O R D E R

SRI.D. KRISHNAPPA, PRESIDENT:

        The brief facts of the complaint filed by the complainant against the Ops are, that Op No.1 is in the business of International Air Cargo Transport who transports cargo to various destinations.   Op No.2 is the agent of Op No.1.   That he is engaged in the business as approved money exchangers and is governed by the Reserve Bank of India for its foreign exchange business and in the usual course of business, they sent foreign currencies to Royal Bank of Scotland, London by engaging the services of Ops.    That on 26/12/2009 they entrusted a valuable cargo to Ops to dispatch it to London which contained various foreign currencies worth Rs.6.5 Crore equalent to Rs.14,50,453 US Dollors and paid Rs.19,134/- towards freight charges.  That it was the understanding that the booked cargo should have been lifted on 27/12/2009 and he should have received telegraph realization on 29/12/2009.  But to his surprise they received telephone communications on 28/12/2009 at 3.00 PM. wherein Op No.2 informed him that the cargo has not been lifted and it was re-booked on 29/12/2009 flight and again on the same day at 3.00 PM, he received a call from Op No.2 informing that the cargo will not be lifted until 04/01/2010 due to reported holidays at London.  That foreign currencies booked were subject to variation in the value more frequently.  As the cargo was lifted on 04/01/2010 and was got realized on 05/01/2010 he lost interest for 7 days amounting to Rs.1,99,162/- and because of the reduction in the value of the money he suffered loss of Rs.7,40,452/- and thereby in all he suffered loss of Rs.9,39,614/- and the Ops therefore further are liable to pay interest on that loss @ 18% amounting to Rs.1.00 lakh and thus attributing deficiency in the service of Ops have prayed for awarding compensation of Rs.11,85,614/-.

          2. Op No.2 who is duly served with the notice of this complaint has remained absent is set ex-parte.   Op No.1 has appeared through his counsel and filed version contending that complaint is not maintainable.   That authorization issued in favour of the complainant to file the complaint is vague and that Opponents are engaged in commercial activities, as such, the complaint would not fall U/S 2(d) of Consumer Protection Act.   The first Op admitted to had accepted valuable cargo of the complainant for transportation from Bangalore to London via Dubai on 26/12/2009 on payment of transportation charges.   That the complainant is aware of the special requirements of valuable cargo that is consignee has to confirm his willingness to receive cargo on arrival, as the important cargo of this nature cannot be stored as they are huge security risk and required to be collected immediately on arrival.   The complainant himself has admitted that they were informed that the cargo had not been shipped, as there had been no response from the consignee.   That the complainant was informed all this and they took steps to contact Royal Bank of Scotland to know as to why there was no response.   The Op referring to the worldwide practice in this regard has contended because of the above reason the cargo was not lifted on 26/12/2009 for want of confirmation from the consignee to lift the cargo immediately on arrival.   Further, that UK was closed for Christmas break on 25^th and 26^th of December was bank holidays and 27^th and 28^th were also holidays.  That the dates starting from 30/12/2009 to 04/01/2010 were declared as embargo period for transportation of valuable cargo to the UK and Europe as most of the offices and establishments like bank etc., were shut over the new year weekend.  Op further reiterated that above information was given to the complainant and no instructions were received by the shipper or the agent who forward the consignment. OP claiming to had lifted the cargo on 04/01/2010 and delivered on 5-1-2011 has by denying any deficiency at their end and their liability has prayed for dismissal of the complaint.

          3. In the course of enquiry into the complaint, the complainant and Vice-President of Op No.1 have filed their affidavit evidence reiterating what they have stated in their respective complaint and version.  The complainant along with the complaint has produced the authorization letter to file the complaint, copy of the invoice, freight pre-paid receipt, records of exchange rate of Reserve Bank of India, copy of the legal notice he got issued to the Op, copy of the reply sent by the Op to the legal notice.   Op has produced a copy of conditions of emirates cargo.   Complainant has filed a written statement in support of his case and counsel for the Op has filed his written arguments.   We have also heard them in brief and considered the records.

          4. On the above contentions, following points for determination arise.

1. Whether the complainant proves that the Op has caused deficiency in his service by causing delay in delivering of the booked cargo to the consignee?
2. To what relief the complainant is entitled to?

5. Our findings are as under:

Point No.1: In the negative

Point No.2: See the final order

REASONS

6. Answer on point No.1:  As we have noticed from the contentions of the rival parties, we find no dispute between them in this complaint having had booked a cargo containing Rs.6.5 Crore in terms of Indian Money in the form of US Dollars and other currencies to be transported and delivered to a consignee at London on 26/12/2009.  According to the complainant, the Ops who received the cargo on 26/12/2009 who should have lifted it on 27/12/2009 and he should have received telegraph message of the consignee realizing the amount on 29/12/2009. Thus according to the complainant, the cargo should have reached the consignee and he should have realized the telegraph realization on 29/12/2009.   But stated Ops lifted the cargo on 04/01/2010 and he received realization message on 05/01/2010 and thereby alleged that the Ops have caused 7 days delay in delivering the cargo.   As the result, he suffered loss as claimed in the complaint.

7. The first Op who is contesting the complainant has not disputed these facts and also the delay caused in the consignment reaching the consignee.   The first Op in the version has categorically stated that the cargo booked by the complainant was valuable cargo admittedly heavy cash it requires a special requirement wherein the consignee has to confirm his willingness to receive the cargo on arrival as it cannot be stored elsewhere even in the airport as it involves the security risk.  It is further contended by the Op as they did not receive confirmation from the consignee, stated to had attempted to contact the consignee about shipping the cargo but they did not get any response.   Therefore, stated they did not ship the cargo and informed the agent of the complainant at all time giving reasons for not shipping the cargo.  It is further narrated by the first Op that UK was closed for Christmas break on 25^th and 26^th of December 2009 and 27^th and 28^th were holidays.   That the UK and Europe had declared as embargo period for transportation of valuable cargo as most of their offices, bank etc., were shut down due to weekend year.   Therefore, they lifted the cargo on 04/01/2010.

8. The complainant in Para 6 of his complaint and also in his affidavit evidence has admitted that on 28/12/2009 at 3.00 PM,  Op No.2 informed him telephonically that the cargo has not been lifted and it was re-booked on 29/12/2009 and again he received a call from Op No.2 on the same day that the cargo will not be lifted until 04/01/2010.   By this the complainant himself has submitted to this forum that on booking cargo with the Ops on 26/12/2009 it should have been lifted on 27/12/2009. Complainant has admitted that on 28/12/2009 he received message from Op No.2 that because of reported holidays at London they cannot lift the cargo until 04/01/2010.   Even to a legal notice that the complainant had sent on 30/09/2010, Ops gave reply on 13/10/2010 reiterating the same reason for not lifting the cargo until 04/01/2010.  In this reply, Op has specifically mentioned about Christmas holidays and that UK had on account of Christmas had imposed embargo on import of valuable cargo.  The complainant at no stage did dispute the reason given by the Ops in their reply to the legal notice regarding reason  for delay, kept quite but has now come up with this complaint.   Even in the complaint, the complainant has referred to the reasons given by the Ops for having not lifted the cargo till 04/01/2010.   The complainant has not at all raised his voice against the reasons given by the Op about his inability to lift the cargo. What we mean to say here is if the statement of Op No.1 regarding holidays in UK on account of Christmas and embargo imposed in sending the cargo is false, the complainant could have denied the said statement and called upon Op No.1 to prove the same.  The complainant who received telephone message from Op No.2 on 28/12/2009 itself could have cross checked about correctness of the statement of Op No.2 regarding holidays in UK and embargo to send cargo with the concerned authorities and could have even given instruction to the Ops either to return the cargo to them so as to make their own arrangements to send through other agencies or given instructions as to what the Ops to follow, but did nothing.   Further reason of the Ops that the cargo booked was of a special nature requiring extra care, that during the holidays the valuable cargo could not be kept or stored any where for want of security and that could not be secured even in the airports which involve risk and therefore could not be lifted is not rebutted. The further contention of the first OP that without the confirmation of the consignee, that he will receive the cargo on arrival also stand to the reason.  Again this aspect has not been denied or controverted by the complainant.   The complainant who has filed his affidavit evidence after filing of the version by the Op has not at all made any attempt to traverse these reasons assigned by the Ops.   When such constraints were explained by the Ops regarding shipment of this kind of cargo, the complainant deemed to have accepted the reason and thereby kept silent even by allowing the Ops to lift the cargo on 04/01/2010.  If the complainant had not agreed for such a delay, he should have on 28/12/2009 itself instruct the Ops to do whatever the other course available to lift the cargo.  When the complainant did not suggest the next alternative he presumed to had accepted the reasons for the delay and aged for lifting the cargo on 04/01/2010. Ops finding no instructions from the complainant and having informed the complainant well in advance, after the period of embargo was over lifted the cargo and delivered it to the consignee on the next date, which cannot be under any stretch of imagination be held as deficient service.   We for these reasons hold that the complaint lacks merit and is liable to be dismissed.   As the result, we answer point No.1 in the negative and pass the following order.

O R  D  E  R

          Complaint is dismissed.

          Parties to bear their own cost.