Date of Filing: 05.01.2017

                                                                                        Date of Order: 14.08.2018                                                                                                                                                                                                                                                                                                                                                                                                                                                    

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

HON’BLE Sri P.Vijender, B.Sc. L.L.B.  PRESIDENT.

HON’BLE Smt. Kasturi, B.Com., LLM., MEMBER.

Tuesday, the 14^th day of August, 2018

C.C.No.212/2011

Between

M/s. Vishnu Chemicals Ltd.,

Having its regd. Office a 6-3-662/B/4,

Sri Sai Nilayam, Sangeeth Nagar Colony,

Somajiguda, Hyderabad – 500082, rep. by

It’s authorized signatory Mr. G.V. Subba Rao                                ……COMPLAINANT

And

1. M/s. DHL (India) Express Pvt., Ltd.,

Padmarao Nagar,

Near Boiguda Petrol Pump,

Secunderabad -500025, rep. by

Authorized signatory / Branch Manager,

Muralidharan.

2. M/s. DHL (India) Express Pvt., Ltd.,

8^th Floor, Dheeraj Arma,

AK Marg, Next to Bandra Court,

Bandra (E), Mumbai – 400051, rep. by

Authorized signatory / Director

R.S. Subramanian

3. M/s. SSS Xpress,

1-8-502, Viquar Nagar Colony,

Pattiguda Road, Begumpet,

Secunderabad – 500038, rep. by

Authorized signatory / Director

G.K. Saitsh,

4. M/s. Early Bird Services,

S.R.T. 720, Sanath Nagar,

Hyderabad -500018, rep. by

Authorized signatory / Proprietor

G.S. Kamal Kiran                                                          …..OPPOSITE PARTIES

Counsel for the complainant      :  M/s. Sri P.Surya Prakasha Rao & Company

Counsel for the Opposite Parties :  Notice served O.P.No.1 & 2

                                                              : called absent O.P.No.3 & 4       

O R D E R

(By Hon’ble Sri P.Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint is preferred under Section 12 of C.P. Act of 1986 alleging deficiency of services by the Opposite Parties and in consequences of it prayer for refund of the value of the goods of it lost and compensation of Rs.4,50,000/- for causing mental agony and harassment on account of deficiency of service and the amount of Rs.10,00,000/-  estimated loss of one crore in the business due to loss of goods and the costs of this complaint at Rs.10,000/-.     

1. The complainant case in brief is, the complainant is a Public Limited Company engaged in the Research and Development manufacturing and Marketing of inorganic chemicals and API Products by exporting the same to different countries all over India.  In the course of it’s business it had received an order from M/s. Asinex Ltd., Moscow, Russia, PO Number-0103, for one (1) Kg. of 6-Methylene-(1,4) diazepane-1-4-dicarboxylic acid 1-benzyl Easter 4-tert-buty 1 Easter, to be delivered to M/s. Asinex Europe B.V.Rijswijk, Netherlands.  The said chemicals are valued at US $ 6000 and in Indian currency Rs.2,84,400/-.   The complainant has chosen Opposite Party No.1 which is having worldwide reputation in Cargo services. The Opposite Party No.3 booked up the said consignment from Opposite Party No.4 who is agent of Opposite Party No.3 on behalf of the Opposite Party Nos. 1 & 2.  The said shipment was booked by Opposite Party No.1 vide shipment Air Way Bill No.1036577533.  Ever since the shipment of the material the complainant has been following up with the Opposite Party Nos.2 & 3 continuously about its delivery but there was no reply as a result the complainant was in a state of utter confusion and tension.  The said shipment was to be received by 18.01.2009 failing which the efforts of the complainant in in getting the purchase of order for supplying the material and earning the business worth One Crore on an approval of material in the given time would be futile.     
2.       Inspite of complainant’s fallow up action with Opposite Party Nos.1 to 4 there was no sufficient of reply and in the meanwhile, receiver of the shipment informed the complainant that since the trial order of the chemicals was not delivered to it by 18.01.2009 as required the purchase order stands cancelled.  Thus, the failure of Opposite Party Nos.1 to 4 to deliver the shipment to receiver in time has resulted business loss of Rs.One Crore to the complainant.  The Opposite Party Nos.1 to 4 by their sheer negligence and carelessness in rendering the services have caused immense loss to the complainant.  The man power involved and for manufacturing the said chemicals and the cost of it comes to Rs.2,84,400/- and monetary value spent was Rs.4,50,000/- approximately.  Hence, the complainant caused a legal notice to Opposite Party Nos.1 and 4 on 09.03.2009.  the Opposite Party Nos.1 to 4 for receiving the sale have sent reply on 26.03.2009 restricting his liability to a nominal amount whereas, the notice sent to opposite party No.3 was returned unserved.  Thereafter also the complainant followed up with the Opposite Parties on phone and during the course of it Opposite Party Nos.1 and 4 have assured that, they have been continuously trying to locate the shipment and requested the complainant to restrain from initiating proceedings.  The complainant got issued another legal notice on 23.08.2010 repeating the claim but the Opposite parties dodged the issue and finally failed to resolve it.  Hence, the present complaint.    
3.             The Opposite Party Nos.3 & 4 having received the notice in the complaint did not chose to contest it.  The Opposite Party Nos.1 & 2 filed a common written version contending that they have no privity of contract, with complaint and to the Opposite Party No.3 is an account customer and is based on airway bill by virtue of which the consignment was accepted by Opposite Party No.1 from Opposite Party No.3.  Document No.8 filed by the complainant is only a in house airway bill generated by the Opposite Party Nos.1 & 2 during the course of transaction subsequent to the entrustment of the consignment Opposite Party No.3 is free to put up it’s claim against Opposite Party No.1 to the extent of it’s liability as shown in the airway bill.  The Opposite Party No.3 having acknowledged the airway bill accepted terms and conditions of carriage printed on it as such it is a valid contract between the Opposite Party Nos.1 & 3.  No liability / shortfall of Opposite Party Nos.3 & 4 vis-à-vis the complainant can be fixed since there is no privity of contract between the complainant and Opposite Party Nos.1 & 2. 
4.             The subject contract of carriage is governed by the provisions of limited liability as prescribed under article -22 of WARSAW Convention and Article to Carriage for Goods by Air Act.  The shipment was accepted by Opposite Party Nos.1 & 2 as against the Opposite Party No.3 under the said airway bill is limited and subject to the internationally accepted stipulations under the Warsaw Convention and the contractual exclusions mentioned overleaf the Airway Bill.  It is prominently mentioned under the heading “Notice concerning carriers” that every shipment is transported on a limited liability basis as provided in the airway way bill.  Under the clause of the agreed terms the liability of Opposite Party Nos.1 & 2 for loss of value to the shipment is limited to the actual cash value and shall not exceed the greater of U.S. $ 100 with regard to commercial utility or special value of the shipment to the consignor.  In the case of DHL Vs. Bharat Knitting Co., the Hon’ble National Consumer Disputes Redressal Commission held that “the clause relating to the limit of liability is binding on the parties and the same was upheld by the Hon’ble supreme court of India reported in AIR 1996, Page No. 2508.”  Hence, even if the complainant could establish damage’s the maximum liability of Opposite Party Nos.1 & 2 is limited to U.S. $ 100.  Damages for consequential losses cannot be claimed against Opposite Party Nos.1 & 2.  Similarly, the amounts claimed as damages and compensation is not recoverable under the terms and conditions on which the consignment was accepted by Opposite Party Nos.1 & 2.  Under condition 8, under the heading “Shipment Insurance” it is stated that Opposite Party No.1 can arrange insurance cover for the consignment on the request of the shipper in order to protect its interest in all unforeseen events.  It is obligatory on the part of concerned parties to obtain an insurance coverage for the consignment.  The complainant was not diligent to obtain an insurance coverage which is available at a nominal charge. 
5.             Even according to the complaint averments complainant had entrusted the consignment to Opposite Party No.4 who said to have been a picked up from Opposite Party No.3. The claim of the complainant that the Opposite Party No.3 picked up the consignment from Opposite Party No.4 on behalf of Opposite Party Nos. 1 & 2 is absolutely false.  The complainant failed to produce the copy of the airway bill by virtue of which consignment was entrusted to Opposite Party No.4 M/s. Asinex Co., Ltd. It was covered by terms and conditions mentioned on the back of document No.4.  The clause-2 of the said terms and conditions says the liability arises with the deliver to the party and Clause No.5 says the consignment is dispatched at the buyer’s risk.  Clause No.8 says unless goods are covered by insurance carrier will not be responsible for any type of transit loss.  The Opposite party No.1 has not given any undertaking to deliver the consignment within a stipulated time.  Hence, the cancellation of the order by the purchaser of the material and consequence loss as alleged to consignor is not tenable.  The Opposite Party Nos.1 & 2 had responded to the Opposite Party No.3 in a prompt fashion consequent to the notice got issued by the complainant.  Infact, absolutely there is no merit in the notice got issued by the complainant and Opposite Party No.1 gave a proper reply.  Absolutely there is no deficiency of service on the part of the Opposite Party Nos.1 & 2.  Hence, the complainant is not entitled for any of the reliefs claimed in the complaint.  The complaint is also barred by limitation and liable to be dismissed with costs.                     
6.             In enquiry stage the evidence affidavit from G.V.Subba Rao stated to be Assistant Manager of Complainant’s Company is got filed and through him the complainant got exhibited 38 documents.  Similarly, on behalf of the Opposite Party No.1 evidence affidavit of one Mr. Ankeet Rane stated to be Assistant Manager, Legal has been and no document is exhibited through him. 
7.             After hearing the arguments and considering the material on the record this Forum had allowed the complaint against Opposite Party Nos.1 & 2 and directed them to pay amount equivalent to US $ 6000 for untraceable consignment and also to pay Rs.2,00,000/- as compensation for mental agony, hardship and towards litigation charges.  Aggrieved by the said orders Opposite Party Nos.1 & 2 have carried the matter in Appeal before the Hon’ble State Consumer Disputes Redressal Commission in F.A.No.486/2013 and same was allowed and matter was remitting back this Forum for a fresh disposal by considering the observations made.  After remand of the complainant neither of the parties filed any further evidence infact, Opposite Party Nos.1 & 2 did not chose to make an appearance and only the counsel of complainant appeared and filed written arguments reiterating earlier version.
8.               Hon’ble State Consumer Disputes Redressal Commission while allowing the appeal observed that this Forum totally ignored the defence of Opposite Party Nos.1 & 2 that their liability if any is only to the extent of not exceeding US $ 100 in favour of the Clause-6 of agreed terms and conditions mentioned in airway bill and article -2 carriage goods by air Act which was considered by the Apext court in the decision of the Hon’ble Supreme court in Bharathi knitting Company Vs.DHL Worldwide Express courier Division of Airfreight Ltd., 1996 CPJ (SC) 225 (AIR 1996 SC 2508).
9.             It is further observed by the Hon’ble State Commission that this Forum also has ignored the alternative defense set up by Opposite Party Nos.1 & 2 that claim is barred by limitation.
10.  On a consideration of material on the record the following points have fallen for consideration: 

1. Whether the complaint is barred by limitation ?
2. Whether there is any privity of contract between the complainant and Opposite Party Nos.1 & 2 ?
3. Whether there is any deficiency of service on the part of the Opposite Party Nos.3 & 4 to the complainant if there is no privity of contract between the complainant and Opposite Party Nos.1 & 2 the complainant is entitled for claim and if so against whom ?
4. To what relief,

11.  Point No.1: According to the complainant itself the Opposite Party No.4 is an agent of Opposite Party No.3 who was to pick up the consignment from Opposite Party No.4.  The complainant booked up consignment on 15.01.2009 and Opposite Party No.3 picked up the said consignment from Opposite Party No.4 on behalf of the Opposite Party Nos.1 & 2.  The said shipment was booked by Opposite Party No.1 by Airway Bill No.1036577533 on 15.01.2001.  Ex.A8 is the airway bill for booking of the consignment of the Opposite Party No.1 to deliver the same to the purchaser of the material.  This airway bill was issued by Opposite Party No.4.  It is specific case of the Opposite Party Nos.1 & 2 that the Opposite Party No.3 is the account customer of Opposite Party No.1 and by virtue of airway bill the consignment was accepted by Opposite Party No.1 from Opposite Party No.3. According to Opposite Party Nos.1 & 2 airway bill was generated by Opposite Party No.1 during the course of transaction subsequent to the entrustment of the consignment by Opposite Party No.3.  This aspect is neither denied nor disputed by the complainant.  The airway bill marked as Ex.A8 contains terms and conditions and it is concluded contract between the Opposite Party Nos.1 & 3 and the complainant is not a party to it.  So it is crystal clear that the contract for shipment of material was between the complainant and Opposite Party Nos.3 & 4 and in turn Opposite Party No.3 entrusted the same to Opposite Party No.1.  It would go to show that there is no privity of contract directly between the Opposite Party Nos.1 & 2. The complainant for loss of shipment Opposite Party Nos.3 can put up claim against Opposite Party Nos.1 and 3.  Similarly, the complainant can file his claim against Opposite Party No.3 but not Opposite Party No.1 and 2.  The complainant has not filed even a scrap of paper to show that there exist a privity of contract between him and Opposite Party Nos.1 & 2.  As rightly contended by Opposite Party Nos. 1 & 2 in absence of the privity of contract by the complainant the complainant cannot be maintained this complaint against Opposite Party Nos.1 & 2.
12. Point No.2 & 3 : The documentary evidence available on record shows that the purchase order for supply of material for delivery at Netherlands and complainant entrusted the material to Opposite Party No.4 a picked up as an agent of Opposite Party No.3 and in turn it was collected by Opposite Party No.3 and entrusted the same for shipment.  So there are two contracts one is between the complainant and Opposite Party No.3 and other is between the Opposite Party No.3 and Opposite Party Nos.1 & 2 and both these are independent one.  Admittedly as on the date of complainant the shipment was not traced out and it is responsibility of Opposite Party No.3 to find out the shipment.  It was to be delivered to the purchaser at delivery point which has not happened.  As such the complainant is entitled for the loss of goods which includes the man hours spent and also compensation for causing mental agony to him by Opposite Party No.3 and 4 who agreed to undertake to deliver the shipment to the purchaser but failed and there is deficiency of service on the part of the Opposite Party Nos.3 & 4 to the complainant.  Accordingly the points are answered.   
13. Point No.4     In the result, the complaint is allowed against the Opposite Party Nos. 3 & 4 directing them to pay an amount of Rs.2,84,000/- being the value of the goods with interest @18% p.a., from the date of entrustment of material i.e., 15.09.2009 to the date of payment.   Opposite Party Nos.3 & 4 to pay a further sum of Rs.2,00,000/- as compensation to the complainant having caused sufferance by causing deficiency of service and also to pay Rs.10,000/- towards costs of this complaint. 

          The Opposite Party Nos.3 & 4 shall pay the compensation of Rs.2,00,000/- within two months from the date of service of this order otherwise liable to pay interest @ 12% p.a., from the date of complaint to till the date of payment.

           Time for compliance is four weeks from the date of service of this order.

             Typed by Typist, corrected and pronounced by us on this the   ^h day of August, 2018.

MEMBER                                                                                           PRESIDENT

APPENDIX OF EVIDENCE

 PW1                                                                                         DW1

Mr.G.V.Subba Rao                                                      Mr.Ankeet Rane, 

                                                                                      Assistant Legal Manager, Legal,

                                                                                      OP.No.1

Exs. filed on behalf of the Complainant:

Ex.A1 is copy of Certificate of Incorporation.

Ex.A2 is copy of Resolution, dt.24.01.2008.

Ex.A3 is copy of Purchase order dt.29.08.2008.

Ex.A4 is copy of Invoice dt.15.01.2009.

Ex.A5 is copy of Invoice, dt.15.01.2009.

Ex.A6 is copy of Invoice, dt.31.01.2009.

Ex.A7 is copy of APJ Journal Voucher.

Ex.A8 is copy of HAWB Bill No.10365777533, DHL Express to complaint, dt.15.01.2009.

Ex.A9 is copy of Shipping Bill, Customs Department, dt.16.01.2009.

Ex.A10  to Ex.A22 is copy of e-mails in various dates.

Ex.A23 is copy of Legal Notice, dt.09.03.2009.

Ex.A24 to Ex.A26 is copy of Postal receipts.

Ex.A27 is copy of Acknowledgment.

Ex.A28 is copy of Acknowledgment.

Ex.A29 is copy of Return Regd. Postal cover.

Ex.A30 is copy of Reply Legal Notice, dt.26.03.2007.

Ex.A31 is copy of Legal Notice, dt.23.08.2009.

Ex.A32 to Ex.A35 is copy of Postal receipts.

Ex.A37 is copy of Acknowledgment.

Ex.A38 is copy of Return Regd. Postal cover.

Exs filed on behalf of the Opposite parties

Nil.

MEMBER                                                                                           PRESIDENT