State Consumer Disputes Redressal Commission
Govt. Dental College, Srinagar vs Import Cargo, on 4 October, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 04-10-2007 Complaint Case No. C-340/1998 Principal, Complainant Govt. Dental College, Srinagar, Through Jammu Kashmir. Mr. Rakesh Bhardwaj, Advocate. Versus Import Cargo, Opposite Party Airport Authority of India, Through (International Airport Division), Ms. Maldeep Sidhu, Cargo Terminal, I.G.I. Airport, Advocate. New Delhi. (Through its General Manager) CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Complainant, who is the Principal of the Dental College, has alleged deficiency in service on the part of OP as the consignment which was imported from France was lost while in the custody of the OP and had claimed compensation of Rs.11,62,571/- with 18% interest.
2. Case of the complainant, in brief, is that he imported one consignment of Dental Equipments from Satelec, France containing Six units of Prophy Max for Endodontics, Scaling, Polishing and periodontics valued at FRF 1,45,200 (approx.) equivalent to Rs.9,50,000/-. The said consignment was despatched on May 17, 1997 with a Airway Bill No.074-43143015 and it arrived by Flight No.KL 875 on 17.5.97 at Delhi Customs. The complainant being located at J&K was not in a position to frequently travel to Delhi to fulfill all the formalities required in the clearance of the consignment. The complainant was supposed to collect the consignment himself or through any authorized person.
3. The complainant on 5.7.97 vide ref. No.GDG/Pur/686 gave delivery authority to M/s Unicorn Electromedika, 91D, DDA Flats, Gulabi Bagh, represented by Shri Shammi Gumbhir to collect delivery of goods/consignment from the Delhi Airport. He was entitled to exemption from custom duty subject to its furnishing the custom duty exemption certificate which was obtained only during last week of November, 1997 from the Directorate General of Health Services, Nirman Bhawan, New Delhi and it was accordingly submitted. Immediately after procuring Customs Duty Exemption certificate, the complainant got the documents cleared from customs through their clearing agent M/s. Vishesh Cargo Services. On 03.12.97, the OP issued a Bank Challan cum Gate Pass No.4100008 for the release of the above said consignment subject to the payment of Demurrage. The Demurrage of Rs.12,571.00 (Sn 203 days) was deposited the same day on behalf of the complainant besides completing other formalities. Inspection report was also received. When the authorities representative from M/s Unicorn Electromedika approached the warehouse incharge for securing the collection of the consignment, using the demurrage paid, Gatepasses, he was informed that goods are not traceable.
4. The OP was asked to trace the consignment and deliver the same to the complainant or to pay a sum of Rs.9,50,000.00 being the cost of the consignment alongwith interest @18%. The OP did not reply to the said notice. Despite the payment towards the services the OP had failed to provide the services as undertaken towards the complainant. The OP could not take care of the consignment and it is lost from their custody.
5. OP denied any deficiency on its part and put the entire blame on the complainant. It is contended by the OP that it is not disputed that an import air cargo consignment was received in the custody of the OP. The complainant was very negligent and showed no promptitude to clear the consignment. At the time of delivery, the consignment was found untraced and accordingly in-house tracer action was initiated and complaint to the police was lodged. The complainant is not entitled to any compensation as the complainant approached the answering OP after a gap of more than 3 months and in terms of Section 48 of Customs Act, 1962 cargo remaining unclaimed/uncleared for more than 30 days is liable to be disposed of by the custodian.
That OP as a bailee had taken due and proper care for safety of the cargo in question. The relationship between the complainant and the answering OP is governed by the parameters of Section 151, 152 & 161 of the Contract Act 1872.
6. As is apparent from the stand taken by the OP, the consignment was received by it in November, 1997 and on 13th December, 1997 it issued Bank Challan-cum-Gate Pass for release of above said consignment subject to demurrage charge of Rs. 12,571/-. The demurrage charges were deposited on the same day but when representative of the complainant went to collect the consignment with the documents of demurrage charges paid by it and gate passes he was informed that the consignment was not traceable.
7. The OP has taken shelter u/s 48 of the Customs Act, 1962 that cargo remaining unclaimed/uncleared for more than 30 days is liable to be disposed of by the custodian.
8. There is no dispute that the OP was the bailee and therefore the obligation was cast upon it to take due and proper care for the safety of the cargo in its custody. It should have disposed of the consignment after 30 days. But it did not choose to do so. After having claimed demurrage charges for 203 days retention in its warehouse the OP was duty bound to release the consignment. Unfortunately the consignment was either stolen away as it was not traceable or was pilfered.
9. The provisions of section 151, 152 and 161 of the Contract Act, 1872 as contended by the OP are not at all applicable or invokable as to the relationship between the complainant and OP. Remedy under the Consumer Protection Act 1986 is independent and additional remedy available to the consumer and not in derogation to any other law for the time being in force. This remedy arises on account of deficiency in service and the negligence of the OP which in this case was the custodian and bailee of the consignment as well as the defective goods or unfair trade practice or restrictive trade practice.
10. Bailee has the same liability as that of the custodian.
Merely because the OP happens to be bailee of the Customs Department does not mean that it had no liability qua the complainant. Had it been so it could not have been charged demurrage charges from the Customs Department. There was direct relationship of consumer and service provider between the complainant and the OP because of the latter being a bailee and having taken the custody of the cargo, may be through Customs Department or any other department with the liability to release it on payment of demurrage charges. However, it had been given power u/s 48 of the of the Customs Act, 1962 to dispose of the cargo remaining unclaimed/uncleared for more than 30 days. It has also the liability to compensate the consumer as to the loss of the cargo which was in its custody and to be delivered to the complainant. We do not know whether is a pilferage or a theft.
But the fact remains that the cargo vanished from the custody of the OP and therefore the OP alone is liable to compensate the complainant.
11. It is not understandable as to how the demurrage charges were charged and receipts were issued after the consignment was not there on that day.
It appears that the consignment might have vanished prior to the day when the demurrage charges were charged by the OP and it was not in their knowledge that consignment was not in their warehouse.
12. This is a case of grossest kind of negligence on the part of the OP in not taking proper care and caution in respect of the consignment which was in its custody for which it had charged demurrage charges for 203 days. Therefore in terms of section 14(1)(d) of the Consumer Protection Act, 1986 it is liable to pay an amount as compensation to the complainant as to the actual loss suffered by him as well as injury i.e. mental injury, harassment suffered by him due to negligence of the OP.
13. In the given facts and circumstances of the case, we allow the complaint with the direction to the OP to pay Rs. 9,50,000/- towards the cost of the consignment besides Rs. 2,00,000/- as compensation for mental agony and harassment which shall include cost of litigation as the complainant has suffered for 10 long years due to no fault of his.
14. Order shall be complied with, within one month from the date of receipt of this order.
15. Complaint is disposed of in aforesaid terms.
16. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
17. Announced on 4th October, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj