CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.437/2012
MOHAMMED IQBAL SHAHUL HAMID
FINA HOUSE,
A-98, PHASE-1, AYA NAGAR,
NEW DELHI-110047
…………. COMPLAINANT
VS.
- MANAGING DIRECTOR
FREIGHT SYSTEMS (INDIA) PVT. LTD.
B-6/8, 1ST FLOOR, OKHLA INDUSTRIAL AREA, PHASE-II,
NEW DELHI-110020
- SH. MANU RAJ BHALLA
DIRECTOR (SUPPLY CHAIN & LOGISTICS)
FREIGHT SYSTEMS (INDIA) PVT. LTD.
B-6/8, 1ST FLOOR, OKHLA INDUSTRIAL AREA, PHASE-II,
NEW DELHI-110020
- SH. RAMAN CHANDEL
REGIONAL MANAGER
FREIGHT SYSTEMS (INDIA) PVT. LTD.
B-6/8, 1ST FLOOR, OKHLA INDUSTRIAL AREA, PHASE-II,
NEW DELHI-110020
…………..RESPONDENTS
Date of Order:18.01.2019
O R D E R
A.S. Yadav – President
The case of the complainants is that while returning back from Kuwait, he shipped used house hold goods and used personal effects (1 wooden crate weighing 750 Kgs.) through M/s Al Ghanim Freight, Kuwait, who offered the service the following services through a Proforma Invoice for a net amount of Kuwaiti Dinars (KD) 300.00, to be aid in Advance, namely:
- Bill of Lading Charges (Documentation Charges).
- LCL (Less than Container load) Freight Charge from Kuwait Sea Port (Loaded) to Delhi CFS/CWC-Patparganj(Off-Loaded).
- Export Formalities.
- Packing Charges.
- Crating Charges.
The amount of KD 300.00 was paid against which a Invoice – Job No: PR1242015 and a copy of the Bill of Lading (N/L) No:150212000126 which showed Freight Pre-paid and Delivery at Delhi was issued to the consigner (complainant).
The original Bill of Lading which assumes a triple identity as: Property title, Cargo Receipt and Carriage Contract has to accompany the cargo throughout its Sea and Land Transportation until off loaded at Delhi CFS/CWC (Patparganj). The Shipping Company’s Delhi Agent’s name was shown in the B/L as: Freight Systems (India) Pvt. Ltd., B-6/8, 1st Floor Okhla Industrial Area, Phase-II, New Delhi-110020, who were assigned for ‘Document presentation’ to consignee (complainant) after verifying his ID proof. The set of Shipping Documents prepare din Kuwait include: Packing List (P/L), Bill of Lading (B/L), Delivery Order (D/O).
It is further stated that in this case the complainant himself is the consigner and consignee. Delhi agent of the shipping company i.e Freight Systems (India) Pvt. Ltd. has issued a Proforma Invoice for an unjustifiable amount of Rs.23,481/- and that too for the same services which have already been paid for in Kuwait itself in Foreign Currency and as advance payment. The complainant had protested about the same giving the detailed reason. The complainant has requested OP many times on phone to release the shipping documents by charging a nominal amount of Rs.2,000/- for any clerical expense, if at all involved. The complainant failed to get any remedy. The complainant also filed a complaint in the office of Jt. Commissioner of Police EOW, Delhi on 14.09.2012 and also on 20.09.2012 in the Police Station, Fatehpur Beri, Delhi. The complainant has prayed that OP be directed to release the shipping documents and pay, Rs.1 lakh as compensation, Rs.50,000/- for damages, Rs.5,000/- towards litigation cost, Rs.8,600/- for the demurrage accrued in the CWC due to delay in clearing the cargo.
.
OP in its reply stated that the complainant has booked the consignment with M/s Al Ghanim Freight, Kuwait for its transport from Kuwait Sea Port to Delhi and paid them KD 300.00 but the said Al Ghanim Freight, though a necessary party has not been impleaded in the present complaint hence the present complaint is liable to be dismissed under Order VII Rule 11 CPC, 1908. It is stated that there was no privity of contract between the complainant and Freight Systems (India) Pvt. Ltd. and the complaint is liable to be dismissed. It is stated that as per Bill of Lading dated 20.07.2012 handed over to the complainant at the time of booking of the consignment in Kuwait, the complaint had agreed to pay Destination charges (which includes including Dest TGC, DO Fee, Container Clearing Charges, Document processing fee, Consol charges, Liner charges, manifestation charges, LCL charges etc.) to M/s Freight Systems (I) Pvt. Ltd. It is stated that on request of the complainant, a fresh Invoice dated 04.10.2012 for a sum of Rs.18,136/- was prepared and sent to the complainant. Even this fresh invoice was not acceptable to the complainant. It is prayed that the complaint be dismissed.
The complaint moved an application for impleading Freight Systems (I) Pvt. Ltd. as initially Freight Systems (India) Pvt. Ltd. was not made a party and the complaint was filed against the Managing Director and Directors and Regional Manager of Freight Systems (India) Pvt. Ltd.
That application is opposed by OPs on the ground that Freight Systems (I) Pvt. Ltd. issued cannot be impleaded as the application is barred by limitation u/s 24A of CPA as the complaint was filed on 07.12.2012 and the application for impleading Freight Systems (I) Pvt. Ltd. issued has been moved on 26.08.2015 after two years and eight months without moving an application for condonation of delay.
We have gone through the case file carefully.
It is admitted by the complainant himself that he shipped his used house hold goods through Al Ghanim Freight, Kuwait and paid the entire amount and Freight Systems (India) Pvt. Ltd. was the agent of M/s Al Ghanim Freight, Kuwait.
It is settled law that an agent cannot be sued. It is always the Principal who is to be sued. Admittedly in this case Al Ghanim Freight, Kuwait was not made a party so on the face of it, the complaint is not maintainable. Even Freight Systems (India) Pvt. Ltd. has not been made a party and the complaint has been filed against Managing Director and Directors etc. It is settled law that Directors of the company are not personally liable and they cannot be sued in the absence of the company. An application was moved for impleading Freight Systems (India) Pvt. Ltd. in the PL only on 26.08.2015 though the original complaint as filed on 07.12.2012. The application cannot be allowed as the same is barred u/s 24A of the CPA.
Even otherwise there is no privity of contract between Freight Systems (India) Pvt. Ltd. and the complainant. The complainant is not a consumer qua Freight Systems (India) Pvt. Ltd.. Section 2(d) (ii) of the CPA provides that:-
“Consumer” means any person who -
Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.
(Explanation – for the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.)
Admittedly the complainant has not paid or promised any consideration to Freight Systems (India) Pvt. Ltd. or under any system of deferred payment.
In view of the section 2(d) (ii), the complainant is not a consumer qua Freight Systems (India) Pvt. Ltd. For the aforesaid reason, the present complaint is not maintainable hence the same is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(H.C. SURI) (A.S. YADAV)
MEMBER PRESIDENT
