State Consumer Disputes Redressal Commission
Linzii Rep By Its Proprietor Himanshu ... vs The Branch Manager, Bank Of ... on 16 March, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
C.C.No.18/2012
(C.C.No.59/2007 on the file of State Consumer Disputes Redressal
Commission, Chennai)
WEDNESDAY, THE 16th DAY OF MARCH 2022.
Date of complaint filed : 09.10.2007
Date of order pronounced :16.03.2022
LINZII,
50-C/1, Kamarajapuram West,
Karur - 639 002,
Represented by its
Proprietor Himanshu Bhushan. Complainant
-Vs-
The Branch Manager,
Bank of Baroda,
No.1, Senguthapuram Main Road,
Karur - 639 002. Opposite Party
Counsel for the complainant : Mr.V.Balaji, Advocate.
Counsel for the Opposite Party : Mr.Pala Ramasamy, Advocate.
This case coming before us for final hearing on 20.11.2021 and on perusing
the material records, this Commission made the following:-
ORDER
2 THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This complaint has been filed by the complainant under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 praying for direction the opposite party to get back the Export bill GA/06/05-06 dated 04.12.2005 for a value of USD 78,884.11 or to pay the sum of Rs.35,97,115/- covered under the aforesaid invoice and to pay a sum of Rs.5,00,000/- as damages and to pay a sum of Rs.3,00,000/- as compensation for mental agony and to pay Rs.10,000/- towards the costs.
2. The case of the complainant is as follows: The complainant is having a current account with the opposite party bank. The current account No.1848. He is doing Textile Export Business. From the date of opening current account, the complainant used to send all the Export proceeds through the opposite party and get them realized through the opposite party's, Coimbatore Branch or Tirupur Branch since the opposite party is not having Foreign Exchange facility at Karur. One of its Foreign buyer namely GARCIA Y HIJOS, at AVENIDA DUARTEKM 7.5, SANTO DOMINGO REPUBLIC OF DOMINICA placed the purchase indent dated 04.12.2005 for the supply of Fabric and Towels. The purchase order of the Foreign buyer, the complainant manufactured the fabric and towels and handed over the documents to the opposite party on 06.01.2006. The documents were negotiated through foreign banker namely "Swiss Fin Corp" at International Division (Foreign Exchange) Avenuda Duarte, Santiago, Dominica Republic. The complainant has submitted a following documents for collection of bill amount in respect of Invoice No. GA/06/2005-06 VIZ.
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1. INVOICE No.GA/06/2005-06 DATED 22.12.2005 : 5 Copies Original
2. Packing List GA/06/2005-06 dated 22.12.2005 : 5 Copies Original
3. Bill of Exchange No.GA/06 : 2 Copies Original
4. B/L No.INI 106800, dated 30.12.2005 : 5 (3 Original + Copy)
5. Exchange control copy of shipping bill : Original + Copy
6. Certificate of Origin : Dated 03.01.2006 : Original.
The total amount covered under the Invoice No.GA/06/05-06 dated 22.12.2005 is USD 78,884.11 equivalent to Indian Rupees 35,97,115/-. There are 24,347 pieces of towel and 596 pieces of Fabric. The total number of net weight is 12,858 kgs and total gross weight is 13,386 kgs. The consignment was sent by sea by Ocean vessel called Tiger Wave and Port of Loading is Chennai and Port of Discharge is Montevideo. After the shipment the complainant frequently contacted the opposite party for the realization of the proceeds. On 21.04. 2006 the complainant wrote the letter to the opposite to call back the proceeds since he has not received any information from the banker and consignee. In that letter the complainant and specifically informed that till such date he has not received any payment or any follow up feedback from the opposite party which leads to goods to be re-imported or sale to the another prospective buyer. The letter evoked no response.
On 21.06.2006 again he requested to take steps immediately to call back the export proceeds. This letter also evoked no response. Then again on 05.02.2007 he issued a reminder to the opposite party and do needful for call back the export proceeds on urgent basis. This letter also evoked no response. Since the opposite party 4 has not take any action he wrote letter to the Assistant General Manager having office at Coimbatore on 09.02.2007 to take earliest action to realize the proceeds. The Assistant General Manager also did not take any action. He wrote another letter on 21.02.2007 stating that some positive feedback must come from the opposite party. Left with no other option he issued ultimatum to the opposite party that he has no other option except to approach the consumer court for justice.
In the meantime he received communications from his Foreign buyer that his banker has not received documents. From December 2005 onwards he frequently contacted the Foreign buyer regarding the receipt of the banking documents. The E- mail correspondence between the complainant and Foreign buyer may clearly illustrate that the Foreign buyer not received banking documents at their end. Finally he issued advocate notice to the opposite party on 05.07.2007 calling upon the opposite party to recall the export document or pay the value of the consignment covered under the Invoice. He received reply from the opposite party substantially admit the allegations of the complainant and raise a false claim that the consignee banker is a fictitious person. The allegation is perse false. The opposite party admits that the said consignment was sent to M/s.DHL COURIER at Tiruppur on 09.01.2006. Only on 14.03.2007, after 14 months, they contacted the courier regarding the consignment entrusted on 09.01.2006. The bank made further allegation that the said courier delivered the consignment at 19.10 hours on 13.01.2006, as per the information furnished by the complainant. If the information has been furnished what is the steps bank has taken to realize the proceeds. What is the action the bank has taken against the courier. There is 5 no privity of contract between the complainant and the courier. Further the complainant is not personally aware of the address furnished to the courier. It is to be remembered that the foreign buyer came to the Handloom Export Council - Government of India. The complainant was not received any amount.
The opposite party has committed the following deficiency.
a) The delay of 13 months in enquiring the whereabouts of the consignment document with the courier.
b) Not giving any reply to the complainant for his six letters.
c) Even after furnishing the information the bank has not taken any action to recall the documents.
d) The complainant was deprived of the value of the consignment since he lost the opportunity of re-booking the consignment or sale to the third party.
The value of the consignment is Rs.35,97,115/-. The complainant is undergoing untold pain suffering besides he suffered damages to the tune of Rs.5,00,000/- for mental agony the opposite party is liable to pay Rs.3,00,000/- as compensation. In total the opposite party is liable to pay Rs.43,97,115/-. The banking service comes within the inclusive definition of section 2 (o) of the Act, and the complainant is the consumer under section 2 (1) (d) (i) of the Act. Therefore the complainant prays that to direct the opposite party
(i) to get back the Export bill GA/06/05-06 dated 04.12.2005 for a value of USD 78,884.11 Or to pay the sum of Rs.35,97,115/- covered under the aforesaid Invoice.
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(ii) to pay a sum of Rs.5,00,000/- as damages.
(iii) to pay sum of Rs.3,00,000/- as compensation for mental agony.
(iv) to pay Rs.10,000/- towards the cost.
3. The opposite party filed written version as follows:- The complaint is bad for mis-joinder of necessary parties. The Bill involved in this case was entrusted to M/s DHL Couriers and drawn on M/s.Swiss Fin Corp and the consignee was M/s.Lucky Leon Investments. They are necessary parties to this complaint and a fair and natural justice cannot be rendered without impleding them as parties to this complaint. As the proceeds of the Bill were not forthcoming Tiruppur branch checked up the matter with the courier. The courier orally reported that the bill was already delivered at the destination on 13.01.2006 and assured to give the proof of delivery. But the courier did not furnish the proof of delivery stating that it was expected from their Mumbai Office. In the meantime the Tiruppur branch of the opposite party tried to contact Swiss Fin Corp also, but failed. Consequently Tiruppur branch sent a reminder on 03.07.2006 through the said courier vide its receipt No.140 8749 580. But there was no response. Tiruppur branch further tried to contact Drawee Bank namely Swiss Fin Corp but again failed. As such the Tiruppur branch again sent a reminder on 23.02.2007 through the same courier vide its receipt No.132 5315 644 dated 24.02.2007. As there was no response, even for this reminder the Tiruppur branch of the opposite party sent a Swift message on 09.03.2007 to HSBC bank, Santiago and requested them to transmit the message to Swiss Fin Corp and thereby requested it to return the Bill immediately, if it was not collected. There was no response even to this Swift message. All these 7 developments were informed to the complainant from time to time. The Tiruppur branch again took up the matter with the courier and demanded proof of delivery. But the courier, without furnishing the proof of delivery for the Consignment covered under their receipt No.138 8397 905 dated 09.01.2006, returned on 14.03.2007 to our Tiruppur Branch. The Bank's reminder sent on 24.02.2007 vide its receipt No.132 5315 644 stating that it was not delivered due to bad address. This way the opposite party was diligently following up the matter of collection of bills and there is no cause for the complainant in the matter of follow up to allege deficiency of service of the opposite party In the meantime that is as far back as in March 2006 itself the complainant collected a copy of the courier receipt number 138 8397 905 dated 09.01.2006 from the opposite party. It has been informed to him to follow up with the courier foreign consignee inform the development to the bank. But for reasons best known to the complainant and not furnished these details of information at his end to this opposite party was only pressing the opposite party for collection of or the return of the Bill.
It is a question not answered by the complainant as to why he did not keep his foreign buyer informed of the dispatch of the Bill and pursue the matter for collecting the proceeds. This apart, the Complainant had asked for the message as to the delivery of the Bill on 13.01.2006 from the courier, only on 08.12.2006 and had got a copy of it through e-mail from the courier. The complainant, again for reasons known to him, had not provided this information to this opposite party till the opposite party met him at Karur on 13.07.2007. On coming to know of the complainant having collected the 8 information about the delivery of the Bill by the courier on 13.01.2006 itself, when the opposite party for a copy of it, the complainant had provided the same to the opposite party on 25.07.2007.
In view of these developments, when the opposite party once again tried to contact Swiss Fin Corp at Avenuda Duarte, through the internet, it came to know that no such Institution at all is existing there The aforesaid facts would clearly establish that the complainant had caused the opposite party to send the Bill in question to a non-entity at Avenuda Duarte, Santiago, Dominican Republic. The Bill was also collected on 13.01.2006 itself from the Courier Santo Dominingo and quite surely the complainant should be knowing of the fate of the Bill and consignment. It is strange that the complainant for reasons best known to him is trying to extract the Bill amount from the opposite party despite his knowledge of the opposite party sent the Bill promptly to the Addressee named by the complainant himself and the same was collected from the Courier on 13.01.2006 at the destination.
In the circumstances the opposite party has discharged his duty and rendered the service quite efficiently and if at all the Bill is not received and/or collected, it is not on account of the alleged deficient service on the part of the opposite party but due to the omissions and commissions of the complainant and the Courier.
It is for the reasons said elsewhere and more particularly in the preceding paragraph that this opposite party sought to implead the Courier as a necessary party vide M.P.No.27 of 2008 in C.C.No.59 of 2007, which this Hon'ble Commission was 9 pleased to dismiss on 18.09.2008 with its observations on calling for the necessary documents and also filing a Complaint against the Courier as per Law.
This Commission may kindly note that role of this opposite party is to submit the Bill to the drawee of the Bill and to pay the proceeds to the customer on realization of the same from the drawee of the Bill. This opposite party has sent the Bill through one of the reputed couriers, M/s DHL Courier, on the address provided by the complainant. This opposite party can make the payment to the complainant only on receipt of the amount from the drawee or return of the Bill provided it is returned by the courier agency. In this case, none of the things happened. This opposite party as a prudent banker has followed up with the DHL Couriers on several times as is evident from the copy of the communications made with the courier. There is no negligence or laches on the part of this opposite party. This Commission may not penalize the Bank for the mischief/default committed by courier agency or some others who are not within the control of the Bank. On the other hand, it is the responsibility of the complainant to follow up with the Consignee and drawee whom he has contacts to see that no mischief has taken place. This opposite party most respectfully submit that there are gross negligence on the part of the complainant itself in not taking necessary action in time. Moreover, the communication between the Complainant and foreign buyer would go to show that there is collusion among them to deceive the Bank.
This opposite party would now proceed to submit specifically on the averments/allegations leveled in the complaint in the backdrop of the factual position explained in Para 2 (a) to (k) of this version.
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The E-mail correspondence dated 27.02.2006 exchanged between the complainant and the foreign buyer reveals that the foreign buyer approved the printing on the Carton. But the foreign buyer goes on stating till 4th March 2006 that is banker did not receive the bill. In the light of this admitted fact, the question that arises is that if the foreign buyer had not received the goods how he could approve the printing on the Carton. This admitted fact makes it appear that the said foreign buyer had taken delivery of the goods by managing to get the bills from the courier probably on 13.01.2006. In which case there could be no bill to be collected from Swiss Fin Corp. Alleging the bill was not received by his banker kept on asking for the bill. This fact was very much known to the complainant and despite this, for reasons known to him the complainant chose to keep on accusing the opposite party. The foreign buyer who apparently appears to have received the goods could have made payment to the complainant, if at all such payment was not made already, on the basis of the receipt of the goods without insisting for the bill or asking for a duplicate of it. The complainant has not proved anything to claim the damages. He is silent whether the consignment is delivered to the consignee or not. If the consignment is delivered, he is entitled to get back the money from the consignee, which the complainant can claim from the consignee or the buyer. As per the trading terms, consignment is normally not deliverable to the consignee without getting bills. As such, if the consignment is not delivered, it has to be returned back and in such case also, there are not damages to the complainant. All the terms of goods are textiles and not perishable goods as per the 11 version of the complainant himself. Nothing has been produced to prove/assess the damages. All the claims are imaginary. Therefore, complaint may be dismissed
4. The opposite party filed a petition in M.P.No.27/2008 before our Principal Bench for impleading the necessary party DHL Courier, DHL Express India Private Limited, Tiruppur and the same was dismissed on 18th day of September 2008 with Liberty given to the opposite party to raise the defence that the complaint is liable to be dismissed for non-joinder of necessary party and proper party and also to proceed as against the proposed party, if they are really aggrieved as against the proposed party. In view of the opinion given by the Commission the opposite party filed another complaint with regard to the transactions between this complainant and the opposite party. The separate consumer complaint in C.C.No.09/2014 was filed by the opposite party is also pending for disposal. The complaint was filed against (1) DHL Express India Private Limited, Tiruppur Represented by its manager and (2) LINZII, Represented by its Proprietor Himanshu Bhusan, (Complainant in this complaint C.C.No.59/2007).
5. The opposite party prayed in their complaint directing the first opposite party (DHL Express India Private Limited) to pay the amount that may be ordered by this Commission to be paid to the complainant if any in C.C.No.59/2007. Directing the 1st opposite party to pay Rs.25,00,000/- towards damages caused to the fair name of the complainant in its customer service and Rs.10,000/- towards cost both parties contested the above complainant.
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6. In this complaint the complainant examined himself as PW1 by filing proof affidavit and additional proof affidavit, Ex.A1 to Ex.A18 were marked on the side of complainant. The branch Manager, Bank of Baroda, Karur was examined on the side of opposite party by filing proof affidavit and additional proof affidavit, Ex.B1 to Ex.B22 were marked on the side of opposite party.
7. The points for consideration are:
(1) Whether there is deficiency in service on the part of the opposite party as alleged in the complaint.?
(2) Whether the opposite party is liable to pay amount as claimed in the complaint?
8. Point No.1&2: It is the admitted case of both parties the complainant is having current account with Bank of Baroda, on 06.01.2006 the complainant entrusted the document that were negotiated through foreign bankers namely "Swiss Fin Corp. at International Division (Foreign Exchange) Avenuda Duarte, Santiago, Dominica Republic. The total amount covered under the Invoice No.GA/06/05-06 dated 22.12.2005 is USD 78,884.11 equivalent to Indian Rupees 35,97,115/-. There are 24,347 pieces of towel and 596 pieces of Fabric. The total number of net weight is 12,858 kgs and total gross weight is 13.386 kgs. The consignment was sent by sea by Ocean vessel called Tiger Wave and Port of Loading is Chennai and Port of Discharge is Montevideo. The opposite party neither received the sale proceeds nor gets back the original documents. Hence the complainant was deprived of the value of the consignment since he lost the opportunity of re-booking the consignment or sale to the third party. The opposite party has committed the following deficiency 13
a) The delay of 13 months in enquiring the whereabouts of the consignment document with the courier.
b) Not giving any reply to the complainant for his six letters.
c) Even after furnishing the information the bank has not taken any action to recall the documents.
d) The complainant was deprived of the value of the consignment since he lost the opportunity of re-booking the consignment or sale to the third party.
Further the counsel for the complainant would contend that the banking services comes within the inclusive definition of Section 2 (o) of the Act, and the complainant is the consumer under Section 2(1) (d) (i) of the Act.
The counsel for the opposite party would contend that the Tiruppur branch of the opposite party sent the bills for collection on 09.01.2006 through couriers namely DHL Express Private Limited Tiruppur branch vide its Receipt No.138 8397 905 dated 09.01.2006. The courier orally reported that the bill was already delivered at the destination on 13.01.2006 and assured to give the proof of delivery. But the courier did not furnish the proof of delivery stating that it was expected from their Mumbai office. As, there was no response, from the Drawee Bank namely Swiss Fin Corp. The Tiruppur branch of the opposite party sent a Swift message on 09.03.2007 to HSBC Bank, Santiago and requested them to transmit the message to the Swiss Fin Corp and return the bill immediately if it was not collected, no response to the Swift message also. The opposite party was diligently follow up the matter of collection of bills and there is no 14 cause for the complainant in the matter of follow up to allege deficiency of service of the opposite party.
9. The bank has only forward the bills and even assuming that, the banker has not received it, the complainant is at liberty to send duplicate/ fresh set of document and there cannot be a prejudice caused. It is not the case where goods sent were lost it is not correct to allege that, the complainant was deprived of the value of the consignment. M/s. "Dun & Bradstreet Information Services India Private Limited"
Mumbai after investigation has furnished a report dated 09.12.2010 informing that, they are unable to locate said address, that extent of present operations and the name is not listed in the local telephone directory there is no deficiency in service. Bank has hire the service of the DHL Courier and handed over the cover and it is an admitted fact.
10. For proving the averments in the complaint the complainant has marked Ex.A1 to Ex.A22 for realizing the payments, the complainant prefer the method of "Documentary Collection" to collect payment from a foreign buyer using documentary collection, the seller sends a draft or other demand for payment with the related shipping documents through bank channels to the buyer's bank. The bank releases the documents to the buyer upon receipt of payment or promise of payment. The banks involved in facilitating this collection process. It is generally safer for exporters to require that bills of lading be "made out to shipper's order and endorsed in blank" to allow them and the banks more flexible control of the merchandise.
11. Documentary collection carries the risk that the buyer will not or cannot pay for the goods upon receipt of the draft and documents. If this occurs it is the burden of the 15 seller to locate of new buyer or pay for return shipment. Because the bill of lading for Ocean freight is a valid title to the goods and is a negotiable document whereas the comparable airway bill is not negotiable as an ownership title, documentary collections are only viable for Ocean shipments. After making the shipment the seller sends the documents, through his bank to the buyer's banks, accompanied by the agreed upon documentation such as the original bill of lading. Invoice, certificate of origin, etc., The buyer is then expected to pay the draft when he sees it and thereby receive the documentation that gives him ownership title to the goods that were shipped. There are no guarantees made about the goods other than the information about the quantities, date of shipments, etc., which appears in the documentation. The buyers could refuse to accept the draft thereby leaving the seller in the unpleasant position of having shipped goods to a destination without a buyer. It is then the seller's responsibility to find a new buyer, dispose of the goods, or arrange that they be shipped back. There is no recourse with the banks since their responsibility ends with the exchange of money for documents.
12. The E-mail dated 27.02.2006 at 1.50 P.M. the message was received by the complainant has mentioned that "As the terms is Draft at sight so on receipt bank will automatically do the required. We already authorized them for the same". Therefore both parties agreed the method of payment only under "Draft at sight". As per the E- mail communications February 2006 to 2007 the original documents not reached the banks. In the reply made dated 27.02.2006 at 7.19 P.M. stated that "We have already lost a lot, due to none receipt of original documents could not received the goods and 16 due to non delivery in time paid lot of penalties to the customer and customs also lost advance licence fees" the E-mail communications clarified that original shipping documents not reached the buyers bankers.
13. The action for damages under the Consumer Protection Act there is no Expressed/choose the jurisdiction in filing the complaint filed by the complainant. Since, the Consumer Protection Act was to give effect to the convention for unification of certain rules of International Carriage passed on the warsaw convention to countries which would choose to be governed by that convention and also apply the provisions of the warsaw convention as amended by the Hague protocol to countries which may accept the provisions thereof. Therefore the complaint is maintainable before this Commission.
14. The xerox copy of delivery status is produced by the opposite party mentioned about the confirmation of hand delivery of the parcel at their DHL Counter to MR.SEGUNDO GARC on 14.01.2006 at 11:30 a.m. As per the case of both parties the consignment contains shipment documents despatched through DHL courier was delivered to some other person. Therefore the documents sent for collection of payment was delivered to unknown person. The opposite party filed an application for impleading the courier company as a necessary party was dismissed with a liberty to file separate complaint. On the basis of the liberty given by this Commission the opposite party filed a separate complaint which is also pending for disposal.
15. The main contention of the counsel for the complainant is a delay of 13 months in enquiring whereabout the consignment of the documents with the courier. The 17 exchanging of E-mail communications between the parties as well as with the courier company shows there is some delay in verifying whereabout the consignment of the documents. But it was delivered by hand over to some other unknown person on 14.01.2006 the complainant proves the first contention raised against the opposite party.
16. The next contention of the counsel for the complainant is not giving any reply to the complainant for his six letters after exchanging the communications through E-mail with the buyer. The complainant addressed a letter to the opposite party in Ex.A10 dated 21.04.2006. The complainant also sent letters to the opposite party on 21.06.2006, 05.02.2007, 09.02.2007, 21.02.2007 which are marked as Ex.A10 to Ex.A15. The opposite party sent a reply for the above letter only on 15.05.2007 which is marked as Ex.B11. The opposite party has not produced any copy of letter sent a reply to the communications reporting the delay in delivery of consignment which were handed over to the opposite party for collection of funds. Therefore, the complainant proved non reply for his six letters by the opposite party.
17. The next contention raised by the complainant in his complaint that even after furnishing the information the bank has not taken any action to recall the documents. The opposite party in their written version admits they have sent the bills for collection on 09.01.2006 through the couriers namely DHL Express Private Limited Tiruppur branch vide its Receipt No.138 8397 905 dated 09.01.2006. Further they have concedes the courier orally reported that the bill was already delivered at the destination on 13.01.2006 and assured to give the proof of delivery. The complainant marked the E- 18 mail communications exchanged between himself as well as the buyer as Ex.A7. The first E-mail communications dated 22.12.2005. In the next E-mail Communications dated 13.01.2006 the buyer sent the E-mail to the complainant in the name "HIMANSHU" the E-mail was sent by the buyer's son "IMMANUEL" and informed his father MR.ALFONSO already left for MIAMI and he told him to sign it on the Performa and also informed his father already authorized the bank to send the funds once the documents come. It shows they were ready to take delivery of the consignment after receiving the shipping documents by the Bank. The complainant informed his next E- mail as per DHL World Wide Express they send original shipping documents reached the buyers bank today (13.01.2006) sure will be delivered and requested for acknowledgement and confirmation. The complainant received the E-mail from his buyer on 27.02.2006 at 1.50 P.M. informing the approval of carton printing and also informed their bankers has not received the original set of shipping documents till date so, unable to comment on payments issues as the terms is "draft at sight" on receipt bank will automatically do the required that already authorized them for the same. Therefore the shipping documents not reached in the hands of the buyer till 27.02.2006.
18. In the next E-mail dated 04.03.2006 at 7.38 P.M. the buyer informed to the complainant till the date their bankers has not received the original set of documents and requested check with complainant's bankers/couriers and despatch details. After exchanging the E-mail communications the complainant sent a letter Ex.A10 to the opposite party on 21.04.2006 informing the non delivery of consignment. The opposite 19 party stated in their written version that this question not answered by the complainant as to why he did not inform the despatch of the bill and pursue the matter for collecting the proceeds, this contention is not acceptable. Since, the complainant filed the copies of E-mail communications exchanged between himself and the buyer he informed the despatch of the consignment to his buyer and requested for the payment. The opposite party also stated in their written version the complainant had asked the message of the delivery from the courier only on 08.12.2006 and had not provided the information to the opposite party till met him at Karur on 13.07.2007. The above contention is also not acceptable.
19. The complainant sent a letter to the opposite party on 21.04.2006 informing the delay in delivery and request the follow-up feedback and necessary action to get the goods re-imported or sale to another prospective buyer. The bill of lading for Ocean freight is a valid title to the goods and negotiable document. Therefore the complainant requested the opposite party in Ex.A10 to take follow-up action and feedback if the goods are not delivered necessary action to re-import or sale to another prospective buyer. It is true there is some delay from 13.01.2006 to 21.04.2006 the earliest letter sent to the opposite party in the meantime as an exporter and the complainant exchanged the E-mail communications with his buyer. It is the duty of the opposite party who is the service provider are expected to take necessary action in such disputes whenever they have received the delivery of consignment valued about 35 lakhs. The opposite party failed to either send any reply to the complainant what are all the steps they have taken trace out the missing consignment and verifying the delivery of 20 consignment, they have simply keep quiet for a considerable period they have not chosen to send any reply for the subsequent letters sent by the complainant to them. Now, they are blaming the complainant and suspect collusion between the complainant and his buyer. As a prudent man doing the export business expecting normal delivery of his consignment for running his business he is in a situation of receiving the payment from his buyer for the continuation of his business at his place.
20. It is the admitted case of the opposite party that the shipment documents wrongly delivered to wrong person. The opposite party also blaming the courier service to whom the consignment was handed over by the opposite party for delivery. As a service provider from the receiving of the shipment documents they are duty bound to follow-up it with proper payment at delivery point. The buyer could be taken delivery of the consignment only on production of the shipment documents. In the absence of shipment documents he could not take delivery of the consignment. If the shipment documents reached to the hands of wrong person there is some every possibility of wrong delivery of shipment consignment on production of shipment documents by a wrong person. The opposite party must be vigilant by watching whether the payment was made in the bank by presenting the shipment bill. Now the opposite party blaming not only the complainant and also raised a contention that the buyer itself is fictitious no such company is in existence at their place they engaged some private investigation organization and filed a report after verifying telephone directories. If the consignment was delivered to a wrong person was a fraudulent transactions then it is a criminal matter.
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21. Now, the question arises whether the dispute can be relegated to civil suit to establish the forgery. In such a situation the dispute need not be relegated to Civil Court to establish the forgery. It was held in the reported order pronounced by National Consumer Disputes Redressal Commission in III 2009 CPJ 362 - in the case of - TOY N TOY - International -Vs- Alitalia Airlines and Others - Page No.634 - "Airlines should not have released the cargo without ascertaining the genuineness of the Delivery order from the said Bank. It is proved beyond any shadow of doubt that the complainant had not received the value of the cargo in question and opposite party- Airlines being grossly deficiency in service cannot escape the liability of paying claim amount".
22. The delivery of cargo effected production of shipment documents without payment. Now, the complainant in this complaint not able to get the money from his buyer it is not the case of the opposite party, even though the courier delivered the shipment documents to a wrong person, the cargo was taken delivery only by the buyer of the complainant on payment. If any payment was made it should be transmitted only through the opposite party bank, they have not paid any amount to the complainant for the export of the consignment. Therefore, the complaint could not be relegated to the Civil Court to establish the criminal case.
23. Moreover the complaint was filed in the year 2007 before the Principal Bench of Tamil Nadu State Consumer Disputes Redressal Commission, Chennai and the same was transmitted to this Circuit Bench on its Constitution in the year 2012. Therefore, it is not proper to relegate the matter to the criminal court for proving the criminal case. It is the admitted case of both parties the complainant not received any amount from 22 his buyer for the consignment. After receiving the information of wrong delivery by the courier, the opposite party failed to take appropriate immediate action for realizing the proceeds. Therefore, the complainant proved the third allegations raised against the opposite party.
24. The next allegations raised in the complaint is the complainant was deprived of value of the consignment since he lost the opportunity of re-booking the consignment or sale to the third party.
25. The opposite party raised a contention in their written version that the complainant is trying to extract the bill amount from the opposite party despite his knowledge of the opposite party sent the bill promptly to the addressee named by the complainant himself and the same was collected from the courier on 13.01.2006 at the destination. The opposite party having the knowledge about the foreign buyer namely Garcia Y Hijos, at Avenida Duartekm 7.5, Santo Domingo Republic of Dominica the documents were negotiated through foreign banker namely "Swiss Fin Corp" at International Division (Foreign Exchange) Avenuda Duarte, Santiago, Dominica Republic all the necessary documents enclosed with the shipment documents.
26. Now, the opposite party raised a contention that the foreign banker Swiss Fin Corp. is not in existence it is fictitious. The complainant's earlier documents of E-mail communications exchanged between his buyers for arranging the exports goods. The messages of internet enquiry are marked as Ex.A16, Ex.A17 and Ex.A18 the documents shows the information of buyers was found in internet enquiry with the Handloom Export Council and the buyer contact with the complainant for the supply of Handloom 23 and the cargo was insured for the Short Term under Ex.A17 therefore the buyer is not a fictitious person. The opposite party would not stated the steps they have taken after knowing the foreign banker namely Swiss Fin.Corp. is a fictitious to verify whether the cargo was taken delivery by the buyer or any wrong person who received the consignment from the courier service.
27. The counsel for the complainant would contend that there is no privity of contract between the complainant and the courier he is not personally aware of the address furnished to the courier. The foreign buyer came to the Handloom Export Council - Government of India the fact remained is that the complainant was not received any amount.
28. The opposite party also not furnished any information and the action taken by them against the courier. Now, the complainant lost his opportunity of re-booking the consignment or to sale of third party for realizing the amount. Therefore, the complainant proved the allegations set out in the complaint against the opposite party that he was deprived of value of the consignment since, he lost his opportunity of re- booking the consignment or sale to third party.
29. The complainant claimed in his complaint,
(i) to get back the Export bill GA/06/05-06 dated 04.12.2005 for a value of USD 78,884.11 Or to pay the sum of Rs.35,97,115/- covered under the aforesaid Invoice.
(ii) to pay a sum of Rs.5,00,000/- as damages.
(iii) to pay sum of Rs.3,00,000/- as compensation for mental agony. 24
(iv) to pay Rs.10,000/- towards the cost.
30. Since the complainant has been deprived of the use of money all these years from 2006 for no fault on his part, he is entitled to get interest quantified at the rate of 9% per annum on the invoice amount. Since the interest at the rate of 9% p.a. is being allowed and the Commission not awarded of compensation for business loss or damages. When the complainant is not able to get any reply from the opposite party for his letters for a considerable period of above the period one year the opposite party is liable to pay compensation for mental agony to the complainant. This Commission is fixed a sum of Rs.1,00,000/-. The complainant is eligible to get as compensation for mental agony the complainant proved that the opposite party committed deficiency in their service and the complainant is entitled to get the amount as fixed above and the opposite party is liable to pay the above amounts to the complainant and answered accordingly for the point for consideration no.1 & 2
31. In the result, the complaint is partly allowed and the opposite party is directed to get back the Export bill GA/06/05-06 dated 04.12.2005 for a value of USD 78,884.11 or to pay the sum of Rs.35,97,115/- covered under the aforesaid Invoice with interest at the rate of 9% per annum from the date of Invoice dated 04.12.2005 till its realization and also the opposite party is directed to pay a sum of Rs.1,00,000/- to the complainant as compensation for mental agony and to pay a sum of Rs.5000/- towards cost to the complainant.
25
Time for compliance: Two months from the date of receipt of copy of this order.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 16th day of March 2022.
Sd/-xxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
List of documents marked on the side of the complainant
Ex A1 04.12.2005 Purchase Order.
Ex A2 06.01.2006 Letter of the Complainant.
Ex A3 27.12.2005 Invoice.
Ex A4 --- Packing list
Ex A5 --- Bills of Exchange.
Ex A6 01.01.2006 Bill of Lading.
Ex A7 --- E-mail Correspondence.
Ex A8 05.07.2007 Advocate Notice.
Ex A9 28.08.2007 Reply Notice.
List of Additional documents marked on the side of the complainant Ex A10 21.04.2006 Complainant Letter.
Ex A11 21.06.2006 Complainant Letter. Ex.A12 05.02.2007 Complainant Letter. Ex.A13 09.02.2007 Complainant Letter. Ex.A14 21.02.2007 Complainant Letter. Ex.A15 22.03.2007 Complainant Letter. 26 Ex.A16 26.10.2005 Internet Enquiry. Ex.A17 14.12.2005 Proposal. Ex.A18 21.12.2005 Policy. List of documents marked on the side of opposite party. Ex.B1 09.01.2006 Courier Receipt. Ex.B2 03.07.2006 Reminder Letter. Ex.B3 03.07.2006 Courier Receipt. Ex.B4 23.02.2007 Reminder Letter. Ex.B5 24.02.2007 Courier Receipt. Ex.B6 09.03.2007 Swift Message. Ex.B7 14.03.2007 Letter by DHL. Ex.B8 09.03.2007 Courier Receipt. Ex.B9 29.03.2007 Receipt for Courier Charges Ex.B10 08.12.2006 Courier Receipt and enclosure. Ex.B11 15.05.2007 Letter to Complainant. Ex.B12 16.07.2007 Letter. Ex.B13 17.08.2007 E-Mail Copy. Ex.B14 29.07.2007 E-Mail Copy. Ex.B15 27.08.2007 E-Mail Copy. Ex.B16 06.09.2007 E-Mail Copy. Ex.B17 03.09.2007 E-Mail Copy. Ex.B18 30.10.2007 E-Mail Copy. Ex.B19 13.01.2006 E-Mail Copy. Ex.B20 27.02.2006 E-Mail Copy. Ex.B21 04.03.2006 E-Mail Copy. 27
List of Additional documents marked on the side of opposite party Ex.B22 09.12.2010 Business Information Report.
Sd/-xxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.