Delhi District Court
Cs (Comm) No. 511/19 vs M/S Lancer Container Lines Ltd on 3 March, 2023
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 SOUTH EAST
DISTRICT SAKET COURTS, NEW DELHI.
CS (COMM) No. 511/19
Mr. Rahul Goel,
Proprietor of M/s Swan International
House No.1651, Sector7E,
Faridabad, Haryana121006
......... Plaintiff
VERSUS
M/s Lancer Container Lines Ltd.
Unit No.308, 3rd floor, DLF TowerB,
Jasola District Centre,
New Delhi110025.
Through Its Director
........ Defendant
Date of Institution : 09.12.2019
Date when final arguments heard : 09.02.2023
Date of Judgment : 03.03.2023
JUDGMENT
1. Brief facts of the case is the plaintiff is the proprietor of M/s Swan International and is engaged in its business of providing services including carriage of goods to overseas destinations. The plaintiff had entrusted defendant a Cargo 440 bags of Semolina (Sooji) and 440 bags of Chapati flours (50 kg) each, which were shipped by the defendant company in the cargo and CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 1/19 reached its destination i.e. Malasiya on 10.08.2018. The buyer / consignee of the plaintiff i.e. Gemini flour Mills SDN BHD had obtained delivery order for the above mentioned goods from the defendant destination port office. However, upon opening the seal of the container at its premises the consignee found that 440 bags of Semolina which were stuffed in the container were in totally wet and damaged condition due to leakage from the roof top and was unfit for consumption.
2. The consignee had taken the photographs of the damage cargo and intimated the local office of the defendant and destination port on the same day vide email dated 10.08.2018. The plaintiff thereafter also informed the defendant through forwarding agent M/s Trans Asian Shipping Services P. Ltd that a cargo arrived in wet and damaged condition. On the request of the plaintiff, Mr. Rohit Kamra of M/s Trans Asian Shipping Services Pvt. Ltd. had requested the defendant to arrange the joint survey of the damaged goods to ascertain the loss to the cargo. The plaintiff because of the damaged consignment not received even a single penny out of its invoice value of USD 8800 therefore, suffered huge loss. The plaintiff sent the legal notice but the defendant not compensated the plaintiff. Thereafter, the pre-litigation mediation was initiated before South East District legal Services Authority, however, defendant refused to give the consent for mediation. Consequently, non starter report was issued and the present suit was filed.
3. The defendant in WS raised the plea that there is no privity of contract between the plaintiff and the defendant. The plaintiff has intentionally did not make the parties who actually booked the container, the transporter who moved the empty container for stuffing, the custom house agent, who handled the cargo and stuffed the same in the container. The suit is also barred by the CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 2/19 limitation as the alleged transaction being an export from hinterland, ICD Malanpur, MP and delivered outside India by way of multi modal conveyance i.e. rail and sea. Any claim under such moment shall be governed by multi modal Transportation of Goods Act, 1993. As per section 24 of the said Act the claim should be filed within 09 months, however, in present case it is filed beyond 09 months.
4. The containers were simply delivered by the defendant at port of discharge in Malasiya on 09.08.2018, thereafter, the container no.RWAU2409620 was taken by the consignee on 09.08.2018 and the container no. GATU 0458707 on 11.08.2018. After unloading the cargo at their factory, the consignee had handed over both the empty container back to the defendant's agents container yard on 11.08.2018. Neither at the time of import custom clearing at Malasiya , nor at the time of unloading of the cargo at the premises of the consignee any loss was reported. The defendant or their agents did not receive a cargo damage notification or invitation for survey either from the port authorities, importer, their agents or underwriters till the return of the empty containers to the defendant.
5. In replication, the plaintiff denied that the party who booked the container, transporter of empty container or the CHA are the necessary party to the present suit. It is also denied that Multi Modal Transportation of Goods Act is applicable in present case. It is submitted that M/s Trans Asia Shipping Services Ltd acted as forwarder for the plaintiff to assist the plaintiff in obtaining empty container from the defendants and also assist the plaintiff in the shipments of his goods to the defendant. The privity of the contract between the plaintiff and defendant is evident from the bill of lading issued by the defendant in favour of the plaintiff when the goods were shipped on board. The CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 3/19 plaintiff had entrusted the goods to the defendant which were shipped on board by the defendant for sea carriage. As far as rail moment of the container from ICD Madanpur to Nahva Sahva Port is concerned, the plaintiff used the services of the Container Corporation of India for transportation by rail and had himself pays the rail freight to the above named Corporation for the transportation by rail. The defendant did not carry any multi modal transportation of goods. The plaintiff specifically denied that the defendant entered into contract with Trans Asia shipping Services P. Ltd for delivery containers to Gemini Flour Mills SDN BHD. The Trans Asia Shipping Services only acted as a forwarder in assisting the plaintiff in obtaining the empty container. The container no. RWAU 2409620 turns out to be unseaworthy as the consignee received the goods in total wet and damaged condition due to leakage from the roof top from the container. The consignee / buyer took photographs of the damaged cargo and immediately informed the local officials of the defendant vide email dated 10.08.2018. On the request of the plaintiff, Rohim Kamra of Trans Asia had requested the defendant to arrange a joint survey of the damaged goods to ascertain the loss to the cargo but the defendant remained unconcerned. The consignee informed the agent of the defendant at destination about the damage of the goods immediately upon opening of the said container. The consignee had also sent the photographs and video of the damaged goods to the agent of the defendants vide email dated 10.08.2018. The defendant was supposed to arrange survey of goods upon intimation by the consign but they did not do so. The freight forwarder of plaintiff M/s Trans Asia also made request to defendant for joint survey which is also clear from the follow up emails sent by them to the defendants.
6. From the pleadings following issues were framed:-
CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 4/19
1) Whether the suit is barred by the period of limitation? OPD
2) Whether the plaintiff is entitled to a decree of Rs.7,02,320/- against the defendant? OPP
3) Whether the plaintiff is entitled to the interest on the suit amount, and if yes, at what rate and for what period? OPP
4) Whether the plaintiff is entitled to a decree of compensation of Rs.3 lakhs against the defendants? OPP
5) Relief, if any.
7. During evidence the plaintiff examined PW1 Rahul Goel, Sole Proprietor of M/s Swan International and the defendant examined DW1 Prithvi Singh, Dy. Manager Operations Lancer Container Lines Ltd.
8. Plaintiff Rahul Goyal tendered his affidavit of evidence Ex PW1/A. PW-1 in cross examination stated that he handed over the cargo in question to defendant at ICD, Malanpur. The cargo stuffing was done by labour of ICD under the guidance of custom department. The clearing agent Mr. Santosh had taken the photographs of the cargo and container while stuffing as mentioned in (Ex.PW-3 (colly)). The photos of the cargo was taken at the warehouse and not destination port. There was no intimation of damage while custom clearing of the container at destination port. The container arrived on 09.08.2018 and the delivery was taken on 10.08.2018 and the same day the consignee intimated him early morning. The consignee also intimated the counter part of the defendant in Malaysia to conduct the survey however, there is no written intimation of survey on record. The agent has intimated the damage to cargo / container. He had mentioned the monetary loss of US$ 16,000/- in his email but mistakenly put different amount in the email. There were two container one CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 5/19 was in good condition and other was in bad condition. There is no container or cargo damage mentioned in the surveyor report dated 11.07.2018. He also stated that they made a regular statement of accounts and there was no residual value / scrap value of the damaged cargo received by them.
9. Defendant examined DW-1 Prithvi Singh, Deputy Manager, DW1 who tendered his affidavit of evidence Ex DW1/A.
10. DW-1 in cross examination stated that he was not personally involved in the transaction and also not placed on record any board resolution of the company however, denied the suggestion that he is not authorized representative of the defendant company. He stated that shipper was not involved in the transaction and the booking party was trans Asia shipping. The shipper is plaintiff. He further stated that the delivery of the goods taken by the consignee on 10.02.2018. He also stated it is correct that Trans Asia Shipping Service Pvt. Ltd. acting as a freight agent on behalf of the plaintiff. The defendant is responsible to maintain the containers as per international standards. He is not aware that the transportation to the stuffing spot was arranged by the plaintiff or through his supplier. He also stated it is also not mentioned in Ex.DW-1/2 i.e. container release order that it was the obligation of the plaintiff to choose quality or seaworthy of the containers (the booking party selected the seaworthy container for stuffing and only thereafter their surveyor had released the containers to the booking party). There is no regulation to conduct a light test by the exporter or by its agent however, it is a practice. He also stated it is the duty of the defendant to provide seaworthy container. It is written in Ex.DW-1/3 that at the time of stuffing the container were in good and seaworthy condition. The cargo will be stuffed in seaworthy condition after checking the soundness and seaworthiness of the containers. He CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 6/19 also stated that it is correct that Jasman Consultant Pvt. Ltd. was appointed surveyor of the defendant company. The report Ex.DW-1/3 states "containers stuffed in sound condition", which also means containers were in sound condition, however, denied suggestion that surveyor at the time stuffing had checked that the goods were stuffed in sound condition, and there was no checking of soundness and seaworthyness of the containers. He also stated that at serial no. 2, it was certified by the surveyor that the cargo details and the weight of the cargo as declared in the shipping bill and invoice by the plaintiff were correct. The surveyor also certified that he had inspected the external condition of all the packages at the time of stuffing. He also denied suggestion that there is seepage of water in the container suggests that it was not seaworthy and further stated that there was no seepage of water. He also stated that prior to dispatch the container was examined by the custom authority at destination port before releasing to consignee. The consignee must have damaged the cargo after getting it cleared by custom. He also stated that it is correct that on 10.08.2018, photographs and videos were sent to their agent by consignee through email. Their agent did not respond because the container was already released to consignee from custom bounded area. He denied suggestion that the containers were not opened for physical examination by customs at CFS and the seals were cut by consignee upon reaching the container at its premises. He also stated that it is correct Ex.P-2 has been issued by the defendant and the said document is in the name of the plaintiff. The said Ex P-2 also suggests that the goods were received in sound condition by the defendant. He denied suggestion that the Trans Asia merely acted as a freight forwarding agent. He denied suggestion that the plaintiff and defendant has a privity of contract which is evident from Ex.P-2.
CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 7/19 Submissions of Counsels
11. Ld. Counsel for the plaintiff submitted that the suit is not bared by period of limitation. The Multi Modal Transportation of Goods Act have no application as the plaintiff entrusted the cargo to the defendant for sea transportation only. As per Section 2 (i) of the Multi Modal Transportation Act. The 'Multi Modal Transport contract means a contract under which a Multi Modal transport operator undertakes to perform or procure the performance of contract against the payment of freight.' The rail freight is paid by the plaintiff and not by the defendant. It has been clearly stated in the legal notice as well as plaint and also in evidence of PW-1 that the services of the defendant were taken for sea transportation only. The plaintiff paid the rail freight directly to the CONCOR and this fact remain unrebutted during the evidence of PW-1. The emails (Ex.P-3 (Colly)) clearly shows that the plaintiff approves the defendant for the sea transportation only. The defendant gave rates and charge for B/L fee i.e. the fee for bill of lading for sea transportation and no fee for Multi Modal Transportation. This fact is also clear from email filed by the defendant as Ex.DW1/1 (colly). The defendant did not collect any rail freight for goods in question. Therefore, the Multi Modal Transportation Act is not applicable in this present case.
12. Ld. Counsel submits that Trans Asian Shipping Services Pvt. Ltd. merely acted as a freight forwarding agent for and on behalf of the plaintiff. DW-1 admitted that Trans Asian Shipping acted as a freight forwarding agent for the plaintiff. The contract of carriage between the plaintiff and defendant is evident from Ex.P-2, which has been issued by the defendant in favour of the plaintiff.
CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 8/19
13. Ld. Counsel submits that defendant falsely stated that the plaintiff selected the empty container. DW-1 by giving reference to Ex.DW-1/2 alleged that plaintiff has chosen the seaworthy container, however, during cross examination he unable to show that any option was given to the plaintiff or his agent to select the container. DW-1 accepted in cross examination that it was the responsibility of the respondent to maintain container as per international standard. It is not the obligation of the plaintiff to choose the quality or seaworthy container. DW-1 also stated that it is duty of the defendant to provide the seaworthy container. Ex.DW1/3 issued by the Jasmine Consultant Pvt. Ltd. i.e. the surveyor appointed by the defendant in whose presence the goods were stuffed at ICD, Malanpur makes it clear that the goods were stuffed in the container in sound condition. The defendant had certified while issuing Ex.P-2 on 26.07.2018, when the goods were shipped on board it took the charge of the goods in apparently good condition.
14. Ld. Counsel for plaintiff submits that there is no mention in Ex.DW-1/3 that the container were in the seaworthy and sound condition, and this fact was admitted by DW-1 in answer to question 14. Ex.DW-1/3 is the report prepared by the surveyor of the defendant at the time of stuffing of goods in the container in his presence at ICD, Malanpur, wherein the surveyor had certified that the goods were stuffed in the container in sound condition. DW-1 in cross examination stated it is correct that Ex.P-2 suggests that the goods were received in sound condition by the defendant from the plaintiff. The container were not opened at the destination port, and consignee took the delivery on the same day, and found damage to the goods and sent the photographs and video of the damage on the same day to the agent of the defendant vide email dated 10.08.2018, though this email is denied by DW-1 in his affidavit of evidence, CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 9/19 however, during cross examination admitted that it is correct that on 10.08.2018, photographs and videos were sent to their agents by consignee through emails, but their agents did not respond to the emails because the containers were already released to the consignee from the custom bound area. Ld. Counsel submits this itself suggest that the defendant was apprised of damaged goods at the first instance.
15. The shipping bill was supplied to the defendant by the plaintiff which contains the details of invoice, value of goods. The defendant cannot allow any export of goods "shipped on board" without verifying the duly approved shipping bill. The details of invoice Mark A have been duly mentioned by the defendant on the bill of landing. Further the surveyor of the defendant in his ICD stuffing report ( Ex.DW-1/3) duly certified that Cargo details / weight as declared in the shipping bill / invoice, all packages stuffed are inspected to external condition only.
16. The surveyor report (Ex.DW-1/3) as well as bill of lading (Ex.P-2) prove that the Cargo in container no. RWAU24096220 was stuffed and sealed at ICD Malanpur in sound condition. However, found to be in wet damaged and unfit upon opening the seal of the container, therefore, goods damaged while in the custody of the defendant. The defendant has not received any payment as the invoice itself suggest that 100% payment to be paid after receiving of the goods. Ld. Counsel submits that in present facts under carriage of goods by Sea Act.
17. Ld. Counsel submits that the consignee took the delivery of goods on 10.08.2018 and gave notice of damage to the goods to the destination agent of the defendant on the same day. The defendant could have done the joint survey of the goods, however, did not do so. The defendant also failed to produce of CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 10/19 any evidence that the seals of container were cut at the port and the containers were opened at the port.
18. Ld. Counsel for the defendant submits that the defendant received the request of container from Trans Asian shipping services from ICD, Malanpur to Portklang, Malasiya. The Trans Asia had selected the two container thereafter plaintiff stuffed the container. The stuffed and duly sealed container were handed over to the defendant to issue Multi Modal Transport document dated 26.07.2018 at ICD, Malanpur and cordinated following container from ICD Malanpur to NHAVA Sheva by rail from NHAVA Sheva to Portklang Malaysia by sea. The defendant not participated in selecting any empty container. The seaworthyness and sound condition of container were verified by ICD stuffing survey report dated 11.07.2018 undertaken by the defendant. The containers were safely and duly delivered at Portklang, Malaysia on 09.08.2018 and 11.08.2018 in seal intact condition without any complaint of seal tempering or container damage. After unloading the Cargo at factory the consignee / importer handed over the empty container back to the defendant's agent on 11.08.2018. At no point of time i.e. custom clearance at port of destination or at the time of unloading the cargo by the consignee was any damage reported to defendant. No intimation of joint survey was given. The defendant is unaware of the commercial value and therefore do not accept the value of cargo as stated by the plaintiff in the invoice dated 26.06.2018.
19. Ld. Counsel submits that this suit is bad for non-joinder of Trans Asian, transporter, custom house agent who was entering the cargo. There is no privity of contract with plaintiff as the booking party for defendant is Trans Asian. There are two different modes of transport, then Multi Modal Transportation CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 11/19 Act is applicable. The action is not brought against the defendant within 9 months therefore, the suit is bared by limitation.
20. Ld. Counsel for defendant submits that defendant is not liable for any invoice amount as the invoice was never in the knowledge of the defendant. The defendant received a fully stuffed / loaded cargo (FCL) with seals intact and cannot comment as to veracity of the contents inside the container. Only plaintiff CHA was present at the time of stuffing, have there been any container damage the plaintiff would have return the empty container. The surveyor report dated 11.07.2018 (Ex.DW-1/3) was also issued by ICD witnessing clean stuffing / safe container. The container was cleared by customs at destination without any complaint. Any damage after discharge from the port of delivery is of the plaintiff / consignee and not defendant's liability. The plaintiff reliance on photos (Ex P-3) and videos are without any basis and unsubstantiated more so plaintiff not being the author of the said photos. There is no privity of contract and the rate of interest @ 12% is excessive. There is no evidence of any undue harassment and mental agony and humiliation.
21. Both the counsels also filed written submissions.
22. Arguments heard. Record perused.
ISSUE No.1:
1) Whether the suit is barred by the period of limitation ? OPD
23. It is submitted by the ld. Counsel for the defendant that the forwarding agent of the plaintiff demanded two container in which the material was stuffed. The stuffed and duly sealed containers were handed over to the defendant who issued multi moral transport document dated 26.07.2018 i.e. CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 12/19 bill of lading (Ex.P-2) at ICD Malanpur and from ICD Malanpur it reached NHAVA Sheva by rail and from NHAVA Sheva to Port Klang Malasia. Ld. Counsel submits that therefore two modes were used hence, multi model transport of goods is applicable. As per Section 24A of the said Act, the suit is to be brought within 9 months which will begin from 10.08.1998 i.e. the date of delivery of goods and expired on 10.05.2018, however, the present suit was filed on 25.07.2019 i.e. after about 11 months, thus barred by limitation. Ld. Counsel for the plaintiff on the other hand, stated that as per the evidence on record though the plaintiff has engaged the services of the defendant to ship the goods to Malasia and the defendant had provided the containers in which the goods were loaded at ICD Malanpur, however, the goods were taken from ICD Malanpur to NHAVA Sheva Port by CONCOR (Container Corporation of India) and admittedly as per the evidence on record, the rail freight charges were paid by the plaintiff.
24. Though the Ex.P-2 shows that the documents is multiple transport document, however, as per Section 2(i) of the Multiple Model Transport contracts means a contract under which a multi model transporter operator undertakes to perform or to procure the performance of contract against payment of freight. There are two modes of transport in this case i.e. rail transport as well as sea transport, however, the freight charges for the rail transport was paid by the plaintiff to CONCOR and not by the defendant. Admittedly, defendant was paid the freight charges for sea transport only. Therefore, the present transaction do not governed by the provisions of Multi Model Transports of Goods Act. Hence, the limitation period of 9 months as prescribed u/S 24A of Multi Model Transports of Goods Act is not applicable in the present case. The suit is filed within one year therefore not barred by CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 13/19 limitation. Hence, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 2 & 3:
2) Whether the plaintiff is entitled to a decree of Rs.7,02,320/- against the defendant? OPP
3) Whether the plaintiff is entitled to the interest on the suit amount, and if yes, at what rate and for what period? OPP
25. Ld. Counsel for the defendant raised the plea that the defendant has no contract with the plaintiff and the main party with whom the defendant dealt is Trans Asia Shipping Services Pvt. Ltd. The defendant received the request for booking of containers from M/s Trans Asia Shipping Services Pvt. Ltd. from ICD Malan to Port Klang Malasia pursuant to which defendant issued container release order. Thereafter, M/s Trans Asia Shipping Services Pvt. Ltd. selected two containers to its satisfaction then the plaintiff stuffed the container with Cargo who thereafter issued Multi Model Transport document (Ex.P-2).
26. Ex. P-2 is the transport agreement / bill of lading issued by the defendant in the name of the plaintiff and also showing that the goods to be delivered to consignee Gemini Floor Mills SDNBHD at Kualalampur. DW1 in cross-examination categorically stated that it is correct that Trans Asia Shipping Service Pvt. Ltd. is the freight agent on behalf of the plaintiff. The shipper is plaintiff. The Trans Asia Shipping Services Pvt. Ltd. is only the freight agent and not the plaintiff. The Ex.P-2 is the contract between the plaintiff and the defendant. Nothing can be inferred from this Ex.P-2 that the defendant has not dealt with the plaintiff but only the Trans Asia Shipping CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 14/19 Services Pvt. Ltd. This document very much shows that the contract is between the plaintiff and the defendant, as such the contention of the defendant that there is no privity of contract between the plaintiff and the defendant is devoid of merits.
27. The defendant also raised the contention that it has not participated in selecting the empty container, transportation, all packing of goods and also unaware of the contents of the Cargo. DW1 in cross- examination stated that defendant is responsible to maintain the container as per the international standard. He also stated that it is not mentioned in Ex.DW1/2 i.e. container release order that it was the obligation of the plaintiff to chose quality or seaworthiness of the containers and also stated it is the duty of the defendant to provide seaworthy container. He also stated that it is written in Ex.DW1/3 that at the time of stuffing the containers were in good and seaworthy condition. However, volunteered that the Cargo will be stuffed in seaworthy condition after checking the soundness and seaworthiness of the containers. DW1 also stated that Jasmine Consultant Pvt. Ltd. was appointed surveyor of the company. He also stated it is correct that in Ex.DW1/3 at page no.2 in the remarks para at point A, it is written by the surveyor "container stuffed in sound condition". However, it means that container were in sound condition. He also volunteered that Cargo will be stuffed in seaworthy condition after seeing the soundness/seaworthiness of the said containers. This statement of DW1 categorically suggest that the Cargo stuffed in seaworthy condition. It does not only mean that the container was in seaworthy condition and the goods were in damaged condition. Considering the Ex.DW1/3 i.e. surveyor's report and the cross examination of DW1, it can be easily inferred that the goods were loaded in the container in good condition, and it cannot be CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 15/19 inferred that the goods at the time of loading are not in good condition. The defendant tried to make the case that it might be possible that the goods were not stuffed in good condition in the container however, it do not appear to be case. From the evidence on record, it cannot be inferred that goods were not loaded in good condition. The plaintiff able to prove that the goods were loaded in good condition in the container which were thereafter duly sealed by the surveyor of the defendant after stuffing.
28. After stuffing the goods in the container, it is the duty of the defendant to deliver it to the consignee in good condition and for any kind of damage the defendant is liable. The maintenance of the container or to provide container which is seaworthiness is of the defendant. The defendant is obliged to deliver the goods in good condition to the consignee.
29. Admittedly, two containers were booked however, goods in only one of containers were damaged. Both the containers were released after completing the formalities of customs at Portklang Kaulalampur to the consignee. The consignee directly taken it to his godown for the stuffing. The sea container was opened and seals were cut in the godown, and after opening it the goods were found to be damaged due to leakage of water. It is put to DW1 in cross-examination that consignee has taken the sealed container at its premises for the de-stuffing and found the container number RWAU2409620 totally wet due to leakage of roof top and immediately informed the agent of the defendant at destination with photographs and videos on 10.08.2018 itself. DW1 however, denied this fact and stated there is no question of any damage because prior to the dispatch it was examined by the custom authorities and after clearance from the custom authorities the defendant has no liability. However, in later part of cross-examination he stated that the photographs and CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 16/19 videos were sent to their agent by consignee through Email on 10.12.2018 i.e. on same day but they did not respond because the container was already released to consignee from custom bound area.
30. The defence as per the testimony of DW1 is that the defendant has no obligation of maintenance after release of goods from the custom bound area. It is easily inferred from this stand that the defendant has the obligation to deliver the goods to the consignee in good condition after custom clearance, but no obligation thereafter. This argument has some value if the defendant had taken the plea that they have shown the goods after break opening of the seals in the custom bound area, but this is not the case. The defendant nowhere categorically stated that it has shown the goods after break opening of the seals in custom bound area though have denied the suggestion that the goods were not shown after de sealing them in custom bound area. This denial is hardly of any relevance particularly when no documents has been placed on record by the defendant that defendant agent had opened the seal after custom clearance in custom bound area. The container was taken after custom clearance to the premises of consignee and the consignee opened the seal and the immediately videographed and photographed the goods which were found to be wet and got damaged due to the water leakage. The photographs and videographs were immediately sent to their / defendant agent who did not responded. Therefore, nothing malafide could be attributed to the plaintiff. The plea that the persons who had taken the photographs and videographs were not examined is hardly of any relevance when it has been admitted by DW1 in cross examination that photographs and videos were sent to defendant agent by consignee at Kaulalampur.
CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 17/19
31. The plaintiff able to show that the goods were stuffed in good condition in the container at ICD Malanpur however, when received by the consignee at Kaulalampur, they were wet and not worthy of use. The goods were damaged due to leakage of water from the roof top. The other container containing the stuff of the same nature received in the same manner found in good condition. Therefore, no malafide could be attributed against the plaintiff. It can not be inferred from the evidence of record that the plaintiff damaged the goods to take compensation from the defendant.
32. The defendant also raised the plea that they do not have any knowledge about the goods, invoices etc. DW1 in cross-examination stated "it is correct that at serial no.2 at point A, it was certified by the surveyor that the Cargo details and weight of the Cargo as declared in the shipping bill and invoice by the plaintiff were correct". As per the invoice Mark A and packing list Mark B, 440 bags of 50kg of Samolina were sent by the plaintiff to the consignee and the 100% payment to be received only after receiving of the goods. The said documents were also sent along with the surveyor report. There is nothing on record to suggest that plaintiff has received any payment regarding that invoice. Therefore, the defendant is liable to pay a sum of US$ 8800/- to the plaintiff. It is a commercial transaction, therefore is also liable to pay the interest. The interest @ 9% per annum is quite reasonable in present facts and circumstances from the date of liability till its realization. Accordingly, the issue no. 2 & 3 decided in favour of the plaintiff and against the defendant.
ISSUE NO.4
4) Whether the plaintiff is entitled to a decree of compensation of Rs.3 lakhs against the defendants? OPP CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 18/19
33. It is settled law that for getting the compensation the plaintiff has to lead the specific evidence how he is entitled for compensation but there is no such evidence lead by the plaintiff hence, the plaintiff is not entitled for any extra compensation except the actual loss which is for US$ 8800/- i.e. Rs.6,06,320/- being the value of goods of the plaintiff covered by the invoice dated 26.06.2018. The burden to prove the issue no.4 is upon the plaintiff, however, the plaintiff is unable to prove this issue. This issue is decided against the plaintiff and in favour of defendant.
Relief:
34. In view of the aforesaid discussion, it is held that plaintiff is entitled to receive a total sum of US$ 8800/- i.e. Rs.6,06,320/- from the defendant with interest @ 9% per annum from 10.08.2018 till realization. The plaintiff is also entitled to costs.
35. Decree sheet be drawn accordingly and file be consigned to Record Room after due compliance.
Announced in the open court on 3rd March, 2023 (Ajay Kumar Jain) District Judge(Commercial Courts 03), SE/Saket Courts/Delhi CS (COMM) No.511/19 Rahul Goel Vs. M/s Lancer Container Lines Ltd. dated 03.03.32023 19/19