Badri Prasad Verma vs M/s Anurag Exports & 3 Ors

Heard Mr. S. N. Tripathi, Advocate, for Brig Cargo International, Mr. Uday Kumar, Advocate, for EMU Lines Pvt. Ltd. and Mr. Dwarika Prasad Shukla, Advocate, for M/s. Anurag Exports, in all connected appeals.

Above appeals have been filed against order of State Consumer Disputes Redressal Commission, Uttar Pradesh, dated 05.07.2011, passed in Consumer Complaint No.179 of 2002, allowing the complaint and directing the appellants of these appeals jointly and severally to pay Rs.1076000/- with interest @9% per annum from 28.03.2001 till 31.10.2002, Rs.10000/- as compensation and Rs.10000/- as litigation costs, within 60 days from the date of judgment with default clause. As all the appeals arise out of same order in CC/179/2002 as such the appeals were consolidated and heard together. M/s. Anurag Exports (complainant) has filed Cross Objection in FA/313/2011. Consumer Protection Act, 1986 and the Rules and the Regulation framed under this Act does not contain any provision for cross objection. The remedy of the appeal, revision and review are statutory remedies. It is well settled that if the proceeding is under any special enactment then remedies of the appeal, revision and review, if provided under that enactment alone, can be availed. Cross Objection filed under Order 41 Rule 22 of Civil Procedure Code, 1908 is not maintainable. Being long barred by limitation, it cannot be treated as an appeal and is rejected.

M/s. Anurag Exports (the respondent) filed CC/179/2002, for directing Brig Cargo International, M/s. Brig Cargo International, E M U Lines Pvt. Ltd. and Badri Prasad Verma (the appellants) to pay (i) Rs.1076000/- with interest @18% per annum from 28.03.2001 till payment, for loss of consignment; (ii) Rs.one lakh, as compensation for mental agony and harassment; (iii) Rs.11000/-, as litigation costs; (iv) any other relief, which is deemed fit and proper in the facts of the case.

The complainant stated that M/s. Anurag Exports was a partnership firm, registered under Partnership Act, 1932 and engaged in manufacture sale and export of hand knitted woollen carpets. Badri Prasad Verma, representing him as an agent of M/s. Designer’s Collection, Gmbh, Amukhigraben 2, D-35410, Hungen, Germany (an overseas buyer), contacted the complainant for export of 41 rolls of hand knitted woollen carpets to the buyer, as per its choice, design and quality. The complainant manufactured the carpets of 41 rolls of woollen carpets as per order, which were checked and finalized by Badri Prasad Verma, for export to M/s. Designer’s Collection. Brig Cargo International was a Custom Clearance Agent and facilitates the customers in voyage of overseas export. The complainant contacted Brig Cargo International at Bhadohi office for export of 41 rolls of carpets to Hamburg, Germany. As instructed by Brig Cargo International, the complainant transported consignments of 41 rolls of carpets from Bhadohi to Bombay by truck, along with Invoice No.195/2000-01 dated 18.10.2000, in the name of M/s. Designer’s Collection, Gmbh, Amukhigraben 2, D-35410, Hungen, Germany and requisite papers relating to shipment. Brig Cargo International, as per own choice, obtained the services of E N U Shipping Lines, operated by E M U Lines Pvt. Ltd., who conducts a fleet of vessels, for shipment of the consignments, who took responsibilities of loading and sailing the cargos in vessel. E M U Lines Pvt. Ltd. prepared three original and one copy not negotiable of Bill of Lading of the consignments. Brig Cargo International sent its Bill No.147/00-01 dated 04.11.2000 for Rs.55233/- along with three original Bills of Lading No.EMU MUM-00/0001669 dated 04.11.2000 and one copy not negotiable of Bill of Lading to the Manager, Punjab National Bank, Gopiganj Branch, Bhadohi, for collection of DM 51770.66 equivalent to INR1076000/-, the amount of Invoice dated 18.10.2000. Punjab National Bank sent original Bill of Lading to Sparkasse Laubach Hungen, August-Krleger STR-1935321-Laubach, KTO-NR-1009844 BLZ-51352227, the banker of M/s. Designer’s Collection, Gmbh, Amukhigraben 2, D-35410, Hungen, Germany on 08.11.2000, for collection of the consignment and remitting the amount by demand draft at its Bhadohi branch. The copy of Bill of Lading “not negotiable’ was sent to the buyer for its information. Punjab National Bank, vide letter dated 16.06.2001, informed the complainant that the documents were returned ‘unpaid’ by the foreign banker along with letter dated 12.06.2001. The complainant sent a letter dated 10.07.2001 to Mr. Gerd Heize, the delivery agent, at Hamburg, Germany, inquiring from him about the status of the consignments as the documents were returned unpaid. The complainant also gave several reminders to him but of no respond. The complainant then wrote a letter dated 20.02.2002 to Brig Cargo International, to supply receipt/certificate of above cargos. Brig Cargo International, vide letter dated 15.05.2002 (supplying a letter dated 15.05.2002 of E M U Lines Pvt. Ltd.), informed that the cargos were delivered to the consignee on 28.03.2001. Then the complainant wrote a letter dated 23.07.2002 to M/s. Designer’s Collection, Gmbh, for payment of the bills. The complainant again wrote a letter dated 22.07.2002 to Brig Cargo International, to inform as to whether the consignments were delivered against original Bill of Lading or any guarantee and supply the proof of it. Punjab National Bank returned the original papers to the complainant, vide letter dated 05.07.2002. Brig Cargo International stopped correspondence with the complainant. Reply of Brig Cargo International and E M U Lines Pvt. Ltd. relating to delivery of consignment to the consignee was unbelievable inasmuch as original Bill of Lading was returned by the banker and without deposit of original Bill of Lading, the consignment could not be delivered. Brig Cargo International and E M U Lines Pvt. Ltd. were under an obligation for safe carriage of consignment but they have failed to provide any proof relating to delivery of the consignment at the place of destination to the consignee and have committed deficiency in service. Badri Prasad Verma placed the order for export as such he is also liable for loss of the complainant. On these allegations, the complaint was filed on 31.10.2002.

Brig Cargo International filed its written reply and contested the complaint. Brig Cargo International  stated that the complainant handed over 41 rolls of carpets for shipment to Hamburg, Germany at Bombay on 18.10.2000 along with Invoice No.195/2000-01 dated 18.10.2000, in the name of M/s. Designer’s Collection, Gmbh, Amukhigraben 2, D-35410, Hungen, Germany and requisite papers relating to shipment. The complainant, through a letter dated 18.10.2000, asked for 4 copies of Bill of Lading. Brig Cargo International shipped the consignments, which were numbered as Consignment Nos.1078 to 1118 through E N U Shipping Lines, operated by E M U Lines Pvt. Ltd. on 04.11.2000, who issued Bill of Lading. Brig Cargo International sent its Bill No.147/00-01 dated 04.11.2000 for Rs.55233/- along with four original Bills of Lading No. EMU MUM-00/0001669 dated 04.11.2000 to the Manager, Punjab National Bank, Gopiganj Branch, Bhadohi, for collection of the amount of Invoice dated 18.10.2000, DM 51770.66 equivalent to INR1076000/-. The services of E M U Lines Pvt. Ltd. were availed as per choice of the complainant. E M U Lines Pvt. Ltd., vide its letter dated 15.05.2002, informed that the consignments were safely delivered to the consignee on 28.03.2001, at the port of Hamburg, Germany which was duly communicated to the complainant. The complaint supplied original Bill of Lading to the foreign buyer through Badri Prasad Verma, who received the consignments. There is no deficiency on their part. Cause of action arose in Bombay and State Commission Uttar Pradesh has no territorial jurisdiction in the matter.

E M U Lines Pvt. Ltd. filed its written reply and stated that Brig Cargo International had shipped Consignment Nos.1078 to 1118 through E N U Shipping Lines, operated by E M U Lines Pvt. Ltd. on 04.11.2000. Brig Cargo International, through letter dated 24.10.2000, requested for issue of four copies of Bill of Lading, which were issued to it. The consignments were safely delivered to the consignee at the port of Hamburg, Germany on 28.03.2001 on the basis Bill of Lading. If it was delivered to any wrong person, then E M U Lines Pvt. Ltd. is not responsible for it. Cause of action arose in Bombay and State Commission Uttar Pradesh has no territorial jurisdiction in the matter.

In spite of service of notice, Badri Prasad Verma did not file his written reply.

State Commission, in the impugned order dated 05.07.2011 found that Brig Cargo International, in its letter dated 04.11.2000, written to Punjab National Bank, had mentioned issue of three original Bill of Lading No.EMUMUM-00/0001669 dated 04.11.2000, relating to shipment of 41 rolls of woollen carpets and in the Bill of Lading produced by the complainant also ‘three’ was mentioned. As such plea taken by Brig Cargo International and E M U Lines Pvt. Ltd. that ‘four’ original Bill of Lading were issued, was not liable to be accepted. Shipping of 41 rolls of woollen carpets through the cargo of E M U Lines Pvt. Ltd. on 04.11.2000 from Bombay port of Hamburg port Germany is not disputed as such it was responsibility of E M U Lines Pvt. Ltd. to deliver the consignment to the person, producing the original Bill of Lading issued by it at Hamburg port Germany. E M U Lines Pvt. Ltd. produced a Photostat copy of letter dated 22.03.2001, written by M/s. Designer’s Collection to Badri Prasad Verma stating that due to poor market and poor collection, they were not in position to pay the bills. In this letter out of four bills, one of the bill relates to Invoice No.195/2000-01 dated 18.10.2000. The complainant then wrote a letter dated 23.07.2002 to M/s. Designer’s Collection, Gmbh, for payment of the bills but it was not paid. E M U Lines Pvt. Ltd. committed deficiency in service in not delivering the consignment to the consignee on the basis of original Bill of Lading issued by it and committed deficiency in service. The opposite parties were jointly and severally liable for the loss to the complainant. On these finding the complaint was allowed and the order as stated above has been passed. Hence these appeals have been filed.

We have considered the arguments of the counsel for the parties and examined the record. Admittedly, Brig Cargo International had its office at Bhadohi, where the complainant had availed its services for shipping of 41 rolls of carpets to Hamburg, Germany. As Brig Cargo International carried on business at Bhadohi, where part of cause of action arose as such State Consumer Disputes Redressal Commission, Uttar Pradesh had territorial jurisdiction in the matter.

Admittedly the complainant handed over consignments of 41 rolls of carpets to Brig Cargo International along with Invoice No.195/2000-01 dated 18.10.2000, in the name of M/s. Designer’s Collection, Gmbh, Amukhigraben 2, D-35410, Hungen, Germany and required documents for its shipment to the port of Hamburg, Germany. These consignments were shipped through E N U Shipping Lines, operated by E M U Lines Pvt. Ltd. on 04.11.2000, who had issued Bills of Lading No. EMU MUM-00/0001669 dated 04.11.2000. As such its safe voyage and delivery at the port of Hamburg, Germany was responsibility of E M U Lines Pvt. Ltd. Brig Cargo International and E M U Lines Pvt. Ltd. took plea that four original Bill of Lading were issued to the complainant on its request through letter dated 18.10.2000. By producing Fourth original Bill of Lading, the consignee had collected the consignments on 28.03.2001 as informed by the delivery agent, at Hamburg, Germany.

This fact has been disputed by the complainant. The complainant filed copy of the letter 04.11.2000, written by Brig Cargo International to Punjab National Bank as well as copies of Bill of Lading, sent along with this letter. In the letter dated 04.11.2000, ‘three original Bills of Lading No. EMU MUM-00/0001669 dated 04.11.2000’, was mentioned. Bills of Lading as produced by the complainant mentioned “03 (three)” “First Original”, “Second Original” and “Third Original”. The Letter dated 04.11.2000 along with three original bill of lading were sent to the Manager, Punjab National Bank, Gopiganj Branch, Bhadohi, for delivery to the party against payment only. One Bill of Lading “Copy Not Negotiable” was also sent, as admitted by the complainant. Punjab National Bank sent original Bill to the banker of M/s. Designer’s Collection, Gmbh, Amukhigraben 2, D-35410, Hungen, Germany along with letter dated 08.11.2000 (Annexure-6), for collection of Consignment Nos.1078 to 1118 under Bill of Lading No. EMU MUM-00/0001669 dated 04.11.2000 from Hamburg and remitting DM 51770.66 to it. The complainant stated that Punjab National Bank, vide letter dated 16.06.2001 (Annexure-7), informed the complainant that the documents were returned by the foreign banker as unpaid along with letter dated 12.06.2001. Fourth original Bill of Lading, on the basis of which the consignments were allegedly delivered to the consignee, the word “Fourth” is handwritten and not printed. As such E M U Lines Pvt. Ltd. has committed deficiency in service in not delivering the consignments to the consignee on the basis of original Bill of Lading issued by it. To justify its deficiency, Brig Cargo International and E M U Lines Pvt. Ltd. took plea that four original Bill of Lading, were issued, which is incorrect. They committed deficiency in service and causing loss to the complainant.

So far as letter dated 22.03.2001 written by M/s. Designer’s Collection, Gmbh to Badri Prasad Verma, showing that payment of the bill relating to Invoice No.195/2000-01 dated 18.10.2000 of Anurag Export would be delayed due to poor market and poor collection, is concerned, it is prior to the date of alleged delivery of consignment, which was on 28.03.2001, as such, on its basis, it cannot be said that the consignment were delivered to the consignee and it does not help the appellants. The appeals filed by Brig Cargo International and E M U Lines Pvt. Ltd. have no merit and are liable to be dismissed.

However, the complainant has not made any allegation against Badri Prasad Verma in voyage of the consignments and its delivery, in the complaint. State Commission has not recorded any finding as to how Badri Prasad Verma was responsible for loss of consignment during transit. The appeal filed by Badri Prasad Verma is liable to be allowed.

ORDER

In view of the aforesaid discussions, First Appeal Nos.313 and 344 of 2011 are dismissed. Cross-appeal of the complainant is rejected.

First Appeal No. 185 of 2012 is allowed and order of State Consumer Disputes Redressal Commission, Uttar Pradesh, dated 05.07.2011, passed in Consumer Complaint No.179 of 2002, as against Badri Prasad Verma, is set aside.