By Sri. MOHAMED ISMAYIL C.V, MEMBER

The complaint is filed  under Section 35(1) of the Consumer Protection Act,2019

The averments made in the complaint in as follows:-

1.  After a long span of 33 years of carrier in Brunei Darussalam, the complainant had decided to return to India.  So the complainant had approached the fourth opposite party, an international mover and forwarder of consignments, to relocate  himself  to Kerala  as per his plan.  On 28/11/2018, a relocation quotation was given by the fourth opposite party, pick up at door of the complainant and delivery at Chennai port was assured.  It is averred that door to port charge was quoted as BND 230/m³ and payment was stipulated in cash on completion of packing at residence.  It is  further averred that quotation was accepted and finalised by the complainant.  On 27/12/2018 an amount of BND 500 was paid  as advance and packing was started on the same day.  The volume of packages was assessed as TM3 and same was entrusted with agent of the fourth opposite party.  On 29/12/2018, packing was completed and balance of BND 1000 was paid as per negotiation.  It is averred that the complainant had entrusted all his control and possession over the properties directly to the third and fourth opposite parties and their agents arrayed as first and second opposite parties.  So it is averred that all the opposite parties became in the position bailiff and the complainant was that of a bailee.  As per relocation quotation the transit time was shown as 3 to 4 weeks from the date of packing i.e, 29/12/2018.  So it is averred that consignment of containing packed items should have been reached at Chennai port on or before 29/01/2019.  But it is alleged that consignment had not been restored into the possession and custody of the complainant till date by the opposite parties.

2.   It is averred that the first and second opposite parties had issued two cargo arrival notices/proforma invoices dated 30/01/2019 to the complainant.  In the Proforma invoice issued by the first opposite party, it was demanded to make payment of Rs. 630/- as integrated GST and Rs. 3,500/- as delivery order fees.  In the Proforma Invoice issued by the second opposite party, it was demanded to make payment of a total of Rs. 1,11,946/- under various heads including CGST and SGST. It is averred that the complainant was not liable to make payment towards any charges as per relocation quotation except duties and Taxes (if any), customs clearance at delivery destination, Fumigation/ Aquis /Quarantine. The complainant contacted the first, second and fourth opposite parties for redressing his grievance.  The fourth opposite party replied that communication error was occurred and requested to wait for 3 more days for releasing consignment.  So the complainant was compelled to stay in Chennai for 3 more days. When the complainant approached the first and second opposite parties, after 3 days, they stood in adamant nature and demanded to pay the amount as per invoices dated 30/01/2019. The opposite parties even threatened of dare consequences by using their influence in Customs Department.  Then the complainant had issued notice to the Port authorities, but they were declined to take action due to the influence of the opposite parties.  Subsequently, the complainant had approached Hon’ble High Court of Madras for getting relief.  Then Hon’ble High Court of Madras adjudicated the matter by directing the officials of Customs Department to consider application of the complainant.  But the officials of the Customs Department decided that they have no role in the complaint raised by the complainant.

3.    Meanwhile M/s DP World, operator of Chennai Port had issued a notice u/s 48 of Customs Act, 1962 dated 15/04/2019 to the complainant through which Port Authorities had demanded to pay floor rent and to clear of the packages within ten days otherwise consignment would be auctioned. So the complainant had contacted the first and second opposite parties, but no response was received from them. After making persistent contact, on 20/11/2019 the first opposite party informed the complainant that consignment can be collected after paying Rs. 4500/- along with GST and they waived all other charges.  But on 22/11/2019 the first and second opposite parties demanded Rs. 2,92,706/- from the complainant as such amount was incurring as Port charges.  It is alleged by the complainant that the opposite parties have committed deficiency in service towards him.  Moreover the first and second opposite parties specifically committed unfair trade practice by taking advantage of their dominant position thereof. The goods contained in consignment would be damaged if not used.  The acts of the opposite parties caused liability towards Port charges, loss of article contained in consignment, sufferings of mental agony, hardship and inconvenience to the complainant.  So the opposite parties are jointly and severally liable for the loss and damage sustained to the complainant. The complainant prayed for direction to the opposite parties to pay an amount of Rs. 25,93,500/- as compensation to the complainant for the loss and injury suffered by him and also prayed for punishment under Section 39 of the Consumer Protection Act, 2019.

4.    The complaint is admitted and issued notices to the opposite parties. The first and second opposite parties have received notices and appeared before the Commission with their versions separately. The notices issued to the third and fourth   opposite parties were returned ‘endorsing as unclaimed’.

5.         The first opposite party challenged maintainability of the complaint and contended that complaint is not sustainable under Section 2(6) (iii) of the Consumer Protection Act, 2019. The first opposite party did not agree to provide service to the complainant and the complainant never hired any service from them.  It is stated that the fourth opposite party had entrusted the third opposite party for transportation of Cargo from Brunei. The shipment was booked by the fourth opposite party through the third opposite party. The third opposite party transported the goods from Brunei to Port Kelang.  Thereafter, the third opposite party intended to book shipment through Shipco Transport from Port Kelang to Chennai Port.  Since the first opposite party was agent of the Shipco Transport in Chennai, details of the first opposite party was shared by Shipco Transport to the third opposite party.  So the third opposite party mentioned the first opposite party as delivery agent in the Bill of Lading issued by them.  But the Shipco Transport found that first opposite party does not handle personal effect cargo, as consignment of the complainant was belonged in the category of personal effect cargo i.e, 41 packages of used items household goods and personal effects.  It is contended that the personal effect cargos are to be destuffed at O yard CFS.  But the Cargo handled by the first opposite party was usually destuffed at ECCT or Balmner Lawrie CFS.  So Shipco Transport reloaded the shipment with AWS container line at Port Kelang and their delivery agent in Chennai is the 2^nd opposite party in this case.  So the contention of first opposite party is that the chain of transaction in the process of transportation is one between the complainant on one side and the third and fourth opposite parties and Shipco Transport, AWS container Line and second opposite party on the other side.  But the complainant did not array the Shipco Transport and AWS Container Line as they were caused movement of containers from Port Kelang to Chennai.  It is contended that the second opposite party is the actual delivery agent in this transaction. The role of the first opposite party was confined to issuance of delivery order to the complainant to facilitate taking delivery from the yard of the second opposite party.  It was done only because the first opposite party was the delivery agent in the original bill of lading and same was already issued to the shipper before the consignment was co-loaded with AWS Container Line at Port Kelang. It is contended that it was practically and legally not possible to alter or cancel the original bill of lading.  Therefore, an interim bill of lading was generated by Shipco Transport to effect the change and same was informed the complainant.  Thus, the first opposite party was arrayed as consignee to the interim bill of lading for the purpose issuing delivery order to the complainant on payment delivery order charges and same was also informed the complainant.  It is stated that the first opposite party had issued a delivery order, which was for the purpose of enabling the second opposite party to take the delivery and handing over the same to the complainant after transportation was completed and reached at Chennai Port. There is no principal-agent relationship between the first opposite party and the fourth opposite party.  According to the first opposite party, the complainant is not a consumer and first opposite party is not service provider. The first opposite party admitted that they had raised delivery order charges only.  The first opposite party did not claim charges for transportation from the complainant. As per contract, service of transportation ends when goods arrives CFS (Container Freight Station) at the destination point.  The delivery charges thereon is independent and unconnected.  According to the first opposite party, charges claimed by the second opposite party was separate from charges claimed by the first opposite party.  It is contended by the first opposite party that the complainant had filed a civil suit before the Hon’ble City Civil Court, Chennai and same is pending for consideration.  The first opposite party never threatened the complainant and such allegation are false and incorrect.  The first opposite party already expressed their willingness to waive Rs. 4130/- towards issuances of delivery order in favour of the complainant.  The complainant is not entitled for any relief as claimed in the complaint.  There is no deficiency in service from the side of the first opposite party hence prayed for dismissal of the complaint.

6.      The second opposite party challenged the jurisdiction of this Commission to entertain the matter and there is no deficiency in service from the side of their side.  The issue is related to contracted dispute arising out of agreed terms and conditions.  The allegations are related to rights and obligations between the complainant and the fourth opposite party. As per relocation quotation, service of the fourth opposite party is stipulated as to pick up at door of the complainant till delivery at Chennai port. It is stated by the second opposite party that the fourth opposite party had acted in accordance with relocation quotation and consignment had reached in Chennai Port on 31/01/2019.  The second opposite party did not commit deficiency in service towards the complainant. It is contended that the second opposite party was not a party in relocation quotation.  It is also contended that the Commission lacks territorial jurisdiction to entertain the complaint.   It is stated that the second opposite party had received information with regard to consignment only on 28/01/2019 from their pre-existing contractor Asian Worldwide Services Sdn Bhd, 20-1,1^st floor, Jalam Kasuarina 8/KS7/Bandar Botanic, 41200 Klang/Selangor, Darul Ehsan, Malaysia. As per Bill of lading, jurisdiction to entertain any disputes could be in Courts of Singapore and no other courts. There is no bailee and bailiff relationship between the complainant and the second opposite party.  It is stated that on the basis of request made by the first opposite party final invoice was issued on 30/01/2019. It is stated that after receiving a mail dated 28/01/2019 from AWS, the second opposite party had issued Cargo arrival notice/Proforma Invoice dated 30/01/2019 to the notify party, Team Global Logistics Private Limited and not to   the complainant.  It is normal course of action that every Cargo Delivery Agent after receiving their payment from then notifying party, delivery order will be raised and only after that actual delivery will be made.  But in the case no payment was received for delivery of consignment even though the second opposite party had made several follow up mails to the notifying party (the first opposite party) and second opposite party was unable to deliver the goods from Chennai Port.  The second opposite party contended that they issued Proforma invoice to the first opposite party only, so it cannot be construed as invoice to the complainant.  The complainant   did not contact the office of the second opposite party personally. It is contented that on the basis of request, Agent AWS directed the second opposite party to issue another invoice for Rs.5310/- as endorsement charges and its tax. Accordingly, the second opposite party issued invoice to the complainant enabling to take delivery of consignment.  The second opposite party had contacted the complainant for several times, lastly on 20/11/2019, but the complainant did not take any step to receive consignment.  The second opposite party did not send email showing port charges were accrued to the tune of Rs. 2,92,706/-.  It is admitted that the second opposite party had sent email on 13/03/2020 informing the complainant that storage charges reached to the tune of  Rs. 44,853/- not  Rs. 2,92,706/-.  It is stated in the version, the second opposite party was engaged to deliver the consignment through AWS as per mail dated 30/01/2019 for delivering consignment of the complainant as advised by the first opposite party on behalf of the Shipco Agency. Thus the second opposite party raised a Proforma Invoice dated 30/01/2019 and sent mail for confirmation from the first opposite party for the payment as per terms and conditions of the second opposite party.  But the complainant did not act positively.  The second opposite party denied value of goods stated in the complaint. According to the second opposite party, value of goods was already stipulated as Rs. 50,000/- only.  The complainant is not entitled for any compensation pleaded in the complaint.  So the second opposite party prayed for dismissal of the complaint.

7.     The complainant has filed affidavit in lieu of evidence.  The documents of the complainant is marked as Ext. A1 to Ext. A14 documents.  Ext.A1 document is the copy of first page of passport of the complainant.  Ext.A2 document is the copy of relocation quotation. Ext.A3 document is the list of packed items of the complainant. Ext.A4 document is the copy of receipt dated 29/12/2018 issued by the fourth opposite party to the complainant. Ext.A5 document is the copy of bill of Lading.  Ext.A6 document is the copy of Cargo arrived Notice/Proforma Invoice dated 30/01/2019 issued to the complainant by second opposite party.  Ext.A7 document is the copy of Cargo arrival notice /proforma invoice dated 31/01/2019 issued by the first opposite party to the complainant. Ext.A8 document is the copy of baggage declaration form dated 04/02/2019 submitted by the complainant. Ext.A9 document is the copy of judgement of the honourable High Court of Judicature at Madras  dated 31/07/2019 made in W.P.No.10649 of 2019.  Ext. A10 document is the copy of the representation dated 11/02/2019 submitted by the complainant. Ext. A11 document is the copy of letter dated 21/08/2019 issued by the complainant to Chennai Container Terminal Private Limited, Chennai. Ext. A12 document is the copy of final notice issued under S.48 of Customs Act,1962 to the complainant. Ext.A13 document is the copy of communication issued by the office of the Principal Commissioner of Customs, Chennai.  Ext. A14 document is the copy of Cargo arrival notice/proforma invoice dated 30/01/2019 issued by the second opposite party.

8.   The first and second opposite parties did not file affidavits before the Commission.  So the Commission treated the first and second opposite party as exparte. No documents are availed from the side of the first and second opposite parties. The third and fourth opposite parties are also treated exparte.  So the Commission proceeded the matter with the evidence of the complainant.

9.  Heard the complainant in detail. Perused documents. The Commission considered   following points to adjudicate the matter:-

1. Whether the acts of the opposite parties are amounted to deficiency in service?
2. Relief and cost?

10. Point No.(1) & (ii) :-

      The averment of the complainant is that he had worked at Brunei for a long period of 33 years and thereafter decided to settle in his native place in India.  The complainant produced copy of first page of his passport issued by Republic of India and it is marked as Ext.A1 document.  It is also averred that he had entrusted all his belongings including household items, bathroom accessories, electronic items, book, furnitures etc with the fourth opposite party to despatch to India.  The complainant has produced Ext. A3 document to reveal the details of parcelled items from Brunei.  According to the complainant, he had remitted altogether 1500 BND to the fourth opposite party as freight charge.  Ext. A4 document would show payment of 1500 BND to the fourth opposite party by the complainant.  The complainant produced relocation quotation executed with the fourth opposite party showing terms and conditions for shipment of personal effects from Brunei to Chennai and same is marked as Ext. A2 document.  It is argued that on the basis of Ext. A2 document the complainant had entrusted all his control and possession over the consignment directly to the third and fourth opposite parties and their agents arrayed as first and second opposite parties.  As per Ext.A2 document transit time was fixed as 3 to 9 weeks from the date of packing i.e, 29/12/2018. But it is alleged that the consignment had not been restored into the possession of the complainant till the date. 

11.      It is argued by the complainant that the first and second opposite parties have issued Ext.A6, Ext.A7 and Ext.A14 documents to the complainant demanding  to pay  excessive amount to release consignment from Chennai Port.  It is further argued that the complainant is bound to pay only in accordance with terms and conditions of Ext. A2 document.  It is alleged by the complainant that he had contacted the first and second opposite parties for many times to release consignment, but the first and second opposite parties adamantly behaved towards the complainant and threatened to  face bad consequences if payment was not done as per their demand.  The complainant had contacted Chennai Port Authorities, Customs Department and even filed petition before Hon’ble High Court of judicature at Madras for releasing consignment. The complainant has produced Ext.A9, Ext.A11 and Ext.A13 documents to prove his arguments. It also stated by the complainant that Chennai Port Authorities issued Ext.A12 document to the complainant demanding to clear consignment within ten days.  It is stated that on 20/11/2019 the first and second opposite parties had directed the complainant to collect consignment after making payment of Rs.  4500/- along with GST that too after waiving all other charges. But it is alleged by the complainant that on 22/11/2019 the first and second opposite parties demanded Rs. 2,92,706/- from the complainant incurring as port charges.  So the complainant has alleged deficiency in service against the opposite parties. 

12.      In the evaluation of evidence, it can be seen that the opposite parties are failed to contest the matter.  So there is no contra evidence available in this case against pleadings of the complainant.  The argument of the complainant is that after reaching at Chennai Port, the opposite parties are failed to deliver the consignment to the complainant and they demanded exorbitant amount to release the goods.  In the examination of Ext.A2 document, it can be find that the duties and responsibilities of the parties are well settled therein.  As per Ext. A2 document the duties and responsibilities of the third and fourth opposite parties are ended at Chennai Port.  Thereafter all the acts done by the first and second opposite parties are need to be scrutinised.  The involvement of the third and fourth opposite parties are limited to the extent of delivery of consignment at Chennai Port. So the Commission find that all allegation of deficiency in service is attached with acts of the first and second opposite parties alone. It is the duty of the complainant to pay amount for Duties and taxes, Customs clearance and delivery destination, fumigation/Aquis/ Quarantine.  The Commission also find from the versions of the first and second opposite party that third opposite party made shipment of consignment of the complainant through Shipco Transport from Kelang to Chennai Port and the first opposite party is the agent of Shipco Transport in Chennai.  The bill of Lading, which is marked as Ext.A5 document, would show that the first opposite party is the releasing agent of consignment.  It is also find that Ext.A5 document was issued by the third opposite party.  So the Commission find that a nexus was existed between the first, second and third opposite parties and third opposite party involved in this transaction on the basis of Ext.A2 document executed between the first opposite party and the complainant.  So the Commission find that the first and second opposite parties are service provider to the complainant as per Ext.A2 and Ext.A5 documents.  It is also admitted in the version that the second opposite party had issued proforma invoice dated 30/01/2019 to the first opposite party on the basis of information given by their pre-existing contract party named AWS.  Moreover Ext.A6, Ext.A7 and Ext.A14 documents would show that the first and second opposite parties are service provider to the complainant and they are liable to release goods to the complainant from Chennai Port.  Moreover, there is no evidence available before the Commission to consider that other independent service providers are available in Chennai Port to release consignment to the complainant other than the first and second opposite parties.  The grievance of the complainant is that the first and second opposite parties were demanded excess amount to release consignment from the Port. As per Ext.A2 document, the complainant was liable to pay only duties and taxes, the charges of clearance and delivery destination and expenses of fumigation/Aquis/Quarantine.  But in the examination of Ext.A6, Ext.A7 and Ext.A14 documents it can be seen that the first and second opposite parties are tried make unlawful gain by demanding excess money other than notified in Ext.A2 document. Ext.A6, Ext.A7 and Ext.A14 documents did not specifically speak about the chargeable categories as that of mentioned in Ext.A2 document.  Moreover, version of the first and second opposite parties are also reveal that they were issued another proforma invoice for Rs. 5310/- for enabling release of consignment by the complainant. So it can be seen that issuance of Ext.A6, Ext.A7 and Ext.A14 documents are baseless, incorrect and against the terms of Ext.A2 document.  So the Commission find that the acts of the first and second opposite parties as caused mental agony, inconvenience and hardship to the complainant.

13.   It is pleaded by the complainant that he had sustained financial loss of Rs. 25,93,500/- due to the deficient service of the opposite parties.    It is averred that the complainant had lost entire goods, as goods would be damaged if not used and now the goods are kept idle for many months. But the Commission find that the complainant has failed to prove exact loss incurred to him due to the acts of the first and second opposite parties.  Even though the complainant pleaded loss of  Rs. 17,00,000/- (Rupees Seventeen  lakh only) resulted  due to damage of goods , but no evidence is  brought  before the Commission to show  real value of goods.    As per Ext. A8 document value of entire goods are shown as only Rs. 80,000/-(Rupees Eighty thousand only).   Ext.A8 document is the baggage declaration form showing details of value of the goods entrusted for shipment.  So it is find that there is no valid documents available before the Commission to reveal actual value of the goods kept in Chennai Port due to the deficient service of the first and second opposite parties.  Moreover the Commission also considered the submission of the counsel of the complainant that a suit numbered as 6892/2019 is pending before Chennai Civil Court for declaring Proforma invoices marked as Ext.A6, Ext.A7 and Ext.A14  documents as  null and  void.  The Commission is not going to discuss the legality of suit filed before the Civil Court Chennai by the complainant.  The Commission is only dealt with allegation of deficiency in service raised against the opposite parties.

14.          In the conclusion, the Commission find that the first and second opposite parties have committed deficiency in service towards the complainant and caused mental agony, hardship and inconvenience to the complainant. It is find that  the complainant  could not  release  his consignment from the port due to the acts of the  first and second opposite parties.  In the complaint, the complainant pleaded for a direction to the opposite parties to pay Rs. 8,00,000/- (Rupees Eight lakh only) to him as compensation for the sufferings of mental agony, hardship and inconvenience due to the acts of the opposite parties. But the Commission find that Rs.5,00,000/-(Rupees Five lakh only) could  be a reasonable  amount as compensation  to the  complainant. There is no evidence to prove the incidental expenses of Rs.49,500/-allegedly incurred to the complainant in connection with his attempts for release of consignment. But the Commission consider that the first and second opposite parties are liable to pay cost of the proceedings to the complainant. The Commission consider that Rs. 50,000/-(Rupees Fifty thousand only) would  be a reasonable  amount  to meet the expenses incurred for conducting prosecution against the first and second  opposite parties  before the Commission. In the light of the above made discussion, the Commission find that allegations of deficiency in service against first and second opposite parties have proved.  Hence complaint is partly allowed in the following manner:-

1. The first and second opposite parties are directed to pay Rs.5,00,000/- (Rupees Five lakh only) to the complainant as compensation for the sufferings of mental agony, hardship and inconvenience caused due to the  acts of deficiency  in service.
2. The first and second opposite parties are directed to pay Rs. 50,000/- (Rupees Fifty thousand only) to the complainant as cost of the proceedings.

     The first and  second opposite parties  shall  comply this order within  30 days  from  the  date of  order  otherwise entire amount shall carry interest  at the rate of 9% per annum  from the date of the  order till the date of  its realisation.

Dated this 27^th day of February, 2024.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

APPENDIX

Witness examined on the side of the complainant                      : Nil

Documents marked on the side of the complainant                    : Ext.A1to A14

Ext.A1  : Document is the copy of first page of passport of the complainant.

Ext.A2  : Document is the copy of relocation quotation.

Ext.A3  : Document is the list of packed items of the complainant.

Ext.A4  : Document is the copy of receipt dated 29/12/2018 issued by the fourth

               opposite party to the complainant.

Ext.A5 : Document is the copy of bill of Lading. 

Ext.A6 : Document is the copy of Cargo arrived Notice/Proforma Invoice dated

               30/01/2019 issued to the complainant by second opposite party. 

Ext.A7 : Document is the copy of Cargo arrival notice /proforma invoice dated

              31/01/2019 issued by the first opposite party to the complainant.

Ext.A8 : Document is the copy of baggage declaration form dated 04/02/2019

              submitted by the complainant.                          

Ext.A9 : Document is the copy of judgement of the honourable High Court of

              Judicature at Madras  dated 31/07/2019 made in W.P.No.10649 of 2019. 

Ext.A10: Document is the copy of the representation dated 11/02/2019 submitted by

                the complainant.

Ext.A11: Document is the copy of letter dated 21/08/2019 issued by the complainant

                to Chennai Container Terminal Private Limited, Chennai.

Ext. A12: Document is the copy of final notice issued under S.48 of Customs Act,1962

                to the complainant.

Ext.A13:Document is the copy of communication issued by the office of the Principal

                Commissioner of Customs, Chennai. 

Ext.A14: Document is the copy of Cargo arrival notice/proforma invoice dated

                 30/01/2019 issued by the second opposite party.

Witness examined on the side of the opposite party                        : Nil

Documents marked on the side of the opposite party                      : Nil

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER