Tamil Nadu

South Chennai

CC/436/2006

Nisra Tex Exports P.Ltd., - Complainant(s)

Versus

Omega Globe majestic P. Ltd.,, - Opp.Party(s)

M/s. Sarvabhauman Associates

27 May 2016

ORDER

                                                                        Date of Filing :  06.06.2006

                                                                        Date of Order :  27.05.2016.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

           DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.436/2006

FRIDAY THIS  27^TH  DAY OF MAY 2016

 

M/s. Nisra Tex Exports Private Ltd.,

Rep. by its Director,

Mr.Sudhir Lulla,

No.61, New Thillai Nagar,

P.N. Pudur,

Coimbatore 641 041.                                            ..Complainant

 

                                      ..Vs..

M/s. Omega Globe Majestic Pvt. Ltd.,

(Formerly Omega Forwarders P. Ltd.,

201 – 204, Prestige Point,

2^nd Floor, 33 Haddows Road,

Nungabakkam,

Chennai 600 006.                                                 ..Opposite party  

 

 

For the Complainant                  :   M/s.  Sarvabhauman  

For the opposite party                :   M/s. Sankaranarayanan

 

        Complaint  under section 12 of the Consumer Protection  Act 1986. Complaint is filed seeking direction against the opposite party to pay a sum of Rs.13,79,143/- towards loss on value of the consignment and losses incurred by the complainant along with interest  and also to pay a sum of Rs.1,00,000/- towards compensation and cost of the complaint to the complainant.

ORDER

THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II      

1.The case of the complainant is briefly as follows:

          The  complainant submit that  complainant’s company was registered under Companies Act on June 2003 the complainant entrusted 12480 sets of cotton knitted boys costumes to the opposite party to be shipped to Le Hovra in France.   The consignment was to be shipped from Tuticorin Port to Le Hovre Port in France and the value of the consignment is  37440 $, voyage from Tuticorin  to Le hovre by vessel name MVS tower V 2480 with a note “freight prepaid”.   The complainant is an exporter / consignor exports the consignee which was reflected in both invoice and (in multi modal transport) bill of lading.   The said consignment was held at the destination point where the risk in insurance contracts seizes  on expiry of 60 days at the destination point, the complainant in their email dated 7.8.2003 informed the buyer that the container was waiting at the port for clearance of Cargo and the forwarding agent informs to the seller that shipper will not bear huge storage charges and put on huge risk when it is lying at the destination point.  The various emails transacted between the complainant and forwarding agent proves that the complainant has to take immediate steps to reship the consignment from the destination point to the place of horizon.   Since  there  is  no  action has been initiated  on the complainant side, a legal notice was served on the complainant on 11.12.2003.    The legal notice confirms there is no final price arrived on the shipment to re-shift to India.  But unfortunately it was informed to the complainant by the opposite party that the consignment had been seized by the French customs authorities.  The alleged seizer was on verbal process which was not accepted by the complainant that the seizer of the consignment is a false statement of the opposite party.     As a result of the non shipment, the complainant quantity of loss as Rs.17,48,448/- and also suffered other loss such as interest paid on PC, on loss due to draw back freight charge amounting to Rs.3,18,565/-.    The complainant quantify the liability of the opposite party as Rs.20,67,013/- and after deducting the service charges where the complainant who has to pay to the opposite party amounting to Rs.6,87,870/-after deducting this amount the complainant arrived the liability of the opposite party Rs.13,79,143/-, to be payable to the complainant.   As such the complainant has sought for a sum of Rs.13,79,143/- towards loss on value of the consignment and losses incurred by the complainant along with interest  and also to pay a sum of Rs.1,00,000/- towards compensation and cost of the complaint to the complainant.

Written version opposite party in briefly is as follows:

2.     It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The complainant  have filed the complaint on or before July 2005 and hence the complaint is barred by limitation under the C.P. Act 1986.  The contract between the complainant and the opposite party was for shipping the goods to Leharve and the said contract was performed.  The opposite party  submit that the shipment was expected to arrive at the destination port on 9.7.2003 and this was informed to the complainant through mail message.  The cargo reached the destination at the appointed time.  The opposite party raised invoice for a sum of Rs.53,147/- towards the freight charges and reimbursement of expenses.   The cargo was thus properly and punctually delivered at the destination port as required by the complainant.    The contract for reshipment  concluded only on 6.10.2003 and the reshipment could not have been done before as alleged.  There is no relationship of consumer and service provider between the parties as far as the reshipment is concerned.    The opposite party is not liable to pay any compensation as claimed.  The complaint itself is not maintainable.   Hence there is no deficiency in service on the part of the  opposite parties.     Therefore this compliant deserve to be dismissed with costs.  

3.  The Complainant has filed her Proof affidavit and Ex.A1 to Ex.A9 were marked on the side of the complainant.   Proof affidavit of Opposite party   filed  and Ex.B1 to Ex.B13  were marked on the side of the  opposite party.  

4.      The points that arise for consideration are as follows:-

1)   Whether there is any deficiency in service on the part of the opposite party?

 

2. Whether the complainant is entitled to the  reliefs sought for?.

 

5.     POINTS 1 & 2 :

           Perused the complaint filed by the complainant and his proof affidavit and documents Ex.A1 to Ex.A9  were marked on the side of the complainant.  Written version and proof affidavit filed by the opposite party and Ex.B1 to Ex.B13  were marked on the side of the opposite party  and also considered the both side arguments.

6.     The complainant who is an exporter filed this compliant at D.C.D.R.F. Coimbatore under SR No.98/2006 which was registered on 23.2.2004 and revert back to DCDRF, Chennai South on 6.6.2006 on the grounds of territorial jurisdiction.   

7.     The facts of the case the complainant’s company was registered under company’s act on June 2003 the complainant entrusted 12480 sets of cotton knitted boys costumes to the opposite party to be shipped to Le Hovra in France.   The consignment was to be shipped from Tuticorin Port to Le Hovra Port in France and the value of the consignment is $ 37440 which was evidenced by the bill of lading (Ex.A1) vide B.L.No.TUT 100268, dated. 5.6.2003 from Tuticorin  to Le hovre by vessel name MVS tower V 2480 with a note “freight prepaid”.   The complainant is an exporter consigner exports the consignee which was reflected in both invoice and BL in multi modal transport.   The said consignment was held at the destination point where the risk in insurance contracts seizes  on expiry of 60 days at the destination point.   The complainant in their email dated 7.8.2003 informed the buyer that the container was waiting at the port for clearance of Cargo and the forwarding agent informs to the seller that shipper will not bear huge storage charges and put on eye risk when it is lying at the destination point.    

8.     The various emails transacted between the complainant and forwarding agent proves that the complainant should have take immediate steps to reship the consignment from the destination point to the place of horizon.  Since there is no action has been initiated on the complainant side a legal notice was served on the complainant on 11.12.2003.    The legal notice confirms there is no final price arrived on the shipment to reship to India.  But unfortunately it was informed to the complainant by the opposite party that the consignment had been seized by the French customs authorities.  The alleged seizer was on verbal process which was not accepted by the complainant  it is contended that the seizer of the consignment is a false statement of the opposite party. 

9.     As a result of the non shipment, the complainant quantify the loss as Rs.17,48,448/- and also suffered other loss such as interest paid on PC and loss due to draw back freight charge amounting to Rs.3,18,565/-.    The complainant quantify the liability of the opposite party as Rs.20,67,013/- and after deducting the service charges where the complainant who has to pay to the opposite party amounting to Rs.6,87,870/-after deducting this amount the complainant arrived the liability of the opposite party Rs.13,79,143/- to be payable to the complainant requesting this forum to get back his dispute resolve by directing the opposite party to pay the said amount with interest at the rate of 18% p.a. and  Rs.1,00,000/- for loss of repudiation and further earnings.

10.    The opposite party in his written arguments stated  and not disputed about the value of consignment to be shipped to France and the opposite party was disputing on the issues of nature and scope of contract between the complainant and the opposite party and the obligations of reshipping the consignment from the destination point to the original place of dispatch and the opposite party was contended that the reshipment was good was hit by the doctrine of impossibility.  The opposite party was disputing on the question of contract the shipping of the Cargo was effected by the opposite party the discharge of the delivery of the goods re shipped  of destination on 9.7.2003, the discharge obligation were resolved once, it has reached the destination.  The opposite party had not accepted the allegation put forth by the complainant and Ex.B4 to Ex.B8 clearly stipulates that the exchanges encountered both the parties to the disputes.   The Ex.B9 clearly indicates that there was exchange of negotiation was not finalized till.   Ex.B11 confirms the movement of the Cargo and on 25.9.2003 the French customs ceased the goods which were kept for reshipment.    It is the averment filed by the opposite party stating that until 6.10.2003 there was no reshipment contract and it is stated that the contract was concluded on 6.10.2003 and the subject matter was in existence and it was neither known to the complainant nor known to the opposite party.  Hence the agreement becomes vide it is prayed therefore the complaint may be dismissed, without cost.

11.    On perusal of the complaint, written version, proof affidavits, written arguments, documents filed by both the parties to the dispute it is observed that the question of following things are came to light   1) At the outset both the complainant and the opposite party are companies registered under companies act and the complainant is a reputed and renewed exported are Garment exports and complainant himself confirmed that they are running Garment business and have China customer throughout the world and also earned the reputation as a leading exporters.    The contention of the complainant represented by their counsel stating that the complainant is doing the business for livelihood which could not be accepted by the forum since the complainant themselves confirmed in their version and complaint they are leading exporters.   Whereas as per Consumer Protection Act 1986 the commercial activity will not come under the said act unless an individual does the business for the sake of his livelihood.

12.    Further considering the Sec.2 (1) (d) (ii) of the C.P. Act 1986 it read as follows:

          “(ii) [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 or 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] “

Therefore considering as per the above under section  2 (1) (d) (ii)  the complaint mentioned transaction is of the business nature  and the complainant is not considered to be consumer under the C.P. Act 1986 and this complaint filed by the complainant before this forum is not maintainable  is acceptable.

13.    The consignment was shipped from Tirupur and it was boarded into the ship to the opposite party whose office was situated at Chennai though the complainant’s Regional office is Coimbatore the cause of action arose in Chennai hence the transfer of case from Coimbatore to Chennai  is accepted and there is no dispute on the jurisdiction and it was not disputed by both the parties to the disputes this forum has admitted the case for hearing.  

14.    As per the limitation of Consumer Protection Act the case has to be filed within two years from the date of cause of action and the complainant had filed their  complaint with D.C.D.R.F, Coimbatore on 23.2.2004. where the shipment was loaded on 5.6.2003  and the same complaint was continuous cause of action which was registered with this forum on 6.6.2006.  So the law of limitation will not attract since the cause of action is continues.   

15.    The complainant as per the duty to take all the precautionary measure while shipping and also reshipment and the opposite party had informed the complainant from time to time and he should not let the consignment should be seized  by the customs authorities at the destination point and the complainant is bound to pay the allege charges and other service charges to the opposite party whereby the cheque issued by the complainant for the above charges were dishonored without consideration no one can do the service on free of charge.   The opposite party has not made any dereliction of duty in their transaction it is the complainant who was lethargic and who has not taken adequate care such a huge worth of consignment were lying unattended for the destination port.  

16.    As per Sec.2 (1) (d) (ii) of Consumer Protection Act 1986 the consumer should have paid the consideration for the services is receiving from the service provider i.e. opposite party and the transaction entertained in this case proves purely a commercial transaction though it was done on multimodal transshipment and establishes not for the livelihood of an individual.   It confirms a pure commercial transaction which will not come under the purview of C.P. Act 1986.    Hence we are of the considered view that this case has not complied Sec. 2 (1) (d) (ii)   of the Consumer Protection Act 1986 and cannot entertained for directing the opposite party to pay the cost and to pay compensation.  Hence it is construed though it has satisfied the territorial jurisdiction and maintainability but it does not complied the very best definition of consumer and the commercial transaction could not be taken under C.P. Act 1986.  However, the complainant is at liberty to file civil suit.   The time spent by the complainant before this Forum is excluded for the purpose of limitation under Sec.14 of The Limitation Act.    Hence we direct the both the parties to the disputes to bear their own cost and the complaint is stands dismissed and accordingly points 1 & 2 are answered. 

       In the result the complaint is dismissed.  No cost.

 

            Dictated directly by the Member-II to the Assistant, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the    27^th   day of  May    2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents :

Ex.A1-         -       - Copy of Bill of lading.

Ex.A2-         -       - Copy of Invoice.

Ex.A3- 7.8.2003    - Copy of email  of opposite party

Ex.A4- 2.9.2003    - Copy of email of opposite party.

Ex.A5- 29.9.2003  - Copy of email from opposite party to complainant.

Ex.A6- 08.10.2003         - Copy of email of opposite party.

Ex.A7- 05.11.2003         - Copy of email from complainant to opposite party.

Ex.A8- 19.11.2003 – Copy of the legal notice issued by the complainant.

Ex.A9- 11.12.2003         - Copy of reply notice issued by the opposite party.

Opposite party’s side  documents:

 

Ex.B1- 24.1.2003  - Copy of notice dispatch from the opposite party to the

                             Complainant.

Ex.B2- 26.3.2003  - Copy of freight Memo from  the opposite party to the

                             Complainant.

Ex.B3- 5.7.2003    - Copy of request for change of consignee name from the

                             Complainant to the opposite party.

Ex.B4- 28.7.2003  - Copy of details sought for reshipment from the opposite

                             party to the complainant.

Ex.B5- 29.7.2003  - Copy of details sought for reshipment from the opposite

                             party to the complainant.

Ex.B6- 30.7.2003  - Copy of charges leviable for reshipment to the opposite

                             party.

Ex.B7- 2.8.2003    - Copy of confirmation for destination place from the opposite

                             Party to the complainant.

Ex.B8- 2.8.2003    - Copy of email to expedite dispatch of Shipper’s invoice.

Ex.B9- 7.8.2003    - Copy of email calling for commercial value.

Ex.B10-7.10.2003 - Copy of confirmation for shipment.

Ex.B11-       -       - Copy of unofficial translated of seizer order.

Ex.B12-       -       - Copy of complaint from opposite party to the complainant.

Ex.B13-       -       - Copy of Board resolution.

 

 

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.