State Consumer Disputes Redressal Commission
Natvar Parikh Industries Ltd vs Narainsons Overseas & Anr. on 20 November, 2017
Daily Order IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments : 20.11.17 Date of Decision : 01.12.17 First Appeal No.531/2011 IN THE MATTER OF: M/s Natvar Parikh Industries Ltd. Through its authorized representative Asian Building 2nd Floor, R Kamani Marg Ballard Estate Mumbai-400038 Also at: 304, Vishal Bhawan 95, Nehru Place New Delhi-110019. ......Appellant Versus 1. M/s Narainsons Overseas Through its Proprietor 120, Pocket-E, Mayur Vihar-II Delhi. 2. Sam Laik 18 rue Yves Youdic - 75010 Paris, France. .....Respondents CORAM HON'BLE SH. O.P.GUPTA, MEMBER(JUDICIAL) HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes SHRI O.P.GUPTA, MEMBER (JUDICIAL) JUDGEMENT
The OP has challenged order dated 27.07.11 passed by District Forum VI in CC No. 472/07 by which complaint was allowed and OP was directed to pay Rs. 1,50,000(equivalent of 3082 US $) with interest @ 12% from 09.11.2000 till payment and Rs. 50,000/- towards harassment, anxiety, mental tension and deficiency of service including litigation expenses.
2. The facts which can be gathered from the impugned order are that complainant before the District Forum/Respondent No. 1 herein received orders from OP No. 2 before District Forum/Respondent No.2 herein for supply of 30 bales of cotton handloom Dhurry, Yarn Dyed Floor Coverings. The terms of payment were 60 days from the date of bill. The goods were to be sent to France. Consignee was Banque Populaire Du Nord De Paris, Service International. Invoice No. 0661 dated 15.07.2000 was raised. Buyer instructed complainant to avail service of OP 1 as shipping agent for carriage of goods. OP 1 issued bill of lading bill No. 12099 dated 09.09.2000. Nothing was heard from OP 1 or OP II. OP sent letter dated 20.12.2000 regarding status of the cargo. On the same date it received e-mail from OP I that consignment was delivered to consignee on 19.10.2000. The export document was submitted through complainant's banker M/s Allahabad Bank, Scindia House, New Delhi for collection of the payment. Complainant surprisingly received letter from its banker, dated 08.01.2001 informing that documents including bill of lading were returned without assigning any reason by the consignee/Bank of OP 2. OP 1 confirmed that they released goods and three original bills of lading were returned from consignee/banker of buyer.
3. OP 1 filed WS pleading that carrier is not liable for any loss by consignee due to non-acceptance of bill of lading by the bank because there was no specific instruction from consignee that delivery of consignment was to be made only on production of original bill of lading and payment of value of consignment.
4. In rejoinder it was stated that OP 1 had deliberately not disclosed to whom it made delivery of goods.
5. OP did not file any evidence. After going through the material on record and hearing the arguments, the District Forum found that OP 1 has no merits. It relied upon decision of National Commission in Sri Meenakshi vs. American President Lines Ltd. III (2005 ) CPJ 82. It found that OP had deliberately not followed international trade practice leading to harassment of loss to the complainant.
6. In appeal the grievance of the appellant is that District Forum did not deal with the objection of limitation raised by appellant in WS. In support of his submission he drew our attention to copy of WS at page 95 to 102 of bunch of appeal. Preliminary objection No. 2 specifically state that complaint is barred under article III para 6 of the schedule of Indian Carriage of Goods by Sea Act 1925. The same provides that carrier and ship shall be discharged from all liabilities of the receipt of loss and damage unless suit is brought within one year after delivery of goods or from the date when the goods or could have been delivered.
7. The objection of limitation is such which goes to the root of the case. Non-deciding the same is fatal.
8. Counsel for appellant relied upon decision of Kerala State Commission in Mariamma Narenderanathan vs. Shipping Corporation of India III (1998) CPJ 259. In the said case the decision of Hon'ble Supreme Court in East and West Steamship Company vs. S.K.Ramalingam Chettiar AIR 1960 Supreme Court 1958 was noticed where it was held that clause 3 para 6 or Article 3 to Schedule of Indian Carriage of Goods by Sea Act provides for extinction of a right to compensation and in view of International Character of the rules, the right is extinguished and the provision is not merely a rule of limitation. The same view was reiterated by Hon'ble Supreme Court in American Export Isbrant and Incorporated vs. Joe Lopes AIR 1972 Supreme Court 1405. Similar view was taken by Kerala High Court in K.B.Jacob and Sons vs. Shipping Corporation of India AIR 1990 Kerala 256. It was held that three years period was not available and suit filed beyond period of one year was barred.
9. In para 10 of Mariamma Supra it was observed that Consumer Protection Act is a general law in the sense that it applies to all consumers while the Indian Carriage of Goods by Sea Act is a special law governing Carriage of Goods by Sea. Special Law must apply.
10. The respondent submitted that cases cited by appellant are of short delivery but in his case no delivery took place. So it is not clear from which date limitation of one year would start. In other words there is no limitation in case of non delivery.
11. We feel that argument cannot be accepted. Otherwise consignor can file suit even after fifty years which would be absurd.
12. Moreover, 3rd part of clause 6 of Article 3 of Schedule of India Carriage of Goods by Sea Act provides that one year would start form date when goods should have been delivered. This is meant for non delivery only.
13. Counsel for the appellant also relied upon decision of National Commission in Sri Meenakshi vs. American President Lines Ltd. III (2005) CPJ 82. The District Forum has quoted the same judgement in its order, on another point of effect of non giving instructions for delivery of consignment only on production of original bill of lading and payment of value of consignment. The question of limitation decided in the same case was not noticed.
14. In view of the above discussion the appeal succeeds and is accepted. The impugned order is set aside and complaint is dismissed.
Copy of the order be sent to both the parties free of cost.
One copy of the order be sent to District Forum for information.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER(Judicial)