State Consumer Disputes Redressal Commission
Sun International Lanka vs M/S Jindal Agro Mills on 1 June, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.178 of 2017
Date of Institution: 27.03.2017
Order reserved on: 22.05.2018
Date of Decision : 01.06.2018
M/s Jindal Agro Mills Private Limited having its registered office at 13
K.M. Stone, Chandigarh Road, Ludhiana-141112 through its
authorized representative & Director Mr. Atul Jindal, son of R.K.
Jindal.
.....Complainant
Versus
1. Sun International Lanka Private Limited, Unit C-5, Industrial
Estate, Ekala, JA-ELA, Head Office: #74, Dharampala
Mawatha, Colombo-7, Sri Lanka through its Managing Director.
2. Janashakthi Insurance PLC, 55/72, Vauxhall Lane, Colombo
02, Sri Lanka through its Managing Director.
3. Sea Master, Shipping & Logistics Private Limited, Level 24,
East Tower, World Trade Centre, Colombo 01, Sri Lanka
through its Managing Director.
4. Wilson Surveyor & Adjustors Private Limited, C-204, Remi
Bizcourt, Veera Desai Road, Andheri (W), Mumbai-400053
through its Managing Director.
5. Ravi Energle Private Limited, 202, Manubhai Towers-B,
Sayajigun, Baroda-390005 through its Managing Director.
.....Opposite Parties
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. A.P. Singh, Advocate
For opposite party no.1 : Sh. Iqbal Singh, Advocate
For opposite party nos.2&3 : Ex-parte
For opposite party no.4 : None
For opposite party no.5 : Sh. Piyush A. Luktuke, Advocate
.................................................................................. Consumer Complaint No.178 of 2017 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant company has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), through its Director Atul Jindal, duly authorized to pursue the case, vide resolution Annexure C-1, against OPs on the allegations that complainant company is one of the leading manufacturers of Electrolytic Quality Copper Bus Bars, Rods, Strips, Wires, Profiles and Components generally being used by Motors, Switchgear, Switch Boards, Transformers manufacturing units and it is also engaged in manufacturing of copper alloys like brass, phosphor bronze, gun metall etc. used in Brazing Industry and Alloy Manufacturing and it has been duly registered as Private Limited Company under the Companies Act, 1956. The complainant company placed an order for the import of 26.640 MT of copper wire rod 8MM and above in diameter with OP no.1, a Sri Lanka based company for self consumption. Invoice was generated on 11.11.2015 and bill of entry was generated on 28.11.2015. OP no.1 issued a certificate dated 11.11.2015 mentioning the copper percentage of the goods as 98% above and further certified that consignment did not suffer from any contamination in any way. The combined transport bill of lading was issued on 11.11.2015. The consignment was loaded aboard the shipping vessel tessa/543/W, being run by OP no.3, Sea Master Shipping and Logistics Private Limited Colombo in November 2015 and reached Mundra Port in India by sea on about 12th November 2015, subsequent to which, the goods Consumer Complaint No.178 of 2017 3 were mobilized uptill ICD-GRFL, Sahnewal, G.T. Road, Ludhiana by train and reached Ludhiana on 14th November, 2016. The certificate issued by OP no.3 is annexure C-4. The packing list generated by OP no.1 laying down the description of the goods is vide annexure C-5. Certificate of origin no.CO/ISFTA/15/10088 dated 17.11.2015 was issued by Department of Commerce, Sri Lanka certifying the goods to be copper wire rods 8mm above against the said shipment vide annexure C-6. Certificate of origin issued by OP no.1 inter-alia mentioning that a total consideration of USD 133053.40 was payable for 26,640 KGs of the exported material by complainant company, vide annexure C-7. The complainant paid a sum of USD 133,053.48 in Sampath Bank account of OP no.1 towards full payment of above consignment, through letter of Credit no.3014FLC07219/15 dated 06.10.2015 of Punjab National Bank, International Banking Branch, Ludhiana. The load port pre-shipment inspection certificate was also issued by an independent certification agency registered with DGFT India certifying that the goods had been visually inspected and that the description of the goods was as described by the exporter vide annexure C-8. Insurance policy no.MEP2015-1058 dated 11.2015 was issued by OP no.1, Janashakthi General Insurance Limited, Sri Lanka, covering all transit risks from Colombo-Sri Lanka to any India Post and direct transit to applicant's ware-house. The said policy explicitly states that 'claims payable in India and claim settling agent is in India and claims payable would be in the currency of credit'. On 3rd December 2015, when the container was opened by Indian Consumer Complaint No.178 of 2017 4 Custom Authorities at GRFL Sahnewal, Ludhiana for examination, it was discovered that the material received at Ludhiana was not as per the description in the invoice and documents aforementioned.
The consignment instead contained steel wire rod in coil form of different sizes with respect to weight. The diameter of steel wire rod was approximately 5mm. The appearance of wire rod coils was dull and not bright, as a copper wire rod ought to be. Some coils were showing black marks. After grinding the rods, it was found that only copper colour coating has been done on the material. The whole material, but for a small bundle attracted magnet, meaning thereby that it was ferrous in nature. It is further averred that material never reached the premises of the complainant and has been still lying with Customs Department at the ICD-GRFL, Sahnewal, G.T. Road, Ludhiana for which additional expenditure in the form of storage charges has been shouldered by the complainant. Thereafter, the complainant informed OP no.2 Janashakthi General Insurance Limited and their survey/settling agents in India, OP no.4 for survey of the Cargo. The said observation have been made by Rajesh John, a Chartered Engineer sufficiently showing that the material supplied is different from the ordered material from exporter. A communiqué dated 11.08.2016 was received from the office of Deputy Commissioner of Customs, ICD, GRFL, Sahnewal, G.T. Road, Ludhiana mentioning that during examination of the goods, it was found that steel wire rod with copper colour formed a major part of the consignment alongwith the copies of EDI examination report to Consumer Complaint No.178 of 2017 5 determine the nature of goods supplied. The complainant has been defrauded by supply of cheaper material, instead of what was ordered or during the voyage, the original goods could be replaced with cheaper goods so on. The claim is covered under the Marine Insurance Cover dated 11.11.2011. Wilson Surveyors & Adjusters, OP no.4, was appointed as authorized agents/settling agents of OP no.2 insurance company. The complainant company took up its claim for loss suffered as aforesaid with OPs including insurance company and their agents, but OP no.4, started shirking off their liability and made lame excuses. OP no.2 kept on making excuses in not paying the claim amount to complainant and even personal visit to the office of OP no.2 insurance company requesting it to settle its claim, carried no effect. OP no.2 did not share the survey report with complainant nor its claim was processed any further, which amounts to deficiency in service. The complainant took up the case with OP no.1 inter alia, vide communique dated 07.07.2016 pleading that independent investigation agency should be deputed. OP no.2 neither alleged wrong shipment of cargo from Sri Lanka by OP no.1 nor OP no.2 contested issuance of certificate of origin by the Department of Commerce, Sri Lanka certifying the goods to be Copper Wire Rods. The insurance claim of complainant was repudiated by OP no.2, vide letter dated 15.04.2016 mentioning that on going through the inspection report submitted by their overseas survey agent, it was noted that the coils are copper colour coated and not copper wires and the container had arrived in a sound Consumer Complaint No.178 of 2017 6 manner with its seals intact and the damage to the wires was allegedly not caused due to transit causes and as such, the claim was not admissible under the policy. Subsequently, OP no.2 replied through their attorney MC Ranasinghe, vide reply dated 05.07.2016. When the complainant pressed its case hard, another repudiation order dated 14.10.2016 received by it on 07.12.2016, completely shutting the case of the complainant on flimsy grounds. Before approaching this Commission, the complainant knocked at the doors of Deputy Commissioner (Customs), Sahnewal, Ludhiana vide representation dated 19.07.2016. The complainant also took up its case with Colombo Fraud Investigation Bureau, vide representation dated 07.06.2016 and the said Bureau advised it to take up its matter with the Director-Criminal Investigation Department in Colombo, vide communique dated 22.07.2016. The complainant also took up its case with Director of Commerce, Sri Lanka, vide communiques dated 06.07.2016 and 14.07.2016 annexures C-21 and C-22. It also took up its case with Deputy Director of Foreign Trade, Udyog Bhawan, New Delhi vide representation dated 06.07.2016 annexure C-23 and with Director General International Federation of Inspection Agencies, vide representation dated 06.07.2016 and also with Sri Lanka Customs Department, a Government of Sri Lanka's Department and this Department advised complainant that it should make a complaint against the exporter concerned to the Fraud Investigation Bureau of Sri Lanka Police, vide annexure C-25. The complainant also took up its case with High Consumer Complaint No.178 of 2017 7 Commission of India in Sri Lanka, vide representation dated 21.06.2016 annexure C-26 and also with OP no.1 vide communique dated 04.06.2016, but to no effect. The complainant has been repeatedly and regularly seeking delivery of the Cargo from OP no.1 to OP no.4 since December 2015, but to no effect and the goods are still lying in the custody of Indian Customs and GRFL and Shipping Line at OP no.3, which is the custodian of the Cargo. The complainant has, thus, prayed for Rs.90,00,000/- against the loss suffered by it and further prayed for compensation for mental harassment and litigation expenses.
2. Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of complainant. It raised preliminary objections that complaint is mis-conceived and has been filed with the sole motive to harass OP no.1. The complaint is based on conjectures and surmises and is false and frivolous. The complainant is not consumer of OP no.1 under Section 2(1)(d) of CP Act 1986. The complainant being private limited company placed order of goods for commercial gain/profit and there is no question self-employment by it and earning its livelihood exclusively by means of self-employment thereof. The complaint is without cause of action. The complainant has concealed the material facts in the complaint and complaint merits dismissal. OP no.1 had shipped 26.6 MT of copper wire rods (8mm above) to complainant under sales contract no.SUN/CWR/06-1015 dated 06.10.2015 and invoice no.EXP/CP- 06-11/2015. The said goods were supplied to the complainant in Consumer Complaint No.178 of 2017 8 strict conformity with the conditions, agreed upon and stipulated in the invoices. In the letter of credit no.3014FL C07219/15 dated 21.09.2015; the complainant mentioned in clause 8, the pre- shipment certificate dated 11.11.2015 was to be obtained by M/s Ravi Energy Pvt. Ltd., as such the pre-shipment inspection survey was carried out with regard to aforesaid shipment of copper wire rods by Ravi Energy Pvt. Ltd., India, which is member of the International Federation of Inspection Agencies. After inspection of the aforesaid shipment of copper wire rods was confirmed that the conformity of the same was agreeable upon the conditions stipulated in the invoice. M/s Ravi Energy Pvt. Ltd. sent original pre-shipment certificate to the complainant and a copy of the same to the answering OP. The complainant had not received the original pre shipment certificate which had been sent by M/s Ravi Energy Pvt.Ltd., as it was returned and it was confirmed by agent in Colombo of M/s Ravi Energy Pvt. Ltd. vide email dated 10.12.2015. The answering OP sent a copy of pre-shipment certificate alongwith letter of credit to the complainant's bank in order to get the payment for the goods sold. The complainant's bank had accepted copy of pre-shipment certificate and negotiated the letter of credit with copy of pre-shipment certificate and made the payments according to the terms and conditions of the letter of credit to this OP no.1. The report submitted by Rajesh John consultant and charted engineer that the goods contained in the said shipment were not in conformity is baseless because the examination was done by Sri Lankan Customs Consumer Complaint No.178 of 2017 9 and a report wa issued by them and also pre-shipment certificate was issued by M/s Ravi Energy Pvt.Ltd. The complainant also filed a case against M/s Ravi Energy Pvt. Ltd. The complainant filed claim before Insurance Company Janashakthi General Insurance Limited. The complainant also made false and frivolous complaints before the High Commissioner of India and other authorities to tarnish the image and reputation of answering OP. The complainant is not entitled to any relied qua answering OPs. As per sales contract "for any claim (quantity/quality) buyer must inform OP no.1 within 7 days from the date of arrival of material in buyer's yard" as such the complainant had not unloaded the goods in its warehouse but they were unloaded at some other place and it intimated the answering OP after a few days. The serial number and photographs of unloading were not sent by complainant to the answering OP despite requests. The answering OP, denied any deficiency in service and unfair trade practice on its part. On merits, OP no.1 contested the complaint of complainant by denying the allegations of complainant, as pleaded in the complaint whereas OP no.1 prayed for dismissal of the complaint. OP nos.2 and 3 were set exparte.
3. OP no.4 filed its separate written reply and contested the complaint of the complainant. Preliminary objections were raised that complaint is bad for misjoinder of OP no.4, the surveyor. There is no cause of action against OP no.4 to the complainant to file the complaint. He was deputed by the insurance company OP no.2 to conduct the survey of Cargo in question. OP no.4 is not an insurance Consumer Complaint No.178 of 2017 10 company which does business of insurance, but it has been licensed to do the survey only. Once survey is conducted and report is prepared and sent to insurance company the role of the surveyor ceases and it is not liable for settlement of the claim insured. OP no.4 does not conduct any independent survey of the Cargo and it conducts survey only on the request of the insurer. The complainant has direct correspondence with OP no.2 insurance company. OP no.2 has repudiated the insurance claim of the complainant, whereas OP no.4 has neither decided the insurance claim nor was involved in its consideration. The complainant has not alleged any negligence on the part of OP no.4 in conducting the survey. There is no privity of contract between complainant and OP no.4 and neither it is employee nor agent of the insurance company. The complainant's allegations are that OP no.1 has played fraud upon the complainant by sending good of different description than as ordered. There are allegations of replacement of the consignment due to cheating. The complaint needs detailed investigation and is not maintainable in view of its complex allegations, which cannot be decided in summary manner by the Consumer Forum needs to be decided by the competent Civil Court only. On merits, OP no.4 denied the other averments of complainant and prayed for dismissal of the complaint.
5. OP no.5 filed its separate written reply and contested the complaint of complainant. Preliminary objections were raised by OP no.5 that alleged certificate annexed with the complaint annexure C- 8 has not been issued by OP no.5 and it has been alleged to be fake Consumer Complaint No.178 of 2017 11 and ungenuine. The complaint is alleged to be false and frivolous. OP no.5 contested the complaint even on merits. It has asserted that it never issued the alleged certificate, as mentioned by complainant in the complaint. OP no.5 holds license for conducting inspections and issuance of PSIC, but, very earnestly submits that all the certificates issued by it have a tamper proof high security hologram, bearing a unique number. The document annexed as annexure C-8 is neither having any such hologram nor bears letter head of their company, as such it did not issue any such certificate. The rationale for the issuance of the pre-shipment inspection certificate and the circumstances in which such a certificate is mandatory is guided by the The Hand Book of Procedures issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce under the Foreign Trade Policy. The said handbook provides that a PSIC shall be mandatory only when freely importable Metallic waste and scraps (shredded) are imported. Hence, it is extremely pertinent to note that the commodity imported under the captioned shipment is not scrap / waste and hence the present issuance of the alleged PSIC, though not issued by OP no.5 was otherwise absolutely not required. The rationale behind issuing a PSIC is to check the radiation level of the goods; which are being imported into India and that a PSIC is never issued for verification and confirmation of the quantity and quality of goods being imported and hence the allegation of the complainant, thereby making PSIC as only basis in the present case implicating OP no.5 are wrong. Director General of Consumer Complaint No.178 of 2017 12 Foreign Trade, Udyog Bhawal New Delhi referred the case of complainant to the office of Additional Director General of Foreign Trade, Ludhiana and it discussed this case on 07.03.2017 and concluded that all allegations against OP no.5 emanate from the contract between OP no.1 and complainant and OPno.5 is not the relevant party. Director General International Federation of Inspection Agencies did not take cognizance of the frivolous representation made by complainant. OP no.5 controverted the other averments of complainant and prayed for dismissal of the complaint.
6. The complainant tendered in evidence affidavit of Atul Jindal Director Ex.C-A alongwith copies of documents Ex.C-1 to C-29, affidavit of Pitchamuthu Karmegam, Director of OP no.1 Ex.RW-1 and resolution Ex.RW1/A and closed the evidence. As against it, OP no.1 tendered in evidence documents Ex.R-1/1 to Ex.R-1/8 and closed the evidence. OP no.5 tendered in evidence documents Ex.R-5/1 to Ex.R-5/3 and affidavit of Smita M.Joshi, Whole Time Director Ex.R5/A and copy of resolution Ex.R5/B and closed the evidence. OPs no.2 and 3 were exparte in the complaint.
7. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. Keeping in view the pleadings of both the parties, we have to advert to evidence on the record for adjudication of this matter. Atul Jindal tendered in evidence his affidavit Ex.C-A in support of averments of the complainant on the record. Ex.C-1 is the copy of resolution passed by Board of Directors of complainant company authorizing Consumer Complaint No.178 of 2017 13 Atul Jindal to file the complaint on its behalf. The complainant, a private limited company placed an order for the import of 26.640 MT of copper wire rod 8MM with OP no.1 a Sri Lanka based company. The certificate was generated on 11.11.2015 stating that copper percentage of the goods was 98% above and the consignment did not suffer from any contamination and Ex.C-2, the certificate of weight and analysis was issued by OP no.1 company in Sri Lanka. Ex.C-3 is the copy of combined transport bill of lading by OP no.1 company to the order of Punjab National Bank, International Banking Branch PNB House Industrial Area, describing the goods and packages, as shipper's load, count and packed 01x20GP container said to contain, 01 container copper wire rod 8MM above. Ex.C-4 is the photostat copy of certificate issued by Sea Maser Handled Locally, Recognised Globally dated 11.11.2015 to the effect that it was certified by OP no.3 that carrying vessel was a regular liner, seaworthy and of not more than 20 years old. Ex.C-5 is the copy of packing list dated 11.11.2015 of the description of goods, as copper wire rod 8mm above. Ex.C-6 is the copy of certificate of origin issued on 17.11.2015 to the effect that package goods was copper wire rod 8MM above of total 26.640 KGS of USD 133,053.48. Ex.C-7 is the certificate dated 11.11.2015 to the effect that the consignment did not contain any type of arms, ammunition, shells, cartridges and so on. Ex.C-8 is the pre-shipment inspection certificate dated 11.11.2015 certifying that the import consignment was actually metallic copper rods, as per the internationally accepted parameters Consumer Complaint No.178 of 2017 14 for such a classification. This document is alleged to have been issued by OP no.5 to the effect that it inspected the pre-shipment inspection of cargo and issued the certificate accordingly. However, OP no.5 has categorically denied this issuance of certificate by Ravi Energle Inc. by contending it to be a fake document. It is highly disputed fact in this case whether Ex.C-8, the pre-shipment in certificate is a genuine document or a forged document, because OP no.5 Ravi Energle Inc. has asserted it as fake document having not been issued by it. Ex.C-9 is copy of report dated 07.01.2016 issued by Rajesh John to the effect that the material was found during inspection containing wire word in coil form of different sizes with respect to weight. The diameter of wire rod was approximately 5mm. The appearance of wire rod coils was dull and not as bright as for a copper wire rod. Only a small bundle was having diameter as 8 mm approximately and was having bright finish also. Also some coils were showing black marks at some places. After grinding those, it was found that only copper colored coating was done on the material. The whole material was attracting magnet also except one small bundle. This report has recorded that the material was de- stuffed in the ware house and was properly segregated. The result of XRF analyzer were only indicative and did not show the exact composition due to deposition of coating on the surface of the material. Ex.C-10 is copy of letter dated 11.08.2016 from Har Kirpal Khatana, Deputy Commissioner Customs to complainant to the effect that during examination under first check, there was found Consumer Complaint No.178 of 2017 15 283.2 KG copper wire road and cut pieces (8mm dia) and 26231.8 KG steel wire rod (5mm dia) with copper colour coating. Ex.C-12 is the copy of Sales Contract between complainant company and OP no.1 for copper wire rod 8MM above for 25 MT quantity. Ex.C-13 is the copy of schedule issued by OP no.2 insurance company to complainant company for above consignment. Ex.C-14 is the copy of letter from complainant company to Chairman of OP no.1 regarding replacement of consignment and advised it to take up the matter at the highest level, as this was a clear case of fraud. Ex.C-15 is the copy of letter from OP no.2 insurance company to the Manager- claims OP no.1 to the effect that the container arrived in a sound manner with its seal intact and the damage to the wires were not due to any transit causes. Ex.C-16 is the reply sent by OP no.1 company to complainant dated 05.07.2016 to refrain from making attacks on the reputation of OP no.1. Ex.C-17 is the document issued by OP no.2 insurance company to complainant stating that the consignment was shipped in a FCL container and container was in sound condition proving that consignment did not suffer any transit causes. There is no proof to establish any tampering of the container, in the event of an attempt was made to exchange the original copper wire to copper coated wire. There are no opportunities to exchange an entire FCL container of original copper wire to copper coated wire. The packing of the coils had no signs of tampering. The complainant raised the grievance through letter dated 19.07.2016 before the Deputy Commissioner (Customs) vide Ex.C-18 on the record. Consumer Complaint No.178 of 2017 16 Ex.C-19 is the copy of complaint dated 07.06.2016 moved by complainant against OP no.1 before the Director, Colombo Fraud Investigation Bureau, Colombo. Ex.C-20 is the copy of email dated 22.07.2016 from Director-Colombo Fraud Investigation Bureau to complainant that this Bureau did not investigate the fraud matters beyond the limits of sum of Rs.50,00,000/- approximately USD 4,488. The complainant was advised to contact Criminal Investigation Department through phone number and through email. The complainant wrote letter to DGAP Dharmapriya, Director of Commerce, Sri Lanka on 06.07.2016 and 14.07.2016, vide Ex.C-21 and 22 in this regard. The complainant also moved complaint against M/s Ravi Energle Pvt. Ltd. Baroda before Dy. Director of Foreign Trade, New Delhi on 06.07.2016, vide Ex.C-23. Vide Ex.C-24 complainant also wrote letter to Director General, International Federation of Inspection Agencies, United Kingdom in this regard. Ex.C-25 is reply to complainant by Director General of Customs, Sri Lanka advising complainant to make a complaint against the exporter concerned to the Fraud Investigation Bureau of Sri Lanka Police in this regard. The complainant filed complaint against OP no.1 before High Commission of India, Sri Lanka in this regard. Ex.C-27 is copy of letter dated 04.06.2016 from complainant to Chairman of OP no.1 to send the reply directly to the insurance company stating the factual details of the shipment. Ex.C-28 is the copy of insurance policy issued by OP no.2 in the name of OP no.1. Consumer Complaint No.178 of 2017 17 Ex.C-29 is the pre-shipment inspection certificate issued on 11.11.2015 by Ravi Energle Inc.
8. OP no.1 also led its evidence on the record. Ex.R-1/1 is the copy of combined transport bills of lading. Ex.R-2/2 is the copy of packing list dated 11.11.2015 containing 1x20 GP- copper wire rod 8 mm above with gross weight 26.640 MT issued by OP no.1. Ex.R-1/3 is the copy of certificate of origin dated 17.11.2015 regarding the above shipment. Ex.R-1/4 is the copy of certificate of weight and analysis issued by OP no.1 on 11.11.2015 with regard to above consignment. Ex.R-1/5 is the copy of pre-shipment inspection certificate issued by Ravi Energle Pvt. Ltd. on 11.11.2015 regarding above consignment. Ex.R-1/6 is the copy of commercial invoice issued by OP no.1 with regard to above consignment. Ex.R-1/7 is the copy of shipment status of B/L no.GMLUAE/CMB/LUH/1200. Ex.R-1/8 is copy of email dated 18.12.2015. OP no.1 also tendered in evidence affidavit of Pitchamuthu Karmegam, Director Ex.RW-1 in support of his averments and Ex.RW1/A is the copy of resolution dated 26.02.2018. OP no.5 tendered in evidence copy of handbook of procedure regarding issue of pre-shipment inspection certificate Ex.R5/1, copy of police report Ex.R5/2, copy of resolution dated 18.05.2018 authorizing Smita M. Joshi, whole time Director Ex.R5/3 to pursue the version of OP. Smita M. Joshi tendered in evidence her affidavit Ex.R5/A on the record alongwith resolution dated 18.05.2017 Ex.R5/B. in this case.
Consumer Complaint No.178 of 2017 18
9. From careful appraisal of entire material evidence on the record, we proceed to decide this point as to whether, the matter can be adjudicated in summary manner in this case or not. The cargo was shipped by OP no.1 company at the instance of complainant from Sri Lanka to Ludhiana. The cargo stood replaced by replacing copper wire rod with steel rod of different sizes, as mentioned in Ex.C-9 and C-10. The replacement of the cargo took place either in Sri Lanka or on the way from Sri Lanka to the place of destination of complainant. OP no.1 relied upon a certificate of origin Ex.C-6 to he effect that copper wire rod 8mm above was packed for shipment by OP no.1. The cargo was carried on the ship of OP no.3, which has been set exparte in this case. As per the case of OP no.1, Ravi Energle Inc. caused the pre-shipment inspection of the cargo and issued the pre-shipment inspection certificate Ex.C-8 on 11.11.2015 to the effect that cargo contained copper wire. OP no.5 filed a separate written reply and also tendered in evidence the witness that this pre-shipment inspection certificate is a fake document and it has never been issued by OP no.5. We have no machinery to determine this point in summary proceeding, as to whether this document is genuine or a forged document. The author of this document OP no.5 has alleged it to be a fake document, never been issued by it. The cargo stood replaced from the source of its origin till the unloading of it in Ludhiana. It is highly difficult to fix the liability of the person, who caused this replacement of the cargo from copper wire rods to steel wire rods. The matter can be settled by thorough investigation of the Consumer Complaint No.178 of 2017 19 case by leading elaborate evidence, entailing examination of witnesses including cross-examination thereof, statements of document's expert witnesses on the point of forged nature of pre- shipment inspection certificate C-8. OP no.5 categorically stated that this certificate Ex.C-8 does not bear any hologram of OP no.5 nor it is issued on the letter head of OP no.5. OP no.5 further contended that commodity imported under the captioned shipment was not scrap/waste and hence the issuance of alleged PSIC was not by OP no.5 as PSIC is never issued for verification and confirmation of the quantity and quality of goods being imported. Taking into account the entire circumstances of the case, we reply upon the letter of Director- Colombo Fraud Investigation Bureau Ex.C-20 dated 22.07.2016 to the effect that matter needs to be referred to Director Criminal Investigation Department, Police Headquarter, Colombo 01, Sri Lanka for thorough investigation. Some dishonest intention intervened at some part in causing this replacement either at the source or on the way of shipment of the cargo or from the port of India to place of destination at Ludhiana and moreover OP no.5 has alleged the pre-shipment certificate Ex.C-8 to be forged and fabricated document having not been issued by it. So, considering the whole facts and circumstances of the case, we are of this view that the matter in dispute cannot be adjudicated in summary proceedings by Consumer Forum on account of its complex nature. There are allegations of forgery of pre-shipment certificate Ex.C-8 on the record, which is vital document. Even otherwise, there are Consumer Complaint No.178 of 2017 20 allegations of dishonest intention in causing the replacement of the cargo from Sri Lanka to the place of destination in this case. Taking into account the totality of the circumstances of the case, we are of this considered view that this is appropriate case, which should be decided by the competent Civil Court, because elaborate evidence, which would be required to be led in this case to come to the correct conclusion in fixing the liability.
10. In the light of our above discussion we, dismiss the complaint of complainant and leave the complainant to get the matter decided from a Court of competent civil jurisdiction. The complainant may invoke Section 14 of Limitation Act, 1963 in seeking the condonation of delay, which ensued in this case.
11. Arguments in this complaint were heard on 22.05.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER June 01, 2018.
(MM)