Tamil Nadu

StateCommission

FA/1095/2011

Kamino International Logistics pvt ltd - Complainant(s)

Versus

Q. Rich Creations - Opp.Party(s)

M/s. Siva Suyambu

22 Jan 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE        Thiru. A.K.ANNAMALAI            PRESIDING JUDICIAL MEMBER 

                        Tmt. P. BAKIYAVATHI                                                    MEMBER

 

F.A.NO. 1095/2011

(Against order in  C.C. No. 98/2010

DCDRF, Chennai(North), Date  14.9.2011)

 

DATED THIS THE 22^nd   DAY OF JANUARY 2015

1. Kamino International Logistics Pvt. Ltd.,

Head office 301, Sangeetha Plaza,

Marol, Andheri (E)

Mumbai 400 059  

 

2.  Kamino International Logistics Pvt. Ltd.,

Branch Office: No.28, Madhavan street,

Near Ayyappan Koil, Mahalingapuram,

Nungambakkam, Chennai 600 034                    ..Appellants/opp. parties 2&3

                                               Vs

1.M/s Q.Rich Creations

Rep.by its Managing Partner

Mr.Ramasamy

D.No.208/2, S.F.No. 201/2

Siru Polivampatti Main Road,

No.15, Velampalam

Tirupur 621 603                                              ..Respondent/complainant  

 

2. Sanin Trendz,

Rep.by its Proprietor Mr. Jagan

S.F. 134/181, Sathya Colony

Near Revathi Theatre

Mannarai, Tirupur 641 607                            ..Respondent/1^st opp.party

 

3. Amita Sri Via Varturo Chari

9111113, 50127 Firenze, Italy                       ..Respondent/ 4^th opp.party

 

4.M/s Galardi Sri

Via Di Gonfienit

2/2, 59100 Prato, Italy                                .. Respondent/5^th opp.party

 

Counsel for Appellants/opp.party       : M/s Siva Suyambu  

Counsel for Respondent/complainant  :  Mr. R. Ravi

2^{nd &} 3^rd  Respondent/1^{st &5th} opposite party : Publication called absent

 

The 2^nd and 3^rd opposite parties are the Appellants. The District Forum allowed the complaint. Against the said order, the Appellant/opposite parties   filed this appeal praying to set aside the order of the District Forum in CC.No. 98/2010, dated 14.9.2011. 

          This appeal coming before us for hearing finally on 7.1.2015 upon hearing the arguments on both side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order. 

THIRU.A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER

1.    The  2^nd and 3^rd opposite parties are the Appellants. 

 

2.    The complainant filed a complaint against the appellants/opp.parties 2 and 3 along with opposite parties 1,4 & 5  alleging negligence and deficiency in service in delivering career goods and failure to give proper intimation regarding delivery claiming the value of the goods, compensation etc., in which after an enquiry the District Forum allowed the complaint directing all the opposite parties 1 to 5 jointly and severally to pay a sum of Rs.2,71,248.45 with 9% p.a. interest to the complainant from 31.12.2008 and also to pay a sum 10,000/- towards compensation and for cost in all.

3.       Aggrieved by the impugned order, the opposite parties 2 and 3 alone had come forward with this appeal contending the District Forum erroneously allowed the complaint against all the opposite parties, eventhough, the appellants are only careers of good and since the consignment were delivered and no deficiency in service of opposite parties was alleged in the complaint they not in any way liable for the claim. Hence appeal to be allowed.

4.      The 1^st Respondent/complainant contended though the opposite parties 2 and 3 are the careers taking care of consignment till delivery and not given intimation of delivery and thereby there was deficiency in service and the finding of the District Forum is relevant and thereby the appeal is to be dismissed.

5.         We have heard both side arguments and considered all the relevant materials in this case. It is not in dispute that the appellants are the career agents have accepted the consignment of the complainant to deliver at Italy and accordingly they have carried out obligation in safely delivering the consignment without any damages and contended there ends its liability. Hence the consignee failed to take delivery due to dispute between the consignor and consignee with regard to the price and thereby the goods were left out in the port of Italy and under the custody and control of the Customs Authorities of Italy. Only when the complainant asked the opposite parties to get back the consignment from Italy after ascertaining the details sent his communication dated 11.5.2009 and awaited for further instructions from the complainant. On 20.5.2009 enquired about the where abouts of the consignment and gave instructions to get back the consignment from Italy to India only on 30.5.2009 and meanwhile the goods were already sold through auction by Italians Customs Authorities to set off their charges.

6.         While considering the contention of the appellants which is not disputed that the consignment of the complainant reached Italy and delivered at the Italy port for which the complainant issued a letter of credit bill of exchange under Ex.A.5, which is to be paid through the Bank to the 4^th and  5^th opposite parties negotiated to the complainant through the 1^st opposite party for the dispute of cost regarding one item for 50% and also for which for another consignment, deduction of cost and these are all proved under Ex.A.8 to Ex.A.12  and thereby the appellant contended even though they have not specifically communicated the arrival of goods to the complainant through the 1^st, 4^th and 5^th opposite parties  the negotiation was going between the complainant and 1,4 & 5  and thereby it is not true that the complainant was not aware of the arrival of consignment and thereby the claiming refund of the goods from the appellant may not arrive. On perusal of the District Forum order it relied upon the ruling, the precedent in favour of complainant reported in

                    I 2010 CPJ 180 .. regarding the query raised whether the complainant is a consumer being transaction of commercial nature and thereby decided that the complainant was a consumer and as for as the consignor careers liabilities concerned the District Forum observed the career is bound to delivery, the consignment safely to the consignee and relied upon  III 2006 CPJ 111 by referring rule 12 of Career Goods  Act would held that, “ the career of goods is bound to deliver the goods and in the  event of not able to deliver the goods to the consignee, the career is bound to either return the consignment or to get instruction from the consignor. Failure in such duty would amounts to fault, imperfection, short coming or inadequacy in the quality nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be informed by a person in pursuance of a contract of otherwise in relation to any service”  and also  relied another precedent:  

 7.       2007 (3) Law weekly 1 in which it is observed that, “when a person entrusts a goods to a common carrier for transportation and the carrier accepts the same, there is a deficiency of service and when the carrier informs that the consignment is not traced then the carrier is liable”.  In the above precedent their Lordship of Apex Court in a similar case held in para 13 that, “when a person entrusts a goods to a common carrier for transportation and the carrier accepts the same, there is a contract for “service” within the meaning of C.P Act. Therefore when the goods are not delivered, there is when the goods are not delivered, there is a deficiency of service. It is no doubt true that “service” for purposes of C.P.Act does not include rendering of service free of charge. ….. nor contend that non-payment of freight charges exonerates it from liability for the loss of non-delivery”.

 8.                On this basis, the District Forum come to the conclusion that the non-delivery of the consignment by the opposite parties to the consignee and in the event of the consignee had not taken delivery of the consignment, the  negligence on the part of the carrier namely opposite party 2 and 3 would not amount to clear negligence and deficiency in their service.   

9.             For these, the learned counsel for appellant relying upon the ruling “ I (1995) CPJ 190 (NC) held that, “Even assuming, for the purpose of arguments, that there was an obligation on the part of Air India to furnish such information to the  consignor regarding the consignee’s failure to take delivery of the goods (an obligation that does not exist in law),  we are  unable to see, how, by reason of the said failure on the part of airline, the complainant can be said to have been put to any loss or damage. The transaction of the sale of the goods to the consignee in Gdansk had been effected by the complainant by the process of negotiating the documents of title to the goods through its Bank in Madras which in its turn had sent the documents to its counterpart in Gdansk with instructions to deliver them to the consignee only on the payment of the full amounts payable to the consignor as noted in the documents. The consignor as a prudent businessman to whom substantial amounts were due in respect of the goods dispatched to Poland, would ordinarily have been in regular touch with his banker for ascertaining whether the bills had been credited to his account. We are unable to believe and accept as true the case put forward by the  complainant that they made no inquiries of the said nature and were content to sit back and wait until some day in July, 1991 when they casually came to know from a party in Sweden that the consignees were not interested in taking delivery of the goods. The probability is that, soon after the consignments reached Gdansk in Poland and the consignee failed to take delivery thereof, the complainants would have come to know from their banker in Madras that the bills had not been honoured and hence they would have contacted the party in Sweden in their efforts to find an alternative buyer. We hold that no loss of any kind had occurred to the complainant by reason of the alleged deficiency in service on the part of Air India to inform the  complainant about the failure of the consignee in Poland to take delivery of the two consignments”.

               and also another latest precedent reported in CDJ 2014 (Con) case 736   -  “coming to the merits of the case, the first question which comes up for our consideration is as to whether the consignee had refused to accept the goods and if so on which date. It appears from the pleadings of the parties that the consignment had reached Detroit on 20.2.1997. The information in this regard was sent by British Airways to opposite party No.2 by way of a letter dated 28.2.1997, though according to the opposite party No.2, the aforesaid letter was received by it only in the first week of March, 1997. This is no one’s case that the alleged refusal came on or before 27.2.1997. Though the letter dated 28.2.1997 does not indicate in what manner the consignee had refused to accept the goods and the letter written by the appellant British Airways to Asia Transport Company in this regard was false. Even otherwise, had the consignee been ready and willing to take delivery of the consignment, there could be no reason for British Airways refusing delivery of the same to it.  It would be pertinent to note here that this is nowhere the case of the complainant that the consignee has approached the British Airways for taking delivery of the consignment but at that time the said consignment was not available or was refused by the carrier”.  

             “Coming to the appeal filed by Asia Transport company, as noted earlier by us, the said firm was acting as an agent of the British Airways in booking the consignment and taking its delivery at Jaipur. No deficiency in the services provided by Asia Transport Company has been proved by the complainant. Admittedly, the consignment taken from the complainant at Jaipur was duly delivered to British Airways for being taken to Detroit by air. Admittedly, the letter dated 28.2.1997 which Asia Transport Company received from British Airways was also sent by them to 1997 which Asia Transport company received from British Airways was also sent by them to the complainant. According to the said firm, immediately, on receipt of the letter in the first week of March, 1997 they had verbally informed Mr. Jagadish, an employee of respondent No.3 whose services they had engaged in Jaipur. The Asia Transport company was not independently engaged as an agent of the complainant and no fee or reward was paid to the said firm by the complainant. They were acting as agent of British Airways in receiving the goods from the complainant at Jaipur through respondent No.3 –Lyraid Pvt Ltd,. Therefore,  we hold that the complainant is not entitled to any payment from the appellant – Asia Transport Company.

             As per this findings, the appellant contended that having no liabilities against the complainant for the failure of taking delivery of goods by the complainant and relied upon Ex.A.7 and A.8, it proves that the complainant had already knowledge about the delivery of the consignment. On perusal of Ex.A.7, it was dated 23^rd January 2009 and addressed to 1^st opp.party, 4^th and 5^th opposite parties praying for to accept in part payment and 35% payment as price and thereby it is clear that the complainant was having knowledge about the delivery of the goods even on 23.1.2009 and only as the buyers failed to take delivery of goods in time and without arranging steps for alternative way to get consignment disposed of, subsequently belatedly directing the opposite parties 2 and 3 to take back, the consignment for re-delivery  at Chennai and in the meanwhile goods were auctioned by the Italy Port for settling of their dues and thereby we are of the view, though the appellants not specifically intimated the delivery of consignment and it is not proved that they are in the obligation to do so when the complainant had already having knowledge of the arrival of consignment and due to the failure of opposite parties 1,4, & 5 in the negotiations for taking delivery of goods for which the opposite party 2 and 3 cannot be held liable as the carriers  when the consignment was delivered and no deficiency in service regarding the delivery like damages lost of goods etc., alleged in the complaint. The District Forum erroneously allowed the complainant, opposite parties 2 and 3 also jointly and severally liable to compensate along with other opposite parties and thereby we are of the view, the appeal filed by the opposite parties 2 and 3 to be allowed and accordingly,            

         In the result, the appeal is allowed. The appeal filed by opposite parties 2 and  3  alone is allowed by setting aside the order of the District Forum in C.C. 98/2010, dated 14.9.2011 and the complaint against opposite parties 2 and 3 alone is dismissed.

 

            No order as to cost in this appeal.

 

 

P.BAKIYAVATHI                                           A.K.ANNAMALAI

 MEMBER                                          PRESIDING JUDICIAL MEMBER