Punjab

StateCommission

CC/77/2013

Ralson (India) Limited - Complainant(s)

Versus

Pan Lloyd Logistics Pvt. Ltd. & another - Opp.Party(s)

Deepak Sibal, Atul Arya

04 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

Consumer Complaint No. 77 of 2013

 

                                                                      Date of institution: 5.8.2013

                             Date of Decision:  4.2.2015      

 

Ralson (India) Limited, Ralson Nagar, GT Road, Ludhiana through Sh. R.S. Kalra, Legal Officer, Ralson (India) Limited, who is authorized to file the present complaint on behalf of the Company.

…..Complainant

 

                                      Versus

 

1. PAN LLOYD Logistics Pvt. Ltd. having its registered office at 30, Prakash Kunj, N.S. Road, Mulund (West), Mumbai 400 080 India.

2^nd Address : Corporate Office, 11/3, 2^nd Floor, Chandrodya Society, Opposite Swastik Chamber, CST Road, Chembur, Mumbai 400 071 India.

2. National Insurance Company Ltd., Branch Office 6, Miller Ganj, Ludhiana through its Branch Manager.

…..Opposite Parties

 

Consumer Complaint under the Consumer Protection Act, 1986.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the complainant         :         Sh. Mukand Gupta, Advocate for

                                                          Sh. Aayush Arora, Advocate

          For opposite party No. 1  :         Sh. Manav Bajaj, Advocate for

                                                          Sh. Samir Rathaur, Advocate

          For opposite party No. 2  :         Sh. S.S. Sidhu, Advocate

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The complainant has filed this complaint under Section 17 of the Consumer Protection Act (in short ‘the Act’) against the opposite parties (in short ‘the Ops’) on the allegations that the complainant Company is a leading manufacturer and exporter of Bicycle and Motor Cycle tyres and tubes with brand name ‘Ralson and Ralco’ established in the year 1974 having two units at Ludhiana with more than 3000 workers and production is 1,10,000 tyres and 1,50,000 tubes and turn over costing 700 crore having 40 branches across India and exporting its product to Europe, South and Central America, Middle East, Far East, Africa, Asia etc.. The present complaint is being filed through Sh. R.S. Kalra, Legal Officer, who has been authorised to file this complaint through resolution dated 9.7.2013. One consignment of the complainant Company was sent to Mussa Nurmahomed, PO Box 5352, Limbe, Malavi of bi-cycle tyres and tubes of 18500 pieces each, total 37000 pieces with having net weight 25721.750 Kgs. and gross weight 25980.750 Kgs., valued at 89725 US Dollars. For sending the consignment, the services of Op No. 1 were hired and they arranged the Empty Container No. INKU6599916(40HC). The goods were loaded in the aforesaid container arranged by OP No. 1 for transporting the same from Ludhiana to Mundra Port and then Mundra Port to Blantyre via Beira, for which Op No. 1 had raised invoice/bill of Rs. 16,292/-, which was paid vide cheque No. 669769 dated 18.9.2012 drawn on State Bank of India, Millarganj Branch, Ludhiana. As per the information received by the complainant on 4.9.2012, the container No. INKU6599916(40HC) was sent from Ludhiana to Mundra Port and reached Mundra Port on 9.9.2012 and was loaded on vessel BUXCLIFF Voyage 1236 from Mundra Port to Beira on 10.9.2012. The container was discharged at Beira on 6.11.2012 and delivery order was issued from Beira on 24.11.2012. The bill of lading was surrendered on 11.12.2012 through courier. However, the complainant was shocked to know that the goods were not delivered to the consignee at Blantyre where these were supposed to be delivered after original bill of lading surrendered with Op No. 1 at Mumbai Office with instructions to release the cargo to the consignee. There were several telephonic conversations between the complainant and OP No. 1 and ultimately, complainant Company was informed by Op No. 1 that the goods in question were lost at Beira. The complainant Company was further informed by the consignee at Ludhiana that the consignee had lodged the FIR dated 19.3.2013 regarding the loss of the container/goods. OP No. 1 vide letter dated 19.2.2013 submitted that they had lost the goods and written to the complainant Company to lodge the claim with the insurance company OP No. 2. OP No. 2 received the premium for carrying the goods from Ludhiana to Beira and accordingly, complainant Company approached Op No. 2 for reimbursement of the loss and Op No. 2 informed that under FOB terms and international trading law the claim could be made by the complainant Company only till Mundra Port. Therefore, they refused to reimburse the loss citing International Trading Law and repudiating the claim. Since the goods were lost in transit, therefore, OP No. 1 was utterly negligent and was deficient in services. Hence, the complaint with a direction to the Ops to pay the cost of the goods i.e. 89725 US Dollars equal to Rs. 54,73,225/-, damages of Rs. 10 lacs, Rs. 16,692/- the amount paid for hiring the services of Op No. 1 and counsel fee Rs. 1,20,000/-.

3.                The complaint was contested by the Ops. Op No. 1 filed reply by way of affidavit of Rishi Bhatia by taking preliminary objections that the complaint before the Hon’ble Commission is not maintainable as the complainant is not a ‘consumer’ as defined under Section 2(d)(ii) of the Act; the complaint is also not maintainable as the goods were booked by the complainant on FOB, Mundra i.e. free on board at the seller’s expenses to a specified point. If the consignment is delivered of FOB basis, the buyer assumes title and control of the goods, the moment the carrier signs the lading and the buyer assumes the risk of the transportation and is entitled to route the shipment, therefore, it is only the buyer, who is entitled to file the claim for loss and that the complaint is bad for non-joinder of proper parties i.e. buyer of the goods i.e. Mussa Nurmahomed has not been impleaded as a party. It has been stated that the complainant is a huge establishment and running the big business. It was denied that the services rendered by OP No. 1 were deficient. As per the actual quantity of the bicycle goods as per the bill was 18500 pieces. OP No. 1 arranged transporting of goods from Ludhiana to Mundra Port, whereas shipper had himself arranged the transportation from Ludhiana to Mundra Port. OP No. 1 was handed over a sealed/closed box at Mundra. For the services, Ops raised a bill of Rs. 16,292/-. As per the averment of the complainant, the goods reached at Beira on 10.9.2012 and the goods were FOB, therefore, the complainant lost any title in the goods. The goods were not lost by OP No. 1 rather the same have been stolen in a clandestine manner by somebody at Port at Beira and OP No. 1 made all out efforts to trace them and took all the legal actions. OP No. 1 is not a privy to the dispute between the complainant and Op No. 2. The complaint is without merit against this Op and it be dismissed.

4.                Whereas OP No. 2 filed reply taking preliminary objections that the complainant is not a ‘consumer’, complainant is a manufacturing company and is doing a commercial business, therefore, not a consumer as defined under the Act; complainant is not a competent person on behalf of the Company to file this complaint; complicated questions of law and facts are involved, which cannot be decided in the summary manner, therefore, the matter be referred to the Civil Court. On merits, it has been admitted that Container No. INKU6599916(40HC) was sent from Ludhiana to Mundra Port and the same was loaded on vessel BUXCLIFF Voyage 1236 for Mundra Port. The complainant had sold 18,500 sets of bicycle tyres and tubes to M/s Mussa Nurmahomed, P.O. Box. No. 5352, Lime, Malawe vide invoice No. 4200 dated 11.8.2012 on FOB Mundra for US Dollar 89725. The moment the consignment passed the ship’s rail, the seller is responsible to pay all the expenses, which includes freight for transportation and taxes etc. for the place of dispatch to the Indian Port and loading of the consignment on the ship. The ownership of the consignment transfer to the consignee once the consignment is on the board of the ship. Since it was FOB consignment, therefore, risk of the consignment was from Ludhiana and terminated on the loading of the consignment at Mundra Port as per the insurance cover provided as per Marine Insurance Act 1963. Therefore, no liability against this Op. Complaint qua this OP be dismissed.

5.                The parties were allowed to lead their evidence.

6.                In support of his allegations, the complainant had tendered into evidence affidavit of R.S. Kalra Ex. CW-1/A, delivery order Ex. C-1, invoices Exs. C-2 & 3, list Ex. C-4, bills Exs. C-5 & 6, courier receipt Ex. C-7, FIR Ex. C-8, letter Ex. C-9, e-mails Es. C-10 & 11. OP No. 1 had tendered into evidence affidavit of Rishi Bhatia Ex. Op-1/A and OP No. 2 had tendered into evidence affidavit of Davinder Grover, Deputy Manager Ex. Op-2/1, letter dt. 4.5.13 Ex. Op-2/2, letter dt. 28.5.2013 Ex. Op-2/3.

7.                Before dealing with the complaint on merits, the Ops have raised some preliminary objections, which are required to be dealt with. The first objection taken by the Op is that the complainant is manufacturing unit and is a commercial concern, therefore, the complainant does not within the definition of the ‘consumer’ as defined under Section 2(1)(d)(ii). However, it is pertinent to mention here that no doubt that the complainant is manufacturing unit but what were the services availed by the complainant from the Ops. The consignment was sent from Ludhiana to Mundra Port for onward to Beira Port and place of delivery Blantyre and OP No. 2 had given an insurance cover as FOB Mundra, therefore, transport and insurance services were availed by the complainant from these Ops. In case these services are availed by the complainant then the complainant cannot gain any profit from these services. The services were availed to despatch the goods to the consignee place and to give the insurance cover in the case of mishap. A reference can be taken from the judgment of the Hon’ble National Commission “Swiss Air Cargo versus Century Silk Inc. and ors.”, 2012 (2) CLT 118. In that case, plea that the goods were being transported for commercial purposes - whereas the findings recorded by the Hon’ble State Commission that the services of OP No. 3 were availed only for transportation of goods from Bangalore to Athens and it did not involve any sale, the question of commercial purpose did not arise upheld.” It was further held by the Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi in its latest judgment “M.M. Knitwears Pvt. Ltd. versus Bajaj Allianz General Insurance Company Ltd. & Anr.”, II (2014) CPJ 24A (CN) that availing of insurance services by firm or company is not hiring services for commercial purpose because insurance is indemnification of future loss whenever it is cause and insurance policy is not taken for making profit.” In view of no contrary judgment cited by the Ops, therefore, we are of the opinion that in view of the nature of services availed by the complainant from the Ops, there is a relationship between the ‘consumer’ and ‘service provider’ and complainant duly fall under Section 2(1)(d)(ii) of the Act and the said contention is not tenable.

8.                Another point raised by OP No. 2 is that the complainant, who filed the complaint is not a competent person. In case we go through the allegations in the complaint that the Company vide resolution dated 9.7.2013 has authorised Mr. R.S. Kalra, who is legal officer of the Company, therefore, he is authorised person. The copy of the resolution dated 9.7.2013 has been placed on the record, therefore, the complaint has been filed by the authorised person of the Company. We do not find any substance in the objection raised by the Ops.

9.                The next point raised by the counsel for the OP is that complicated facts and law are involved, therefore, the matter cannot be decided in summary proceedings and it be relegated to the Civil Court. The matter in question is that consignment was booked with Op No. 1 for transportation from Ludhiana to Blantyre and it did not reach at the destination. The liability of the Transporter or of the Insurance Company is to be fixed, which can be assessed on the basis of documents to be placed on the record by the parties. Moreover, the Presiding Officer of the Consumer Fora/Commission are retired High Court Judges/District Judges having good experience at their back and duly competent to decide these matters. A reference can be made to the judgment of the Hon’ble Supreme Court in the case of “Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi”, 2002(6) SCC 635 that:-

‘the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the ‘Consumer Fora’ after obtaining evidence and if need be after getting an expert opinion’.

Therefore, we are of the opinion that the matter can be decided by this Commission and there is no necessity to refer the matter to the Civil Court.

10.              With regard to non-joinder of parties that consignee was not made a party to the complaint, the despatched good never reached to consignee. The liabilities of the Transporter and Insurer are to fix qua the consignor and in these circumstances, consignee to be party is not necessary. Therefore, it cannot be said that the complaint is bad for non-joinder of necessary parties.

11.              Coming to the merits of the case, one consignment was booked by the complainant with Op No. 1 for delivery to Beira Port and place to deliver Blantyre. The consignee was M/s Mussa Nurmahomed, P.O. Box. No. 5352, Lime, Malawe as per Invoice Ex. C-3 and its total price was US Dollars 89725. It was containing 18500 sets of tyre and 18500 pcs. of tubes. The delivery order is Ex. C-1 and booking party was Op No. 1 for which invoice was issued by Op No. 1 amounting to Rs. 16,292/- and Vessel No. BUXCLIFF V-1236 has been mentioned in the invoice vide which these were to be sent. Even the Multi Model Transport document issued by Op No. 1 shows the place and date of the receipt Ludhiana and place of delivery Blantyre. The net weight has also been mentioned in it. Therefore, Op No. 1 was to carry the goods Ludhiana to Blantyre. There is a letter Ex. C-6 vide which the complainant allowed the Mumbai Office of OP No. 1 that they are surrendering the original set of BL No. PLL/MUN/BLN/003935 and send the instructions to your Blantyre office to allow the delivery of the said cargo. However, the container was stolen at Beira and the matter was reported to Republic of Mozambique vide letter Ex. C-8. Then there is letter from Op No. 1 that the cargo was not delivered to the consignee till date as the Container has been mis-placed at Port Beira and they feared that it has been lost. Therefore, in case the Container has lost at the end of the Transporter then in case it is not covered with any insurance policy then who is responsible to meet the loss. So far as insurance is concerned, it is clear from the invoice Ex. C-3 that it is FOB, Mundra, therefore, the liability of the insurance company was upto Mundra and from Mundra Port the consignment was transported to Beira Port by Vessel No. BUXCLIFF V-1236 and in case it has lost at Beira Port then OP No. 2 insurance company is not liable for that.

12.              What is liability of the Transporter? They have taken the plea that once the Container has been despatched to the Vessel on FOB basis then the Buyer assumes title and control of the goods. The moment the carriers sign the bill/lading and buyer assumes the risk of the transportation. But there is no title on the record duly signed by the buyer. In “Nath Bros. Exim International Ltd. v. Best Roadways Ltd.”, I (2000) CPJ 25 the Hon’ble Supreme Court held ‘after considering pronouncements of various High Courts observed that expression ‘at owner’s risk’ does not exempt a carrier from his own negligence or negligence of his servants or agents. It was further laid down in the said case:

‘From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods on account of his own negligence or criminal act or that of his agent and servants’.

13.              There is another judgment “Patel Roadways Ltd. versus Birla Yamaha Ltd.”, 1(2000) CPJ 42 (SC) wherein Hon’ble Supreme Court held that “the liability of a common carrier under Carriers’ Act is that of an insurer. It was observed therein that this position is made further clear by the provision in Section 9 in which it is specifically laid down that in case of claim of damages for loss or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. Further there is judgment of the Hon’ble National Commission “Unichem Laboratories Ltd. versus New India Assurance Co. Ltd. & Anr.”, III (2006) CPJ 359 (NC). In that case loss/damage of goods entrusted for carriage – It is the duty of the carrier to take due care, so long as goods are in its custody – Expression ‘at owner’s risk’ does not exempt carrier from his own negligence or criminal act or that of his servants or agents.

14.              In view of the abovesaid pronouncements, it is clear that till the delivery of the consignment, it is the duty of the carrier to care the goods in its custody.

15.              In view of the above discussion, we accept the complaint against opposite party No. 1 and dismiss against  opposite party No. 2 and direct opposite party no. 1 as under:-

(i)      to pay to the complainant the amount of the goods equal to 89725 US Dollars Or INR equal to that on the date of booking;

(ii)      to pay Rs. 50,000/- as compensation; and

(iii)     to pay Rs. 11,000/- as litigation expenses.  

16.              Opposite party No. 1 is directed to comply with the above directions within 45 days, otherwise proceedings under Section 27 of the CP Act shall be initiated against it.

17.              The arguments in this consumer complaint were heard on 22.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

18.              The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

February 4, 2015.                                                                                                                                                                (Jasbir Singh Gill)

as                                                                                                                                                                                                    Member