State Consumer Disputes Redressal Commission
M.L Dhawan & Pushpa Dhawan vs M/S Maersk India Ltd. & Anr on 29 November, 2017
IN THE STATE COMMISSION : DELHI
( Co n s t i t u t e d u n d e r S e c t i o n 9 o f t h e Co n s u m e r P r o t e c t i o n A c t , 1 9 8 6 )
Date of Decision: 29.11.2017
Complaint Case No.200/1997
M.L. Dhawan
&
Pushpa Dhawan
Partners of the Firm
M/s. Dew International,
C-140, Jhilmil Colony,
Delhi -110095.
....Complainant
Versus
1. M/s. Maersk India Limited,
Meridian Commercial Tower,
7th Floor, Windsor Place,
New Delhi - 110001.
2. M/s. Quantas Corporation,
(Springstar Tire)
780, Elkridge Landing Road,
Suit No.210, Linthicum, MD 21090.
SERVICE TO BE EFFECTED THROUGH
M/s. East West Rubber Products Pvt. Ltd.,
8-B, G-Block, Kalkaji, New Delhi.
....Opposite Parties
CORAM
Justice Veena Birbal, President
Salma Noor, Member
Page 1 of 20
1. W h e th e r r e p o r t e r s o f l o c a l n e ws p a p e r b e a l lo we d to s e e th e j u d g m e n t?
2. To b e r e f e r r e d t o th e r e p o r te r o r n o t?
Justice Veena Birbal, President
1. This is a complaint under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act") filed by the complainant Shri M.L. Dhawan & Smt. Pushpa Dhawan, partners of the firm, namely, M/s. Dew International, C-140, Jhilmil Colony, Delhi. The aforesaid firm is engaged in the business of export of tyres, tubes and flaps to various countries. It is alleged that vide two invoices bearing No.017 and 018, both dated 15.04.1996, the complainant had exported a consignment of tyres and flaps to OP No.2 i.e. M/s. Quantas Corporation for US$ 36,605. It is alleged that the goods were handed over to OP No.1 i.e. M/s. Maersk India Limited for carriage from New Delhi to Miami as per Bill of Lading bearing No.MAEU NWDK04324 dated 25.05.1996. It is alleged that the original Bill of Lading was in the possession of the complainant as payment was not received from OP No.2 as such the OP No.1 could not have delivered the consignment to anyone. It is alleged that on 18.04.1997, the complainant sent a fax message to OP No.1 to know whereabouts of the consignment and thereafter had also sent reminder dated 25.04.1997, however, no response was given. Thereupon, the complainant had sent letters dated Page 2 of 20 02.06.1997 and 18.06.1997 respectively to OP No.1 to know the whereabouts of the consignment. It is alleged that vide letter dated 21.06.1997 OP No.1 had informed the complainant that they were strongly pursuing the matter with OP No.2 for collection of the original Bill of Lading. It is alleged that from the letter/fax message dated 21.06.1997 received from OP No.1 it is clear that OP had delivered the consignment to OP No.2 without collecting the original Bill of Lading. It is alleged that immediately thereafter, the complainant wrote to OP No.1 stating that they had no justification for handing over the consignment to OP No.2 without obtaining original Bill of Lading. It is alleged that OP No.1 is guilty of deficiency in service for having delivered the consignment to OP No.2 without obtaining original Bill of Lading as such complainant has filed the present complaint praying for payment of value of the consignment sent through OP No.1 in the form of compensation i.e. US$ 36,605/- and converting the same into Indian Rupees @ Rs.35/- per dollar as was at the time of filing of the present complaint, amounting to Rs.12,81,175/- along with interest @18% from the date of Bill of Lading i.e. 25.05.1996 up to the date of payment. Rs.50,000/- has been claimed as compensation for harassment and mental agony caused to the complainant and Rs.10,000/- towards costs of litigation.
Page 3 of 20
2. The complaint is opposed by the OP No.1 by filing written statement wherein preliminary objection is raised that the complaint is barred under Section 69 of the Indian Partnership Act in as much as neither M/s. Dew International is registered nor Shri M.L. Dhawan shown is the registered partner of the said firm. Another objection is raised that this Commission cannot pass order for amount prayed for in the complaint as the prayer is made for granting the same in foreign currency. Further objection raised by OP No.1 is that the dispute falls within the preview of the Indian Carriage of Goods by Sea Act 1925. It is alleged that as per Article III Clause 6 of the Schedule of aforesaid Act, if any damage has been caused by the carrier, it is mandatory that the effected party has to issue a notice to the carrier. It is alleged that the complainant has not issued any such notice of loss to OP-1 and non-issuance of such notice amounts to the fact that the goods as described in the Bill of Lading were delivered by the carrier properly without any loss/damage. It is further alleged that the complaint has been filed after expiry of period of limitation in terms of Clause 6 Paragraph 3 to Article III of the Schedule of the aforesaid Act. It is contended that a proceeding against a sea carrier can only be brought within one year from the date when the ship leaves the port, whereas the present complaint has been filed after expiry of period of limitation. Page 4 of 20
3. On merits, it is alleged that complainant has already received the payment from OP No.2 in respect of aforesaid consignment, as such OP No.1 is not liable to pay in any manner to the complainant. It is alleged that the complainant has already been paid by OP-2 under the aforesaid two invoices, US$ 28,968/- vide cheque No.50039 dated 01.05.1996 as an advance payment of 75% against the invoices value and balance payment of US$ 7,637/- was made by Telegraphic Transfer (TT) dated 17.09.1996. It is alleged that the Telegraphic Transfer (TT) was for total amount of US$ 21,977/- of which an amount of US$ 7,637/- was the part payment for the subject invoices and the balance of US$ 14,340/- was in respect to invoices No. 51 and 52 which is the subject matter of another complaint case No.196/1997 filed by the complainant before this Commission.
4. It is alleged that the complainant having been paid the total amount of the invoices, as stated above cannot claim to have suffered any loss as has been alleged. It is alleged that in these circumstances, there cannot be any grievance of the complainant against OP No.1. It is alleged that the aforesaid position of having received the payment was revealed when OP No.1 was pursuing the matter with OP No.2 about the original Bill of Lading. It is alleged that as complainant has already received the amount under the subject invoices, the complaint is liable to be dismissed with special costs.
Page 5 of 20
5. Replication is filed by the complainant wherein preliminary objections raised by OP-1 in written statement are denied. It is denied that the complaint is not maintainable. The complainant has reiterated the averments made in the complaint. The complainant has also denied having received payment towards the subject consignments as has been alleged by OP-1. It is alleged that the said payment which was received by the complainant from OP No.2 was for a previous order regarding which goods were exported and the said payment had nothing to do with the shipment under dispute. It is alleged that even payment through TT was received by the complainant from OP No.2 for some other consignment which was sent earlier to OP No.2. It is alleged that vide letter dated 21.06.1997 & 30.06.1997, OP No.1 has realized its mistake of releasing the consignment without obtaining original Bill of Lading by stating that they are pursuing the matter with the Consignee i.e. OP No.2. It is alleged that the alleged stand of OP No.1 about payment is an afterthought. It is alleged that OP No.2 had issued letters dated 05.11.1996, 01.01.1997 and 24.03.1997 to complainant stating that it had to pay the outstanding dues of complainant. Complainant has made prayer for allowing the complaint with costs and interest.
6. In evidence, an affidavit of Shri M.L. Dhawan, partner of complainant firm is filed wherein contents of complaint are reiterated Page 6 of 20 on oath. The documents exhibited in the affidavit are copy of the Partnership Deed -Ex-CW-1/1; copy of the Registration Certificate of the Complainant - Ex-CW-1/2; copy of the Invoice dated 15.04.1996 being Invoice bearing No.017 - Ex-CW-1/3; copy of the Invoice dated 15.04.1996 being Invoice bearing No.018 - Ex-1/4; copy of Bill of Lading bearing No. "MAEU NWDK-04324 dated 25.05.1996 - Ex-CW- 1/5; copy of the letter dated 05.11.1996 issued by the OP-2 - Ex-CW- 1/6; copy of the letter dated 01.01.1997 issued by the OP-2 - Ex-CW- 1/7; copy of the letter dated 24.03.1997 issued by the OP-2 - Ex-CW- 1/8; copy of the letter dated 18.04.1997 issued by the Complainant to the OP-1 - Ex-CW-1/9; copy of letter dated 25.04.1997 issued by the Complainant to the OP-1 - Ex-CW-1/10; copy of letter dated 02.06.1997 issued by the Complainant to the OP-1 - Ex-CW-1/11; copy of the letter dated 18.06.1997 issued by the Complainant to the OP-1 - Ex-CW-1/12; copy of the letter dated 21.06.1997 issued by OP-1 to the Complainant - Ex-CW-1/13; copy of the letter dated 25.06.1997 issued by the Complainant to the OP-1 - Ex-CW-1/14; copy of the letter dated 30.06.1997 issued by the OP-1 - Ex-CW-1/15; copy of the letter dated 02.06.1996 issued by the OP-2 - Ex-CW-1/16; copies of the Bill of Lading, L/C and a letter dated 24.4.1997 received from the OP-2 - Ex- 1/17 (Colly).
Page 7 of 20
7. OP-1 in evidence has filed an affidavit of Shri Vijay Karup its Legal Manager wherein contents of written statement are reiterated on oath. The documents exhibited in the affidavit are photocopy of Cheque No.50039 dated 01.05.1996 of US$ 28,968/- i.e. Ex-D1, photocopy of Telegraphic Transfer dated 17.09.1996 i.e. Ex-D2.
8. We may mention that proceedings against OP-2 were dropped by the complainant by making following statement on 21.2.13:
"Diclaimer No relief is sought against OP-2. So his name may kindly be dropped/deleted."
9. On the aforesaid date, the prayer deletion of OP-2 was allowed by this Commission.
10. Before proceeding to deal with objections/contentions of parties, we may mention that earlier the complaint was decided by this Commission on 30.10.2006. The decision given was challenged by complainant before National Commission vide FA-758/2006. The appeal was allowed and aforesaid order dated 30.10.06 was set aside vide order dated 3.11.08 by the National Commission and the case was remanded back to this Commission for deciding afresh on merits after allowing parties to lead evidence by way of affidavits.
11. We have heard Counsel for the parties and perused the material on record.
Page 8 of 20
12. The first preliminary objection raised by OP-1 is that complainant, M/s. Dew International was not a registered partnership firm at the time of filing the complaint as such complaint is not maintainable under Section 69 of the Indian Partnership Act. The aforesaid objection is considered. Section 2(d) of the Act defines „consumer‟ as under:
"(d) consumer' means any person who--
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(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 purposes;
Explanation:------------------------------------------------------------
-------------------------------------------------------------------------------
---------------------------------------------------------------------------". Page 9 of 20
As per Section 2(m) 'person' includes,--
"(i) a f irm whether registered or not;
(ii) a Hindu undivided f amily;
(iii) a co-operative society;
(iv) every other association of persons
whether registered under the Societies
R(21 of 1860) or not;"
13. Reading Section 2(d) with Section 2(m), it becomes clear that even if a firm is not registered, it can file a complaint before the Consumer Forum. The objection raised in this regard is, therefore, rejected.
14. The other objection raised by OP-1 is about non-issuance of notice under Article III Clause 6 of Schedule of the Indian Carriage of Goods by Sea Act, 1925. Under the aforesaid provision, if any, damage is caused by the carrier, it is mandatory that the effected party has to issue a notice of damage or loss. It is contended that no such notice was given by complainant. The same implies that the goods were delivered by the carrier properly without any damage as such the complainant is not entitled for any relief. On the other hand, Ld. Counsel for complainant has argued that the aforesaid objection is not maintainable. It is contended that only consequence of failure to give such a notice amounts to prima facie evidence of delivery of goods. Ld. Counsel has placed reliance upon judgment of Textiles and Yarn (P) Ltd. vs Indian National Steamship Co. Ltd., reported in AIR 1964 Page 10 of 20 Cal. 362. On going through the aforesaid judgment, it is seen that the same does not lay down any special mandate in which a notice is required to be issued. It is further contended that in any event there are number of letters on record sent by complainant to OP. The said letters constitutes notice on behalf of complainant.
15. The provision of Clause 6 of Article III of the Schedule of the Indian Carriage of Goods by Sea Act, 1925 does not lay down any special form in which a notice is required to be issued. We find that In the present case, there are number of letters on record which are written by complainant to OP-1 i.e. letter dated 2.6.97, Ex. CW-1/11, another letter of 18.6.97, Ex. CW-1/12 wherein it has been clearly mentioned that bankers of complainant are of the opinion that goods have been collected by OP-2 without relevant documents. It is further mentioned in the aforesaid letters that necessary information be provided to complainant failing which legal action will be taken against OP-1. There is another letter dated 25.6.97, Ex. CW-1/14 to the same effect. The aforesaid letters can be taken as notice on the part of complainant. In these circumstances, objection raised by OP-1 that no notice of loss or damage was given to carrier i.e. OP-1 has no force as such the same is rejected.
16. The other objection of the OP is that the complaint is barred by limitation in terms of provisions of paragraph 3 of clause 6 of Article Page 11 of 20 III of the Schedule to the Indian Carriage of Goods by Sea Act, 1925. It is submitted that as per aforesaid provision, if the complaint is not filed within one year after delivery of goods or the date when the goods should have been delivered, the carrier shall be discharged from the liability. It is submitted that in the present case, the complaint is filed after one year of delivery of goods as such same is liable to be dismissed being barred by limitation.
17. Ld. Counsel for the complainant has submitted that the complaint is not time barred and has relied upon the judgment of Calcutta High Court titled Textiles and yarn (P) Ltd. v. Indian National Steamship Co. Ltd., reported in AIR 1964 Cal. 362. It is submitted that one year will commence from the date of departure of ship from the port and onus as to when ship left the port was on OP-1. It is submitted that OP never produced any material in this regard. It is submitted that since the OP-1 has not discharged the burden and has withheld the material evidence, adverse inference can has to be drawn against OP-1 as such it can‟t be said that complaint filed is time barred.
18. The aforesaid objection is considered. In The East and West Steamship Company, George Town, Madras v. S.K. Ramalingam Chettiar reported in AIR 1960 SC 1058, the Hon‟ble Supreme Court has held that when the ship leaves the port, should be taken as the Page 12 of 20 time when delivery should have been made. The relevant portion of the judgment is reproduced as under:
"Once however the vessel has left the port it cannot but be common ground between the carrier and the consignee that the time when delivery should have been made is over. It is this point of time, viz., the time when the ship leaves the port, which in our opinion should be taken as the time when the delivery should have been made. The fact that after this point of time correspondence started between the carrier and the consignee as regards the failure to deliver and at a later point of time the carrier communicates his inability to deliver cannot affect this question. Nor can the ultimate repudiation of any claim that may be made by the shipper or the consignee affect the ascertainment of the date when the goods should have been delivered. The arrival at port of the vessel by which the goods have been contracted to be carried being known and the departure being equally an ascertainable thing and the duty of the carrier being necessarily to complete the delivery before leaving the port, the date 'by which the delivery should have been made is already a fixed point of time and later correspondence, claims or repudiation thereof can in no way change it."
19. The Calcutta High Court in Textiles and Yarn (P) Ltd. vs Indian National Steamship Co. Ltd.(supra) after relying on aforesaid judgment of Hon‟ble Supreme Court has held as under:
"28. As pointed out by the Supreme Court the material point of time for calculating period of one year is the date of departure of the ship from the port. The defendant could have produced evidence to show the actual date of the ship's departure from the Port of Calcutta, but he has not chosen to do so. The onus is on the defendant to prove Page 13 of 20 that the claim is barred by reason of the j provisions in Clause 3 of paragraph 6 of Article III of the Schedule to the Act. The defendant has failed to discharge that onus and he has withheld from the Court material evidence which was avail-able to prove the actual date of departure of the ship. In these circumstances I hold that the plain-tiff's right to sue was not extinguished by lapse of time."
20. In the present case, ship was within the control of OP. The information as to when ship had left the port was within the knowledge of OP-1. OP-1 never disclosed any such date. Thus, OP-1 has failed to discharge burden of proof by producing material evidence on record which was available with it. As per material on record, vide communication dated 21.6.97 and 30.6.97, OP-1 informed the complainant that the goods had been delivered to OP-2 by mistake. The complaint is filed on 27.6.97. In these circumstances the complaint is not barred by limitation. Since the complaint is filed within one year, we need not look into as to whether the limitation for the present complaint is one year or two years as provided under the Consumer Protection Act. The objection about limitation raised by OP- 1 is rejected.
21. On merits, the contention of the complainant is that OP-1 has released the goods to OP-2 without documents i.e. without collecting the Bill of Lading. It is contended that since OP-2 has not made the payment, the goods ought not have been released to OP-2. To support the aforesaid stand, complainant has relied upon letter dated 5.11.96 Page 14 of 20 written by OP-2 to complainant i.e. Ex. CW1/6 wherein it is stated that the entire payment regarding aforesaid consignments as well as other consignments would be released by it. Complainant has relied on other letter dated 1.1.97, Ex.CW-1/7 received from OP-2 assuring payments of orders. The complainant has relied upon letter dated 24.3.97, Ex.CW-1/8 received from OP-2 stating that their bank is in process of making payments by 31st March. Complainant has also relied upon letter dated 18.4.97, Ex.CW-1/9 and dated 25.4.97, Ex.CW-1/10 written by it to OP-1 making enquiries about shipments. The complainant has also relied upon other letter dated 21.6.97, Ex.CW- 1/13 written by OP-1 to complainant wherein OP-1 has informed the complainant that they are strongly pursuing with the OP-2 for collection of original Bill of Lading. Complainant has also relied upon letter dated 30.6.97, Ex.CW-1/15 written by OP-1 to complainant wherein OP-1 has categorically admitted that the consignment covering Bill of Lading of the present case was released to OP-2 without collection of original Bill of Lading. Though OP-1 has denied the stand of complainant, however, in the aforesaid letter written by OP-1 to complainant, it is clearly admitted that having released the consignment to OP-2 without collecting the original Bill of Lading. Thus the deficiency on the part of the OP-1 stands established. Page 15 of 20
22. In view of the admission on the part of OP-1 as is discussed above, it is clearly established that there is deficiency in service on the part of OP-1 for having delivered the consignment in question to OP-2 without obtaining the original Bill of Lading.
23. The question for consideration is whether the complainant is entitled for the value of the consignment from OP No.1 i.e. US$ 36,605/- as is claimed in the present complaint. The stand of the OP-1 is that the complainant has already been paid for the subject invoices by OP-2 in the following manner:
"a. By Cheque No. 50039 dated 1.5.96 of US $
28,968/- which is an advance payment of 75%
against the invoices value.
b. The balance payment of US $ 7637 was made by
Telegraphic Transfer (TT) dated 17.9.1996. The TT was for a total amount of $ 21,977 of which an amount of $ 7637 was the part payment for the subject invoices and the balance of $ 14340 was with respect to invoice Nos 51 and 52 which is the subject matter of another complaint case No.196/97 before this Hon‟ble Forum."
24. The aforesaid averment is made by OP-1 in the written statement. The deposition to aforesaid effect is also made in the affidavit of Shri Vijay Karup, Legal Manager of OP-1. Along with affidavit, Ex-D1 is filed i.e. copy of cheque No.50039 dated 1.5.96 of US$ 28,968/-. Copy of Telegraphic Transfer dated 17.9.96 by virtue of which payment of US$ 21,977/- was made to complainant by OP-2 i.e. Page 16 of 20 Ex-D2. OP-1 has also filed the statement of account of OP-2 i.e Ex- D/3 showing the debit entry with respect to TT dated 17.9.96 to substantiate its stand.
25. In the rejoinder, the complainant has denied having received the payment of subject consignment. The complainant has alleged that cheque No.50039 for US$ 28,968/- is dated 1.5.96. The order for subject consignment was made prior to that. The complainant has alleged that it is not believable that an advance payment was made by OP-2 to complainant. However, the complainant has admitted that the aforesaid payment was received from OP-2. The complainant has alleged that it was in respect of some earlier consignment. As regards the alleged payment of $ 7637, the complainant has taken a stand that payment through TT received from OP-2 was also in respect of some other consignment which was earlier sent by the complainant to OP-2. Complainant has relied upon letters dated 5.11.96, 1.1.97 and 24.3.97 written by OP-2 to complainant i.e. Ex.CW1/6 to CW1/8 and has submitted that vide aforesaid letters OP-2 has admitted that he had to pay the outstanding dues of the complainant and has also promised to clear the outstanding dues. We have perused letter dated 5.11.96, Ex.CW-1/6. The aforesaid letter pertains to invoice No.24, 25, 26 & 27 and is not concerning the present case. The letter dated 1.1.97, Ex.CW-1/7 does not refer to any invoice number. Ex.CW-1/8 i.e. letter Page 17 of 20 dated 24.3.97, vide said letter OP-2 has informed the complainant that their bank is with process of making payment by March 31st. The complainant has admitted having received the payments as are stated by OP-1. However, the complainant has avoided to give the details about the consignments to which the aforesaid payments were pertaining. The record of earlier consignment was in his possession. The complainant ought to have given the details of consignments if the payments were relating to some other consignments as has been alleged. In these circumstances, it is taken that the complainants have received the payment from OP-2 for the subject invoices.
26. Further as noted above, the complainants have also dropped the proceedings of present complaint case against OP No.2 by making a statement on 21.2.13 before this Commission that no relief is claimed against OP-2. The same also supports the stand of the OP-1 that the complainant has received the payment from OP-2 and due to said reason, proceedings were dropped against OP-2.
27. Ld. Counsel for OP-1 has also argued that OP-1 is the agent of M/s. Dampskibsselskabet of 1912, Aktieselskab and Aktieselskabet Damposkbsselskabet Svendborg as such complainant is entitled to make claim, if any, against the aforesaid principle. However, no such plea is taken in the written statement by OP-1. We find that an application was also moved by the complainant for impleading the Page 18 of 20 aforesaid principle as OP-3. However, the application remained pending and none of the parties pressed for its disposal. In view of judgement of National Commission in Bombay Golden Transport Pvt. Ltd. vs Shiv Hari Textile Co. & Others, 1 (2012) CPJ 232 (NC), the aforesaid contention has no force. The complainant has throughout dealt with OP-1 i.e. from booking of consignment uptill its delivery. It is OP-1 which had received the consignment for delivery to OP-2. In fact it is OP-1 which had delivered the goods to OP-2. Throughout OP- 1 had correspondence with complainant about the subject invoices. Further no agency agreement is placed on record by OP-1 with the principles. In these circumstances, OP-1 cannot escape liability by contending that it acted only as an agent.
28. As noted above, the deficiency in service on the part of the OP- 1 in delivering the consignment to OP-2 without collecting the Original Bill of Lading is admitted. OP-1 is, therefore, liable to pay compensation of Rs.2 lacs to complainant. Rs.25,000/- is also awarded to complainant as litigation expenses. However, in view of reasoning given above, complainant is not entitled for the value of consignment from OP-1.
29. Complaint is allowed and disposed of in aforesaid terms. The payment as ordered be made within two months from the date of receipt of the order.
Page 19 of 20
30. A copy of this order as per the statutory requirement be forwarded to the parties free of charge. Thereafter the file be consigned to Record Room.
(Justice Veena Birbal) President (Salma Noor) Member sa Page 20 of 20