BY PRESIDENT, THIRU.K.JAYABALAN, B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986.

COMPLINANT IN BRIEF:

          1) The first complainant S.Vetriselvi is the proprietrix  of  M/S Vetri trading export and she is also is the wife of the second complainant. The second complainant is working in Bahrain for more than 25 years and he has several business connections and he came to know that there is a very good opportunity for sale of charcoal at Bahrain. Therefore the complainants decided to manufacture good quality of charcoal in their home town at Koradacherry in Tiruvarur District. The complainant also contacted the opposite parties through his friends and had discussion about the proposed export of Charcoal to Bahrain. The opposite parties also accepted the proposal to export Charcoal as clear and forwarding agents. The second complainant arranged storage facility at Bahrain after obtaining necessary license incurring an expenditure of sum of Rs.4, 00,000/-(Rupees four lakhs only). He came to India in 2007 and manufactured nearly 23 tonnes of quality Charcoal.  He also rented a premises nearby Tiruvarur on a monthly rent of Rs.3000/- (Rupees three thousand only) and stored the manufactured Charcoal. He also packed 7tonnes of Charcoal in 260 packets in various sizes and stored at a warehouse at Pallavaram in Chennai.  When the, brought the Charcoal for  export, the customs authorities confiscated  the Charcoal, as Charcoal is a prohibited  item for export and they also imposed fine under section 114 Customs Act. The complainant also paid amount later the complainant were  constrained to sell 23 tonnes of Charcoal at the reduced rate including a loss of Rs.23,71,000/- (Rupees twenty three lakhs seventy one thousand only). The opposite parties caused hardship, pain and suffering to the complainants by not informing that Charcoal is a prohibited item for the export.  The first complainant sent a legal notice on 13.11.2008 to the opposite party explaining their deficiency in service and claimed a compensation of Rs.10,00,000/- (Rupees ten lakhs only) towards the damages, hardship, loss, mental agony, pain and sufferings. Though the complainant estimated compensation to an amount of Rs. 23, 71,000/- (Rupees twenty three lakhs seventy one thousand only), They restricted their claim to Rs.10, 00,000(Rupees ten lakhs only) and prays to pass an order with 12 % interest.

WRITTEN VERSION:

          2)The  1^st opposite party submits that they have gone through regarding the ocean freight and other amounts, but never spoke about the nature of commodity to be exported. Since the 1^st complainant is staying in Bahrain and importing charcoal from various countries and furthermore, the complainants wanted to export from India to Bahrain in obvious terms, we understood the view that the complainants were familiar with the Charcoal exports. They were not given a clear picture on this particular shipment and more over misquoted by Thiru .Varadharajan referred to the opposite parties that they have a specific license for export of Charcoal . Subsequently, the 1^st opposite party of the opinion that the exporter is aware of this particular shipment and the 1^st opposite party filed the shipping bill. On further enquiry the opposite parties understood that the complainants have been referred this “Specific license” from the day one is nothing but the IEC No. certificate.

          3) The 1^st opposite party filed the shipping bill. After the goods were moved to CFS (container freight station) the 1stopposite party contacted Mr.Varadharajan for this specific license. Meanwhile the complainants gave documents which are found to be the Importer & Exporter code no certificate and not the specific license obtained by the complainants for export of Charcoal from India. When the goods were moved to CFS the commissioner levied fine and penalty stating that this is goods are prohibited to be  imported from India, hence the exporter is liable for the fine and penalty. Consequently the fine imposed by the Commissioner for exporting the prohibited goods. Then the opposite party convinced and given letter to the Customs for reducing the amount from Rs.25, 000/- as fine and Rs.10,000/- as penalty. More over the opposite party made a sum of Rs.6,000/- paid as fine and penalty wherein the office of the Commissioner of Customs imposed Rs.25,000/- as fine and Rs.10,000/- as penalty.

          4)Even though the opposite parties were aware it requires specific license, but the opposite parties were mis-guided by Mr.Varadarajan, who was not aware of the customs procedure, who told that there is a specific license, which is available. The opposite parties are law abiding citizen and they have no intention to mislead the complainants except under the new process of law, The 1^st opposite party states that the compensation sought in the complaint is an equitable and that the same cannot be granted in this case, because as stated supra by the opposite parties.

5) THE POINTS THAT ARISES FOR CONSIDERATION ARE AS FOLLOWS:-

1. Whether the opposite party committed any deficiency in service?
2. Whether the complainant is entitled for compensation from the opposite parties?
3. To what relief the complainant is entitled to?

6.POINT NO.1: 

              The admitted facts   on both sides are that the 2^nd complainant was working in Bahrain and he wanted to export Charcoal from India to Bahrain and therefore he came to India and discussed  with the opposite party M/s Sridhar Clearing and Forwarding (P) Ltd, Chennai  and its directors that to export charcoal to Bahrain and in pursuance of the same, the complainant manufactured this charcoal at his native place at Koradacheri, Thiruvarur District and nearly 23 tons and after that he transported 7 tons of charcoal to be stored at Pallavaram for the purpose of exporting to Bahrain and thereafter when the goods were shifted to the yard for the purpose of shipment and at that time, it was informed by the Customs Department, charcoal is a banned item and the same cannot be exported and therefore the Assistant Collector imposed fine and there after an appeal was filed and ordered  reducing the  fine amount. Later it was paid by the complainant and since the goods cannot be exported, the complainant sold all the charcoal items manufactured by him in the local market. The complainant would contend that the opposite parties have discussed with them  for export of the charcoal to Bahrain and obtained certain documents and when the materials reached the place of export the products of charcoal was detained as a prohibited item for export and the opposite party as a clearing agent ought to have well versed with all the rules and policies taken by the Government regarding export and import and they cannot plead ignorance of the same and further the opposite party ought to have   informed that the charcoal is the prohibited item for export, the complainant would not have been ventured in his business and also would not have sustained the loss and therefore the opposite party committed deficiency in service in not informing that the charcoal is a prohibited item for export and therefore the opposite parties are   liable to pay compensation. 

      7)  The opposite party rebutted the arguments and contended that the complainant is in possession of  the specific license u/s 148 of the Customs Act for export of charcoal to Bahrain and the complainant’s representative Mr. Varadharajan contacted the opposite parties during 2007, informed that they have obtained the specific license to export the charcoal to Bahrain and when the opposite parties asked Mr. Varadharajan to produce this specific license for export, he produced only IFC certificate which is not a specific license and further there is a communication gap between the complainant and the opposite parties that they have not clearly discussed about the export of charcoal and therefore only at the fault lies with  the complainant by non-production  of   specific license for the export of the charcoal, these goods were detained and for which the opposite parties is no way liable.

          8)Ex.A.1 to A.4 and Ex.A.8 to A.12 are E.mail communications between the complainant and the opposite parties. Ex.A.17 is the lawyer’s notice issued on behalf of the complainant which was duly acknowledged by the opposite party under Ex.A.18 acknowledgement. The perusal of E.mail communications reveals that the complainant and the opposite parties were discussed  in respect of export of charcoal  item from Chennai to Bahrain. The opposite parties specifically contended that they have not discussed that the item of charcoal is being exported to Bahrain. Ex.A.1 e.mail communication sent by the 2^nd opposite party Mr. M.S.Ramesh to the complainant’s men in which it has been specifically stated that, “As discussed with u regarding charcoal shipment to Bahrain”.

          9) The above communication, which clearly spells out that they have discussed about the charcoal shipment to Bahrain. Ex.A.1 established that the complainant and the opposite parties have discussed about the charcoal shipment to Bahrain i.e., export of charcoal to Bahrain. Therefore      the contention of the opposite parties are  that there is a communication gap and they  have not discussed about the item goods of charcoal had not been discussed for export cannot be accepted the other E.mails have  established modalities of  export.

               10)   The opposite party himself stated in his written argument in page 2 that on May 2007, the 2^nd complainant with his representative approached the opposite parties and discussed the methodology of exporting the coal from India to Bahrain and however no discussion took place for exporting  of charcoal. The opposite party admits that they have discussed during May 2007 with the complainant in respect of export of the coal, when the complainant came down and discussed for export of the coal, certainly he would have discuss with the opposite party about the specific items of export of charcoal. Further in the written argument stated on 25.9.2007, the bill raised by the opposite party for material taken up to the shipment in Chennai. The opposite party himself admits that the   bills raised  by them for the material taken up to the shipment in Chennai. Certainly at the time of raising the bill for shipment of the material, they would have come to know about the item of goods to be exported to Bahrain. Therefore the contention of the opposite party that they never discussed to the complainant about the materials to be exported cannot be sustained.

          11) According to the complainant, they hired the service of the opposite party who is the clearing and Forwarding (P) Ltd agency towards  export of the charcoal and they have also manufactured the charcoal at Koradacheri, Tiruvarur District and they brought a portion of the manufactured charcoal nearly 7 tons stored at pallavaram and moved  to the shipment place and the same was refused  , since it is a banned item. The opposite party as a Clearing and Forwarding (P) Ltd agency would have known the Rules and regulation and policy decision taken by the Government in respect of exports and imports. Since the opposite party is in the field of exporting goods to the foreign stores, as a agent, the party which hires the service have to advice which all are the goods that are exportable to the party who intend to export a particular goods. In this case also as early as on 6.7.2007, as per Ex.A.1 the complainant having discussed the opposite party discussed to export the charcoal manufactured by the complainant, if it is banned item ought to have informed them the same well in advance. Having sent number of E.mails   to the complainant  , the opposite party should have been vigilant, informing the complainant that the charcoal is a banned item. According to the opposite party, the complainant’s men Mr. Varadharajan informed them  that they have specific license for the export of the charcoal, however the same were denied by the complainant. Further there is no acceptable proof available that Mr.Varadharajan informed the opposite party that the complainants are having specific license to export the charcoal. Therefore in the above circumstances it  is clearly established that the complainant hired the service of the opposite party for exporting the charcoal from Chennai to Bahrain and the opposite party as a Clearing and Forwarding(P) Ltd agency who failed to inform the complainant that the charcoal is a banned item for export. As such the act of the opposite party and the failure to reply to  Ex.A.17 legal noticeit  all amounts to deficiency in service and accordingly  this point is answered.

12)POINT NO.2:

          It is fact that the Customs Authorities levied fine for attempting to export the banned item, then an appeal was preferred by the Deputy Customs Officer and the penalty was reduced from Rs.35,000/- to Rs.6000/-, after paying the fine, the complainant sold the manufactured  charcoal item in the local market, Since it cannot be exported and the amount derived thereby is a very less amount. Further according to the complainant for packing of materials storage expenses were paid on   both ends, interest paid to the bank, travelling expenses, compensation paid to overseas constituent and Revenue loss to the 2^nd complainant comes  to an extent of more than 23 lakhs and however he has restricted the claim for Rs.10 lakhs, the complainant issued a legal notice to the opposite party under Ex.A.17 and though it was duly acknowledged, they have not replied for the same. Since it is held in point No.1 that the opposite party has committed deficiency in service and as per the averment of the complainant, since the complainant sold the charcoal in the local he had also sustained certain loss, it would be appropriate that the opposite party can be directed to compensate the complainant’s for damages to the extent of Rs.7.5 lakhs would meet the ends of justice in the absence of bills which were sold in the open market.

13)POINT NO.3

          It is arrived in point No.1 & 2, that the opposite party committed deficiency in service and the complainant is entitled for compensation from the opposite parties on besides that it would be appropriate to order litigation expenses of Rs.2000/- payable by the opposite party to the complainant.

          14) In the result, the complaint is partly allowed and the opposite parties are jointly and severally liable to pay a compensation of Rs.7,50,000/-(Rupee Seven lakhs Fifty Thousand only) along with litigation expenses of Rs.2000/-( Rupees Two Thousand only) within two months from the date of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

          This order is dictated by me to the Steno-Typist transcribed and corrected

and pronounced by me on this 13^th day of October 2014.

MEMBER –I                               PRESIDENT                     MEMBER – II