PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding, deficiency in service and unfair trade practice on the part of the Opposite Parties as they did not properly load the drums containing chemical, in the Vessel, thereby causing leakage and loss to the Complainant etc.
2) The Complainant is a private Ltd. Company engaged in export activities. Opposite Party No.1 & 2 are the Shipping Agents instrumental in transporting cargo through out the world. Opposite Party No.3 is clearing, forwarding and shipping agent as alleged by the Complainant.
3) In the month of June, 2002, Complainant had engaged and availed the services of Opposite Party No.3 for transporting their cargo of 20 drums containing 4 Benzyl Pyridine from Mumbai to Japan (Kobe). For this service the Complainant had paid Rs.77,542/- to Opposite Party No.3.
4) Opposite Party No.3 in turn engaged the services of Opposite Party No.2 for dispatching the same consignment to be delivered to the consignee in Japan for consideration of Rs.38,000/-.
5) Opposite Party No.2 in turn had shipped the said consignment goods through Opposite Party No.1. The Opposite Party No.1 & 2 are the sister concerns. Thus, it is alleged by the Complainant that it is beneficiary of services given by Opposite Party No.1 & 2 through Opposite Party No.3. This has been mentioned in the certificate given by Opposite Party No.3.(Exhibit-‘B’ to complaint).
6) It is also contended by the Complainant that H.D.P.E. drums containing 4 Benzyl Pyridine, steel drums were handed over to the Opposite Party No.3 on 05/06/2002 by the Complainant. Opposite Party No.3 handed over these drums to Opposite Party No.2 on 07/06/2002. This consignment was to be sent to Japan through Opposite Party No.1 & 2 on 17/06/2002 and it was to be delivered to the consignee on or before 15/07/2002.
7) The Complainant further stated that the above said consignment of goods was unloaded at Taiwan as two of the drums from the consignment found leaking. On 08/07/2002 the Complainant received a fax from Opposite Party No.1 informing that two barrels (drums) started leaking and it was also informed that the mishap took place in high seas due to prevalence of extremely bad weather and rough sea. The Opposite Party No.1 further informed the Complainant that he had to incur expenses to the tune of Rs.3,16,456/- towards destuffing, restuffing the container, transferring the chemical liquid to new drums, cost of new drums, cleaning the container and other related expenses. Opposite Party No.1 further instructed the Complainant that, if the said charges were not paid, the consignment would not reach to the consignee.
8) On receipt of the said information, Complainant paid the said amount to Opposite Party No.1 in order to avoid further complication and to maintain business relations in export market. The Complainant paid the amount of Rs.3,16,456/- to Opposite Party No.1 on 15/07/2002 mentioning that it was sent as a security deposit.
9) The Complainant further stated that the Insurance Company did not approve the claim as the policy did not cover stuffing, destuffing of the goods, new drum expenses, clearing container etc. Therefore, the Complainant alleges that he is entitled to recover these charges from the Opposite Party No.1 & 2. It is alleged by the Complainant that the stuffing of drums containing the chemical liquid was done by Opposite Party No.1. The above said leakage had taken place on account of negligence and mishandling the drums by Opposite Party No.1. Because of mishandling by Opposite Party No.1, drums had fallen during the transportation. It is also alleged that the Opposite Party No.1 had forced the Complainant to part with the amount of Rs.3,16,456/- against cost incurred at Taiwan. Even the Opposite Party failed to give copy of the surveyor’s report and other relevant documents in connection with the expenses charged by Opposite Party No.1.
10) Lastly the Complainant has alleged that because of faulty packing and faulty arrangement, there was leakage from two drums, hence, Opposite Party No.1 & 2 are guilty of deficiency in service. Opposite Party is also guilty of unfair trade practice of demanding and collecting Rs.3,16,456/- towards stuffing, destuffing the container, transferring the material to new drums, cleaning the container etc. Opposite Party No.1 has failed even to furnish the particulars of actual expenditure incurred by them on account of above stuffing, destuffing etc. at Taiwan. Therefore, the Complainant has prayed for refund of Rs.3,16,456/- together with interest @ 18 % p.a. from 02/08/2002 on the amount and cost of Rs.25,000/- for this complaint.
11) The Complainant has attached the xerox copies of the following documents alongwith the complaint -
a) Bill of payment made by the Complainant to Opposite Party No.3 dtd.20/06/2002.
b) Certificate issued by Opposite Party No.3 dtd.21/09/2002.
c) Fax message/Letter dtd.12/07/2002 addressed to marine department.
d) Letter from Complainant to Opposite Party No.1 dtd.15/07/2002 sending the cheque of Rs.3,16,456/-.
e) Letter from the Complainant to consignee in Japan dtd.23/07/2002.
f) Letter from the Complainant to Opposite Party dtd.02/08/2002 demanding the refund of Rs.3,16,456/-.
g) Letter dtd.22/08/2002 from Opposite Party No.1 to the Complainant.
h) Affidavit of Evidence of the Complainant.
12) The complaint was admitted and the Opposite Parties were served with the notices. All the Opposite Parties appeared through their advocates. Opposite Party No.1 & 2 filed their written statement wherein they denied the allegations of deficiency on their part. Opposite Party No.1 in its written statement stated that, it is only the agent of Shipping Line – viz Wan Hai Line, Taiwan to load the container on the ship. Therefore, it only represented WanHai Line. It further alleged that the Complainant is not its consumer. The Opposite Party No.1 has further stated that Opposite Party No.1 is only the agent of a foreign shipping line – Wan Hai Lines, the owner of the container. Complainant had stuffed his material in it’s container and Opposite Party No.1 had loaded that container on board of Vessel. Opposite Party No.1 specifically denied that it had stuffed the Complainant’s goods in the container and averred that the Complainant had delivered, the stuffed and sealed container to Opposite Party No.1 for transportation through Wan Hai Line Shipping Line, who is the principal of Opposite Party No.1.
13) The Opposite Party No.1 has further stated that, according to the surveyor’s report the reason for leakage from the drum was – “Insufficient packaging, etc. resulting the packages falling around the available space inside the container due to pitching of vessel in high seas” and further clarified that Opposite Party Non1 has not stuffed the said drums in to the container.
14) The Opposite Party No.1 has further explained that it has recovered the said expenses on behalf of its Principal (Wan Hai Line) by exercising its right under Maritime Lies and dangerous Goods clause as per the Bill of Lading terms and conditions since the material in the drums was of hazardous nature.
15) Opposite Party No.1 further sated that there was no contract between the Complainant and the Opposite Party No.1. There is also no deficiency in service on its part.
16) Opposite Party No.2 also filed its written statement wherein it stated that it was the contractor of Opposite Party No.3 who were entrusted with the stuffing of container. It denied that Opposite Party No.3 availed the services of Opposite Party No.2 for dispatching the consignment of Complainant for Rs.38,000/-. It admitted that the Complainant himself has closed, sealed the drums and these sealed drums were stuffed into the container by Opposite Party No.2 in accordance with shipping norms. The Central Wearhousing Corporation would not have accepted any cargo if it had any defective stuffing.
17) Opposite Party No.2 further clarified that the leakage was due to bad weather and rough seas. Hence it cannot be held responsible for the same. It also pointed out that it has not received the amount of Rs.3,16,456/- from the Complainant and hence, it cannot be responsible for that amount as well as for any deficiency in service.
18) Opposite Party No.1 & 2 have submitted the above written statement alongwith affidavit-in-evidence and written arguments. The Complainant submitted its affidavit-in-evidence and written argument. All the parties reiterated the above facts in their affidavits in evidence and written arguments.
19) Opposite Party No.3 filed an application requesting to discharge the Opposite Party No.3 from the complaint on the ground that the Complainant has not prayed any relief from this Opposite Party and the Complainant itself has averred in the complaint that this Opposite Party No.3 has been impleaded as a necessary party only. On this application this Forum has passed the order that the application is kept for hearing alongwith the complaint. Hence, this application is also taken into consideration now while deciding this main complaint.
20) We heard the Ld.Advocates for the Opposite Party No.1, Opposite Party No.2. The Complainant and Opposite Party No.3 did not appear before this Forum. We also perused all the above documents submitted by all the parties and our findings are as follows –
21) The Complainant had availed the services of Opposite Party No.3 for transporting its goods from India to Japan for consideration. This can be seen from the Exhibit-‘A’ and ‘B’ to the complaint. Opposite Party No.3 entrusted this work to Opposite Party No.2 as a contractor. Opposite Party No.2 in its written statement had admitted that it was the contractor of Opposite Party No.3 who was entrusted with stuffing of the container and thus the stuffing of the goods were done by Opposite Party No.2. At the same time it is clear from the pleading of Opposite Party No.1 that the goods were transported by Wan Hai Ltd. Shipping Company and O.P.No.1 is the agent of this Wan Hai Ltd. Company and the container was loaded on the vessel by the Opposite Party No.1. Opposite Party No.1 has specifically admitted in “its written statement para (6)(b) that it had loaded the container on board of vessel”. It also admitted in para (6)(c) of the written argument that “It was the Complainant who delivered the stuffed and sealed container to O.P. No.1 for transportation to overseas by sea through their Principal Wan Hai Line”.
22) The Certificate issued by Opposite Party No.3 states that Opposite Party No.3 paid Rs.38,554/- to Opposite Party No.2 against freight charges and Terminal handling charges. This amount was collected by Opposite Party No.2 for transporting the consignment of the Complainant through Opposite Party No.1 (Exhibit-‘B’ to the complaint).
23) The Opposite Party No.1 in its written statement para (e) had admitted that “ the Opposite Party No.1 has recovered the said expenses (Rs.3,16,456/-) by exercising the rights under Maritime Lien and dangerous Goods clause as per Bill of Lading Terms and conditions, since the said material was of hazardous nature”. The Opposite Party No.1 had further mentioned that “Hereto annexed and marked as Exhibit-‘A’ is the copy of dangerous good clause in the bill of lading”. However, the Opposite Party No.1 has not attached this Exhibit-‘A’ to their written statement. Thus from this admissions it can be concluded that the Opposite Party No.1 had recovered an amount of Rs.3,16,456/- from the Complainant and Opposite Party No.1 & 2 are also the service providers of the Complainant. In other words, Complainant is the consumer of Opposite Party No.1 & 2 also.
24) It is also averred by the Opposite Party no.1 in its written statement that as per surveyor’s report the reason for Leakage from the drums was – “Insufficient packaging resulting the packages falling around the available space inside the container due to pitching of vessel in High Seas”. Thus from this surveyor’s report the cause of leakage was due to insufficient packaging and the stuffing was done by Opposite Party No.2 therefore, it was the Opposite Party No.2’s deficiency in service that caused insufficient packaging which resulted in leakage of the 4 Benzyl Pyridine from 2 drums.
25) From the above documentary evidence and admissions of the Opposite Party No.1 & 2. It is obvious that Complainant is the Consumer of the Opposite Party No.3, Opposite Party No.2 and Opposite Party No.1. The documents and Opposite Party No.1s admissions as mentioned above, show that the Opposite Party No.1 had acted as an agent on the behalf of its Principal Wan Hai Line Ltd. which transported the 4 Benzyl Pyridine and certainly this work of transportation of goods was not done free of charge by Wan Hai Line and the Opposite Party No.1. Therefore, from the above facts and circumstances it appears that all the 3 Opposite Parties are involved in transporting the Complainant’s goods from Mumbai (India) to Kobe (Japan). Opposite Party No.2 was deficient in service by not stuffing the acid drums containing 4 Benzyl Pyridine properly which caused leakage to 2 drums. The Opposite Party No.1 recovered Rs.3,16,456/- from the Complainant. Even Opposite Party No.1 assured the Complainant in it’s letter dtd.22/08/2002 that the “original documents regarding the particulars of the expenses incurred by the Opposite Party No.1 are still awaiting from the destination. The same will be forwarded to you immediately”. However, the Opposite Party No.1 has not forwarded these particulars till today. The Opposite Party No.1 had admitted of having received this amount of Rs.3,16,456/- as discussed above but has not furnished the particulars of these expenses inspite of assurance that the same would be forwarded immediately on receipt of the same and this act of Opposite Party No.1 is clearly a deficiency in it’s service towards the Complainant.
26) Thus, the Opposite Party No.3 has received the consideration from Complainant for its service of transporting the goods of the Complainant form JNPT, Mumbai, India to Kobe, Japan. Opposite Party No.2 had done stuffing of these goods in to the container and Opposite Party No.1 as the agent of Wan Hai Line Ltd. Shipping Co. Loaded the container containing goods of the Complainant and transported it to Japan Kobe. During this transportation, because of the deficiency in service of the Opposite Party No.2 (insufficient packaging in staffing the container) the 2 drums containing 4 Benzyl Pyridine started leaking in the container and Opposite Party No.1 had to unload and reload these two drums by replacing them. For this service of Opposite Party No.1 charged Rs.3,16,456/- from the Complainant but it did not issue any particulars of this expenditure. This is also a deficiency in service on the part of Opposite Party No.1. Though Opposite Party No.3 received, initially a consideration of Rs.77,542/- it paid Rs.38,554/- to Opposite Party No.2, the Complainant had not prayed any relief from Opposite Party No.3. Taking into consideration the above facts and circumstances particularly the prayer of the Complainant absolving the Opposite Party No.3 and praying relief from only Opposite Party No.1 & 2 we find that Opposite Party No.1 & 2 are equally deficient in their service as a service provider to the Complainant. They are jointly and severally liable for deficiency in service on their part by not transporting the goods to it’s destination safely. Therefore, we pass the following order -
O R D E R
i. Complaint No.285/2002 is partly allowed.
ii. Opposite Party Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.3,16,456/- (Rs.Three Lakhs Sixteen
Thousand Four Hundred Fifty Six Only) to the Complainant alongwith interest @ 9 % simple interest per annum from
15/07/02 till realization of the entire amount.
iii.Opposite Party Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.5,000/- (Rs.Five Thousand Only) to the
Complainant towards cost of this Complainant.
iv.Complaint No.285/2002 is dismissed against Opposite Party No.3 with no order as to cost as the Complainant
himself has not prayed any relief against Opposite Party No.3.
iv.Opposite Party Nos.1 & 2 are directed to comply with the above order within 30 days from the date of receipt of this
order.
v. Certified copies of this order be furnished to the parties.
