may be available to a consumer so long it is not repugnant to any Act or law.
11. In this case, the complainants booked two containers through opposite party no.2, who is the Delhi based agent of opposite party no.1, for being transshipped to Hamburg on its destination to Berlin in Germany, for which Bill of Lading No. 9560DEL01169 dated nil and Bill of Lading No. 9560DEL011700 dated 7th of October, 1999 were issued by opposite party no.1. The dispute in this complaint relates to the second consignment dated 7th of October, 1999. Both the consignments reached Hamburg on the 4th of November, 1999 and were discharged at Hamburg. However, the consignee, namely Kobzar Victor, did not secure their release resulting in the detention of the consignments by the storage company at Hamburg.
Opposite party no.2 on receipt of information about the delay vide their letter dated 14th of January, 2000 had informed the complainant no.2 with a copy to complainant no.1 that despite the consignment having reached Hamburg on the 4th of November, 1999 their consignee had not turned up to take delivery of the same and it requested the complainants to take immediate action and get the consignment cleared so as to prevent any legal action being taken by the port authorities. This communication being relevant is reproduced below:-
14th January, 2000 Ref : CMT/DL/SN/0014/2000 M/s. Dhingra Metal Works B-70/3, Wazirpur Indl. Area New Delhi-110 052 Sub: Contr. # SIIU-4017793/40 B/L # 9560del101170 on Vessel I. Gandhi-42 A/c Consignee DKH Bank, Notify: Kobzar Victor, Germany Dear Sirs, We would like to inform you that above mentioned consignment arrived Hamburg on 04/11/99 and still lying uncleared. SCIs Hamburg Agent has repeatedly contacted the consignee and they have not turned up so far. Port Authorities/Customs would now take legal action as per their rules and regulations. You are requested to take immediate action and get this consignment cleared. We would await for your reply enable us to inform Hamburg accordingly.
Regards Sd/-
S. NATH GENERAL MANAGER Cc: M/s. Tulip Impex, Delhi Ms. Annamma (Fax No. 6216489) Cc:M/s. Amrit Sea Air, Delhi Mr. Deepak Sharma (Fax No. 6474107)
12. Further, a communication dated 17th of February, 2000 from Wallmann & Co., Hamburg, who are the storage company of the port authority at Hamburg, addressed to complainant no.2, with a copy to M/s Karl Geuther (sic) & Co., the agent of the Shipping Corporation of India at Hamburg, clearly stating that if the cargo is not released and all charges are not paid, the cargo will be sold on the 29th of February, 2000 in order to recover the storage and handling charges. A copy of this letter received by opposite party no.2 from M/s Karl Geuther (sic) & Co. was forwarded to complainant no.1 on the 17th of February, 2000.
The forwarding letter of opposite party no.2 alongwith letter dated 17th of February, 2000 from Wallmann & Co. being relevant are also reproduced below:-
CONTAINER MOVEMENT (BOMBAY) TRANSPORT PVT. LTD.
J.P. HOUSE, GROUND FLOOR, 118, SHAHPUR JAT, OPP. ASIAN GAMES VILLAGE, NEW DELHI-110049 TEL.:649-4201-5 FAX:649-4206 TEX:71007 CMT IN ICD-TKD OFF TEL:6813685/5048 FAX:6813685 To :- M/s TULIP IMPEX (P) LTD. Date : 17.02.2000 K. ATTN. :
MR. RAJEEV BEDI Fax No. 6216489 6416304, 622833 No. of pages (including this page) From :- DEL A. AGGARWAL Subject :- B/L 9560DEL01170, (sic) MV R6-42 ENCLOSED MSG. RECD. FROM WALLMANN & CO. WHICH IS SELF EXPLANATORY. PLS TRY AND EXPEDITE. WE HAVE INFORM HAMBURG THAT YOUR REP. IS IN GERMANY NOW FOR THIS CONSIGNMENT.
REGDS.
Sd/-
WALLMANN&CO (sic) REGISTERED Dhingra Metal Works B-70/3, Wazirpur Indl. Area New Delhi-100 052 17.02.2000 I.650 crtns. Stainless steel utensils B/L 9560 DEL 01170 ex MT Indira Gandhi 42, eta Hamburg 05.11.1999 Dear Ladies and Gentlemen You are indicate in the shipping documents (Bill of Ladings) as shipper for the above mentioned shipment. Until today you have not cleared the shipment.
With reference to the Hamburg Terms of Storage respectively the General Terms of Business for Qay Handling Firms in the Port of Hamburg, - 31 dt. 31.12.1998, we will sell this cargo on 29.02.2000 in order to recover the occurred storage and handling charges.
If the cargo will not be cleared and all charges will be paid within the above mentioned last deadline we reserve the right to sell the consignment to any interested party.
Thanking you for understanding of our decision and remain With best regards Wallmann & Co (GmbH & Co.) Sd/-
Cc :
Messers Karl Geuther GmbH & Co., Hamburg, attn.. Mr. L. Peters, as agent for The Shipping Corporation of India Ltd.
13. In this forwarding message, opposite party no.2 has clearly stated that the complainants representative was already in Germany in connection with this very consignment. The complainants, however, have denied the receipt of this communication, which simply cannot be believed. The registered letter of Wallmann & Co. is addressed directly to complainant no.2 while the forwarding message of opposite party no.2 is addressed to complainant no.1. We are, therefore, of the view that the complainants were fully aware of these communications especially in the backdrop of Shri Sanjiv Bhalla, Managing Director of complainant no.1, visiting Hamburg within a week on 24th of February, 2000.
14. The case of the complainants all through has been that even though they admit that their buyer/consignee did not act promptly to get the consignments cleared resulting in some delay, they had to make a visit to Hamburg in order to persuade the consignee to accept the consignment but the burden of demurrage and storage charges being very heavy, they requested the opposite parties vide their letter dated 16th of February, 2000 to waive off the demurrage charges. According to the complainants, the refrain of the opposite parties all through was that the matter would be considered favourably. The complainant no.1 during his visit to Hamburg on 24th of February, 2000 was also assured by the storage company that the goods would await the instruction of the opposite parties with regard to the payment of demurrage and storage charges and, therefore, the complainants were rest assured that the consignments would remain in their safe custody until the issue of payment of demurrage and storage charges was settled with the opposite parties and thereafter their buyer could take the delivery. This contention of the complainant no.1 that the opposite parties ever assured him a favourable consideration for waiver of the demurrage charges or the agent at Hamburg gave him any assurance to await for a decision on their representation for waiver is far from the truth as the complainants have failed to produce any evidence to that effect. However, when no sign of any waiver/concession was forthcoming, the complainant no.1 himself deposited an amount of Rs.9,82,763.40 ps. towards demurrage and storage charges allegedly as calculated by the opposite parties and it was on that basis that the opposite parties vide their fax of the same date instructed their agent at Hamburg to release the goods in favour of the consignee. The main allegation of the complainants is that the fact of opposite parties having received the demurrage and storage charges without verifying whether the consignments were intact at the other end i.e. Hamburg amounted to gross deficiency in service. The complainants have denied that they received any notice with regard to payment of demurrage and storage charges, failing which the storage company was to auction their consignment. On a perusal of the records of the case, we are not inclined to believe the arguments advanced by the learned counsel for the complainants that the consignee and the complainants were unaware of the notice/communication from the agency of the port authority cautioning them to resort to sale of the consignment if no payments were made. In this regard, apart from the letter of opposite party no.2 dated 14th of January, 2000 already extracted above, we note that the complainant no.1 himself on the 24th of February, 2000 had visited Hamburg while the consignment had reached on the 4th of November, 1999. More than 110 days had already passed since the discharge of the consignment at Hamburg and that should have been a cause of concern for the complainants and they should have not only persuaded their buyer/consignee to get the consignment released even if some payment towards demurrage and storage charges was to be paid there. As per the complainant no.1 the storage company had offered a discount of 10% on the storage charges during his visit and that offer should have been taken advantage of but it appears to us that the complainants rather than acting in a business like manner to save the consignment and reduce their loss cleverly addressed the letter dated 28th of February, 2000 requesting the opposite parties for the waiver of the demurrage charges. The contention that the opposite parties ever gave any hope, much less any assurance that they were considering the request for waiver has no legs to stand since there was no response to the complainants letter dated 16th of February, 2000 until the opposite parties forwarded the notice of the storage company at Hamburg to auction/sell the consignment unless the charges were paid by the 28th of February, 2000. Learned counsel for the complainants has also led much stress on the conduct of the opposite parties in receiving the amount on account of demurrage and storage charges without ascertaining the status of the consignment from their agent at Hamburg and contends that, that by itself amounts to deficiency in service. We are, however, not in agreement with this contention of the learned counsel. Since the consignments had reached the port of destination i.e. Hamburg on the 4th of November, 1999 and the same were lying uncleared due to the inaction on part of the buyer, which fact was brought to the notice of the complainants and further that the complainant no.1 had visited Hamburg on the 24th of February, 2000, it was the complainant no.1 who was fully aware of the seriousness of the consignment being delayed and detained. The amount of demurrage and storage charges was deposited by the complainant no.1 himself it appears after his return from Hamburg on the 4th of March, 2000 by persuading the opposite parties that the consignments were intact at Hamburg during his personal visit. The onus with regard to the status of the consignment was more on the complainant no.1 because of his personal visit and, therefore, he cannot pass on the blame to the opposite parties. The receipt of the Bank draft by the opposite party no.2 does not necessarily amount to condoning the negligence on part of the buyer and the consequential result flowing there-from.
15. In the totality of the facts and circumstances, we find that it is the complainant who is to be blamed much more than the opposite parties for the impasse, which was created by the non-acceptance of the consignment by their buyer resulting in the inordinate delay in clearance of the goods. The demurrage and storage charges were levied as per the rules of the port authorities at Hamburg and, therefore, to anticipate that the opposite parties would come to the rescue of the complainants by giving a waiver was too far-fetched an anticipation. The complainants appear to have made the request for waiver on the 28th of February, 2000; the last day for the payment of demurrage and storage charges, only to make out a case of deficiency against the opposite parties, which does not stand substantiated.
16. However, we find that the opposite parties have themselves conceded that under the RBI Regulations, storage charges could not be remitted from India to any port authority outside India. Such charges could be paid in foreign currency either by the consignor or the consignee/buyer at the port of destination but it appears that on the insistence of the complainants, the opposite parties had accepted the storage charges of 33951.72 DEM [i.e. 17675.86 DEM (upto 07.03.2000) and 16275.86 DEM (upto 07.03.2000)], equivalent to Rs.7,70,025/- at the rate of Rs.22.68 per DEM, as indicated in the letter of opposite party no.2 dated 4th of March, 2000 (page 192 of the paper-book). To be fair to the complainants, the opposite parties have even volunteered to refund the amount of storage charges retained by them. While taking note of the fact that contents of one of the two containers had been auctioned by the storage company at Hamburg, we may note that the complainants have not furnished any details with regard to the storage and handling charges deducted by the storage company from the sale proceeds and whether the complainants received any balance amount and whether the demurrage charges were also deducted at the other end. However, be that as it may, since the opposite parties were not legally entitled to recover the storage charges and are willing to refund the same to the complainants, we direct them to refund the amount of Rs.7,70,025/- with interest @ 9% per annum from the 5th of March, 2000 till the date of its payment.
16. The complaint is, accordingly, disposed of in the above terms.
Sd/-
( R. C. JAIN, J. ) PRESIDING MEMBER Sd/-
(S.K. NAIK) (MEMBER) Mukesh