State Consumer Disputes Redressal Commission
The Branch Manager,Bank Of ... vs The Manager,Dhl Express India ... 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.09/2014
(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 : 03.01.2014
Date of order pronounced :16.03.2022
Bank of Baroda,
No.1, Sengunthapuram Main Road,
Karur - 639 002,
Rep.by its Power of attorney holder. Complainant
-Vs-
1. DHL Express India Private Limited,
80 ft.Scheme Road, Near BPL Tower,
Tiruppur - 641 603.
Rep.b y its Manager. 1st Opposite Party
2. LINZII,
50-C/1, Kamarajapuram West,
Karur - 639 002,
Represented by its
Proprietor Himanshu Bhushan. 2nd Opposite Party
Counsel for the complainant : Mr. Pala Ramasamy, Advocate.
Counsel for the Opposite Party-1 : Mr.S.Suresh, Advocate.
Counsel for the Opposite Party-2 : Mr.V.Balaji, Advocate.
This case coming before us for final hearing on 20.11.2021 and on perusing
the material records, this Commission made the following:-
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ORDER
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 directing the 1st opposite party to pay the amount that may be ordered by this Commission to be paid to the 2 nd opposite party by this complainant, if any, in C.C.59/2007 and Rs.25,00,000/- towards damages caused to the fair name of the complainant in its customer service and Rs.10,000/- towards cost of the suit.
2. The case of the complainant is as follows: The complainant submits that the 2nd opposite party is dealing in the business of Textile Export. It maintains Current A/c No.1848 with the complainant. The 2nd opposite party was getting the bills drawn on foreign buyers, collected through the complainant. The 2nd opposite party drew the Bill of Exchange bearing No.GA/06 dated 06.01.2006 for US$ 78,884.11 D/P At Site on one Garcia Y Hijos a foreign buyer at Avenida Duart KM 7.5 , Sant Domingo, Dominican Republic, for export of textile items morefully described in the commercial Invoice accompanying the bill. The said Bill of Exchange along with Commercial Invoice No.GA/ 06/2005-06 dated 22.12.2005. Packing List No.GA/06/2005-06 dated 22.12.2005, Bill of Lading bearing No.IN 1106800 dated 30.12.2005, issued by CMA CGM East and South India Private Limited, the carrier describing that the consignee was one Lucky Leon Investments Limited, AY-O Rajan Premchand Monte Video, Uruguay; Port of Loading, Chennai and Port of Discharge, Monte Video and that the goods described therein were to be carried by the ocean vessel "Tiger Wave" , Exchange control copy of 3 shipping bill and Certificate of Origin dated 03.01.2006, were given to the complainant on 06.01.2006 to be presented for collection to Swiss Fin Corp. International Division (Foreign Exchange), Avenuda Duarte, Santiago, Dominican Republic.
The Complainant submits that the said Bill of Exchange along with the enclosures described above were given to the 1st opposite party, the courier, through the complainant's Tiruppur Branch (as the Complainant Branch was not a designated foreign exchange Branch) for transport and delivery to the addressee viz., the Swiss Fin Corp said above on 09.01.2006. The 1st opposite party issued its receipt bearing No. 138 8397 905 dated 09.01 2006 on collection of the mail carrying the said bill, to the complainant. The Complainant submits that it did not receive the collection proceeds from the said M/s. Swiss Fin Corp. When enquired with the 1st opposite party, they orally informed the complainant that the mail was delivered on 13.01.2006 but did not give the proof of delivery. When insisted for the POD the 1st opposite part assured to give the same later, but never gave despite repeated requests.
The Complainant submits that in the meanwhile the 2nd opposite party enquired the complainant, in the month of March 2006, of the fate of the bill. On learning the fact of enquiry by the complainant with the 1st opposite party and the response therefore, the 2nd opposite party collected a copy of the courier receipt No. 138 8397 905 dated 09.01.2006 from the complainant on the pretext that it would take up the matter with the 1st opposite party, besides the foreign buyer and the Banker and ascertain the position. The complainant submits that the 2nd opposite party, thereafter, did not disclose the results of its efforts taken, if any, with the 1 st opposite party or with 4 the Banker or with the foreign buyer but chose to enquire with the complainant only the receipt of the proceeds and if not to call for the return of the documents. The complainant repeatedly enquired with the 1st opposite party about the fate of the bill on various dates but did not get any response. The complainant also wrote on 03.07.2006 to the collecting Banker viz., Swiss Fin Corp enquiring about the fate of the bill and also requesting for return of the documents, if not collected. The said enquiry letter was again sent through the 1st opposite party vide its receipt No.140 8749 580. There was no response.
The complainant again sent an enquiry letter dated 23.02.2007 through the 1st opposite party vide its receipt No.132 5315 644 dated 24.02.2007 this letter was returned on 14.03.2007 by the 1st opposite party to the complainant with its bill No.6616650412 dated 09.03.2007 stating that the said letter could not be delivered for the reason „bad address‟. It becomes the bounden duty of the 1st opposite party to inform about the fate of the earlier mails sent to the same and address. But the first opposite party has not provided with any reason or information about the fate of the earlier mails despite repeated requests which is nothing but "gross deficiency of service" on the part of the 1st opposite party. In case the packet is returned undelivered, it is the responsibility of the 1st opposite party to return the same to the complainant. In the meanwhile the 2nd opposite party issued a lawyer‟s notice on 05.07.2007 and filed a consumer complaint in C.C.No.59/2007 before this Commission claiming Rs.43,97,115/- towards the rupee equivalent of the Bill, damages compensation and cost.
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The 2nd opposite party, however, did not implead the 1st opposite party as a party in its complaint on the ground that there was no privity of contract between the 2nd opposite party and 1st opposite party. The 2nd opposite party which had collected the copy of the bill No.138 8397 905 dated 09.01.2006 issued by the 1st opposite party after collecting the bill for transmission, in the month of March 2006, enquired with the 1st opposite party of the fate of the bill of 08.12.2006. In response, the 1st opposite party had furnished a print out of the 2nd opposite party, mentioning therein the delivery status, reading as "138 8397 905 Coimbatore - India Santo Domingo - Dominican Republic signed for by: SEGUNDO GARC shipment delivered at DHL Counter on January 13, 2006 19.10", meaning that the shipment covered under the receipt said above, viz., the Bill was delivered at the DHL Counter at Santo Domingo, Dominican Republic to one SEGUNDO GARC for apparently the purchaser. At the same time the 1 st opposite party to the query of the complainant, kept on saying that it was not having any record beyond three months and as such could not provide the information on the delivery status nor pendency of the consignment. The Bill of exchange with its enclosures, were not delivered to the Banker through whom the Bill was to be presented for collection, viz., Swiss Fin Corp. at Avenuda Duarte, Santiago, Dominican Republic. But it was delivered to one SEGUNDO GARC at Santo Domingo, Dominican Republic which is the place of the foreign buyer. Also the said SEGUNDO GARC has not signed it in his independent capacity but with the prefix for which would otherwise mean that it was signed for the foreign buyer. The aforesaid delivery by the 1st opposite party to the party other than the addressee is nothing but gross deficiency in service, 6 which has led to the non collection of the bill and the 2nd opposite party filing the consumer complaint C.C.No.59/2007 against the complainant claiming a sum of Rs.43,97,115/-towards the proceeds of the bill, damages, compensation and cost. The complainant also apprehends that nature of claim and circumstances do not rule out the possibility of collusion among the opposite parties. It may not be practicable to collect/take delivery of the goods/items despatched by the 2nd opposite party to the overseas buyer.
The complainant filed M.P.No.27/2008 in C.C.No.59/2007, praying for impleading the 1st opposite party, as an opposite party in C.C.No.59/2007 which was also opposed by the 2nd opposite party. However, this Commission was pleased to pass an order on 18.09.2008 in M.P.No.27/2008 stating that the complainant could call for the records and witness from the 1st opposite party herein and also the complainant was at liberty to proceed against the 1st opposite party by a separate complaint.
In the light of the 1st opposite party‟s assertion that it maintains records only for three months, but at the same time providing the information to the 2nd opposite party after 11 months, the complainant apprehends that the 1st opposite party for reasons best known to it is concealing vital informations deliberately to defeat the claim of the complainant. In the light of the liberty given by this Commission in its order dated 18.09.2008, pursuant to which M.P.No.25/2010 is pending before this Commission, the present complaint is filed within limitation and is not hit by Sec.24(A) of the Consumer Protection Act, 1986. The claim of the second opposite party arises solely because of the negligence on the part of the 1st opposite party. The complainant can transmit the 7 amount of Bill of exchange to the second opposite party only on receipt of the same from the drawer. Therefore directing the 1st opposite party to pay the amount that may be ordered by this Commission to be paid to the 2nd opposite party by this complainant, if any, in C.C.59/2007 and Rs.25,00,000/- towards damages caused to the fair name of the complainant in its customer service and Rs.10,000/- towards cost of the suit.
3. The 1st opposite party (DHL) filed written version as follows:- The complaint under any circumstances does not come within the purview of the Consumer Protection Act, 1986 and that the dispute, if any at all, is entirely civil in nature and the remedy, if any, lies before the competent Civil Court. The complainant is not maintainable before this Commission as the transactions was purely commercial in nature. It is an International parcel/document delivery services provider and in the course of its business provided services to the complainant of air shipping a parcel containing documents from Tiruppur. Tamil Nadu to Santiago, Dominican Republic under shipment waybill bearing number 138 8397 905 dated 09.01.2006. The complainant hired the services of the 1st opposite party under a commercial transaction, and for this reason, the instant complaint is barred under Section 2(1) (d) (ii) of the Consumer Protection Act, 1986. As this complaint arises out of a commercial transactions and the same is out of the purview of the Consumer Protection Act. The 1st opposite party is nowhere concerned except booking of two shipments as mentioned therein. Since 1 st opposite party is a courier company and the complainant is one of 1st opposite party‟s regular customer it was normal business routine to accept shipment from the complainant and to deliver at the destination against consideration.
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1st opposite party returned the shipment back as per its service norms to the complainant and as it had bad address and was not claimed by anyone. Its role is of courier and even the address on the shipment was written by the complainant only. 1st opposite party has to just deliver it at the destination and if and not delivered then to inform and return it to the party. 1st opposite party has no duty to search and audit the right and wrong address before delivery. The 1st opposite party has no binding obligation to provide POD to the complainant after lapse of more than one year from the date of booking of shipment. If no enquiry is made within 30 days of booking, 1st opposite party shall not be liable for the same. The 2nd opposite party very rightly filed a complaint against the complainant herein without making 1st opposite party as party because there was no role of first opposite party, but the complainant, with intent to passed on its default of liability on to 1st opposite party, has filed this present complaint by getting an order from this Commission. The shipment was delivered on the address as mentioned on the packet by the complainant. This commission has no jurisdiction in this matter. Since it is a commercial services relation the complainant does not fall under the definition of consumer under the Act. The 1st opposite party has delivered the shipment as per the address mentioned thereon as was written the complainant only had been wrongly delivered by 1st opposite party then the complainant would not have slept over its right for more than one year and then would suddenly wake up after a complaint was filed against it by the 2nd opposite party herein. The complainant agreed the terms and conditions expressly mentioned on airway bill No.138 8397 905 and the shipment was carried by 1st opposite party in accordance with the terms and conditions 9 expressly stated in 1st opposite party‟s terms and conditions of the carriage which are printed on the reverse of 1st opposite party‟s Air Way Bill, which are in line with applicable International contentions. The DHL‟s liability in respect of any one shipment transported without prejudice to Section 7-11 is limited to its actual cash value and shall not exceed the greater of $US 100 or $US 20.00/kg or $US 9.07/lb for shipments transported by air or other non-road mode of transportation.
The 1st opposite party International Carriage transaction is governed by the Carriage by Air Act, 1972 and the Montreal Convention signed on 28.05.1999 which replaces the Warsaw Convention and is applicable in India by virtue of the Montreal Protocol Treaty to which India is a signatory. According to Section 4 of the said carriage by Air Act amended Convention shall have the force in law when the carriage of goods are by Air. The complainant is bound by the terms and conditions of the Airway Bill. The complainant is entitled to compensation to a maximum amount as stipulated in the terms and conditions of the Airway Bill. The 1st opposite party shall not be liable in any event for any consequential or special damages or other indirect however arising. The complainant ought to have insured the shipment if the shipment was of great value to the complainant. However, no such step was taken by the complainant. The 1st opposite party has performed its job sincerely, diligently and there was no negligence or deficiency of service in its part as a courier company. The complainant has claimed compensation to the tune of similar amount as to what the complainant would be asked by this Commission to pay the 2nd opposite party in the complaint against the complainant C.C.No.59/2007 along with damages of 25,00,000/- in addition to 10 Rs.10,000/- as litigation cost. The present complaint does not have any independent prayer but it is a contingent complaint whose damages are totally based on decision in C.C.No.59/2007. Law has no provision for any contingent complaint. Therefore the complaint may be dismissed
4. The 2nd opposite party filed written version as follows:- The 2nd opposite Party have filed the complaint in C.C.No.18/2012 against the complainant for non delivery of consignment bill and non receipt of sale proceeds. In his complaint, the complainant the above named has filed in M.P.No.27/2008 to implead the DHL courier through whom documents were said to have been despatched. The 2nd opposite party raised his objection stating that DHL Courier is not his service provider. Secondly even if DHL Courier is impleaded the 2nd opposite party cannot realize any amount from them in his complaint. The said application was disposed on 18.09.2008. The commission has given liberty to the complainant to file a separate complaint against the Courier. In pursuance of the said order the present complaint was filed. The complainant above named accept and concede his claim filed the present complaint and seeking relief against the courier in (a) viz., directing first opposite party/courier to pay the amount that may be ordered by this Commission to be paid to the second opposite party by this complainant, if any, in C.C.No.59/2007.
5. The Chief Manager of the complainant Bank was examined as PW1 on the side of the complainant marked Ex.A1 to Ex.A16. The Senior Manager of the first opposite party was examined as witness on the side of the 1st opposite party by filing proof affidavit Ex.B1 to Ex.B2 were marked on the side of the 1 st opposite party. The 11 proprietor of the complainant company was examined as witness on the side of 2 nd opposite party by filing proof affidavit. No document was filed on their side.
6. The points for consideration are:
(1) Whether the 1st opposite party liable to pay the amount as claimed in C.C.No.18/2012?
(2) Whether the service availed the 2nd opposite party is commercial in nature?
7. Point No.1&2: The claim of the 2nd opposite party against this complainant was discussed elaborately in C.C.No.18/2012 in the above complaint the Commission was decided the complaint only in favour of the complainant (C.C.No.18/2012) directing this complainant (C.C.No.09/2014) 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(C.C.No.18/2012) 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.
8. The 2nd opposite party alleged in his complaint that this complainant (C.C.No.09/2014) committed deficiency in service on four grounds, the grounds were discussed elaborately in the complaint filed by the 2nd opposite party/complainant in (C.C.No.18/2012) as follows:-
a) The delay of 13 months in enquiring the whereabouts of the consignment document with the courier.
b) Not giving any reply to the 2nd opposite party for his six letters. 12
c) Even after furnishing the information the bank has not taken any action to recall the documents.
d) The 2nd opposite party 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 2nd opposite party 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 complainant would contend that the Tiruppur branch of the complainant 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 complainant was diligently follow up the matter of collection of bills and there is no cause for the 2nd opposite party in the matter of follow up to allege deficiency of service of the complainant.
9. The bank has only forward the bills and even assuming that, the banker has not received it, the 2nd opposite party is at liberty to send duplicate/ fresh set of document 13 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 2nd opposite party 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.A16 for realizing the payments, the 2nd opposite party 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 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 14 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 2nd opposite party 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 due to non delivery in time paid lot of penalties to the customer and customs also lost advance license fees" the E-mail communications clarified that original shipping documents not reached the buyer‟s bankers.
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13. The action for damages under the Consumer Protection Act there is no Expressed/choose the jurisdiction in filing the complaint filed by the 2nd opposite party. 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 in C.C.No.18/2012 is maintainable before this Commission.
14. The xerox copy of delivery status is produced by the 1st 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 complainant 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 complainant filed this complaint against the courier company and the 2nd opposite party (Complainant) in C.C.No.18/2012.
15. The main contention of the counsel for the 2nd opposite party is a delay of 13 months in enquiring whereabout the consignment of the documents with the courier. The 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 16 the documents. But it was delivered by hand over to some other unknown person on 14.01.2006 the 2nd opposite party proves the first contention raised against the complainant.
16. The next contention of the counsel for the 2nd opposite party is not giving any reply to him for his six letters after exchanging the communications through E-mail with the buyer. The 2nd opposite party addressed a letter to this complainant in Ex.A10 dated 21.04.2006 (in C.C.No.18/2012). The 2nd opposite party also sent letters to this complainant on 21.06.2006, 05.02.2007, 09.02.2007, 21.02.2007 which are marked in C.C.No.18/2012. The complainant sent a reply for the above letter only on 15.05.2007 which is marked as Ex.B11 (in C.C.No.18/2012). The complainant 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 them for collection of funds. Therefore, the 2nd opposite party proved non reply for his six letters by this complainant.
17. The next contention raised by the 2nd opposite party in his complaint that even after furnishing the information the bank has not taken any action to recall the documents. The complainant in their written version in C.C.No.18/2012 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 2nd opposite party marked the E-mail communications exchanged between himself as well as the buyer. The first E-mail communications dated 22.12.2005. In the 17 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 2nd opposite party 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 2nd opposite party 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 2nd opposite party till the date their bankers has not received the original set of documents and requested check with 2nd opposite party‟s bankers/couriers and despatch details. After exchanging the E-mail communications the 2nd opposite party sent a letter to this complainant on 21.04.2006 informing the non delivery of consignment. The complainant stated in their written version that this question not answered by the 2nd opposite party as to why he did not inform the despatch of the bill and pursue the 18 matter for collecting the proceeds, this contention is not acceptable. Since, the 2nd opposite party 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 complainant also stated in their complaint the 2nd opposite party had asked the message of the delivery from the courier only on 08.12.2006 and had not provided the information to the complainant till met him at Karur on 13.07.2007. The above contention is also not acceptable.
19. It is the admitted case of the complainant and 2nd opposite party that the shipment documents wrongly delivered to wrong person. The complainant blaming the courier service to whom the consignment was handed over by the complainant 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 every possibility of wrong delivery of shipment consignment on production of shipment documents by a wrong person. The complainant must be vigilant by watching whether the payment was made in the bank by presenting the shipment bill. Now the complainant blaming not only the 2nd opposite party 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 19 directories. If the consignment was delivered to a wrong person was a fraudulent transactions then it is a criminal matter.
20. The delivery of cargo effected on production of shipment documents without payment. Now, the 2nd opposite party in this complaint not able to get the money from his buyer it is not the case of the complainant, even though the courier delivered the shipment documents to a wrong person, the cargo was taken delivery only by the buyer of the 2nd opposite party on payment. If any payment was made it should be transmitted only through the complainant bank, they have not paid any amount to the 2nd opposite party for the export of the consignment. Therefore, the complaint could not be relegated to the Civil Court to establish the criminal case.
21. 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 2nd opposite party not received any amount from his buyer for the consignment. After receiving the information of wrong delivery by the courier, the complainant failed to take appropriate immediate action for realizing the proceeds. Therefore, the 2nd opposite party proved the allegations raised against the complainant is also proved.
22. The next allegations raised in the complaint is the 2nd opposite party was deprived of value of the consignment since he lost the opportunity of re-booking the consignment or sale to the third party.
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23. The counsel for the 2nd opposite party would contend that there is no privity of contract between the 2nd opposite party 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 2nd opposite party was not received any amount.
24. The complainant furnished information and the action taken by them against the courier. Now, the 2nd opposite party 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 1st opposite party that the 2nd opposite party was deprived of value of the consignment since, he lost his opportunity of re- booking the consignment or sale to third party.
25. The counsel for the 1st opposite party would contend that the complaint barred under Section 2(1) (d) (ii) of the Consumer Protection Act, 1986. It is not maintainable in law or on facts since a commercial transaction is excluded Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.
26. The counsel for the 2nd opposite party relying upon the reported citation for IV (2014) CPJ 302 - National Consumer Dispute Redressal Commission - in the case of - Kaveri Telecommunications Limited -Vs- Vijaya bank and another at page No.305 -
"The comprehensive definition of "consumer" in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services, bought or hired, for consideration. However by virtue of the definition, the person who obtains goods for re-sale or for any commercial purpose is excluded, but the services, the hired 21 for consideration, even for any commercial purposes are not excluded the term "service" unambiguously indicates in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein. Therefore the service availed by the complainant with the 1st opposite party comes under purview of Consumer Protection Act under Section 2 (1) (d).
27. The counsel for the 1st opposite party would contend that an International Carriage transactions is governed by the Carriage by Air Act 1972 governed by the carriage by air Act 1972. According to Section 4 of the said Act and Article 22 of Chapter XXI of liability of cargo is limited unless the passengers or Consignor has made, at the time when the package was handed over to the Carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In this case from the airway bill it is clear that no declaration to that effect was made nor was any extra sum paid in lieu thereof.
28. The complainant marked Ex.A1 to Ex.A16 the shipping documents and other receipts given by the 1st opposite party. It is the admitted case of both parties that the consignment handed over to the 1st opposite party by the complainant bank was not delivered to the buyer. The counsel for the 1st opposite party would contend that the consignment was delivered to the addressee the person received the consignment is signed as "for the receipt of the consignment" whereas it was decided in C.C.No.18/2012 that the consignment was reached in the hands of wrong person.
29. The counsel for the 1st opposite party would contend that the liability of the 1st opposite party is limited under the terms and it also under the Carriage by Air Act 1934 22 marked Ex.B1 & Ex.B2. By relying upon the citation Part II (1996) CPJ 25 (SC) - in the case of Bharati Knitting Company -Vs- DHL Worldwide Express Courier Division of Airfrieght Limited at Page No.28 - under clause explained terms and conditions of the contract the liability of the appellant for any loss or damage to the consignment: was limited to US $ 100. Clause 7 of the contract specifically provided that the liability of the appellant for any consequential or especial damages or any other indirect loss, that may occur including the loss of market or profits etc., was excluded. In view of the expressed above it is now settled law and the tribunals would follow the same as per the Invoice and the complaint filed by the 2nd opposite party (C.C.No.18/2012 Complainant) the weight of the consignment net weight is 12,858 kgs and the gross net weight is 13,386 kgs. the above terms only applicable in the case of loss or damage to the shipments. It is a case of wrong delivery of consignment without verifying the actual addressee. Due to the wrong delivery the seller the 2nd opposite party not able to get any amount from the buyer. Even though the seller maintaining the contact with the buyer at the crucial day of the delivery of the consignment. When it is a wrong delivery the consignment reached in the hands of wrong person the seller the second opposite party herein could not making arrangement for either re-imports the goods or sold to any other buyer. The terms Ex.B1 marked by the first opposite party does not contain any terms whether the liability includes wrong delivery. In the absence of any specific term for fixing the liability for wrong delivery, the contention raised by the 1st opposite party is not sustainable.
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30. The complainant in the complaint alleged that no timely reply was received from the 1st opposite party is also a reason for not able to take appropriate action against the wrong delivery after receiving the intimation from the second opposite party. Therefore the 1st opposite party herein is liable to pay compensation amount to the 2nd opposite party award passed in C.C.No.18/2012 dated 16.03.2022.
31. Therefore the complainant proves deficiency on the part of the 1st opposite party in delivering the consignment contain the shipping documents and delivered it to a wrong person. The complainant is entitled to get relief in the complaint award passed in C.C.No.18/2012 dated 16.03.2022 and answered accordingly for the point for consideration no.1 &2.
32. In the result, the complaint is partly allowed directing the 1st opposite party to pay the compensation amount ordered by this Commission in (C.C.No.18/2012, dated 16.03.2022) paid to the 2nd opposite party. There shall be no order as cost in this complaint.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 16th day of March 2022.
Sd/-xxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
List of documents marked on the side of the complainant
Ex A1 06.01.2006 Letter to Swiss Finance Corporation.
Ex A2 06.01.2006 Bill of Exchange.
Ex A3 22.12.2005 Invoice.
Ex A4 22.12.2005 Packing list.
Ex A5 30.12.2005 Bill of Lading.
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Ex A6 --- Exchange Control Copy of Shipping Bill.
Ex A7 09.01.2006 Finance Courier Receipt bearing Receipt No.138 8397 905. Ex A8 03.07.2006 Letter to Swiss Finance Corporation.
Ex A9 03.07.2006 Courier Receipt bearing Recipt No.140 8749 580. Ex A10 23.02.2007 Letter to Swiss Finance Corporation.
Ex A11 14.03.2007 Letter by the 1st opposite party.
Ex.A12 09.03.2007 Bill with Receipt by the Complainant.
Ex.A13 01.12.2007 Letter by complainant to 1st opposite party. Ex.A14 08.12.2006 Copy of E-mail Enquiry by 2nd opposite party. Ex.A15 --- Print-out of Delivery Status given by the 1st opposite party. Ex.A16 24.02.2007 Courier Receipt bearing No.132 5315 644.
List of documents marked on the side of opposite party.
Ex.B1 --- Account Application Form.
Ex.B2 --- Terms & Conditions of Carriage.
Sd/-xxxxxxxxx
N. RAJASEKAR,
PRESIDING JUDICIAL MEMBER.
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