BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

09^TH DAY OF NOVEMBER 2015

O R D E R

SRI.P.V.SINGRI, PRESIDENT

This complaint is filed by the complainant under Section 12 of Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to pay him a sum of Rs.4,78,300/- towards the extra money spent by the complainant, Rs.60,000/- spent by the complainant towards purchasing household effects, Rs.5,00,000/- towards compensation for deficiency in service together with Rs.50,000/- towards cost of litigation.   

2.  The brief averments made in the complaint are as under:

The complainant approached Agarwal Packers & Movers (Herein after referred to as APM) for shipping his house hold effects from his Bangalore residence to Abuja in Nigeria where the complainant was relocating on account of change of work.  The complainant solicited a quotation from APM for packing, shipping and delivery of all the house hold effects.  The complainant after negotiation of rates agreed to engage the OPs services for shipping his household effects.  Though the quotation was received from APM, the contract for shipping household effects consignment from India to Port of Lagos, Nigeria and delivery, unpacking at the destination at Abuja mentioned by the complainant was executed with DRS Dilip Roadlines Private Limited (Herein after referred to as DRS) which is part of the DRS Group.  Upon the receipt of a second quotation from APM by email on 11.07.2013 an amount of Rs.3,68,000/- excluding service charge 10% and service Tax of 3.09% was verbally accepted for the complete consignment under express inclusion of unpacking at destination. Insurance of 3% of the present value of goods was payable separately.  Based on instructions received from DRS/APM a total of Rs.4,33,420/-  including Rs.44,049/- for insurance was paid in three instalments through cheque and vide bank transfer on 19.07.2013 and on 03.09.2013. The complainant cleared the payments for the contract of shipment in three instalments.  On the instruction of DRS/APM the first two payments were made to DRS while the third and final payment was made to APM.   

3. The household effects were packed by the OPs between 17^th and 19^th of July 2013.  Fourteen(14) large size painting (4x3 and 4x4 feet) were packed in cardboard.  It was informed to the complainant by the OPs that the cardboard packing would only be temporary in order to facilitate customs inspection after which they would be secured in a wooden crate to prevent damage as agreed during inspection and enshrined in the quotation.  A “Consignor Copy” was signed by the complainant and the OPs on 19.07.2013, constituting the contract and specifying in hand writing.  The previously agreed clause “unpacking from APM” (at complainant’s house in Nigeria) by the OPs.  The OPs conveyed orally that the door to door delivery would require about 40 days after customs clearance from the day of shipment.  That the OPs on 20.07.2013 loaded all 140 items constituting the entire household effects including the large paintings from the complainant’s house at Bangalore. On 23.07.2013 the complainant left India and reached Abuja, Nigeria on 24.07.2013. 

4. The complainant received written information from the OPs on 24.07.2013 that the consignment was expected to reach Port of Lagos on 16.09.2013.  On 28.08.2013 the complainant received “BILL OF LADING” dated 06.08.2013.  From that date complainant tried his best to have one person from the OPs office in India as contact point to clarify mounting delay and to address all the issues related to transferring and clearing the goods from the customs authority at Port of Lagos.  The complainant was expecting households to arrive at Port of Lagos on or around 16.08.2013.  This date was shifted to 24.08.2013 without any explanation and later the date was even shifted to 04.10.2013.  The complainant household effects were shipped from India to Port of Lagos, Nigeria.  The complainant after repeated and constant requests was provided with information of clearing agent for OPs at Port of Lagos.  That according to clearing agent who approached the complainant on 08.10.2013, the consignment of the complainant had reached Port of Lagos on 5.10.2013 while the OPs neither intimated the arrival nor confirmed their clearing agent, until 11.10.2013 upon repeated  enquiries from the complainant.  Finally, the OPs confirmed “Conote Services Limited” as clearing Agent (herein after referred as Clearing Agent) vide email dated 11.10.2013.

5. According to the clearing agent appointed by the OPs, the clearing agent is to be intimated by the OPs upon launch at the Port of origin to enable necessary preparations for liaising with the complainant and completion of the documentation to facilitate customs clearance immediately upon arrival at destination.  This information ought to have been provided latest 2 weeks prior to arrival of the consignment at port.  That the complainant was informed about the preparation of necessary documents to clear the consignment from the Port of Lagos only after a week of the arrival of the consignment.  The clearing agent informed the complainant that the complainant needed to furnish his original passport, residential card and the tax identification number (TIN) to obtain customs clearance in the Port of Lagos.  However, the complainant’s original passport was submitted to the Nigerian Immigration services on 01.08.2013 for issue of residential card and was not received by then.  Immediately after receiving the information from the clearing agent the complainant approached his employer to request Nigerian Immigration Services to issue residence card and to return the passport while also applying for the required TIN.  The complainant was forced into a bottle neck scenario because of the ignorance by OPs. 

6. That on 21.10.2013 the complainant’s employer secured the complainant’s passport from Immigration Authority and produce the same before the clearing agent of the OPs.  That the employer also issued letter to the Nigerian Customs Services requesting the clearance of the consignment without residence card as the same was still being processed.  However, on 08.11.2013 the clearing agent of the OPs vide e-mail informed that the clearance was successfully completed without the production of residence card, but the consignment could not be delivered unless it receives the due payment from the OPs from India through the shipping company Servile Relocations.  Further the clearing agent informed that the delay caused by non-payment and negligence of the OPs shall increase the demurrage charges, terminal handling charges and storage charges.  The complainant was also apprehensive that the container deposit charges was also liable to be paid since the complainant was asked to advance this although no such payment was envisaged in the contract entered between the complainant and the OPs. 

7.  That repeatedly contacted and requested the OPs to release the appropriate payment to the clearing agent and expedite the matter to release the consignment from the Port of Lagos.  Despite such repeated request the OPs unjustly and baselessly demanded additional charges to be borne by the complainant.  The OPs instead of taking steps to release the consignment asked the complainant vide their e-mail dated 13.11.2013 to prepare and send an authorisation letter to another company namely CAG Logistics (represented by POTA Global Logistics Pvt. Ltd) for having released the consignment.  The complainant was hesitant that he could not authorize two clearing agents for the same job and that the existing clearing agent would claim compensation.  That the clearing agent vide its e-mail dated 03.12.2013 copied to OPs conveyed that if the payment are not made in time, in another two weeks the luggage would be removed and taken to the government warehouse as unclaimed shipment and it would be auctioned off by a government appointed auctioneer.  

8.  That after continuous efforts by the complainant the OPs vide its email dated 06.12.2013 confirmed that they have wire transferred an amount of Rs.3,00,000/- to the clearing agent towards the release of consignment being fully aware that this payment would be clearly insufficient to release the consignment.  That the  complainant realizing the situation approached his counsel in India to cause a notice to OPs calling upon to release the balance amount immediately, so that the consignment shall be released.  However, the OPs replied to the complainant counsel that he had to bear the charges and that it would not release any further payments to its clearing agent.  That the complainant left with no option finally paid the clearing agent a sum of Rs.3,72,000/- which includes Rs.48,300/- for not producing the residential certificate and Rs.58,000/- towards refundable container deposit in all totalling to Rs.4,78,300/- .

9. That the consignment was released and delivered at the complainant residence at Nigeria.  While unpacking the complainant to his shock and surprise discovered the damage caused to three paintings and further that the OPs after clearing the customs procedure in India have failed to repack all the 14 large size paintings in a wooden crate to prevent damage as the complainant had been assured at the time of packing.  That the OPs are solely responsible for the sufferings of the complainant for the reasons that had the OPs notified the complainant regarding their destination partner/clearing agent timely in advance (minimum two weeks prior to arrival)  the complainant would have been able to retrieve his passport prior to arrival of the consignment to commence custom clearance.  The complainant would have been liable only to paying the penalty of Rs.48,300/- for non-production of residential certificate.  The OPs continuous failure to inform the complainant regarding their clearing agent details and pay the clearing agent dues has put the complainant into great financial hardship of paying huge amount which the complainant is not responsible for. That the complainant had tried to correspond with the OPs with over 50 number of email correspondences which was generally not taken heed by OPs but for certain sporadic but deliberately uninformative information.  The complainant was indeed surprised and dismayed that the lack of professional conduct more so since he had moved to a new country and delivery of his household effect was critical to setting up the home to lead a life of dignity and well-being.

10. That the negligence, deficiency in service, unfair trade practice and breach of contract and breach of trust by the OPs and all put together have caused to the complainant severe hardship, mental agony and suffering arising from the OPs acts of omission and commission related to the transaction which has been elaborated above.  That the complainant anticipated the delivery of the household effects within two months, however 4 ½ months passed to deliver the same.  Therefore, the complainant was left with no option other than to incur additional expenditure through purchase of essential household effects in Abuja such as a refrigerator, an array of kitchen, utensils, a gas stove, a dining table chairs and television.  Since the complainant has moved to the Nigeria on work, the hardship caused by this whole episode put complainant into severe mental harassment rendering him unable to concentrate on his newly assigned job as the security and release of consignment was caused immense anxiety.  That the complainant also on a regular basis had to spend time to follow up communicating with officials of OPs in India. Further, the complainant had spent considerable time in consultation with his legal advisors in India so as to seek remedy for his unjust treatment.  The absence of the household effects has over shadowed every aspect of the complainant’s work and life. That the OPs have been enormously negligent, deficient in service and guilty of unfair trade practice and breach of contract by not performing the obligation on their part while the complainant had fulfilled his part of the contract by remitting full payment.  Hence, the complainant left with on other efficacious remedy has approached this Forum for redressal and compensation from the OPs.

11. For the aforesaid reasons complainant prays for an order directing the OPs to pay him a sum of Rs.4,78,300/- paid by him to the clearing agent at Port of Lagos at Nigeria including the container deposit and penalty of Rs.48,300/- for not producing residential certificate, Rs.60,000/- spent by the complainant on purchasing the new household effects to lead decent life before the consignment was released and a compensation of Rs.5,00,000/- for deficiency in service and unfair trade practice on the part of the OPs together with litigation cost of Rs.50,000/-.

12. Despite service of notice OP 3 & 4 remained absent and placed exparte.  In response to the notice issued officials of OP 1 & 2 appeared before the Forum, but failed to file version and contest the complaint.

13. The complainant thereafter called upon to file his affidavit evidence in lieu of the oral evidence.  The same came to be filed together with documents.  Written arguments are also submitted on behalf of the complainant.

14.  Heard the arguments and perused the allegations made in the complaint as well as various documents produced along with complaint as well as affidavit evidence.

15. The present complaint came to be filed by the complainant through his power of attorney holder Mr.Debanjan Banerjee.  The copy of General Power of Attorney executed by the complainant is produced at Annexure-1.  In the sworn testimony of the complainant the allegations made in the complaint are reiterated.  To substantiate the allegations made in the complaint as well as sworn testimony the complainant has produced the copy of the relevant documents.  The Annexure-2 is copy of the quotation dated 02.03.2013 issued by           OP-1 according to which the total amount agreed for the shipment of the household effects belonging to the complainant is Rs.3,68,000/-. The insurance on door to door service is 3% on the value of the household effects, service charges at 10% and service tax at 3.09%.  The special contract executed by the complainant is at Annexure-3.  The complainant has also produced the receipt issued by OPs for having received a sum of Rs.2,29,049/- on 19.07.2013, Rs.10,000/- on 15.07.2013 by way of cheque and Rs.1,94,371/- vide Bank transfer on 03.09.2013, in favour of OP-1.

16. As agreed between the parties the household effects of the complainant have been packed by the OPs between 17.07.2013 and 19.07.2013 and a consignor copy has been signed by both the complainant and the OPs on 19.07.2013 constituting the contract and specified in handwriting. The previously agreed clause of unpacking of household effects by APM at the house of complainant in Nigeria.  The material placed on record goes to show that the OPs agreed for door to door delivery of the consignment and promised that the consignment would be reaching the complainant in a span of 40 days from the date of despatch from India.  The consignor copy is at annexure-5.  As could be seen from the material placed on record the consignment has been loaded on 20.07.2013 and as per the promise made by the OPs the complainant was to receive the consignment at Port of Lagos in Nigeria on and around 16.09.2013.  The complainant had received the Bill of Lading on 16.08.2013 the copy of which is at Annexure-6. However, the consignment despatched by the OPs has not reached the destination neither around 16.09.2013 nor thereafter within a reasonable period.  Infact the consignment had reached the Port of Lagos at Nigeria on 05.10.2013, after a lapse of nearly 4 ½ months. There is no explanation from the OPs for the enormous delay of reaching the consignment at Port of Lagos in Nigeria. 

17.  From the various emails sent by complainant, the copies of which are produced, show that the complainant was continuously following with the OPs regarding the non-receipt of the consignment at Port of Lagos within stipulated period.  The copies of the emails sent by the OPs did not contain any plausible explanations for the abnormal delay.  Moreover, at no point of time the OPs have provided any satisfactory explanations to the complainant for the anxiety shown by him in inordinate delay in getting the consignment.  Furthermore the complainant has also not been informed atleast two weeks in advance as to the date of arrival of the consignment at Port of Lagos.  As a result of which the complainant could not beep himself ready with his passport and residential card so as to enable him to get release the consignment.  The OPs further have not informed as to who is their clearing agent at Port of Lagos.  The complainant was made to spend huge time to know as to who is clearing agent.  It is the duty of the OPs to keep informed the complainant in advance as to name and address of their clearing agent who would be helping in getting consignment released at an early date.  The material placed on record goes to show that the OPs have not released the requested amount to the clearing agent for early release of the consignment, despite repeated request made by the complainant.  Furthermore the complainant though assured no breach of agreement between himself and the OPs was made to shell out a sum of 9,63,080/- Nigerian Naira, approximately Rs.3,72,000/- to the clearing agent.  Under the agreement between himself and the OPs the complainant was not supposed to pay any money to the clearing agent at Port of Lagos.  However, he was made to pay the above said money to clearing agent.  The complainant who was in urgent need of household effects was forced to pay the said amount to the clearing agent though he was not required to pay the same, under the contract with the OPs.  Since, complainant was not informed in advance regarding the arrival of the consignment at Port of Lagos he was not ready with residential card, as a result of which he was made to pay penalty of 1,25,000 Nigerian Naira approximately Rs.48,300/-. The complainant was made to pay penalty of Rs.48,300/- only because of the laxity on the part of the OPs in informing the complainant about the arrival of the consignment at Port of Lagos.  Had they informed the complainant atleast two weeks in advance the complainant would have been ready with his passport and residential card for getting the consignment released.

18. Though the consignment had arrived at Port of Lagos on 05.10.2013 the consignment was released only in the third week of the December.  This delay is certainly due to the deficiency in service on the part of the OPs and also because of the unfair trade practice.  Furthermor, because of their negligence three large size paintings of the complainant were delivered in a damaged condition.  This is because of the OPs failed to pack the said paintings in wooden carte which was assured to complainant at the time of packing.  The various omission and commission on the part of the OPs must have put the complainant to serious mental agony, hardship. Because of delay in getting his household effects on time the complainant was made to spend huge money in purchasing the basic household effects to lead a decent life till receipt of the consignment. 

19. We do not find any reasons to disbelieve the sworn testimony of the complainant.  The OPs failed to appear and contest the claim of the complainant.  We do not find any reasons to disbelieve the allegations made in the complaint.  The allegations made in the complaint as well as sworn testimony goes to establish the negligence, deficiency in service, unfair trade practice on the part of the OPs.  Certainly this must have caused serious hardship, mental agony and waste of his precious time in following up the matter.  Therefore, the OPs have to be directed to pay compensation to the complainant.  The OPs have to be directed to pay a sum of Rs.3,72,000/- which the complainant has paid to the clearing agent at Port of Lagos at Nigeria though he was not required to pay. The OPs have to be directed to pay a sum of Rs.48,300/- as penalty for incomplete documentation which the complainant was made to pay, due to negligence on the part of the OPs in not informing the complainant in advance regarding the arrival of the consignment at Port of Lagos. The complainant is not entitled to refundable container of consignment of Rs.58,000/- which he would have received by this time, from the concerned authority.  Though the complainant has not produced the receipt for having purchased some necessary household effects due to the delay in receiving the consignment in question, we feel it appropriate to award him Rs.30,000/- towards the said account.  In view of the gross deficiency in service on the part of the OPs, negligence, unfair trade practice, breach of contract, we feel it appropriate to award a compensation of Rs.2,50,000/- to the complainant to be paid by the OPs  together with litigation cost of Rs.4,000/-. 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                20. The order could not be passed within the stipulated time due to heavy pendency. In the result we proceed to pass the following:-

                             O R D E R

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act, 1986 is allowed in part.

2. The OPs are jointly and severally directed to pay a sum of Rs.4,50,300/- to the complainant within six weeks from the date of this order, in default to pay the said amount together with interest at 12% per annum till the date of realization.

3.  The OPs are jointly and severally liable to pay compensation of Rs.2,50,000/- to the complainant together with litigation cost of Rs.4,000/-.  

4. The OPs shall comply the order of this Forum within a period of six weeks from today.

5. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 09^th day of November 2015)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

C.C.No.594/2014

Witness examined on behalf of the complainant dated 26.11.2014

1. Mr.Debanjan Banerjee, GPA Holder

Witnesses examined on behalf of the OPs-Nil

MEMBER                               MEMBER                              PRESIDENT