State Consumer Disputes Redressal Commission
Shri J.P. Shetty vs M/S.T.I.C.C. Container Lines (India) ... on 21 July, 2015
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/01/225
SHRI J.P. SHETTY
SOLE PROPRIETOR OF
THE SMILING GURU
AT 66/4A, BHARAT COAL COMPOUND,
BAIL BAZAR, KURLA (W),
MUMBAI - 400 070.
...........Complainant(s)
Versus
M/S.T.I.C.C. CONTAINER LINES
( INDIA) PVT. LTD., A DIVISION
OF
M/S.OCEAN DESPATCH LTD.
AT 25/25-A, NAWAB BUILDING,
2ND FLOOR, OPP. THOMAS
COOK,
327, D.N. ROAD, FORT,
MUMBAI - 400 001.
............Opp.Party(s)
BEFORE:
Shashikant A. Kulkarni PRESIDING
MEMBER
Narendra Kawde MEMBER
For the Complainant:
Mr.Chirag Shetty, Advocate for the
complainant.
For the Opp. Party:
None present for the opponents.
ORDER
Per Shri Shashikant A. Kulkarni, Honble Presiding Judicial Member This is a consumer complaint under Section 17 of the Consumer Protection Act, 1986 (CP Act in short).
1. Complainant herein is a businessman claims to be a consumer within meaning of CP Act.
The complaint is filed prior to amendment of year 2003 in the definition of the Consumer. Same is maintainable.
The complainant also claims opponent to be service provider within meaning of CP Act to claim damages from it.
2. The complainant does business of garment export. Under the Bill of Lading No.SHA/23R/MAP/OD-1159 on 06/11/1999 the complainant exported 141 Cartons of 100% cotton P/L S/Sleeve Mens Shirts valued at US $ 18,273.60 equivalent to then Rs.8,49,722/-. It was from JNPT Port to discharge Port Maputo. The goods were shipped under the Shipping Bill No.2000036073 dated 02/11/1999 with copies of bill of lading. The complainant was also entitled for a draw-back amount @ 16% on the said Invoice Value from the Jawahar Custom House, Nhava Sheva. The House sanctioned a sum of Rs.1,26,453/- as draw-back claim.
3. It is alleged that, the opponent released the container to M/s.Corsair Manufacturing (Pty.) Ltd. on 07/01/2000 and that was without presentation of original Bill of Lading. The release was done as per the fax of M/s.Mediterranean Shipping Company (MOC) Lda, Maputo dated 26/05/2000. It is further specifically alleged that, said Company is the agent of opponent at Maputo, Mozambique and delivery of the goods was effected without knowledge and consent of complainant. The complainant was required to submit a Bank Realisation Certificate to Reserve Bank of India of the Invoice Value from purchaser i.e. Corsair Manufacturing (Pty.) Ltd. through Vijaya Bank. In the case of failure, he was to refund the draw-back amount with interest.
4. The complainant alleged that, in collusion with foreign purchaser, the opponent released the consignment without presenting original Bill of Lading requiring complainant to refund the draw-back amount. The consignee also did not make payment to the complainant nor released original document from his Bank. Consignee enjoyed facility of goods and only promised to make payment, but failed to keep up the promises.
5. On 07/06/2000 the complainant sent a fax to M/s.Mediterranean Shipping Co., Maputo informing that without presenting original Bill of Lading, it has delivered the container on 07/01/2000. The original Bill of Lading was in possession of Nedcor Bank Ltd., Johannesburg, South Africa. Complainant questioned what was the basis for release of the goods to the consignee without presenting original Bill of Lading? The complainant continued the correspondence and received replies from time to time at different levels, but in vain. Finally, the complainant issued a legal notice to opponent alleging deficiency in service on their part.
The complainant, therefore, prays to decree the claim for Rs.11,17,644/- towards cost of the goods with interest @ 21% p.a., draw-back amount of Rs.1,26,453/- along with interest @ 18% p.a. and Rs.2,50,000/- towards damages for loss of reputation, etc. In support of the allegations in the complaint, the complainant is relied on copies of basic documents such as Bill of Lading at Exhibit-A, Shipping Bill at Exhibit-B, Invoice at Exhibit-C, Fax sent to M/s.Mediterranean Shipping Co. (MOC) Lda, Maputo at Exhibit-D dated 26/05/2000, copies of letters, correspondence, fax with opponent and others.
6. Opponent appeared and filed written version on 04/10/2001. Opponent has stoutly denied all the contentions and allegations raised about deficiency in service in detail. The opponent does not dispute about business of the complainant, loading of consignment under Shipping Bill and for delivering at the Port of discharge. It is submitted that, responsibility of delivering consignment at the Port of discharge was with M/s.Mediterranean Shipping Co. (MOC) Lda, Maputo. Said company was agent of Samsorra Shipping Co. Therefore, allegation that opponent has released the container to M/s.Corsair Manufacturing (Pty.) Ltd. is false. It is also denied that M/s.Mediterranean Shipping Company was the agent of opponent.
From the letter dated 07/06/2000 at Exhibit-F filed by the complainant himself addressed to M/s.Mediterranean Shipping Company, Maputo, it is crystal clear that Bill of Lading was in possession of Nedcor Bank Ltd., Johannesburg, South Africa. But, that may not be also true state of affairs. Whereas, non-payment of amount by the consignee is not related to the opponent, to make any statement about it.
The complainant filed a rejoinder to the written version re-asserting that M/s.Mediterranean Shipping Company was the agent of opponent.
Thereafter, the matter was placed on sine-die.
Recently, it is taken out from sine-die for disposal. Notices to both parties are issued and served on them. Opponent failed to participate further in the proceeding.
The complainant filed affidavit of evidence with same set of documents, Advocate for the complainant has filed brief written notes of arguments.
7. We have heard the arguments of Learned Advocate Mr.Chirag Shetty for the complainant. With his assistance, we have also gone through the papers and documents produced on record.
Whether opponent is a guilty of deficiency in service? -
No
8. There is not satisfactory answer to the query, nor any documentary evidence is produced, especially in view of denial from the opponent, to prima-facie establish the fact stated that, M/s.Mediterranean Shipping Company was acting as agent of opponent and he acted diligently to pass on the liability on the principal i.e. opponent under the contract of agency.
Much is tried to be made out that the original Bill of Lading was in three counterparts as mentioned in Annexure-A. But, the complainant in the letter addressed to M/s.Mediterranean Shipping Company admits the fact that one of the original Bill of Lading was in possession of Nedcor Bank Ltd., Johannesburg, South Africa. Wherefrom this fourth original Bill of Lading has gone into possession of said Bank, when all three original and counterparts were with the complainants. Then, without explaining as to why complainant has parted with possession of Original Bill of Lading with the said Nedcor Bank Ltd., Johannesburg, South Africa, Learned Advocate for the complainant tried to convince the Commission that all the three Bill of Lading are with the complainant, which is not acceptable. Mere affidavit of the complainant does not prove the fact that, M/s.Mediterranean Shipping Company was acting as an Agent of opponent. Complainant has not made search what was Samsorra Shipping Co. alleged to be agent of M/s.Mediterranean Shipping Company as mentioned by the opponent in its written version.
9. In the consumer dispute, initial burden lies on the party who asserts to prove any fact. The facts asserted about deficiency in service against the opponent. The opponent is a Division of M/s.Ocean Despatch Ltd. and agent of Mogul Line Carrier through which the consignment was shipped. The act to be performed was to dispatch the goods under the Bill of Lading and Shipping Bill.
It cannot be disputed that the Bill of Lading is a document of title, then as to what and why as alleged by the complainant, the Bill of Lading was with its counterpart, was held by either Nedcor Bank Ltd., Johannesburg, South Africa as admitted by the complainant in Fax dated 07/06/2000, mentioned supra or as to how M/s.Mediterranean Shipping Company released the goods to the consignee without original Bill of Lading and also as to who said M/s.Mediterranean Shipping Co. acted as agent of opponent?
10. In the light of above events and position on record, we are of the view that complainant has failed to prove firstly that M/s.Mediterranean Shipping Company is the agent of opponent and secondly, M/s.Mediterranean Shipping Company acted diligently and thirdly, opponent is a service provider within meaning of CP Act to allege deficiency in service against it. Complainant, therefore, fails to claim any amount of compensation from the opponent. Therefore,
-: ORDER :-
1.
The consumer complaint stands dismissed with no order as to costs.
2. Upon retaining original set of complaint compilation, other sets of complaint compilation shall be returned to the Complainant forthwith.
3. Copies of the order be furnished to the parties.
Pronounced Dated 21st July 2015.
[ Shashikant A. Kulkarni] PRESIDING MEMBER [ Narendra Kawde] MEMBER dd.