NATIONAL INSURANCE CO LTD vs Sambit Tripathy

COMPLAINT was filed, inter alia, alleging that complainant is an exporter of textile fabrics. He handed over to the opposite party for safe carriage from Mumbai to Mombasa three containers containing textile fabrics as detailed below: Bill of Lading No. Container No. No. of Packages 37857881 D 23.3.95 OCLU 054507 -2 49 37857865 D 23.3.95 OCLU 059169 -5 166 37857857 D 28.3.95 TPXU 6934994 122

IT was stated that as Emke Garments Kenya Ltd. consignee did not take delivery of containers the complainant approached Mumbai agent of the opposite party on 7.8.1995 for bringing back the containers to Mumbai undertaking to pay required charges and freight. Mumbai agent asked the complainant to contact their Mombasa agent M/s. Mackenzie Maritime Ltd. Complainant instructed Mombasa agent to re -book the containers to Mumbai. Since there was no information from the agent, the complainant deputed his representative Syed Kasim Hussain on 12.9.95 to Mombasa. Shri Hussain was shocked to find that the letter dated 11.8.1995 addressed to Collector of Customs and Excise, Mombasa seeking permission to document the three containers to India had not been delivered till then by Mombasa agent. This letter was delivered to the said authority on 12.9.1995. In the meantime textile fabrics of one of the containers No. TPXU 6934994 was auctioned on 5.9.1995 by the said authority. It was further alleged that non -delivery of the letter dated 11.8.1995 to the said authority by Mombasa agent of the opposite party amounted to deficiency in service. Amount of Rs. 27,09,601.70 equivalent to US $ 77.974.15 being the invoice value of textile fabrics contained in above container, Rs. 40,518.75 being the amount of freight paid, Rs. 42,443 being the amount of insurance amount, Rs. 22,000 being the expenses incurred by the representative deputed to Mumbai from Madras. Rs. 66,000.00 being the expenses incurred by the representative sent to Mombasa. Rs. 2,98,212.50 being the amount of interest paid to Bank, Rs. 28,975.00 being the amount spent on correspondences. Rs. 5,000 being the fee paid to lawyer at Bombay and Rs. 5,00,000.00 by way of compensation for mental agony, totalling Rs. 37,12,750.40 were claimed by the complainant from the opposite party. Opposite party contested the complaint by way of filing written version. It was not denied that three containers were entrusted to it for safe carriage from Mumbai to Mombasa as alleged. The containers were carried in vessel M.V. SUSAK Voyage -18 and handed over to Mombasa Custom Authorities at Mombasa on or about 12th April, 1995. Under the contract of carriage covered by the bills of lading issued by the answering opposite party, the responsibility of opposite party came to an end on containers being discharged from the ships rail on to the wharf/quay. It was alleged that Emke Garments Kenya Limited, consignee did not take delivery of the containers covered by three bills of lading issued by answering opposite party. One of the containers No. TPXU 6934994 was auctioned by the Customs Authorities on 5.9.1995 to recover demurrage and storage charges due on the containers. Mumbai agent of the opposite party had made it clear in the fax dated 14.8.1995 that Mombasa agent did not have any control once the goods were listed for auction by Custom Authorities and in the past efforts by Mombasa agent to prevent auction sale of goods by Customs Authorities had proved futile. It was stated that Mombasa agent of the answering opposite party had sent a letter dated 11.8.1995 to the Principal Collector of Customs and Excise, Mombasa for permission to re -ship the three containers back to India as the consignee had refused to take them. Letter was sent by post. Copy thereof was again tendered to the Custom Authorities on 12.9.1995. It was denied that there was any deficiency in service on part of Mombasa agent as alleged. Complaint was stated to be barred by limitation under the Carriage of Goods by Sea Act, 1925. It was further alleged that Commission did not have territorial jurisdiction to entertain and try the complaint as alleged negligence deficiency in service on the part of Mombasa agent occurred at Mombasa. It was also alleged that in the list for auction issued by Custom Authorities the particular of third container was erroneously mentioned as TEXU 69349944 instead of TPXU 69349944. Thus, Mombasa agent sent auction sale notice to the consignee only in regard to balance two containers. It was claimed that Syed Kasim Hussain, representative of complainant reached Mombasa on 11.8.1995 and was seen in the company of consignee. He contacted the Mombasa agent for the first time on 12.9.95. Textile fabrics contained in container TPXU 69349944 were sold by Customs Authorities at the behest of said representative who was in hand and glove with the consignee. Further, despite repeated requests to the Customs Authorities the information to whom the textile fabrics were sold and price, etc. was not made available to Mombasa agent of the replying opposite party. Liability to pay the amount claimed was emphatically denied.

ONE of the main issues which arises for determination in this complaint is whether Mombasa agent of the opposite party was deficient in service in having allowed the textile fabrics stuffed in container TPXU 69349944 auctioned by Customs Authorities at Mombasa on 5.9.1995. Some of the correspondence exchanged between the parties need be referred on that issue. Fax dated 7.8.1995 Exhibit D -5 sent by the complainant to Mumbai agent of the opposite party, omitting immaterial portion reads thus: ''Ref. B/L, 37857857 dated 28.3.1995 and 37857881 dated 23.3.1995 122 packages, 49 packages shipment to Mombasa port to the party Emke Garments Kenya Ltd. P.O. Box No. 1556, Mombasa Kenya. With reference to the above against your B/L to the said party to the destination of Mombasa port. The shipment was made in the month of March, 1995. The Cement not is at port. The party is not in a position to take delivery. So we want to bring back the goods. For that purpose we have to know the formalities to re -back the goods. Demurrage charges occurs to fare and freight charges up to Madras. For the two things we have to know from you and hence we are requesting you to make arrangements to get back the goods through yourself. Please let us know your reply by return fax so as to enable for us to move further herewith. We are faxing the bill of lading copies for your reference. We are expecting your favourable reply by return fax.''

IN response to said fax, the fax dated 14.8.1995 Exhibit D -7 was sent by the Mumbai agent of the opposite party to the complaint. Information in this fax is based on the fax received by Mumbai agent from Mombasa agent -Mackenzie Maritime Ltd. of the opposite party. Omitting immaterial portion Exhibit D -7 reads thus: ''(1) It is very difficult at their end to reship cargo that has been manifested and for discharge at Mombasa, Kenya. (2) Custom authorities there do not allow their kind of cargo to be reshipped and can even seize it on notification to return but then such cargo ends up in Customs Warehouse for public auction sale on account of non -clearance from port area and all the proceeds of the sale goes to KPA/Customs Authorities to recovery their handling/storage charges+ Government/vat. Our agents have asked the Custom Authority to allow them to reship although the previous requests have been refused. But above all mainly they would like to know the reason why he is not taking the goods as they have arrived in Mombasa 4 months ago.''

Thereafter fax dated 16.8.1995 Exhibit -8 was sent by the complainant to the Mumbai agent of the opposite party. Omitting immaterial portion, same reads as follows: ''We are sending our representative to Mombasa by next week to clear our shipment back to Madras. Kindly fax us your Mombasa agent name, contact persons telephone -telex -fax No. to able to reach fast, and setting the things done. We want to know how we have to carry amount to demurrage and other charges, kindly get details at earliest. Anxiously waiting your valuable reply.''

VIDE fax dated 17.8.1995 Exhibit D -9 Mumbai agent intimated to the complainant the address of Mackenzie Maritime Ltd., Mombasa agent. This fax also notices that for demurrage and other charges their Mombasa agent be contacted.

COMPLAINANT alleged that his representative Syed Kasim Hussain after reaching Mombasa visited the office of the said agent of the opposite party at Mombasa on 12.9.1995 and he found that the letter dated 11.8.1995 Exhibit D/6 addressed to the Principal Collector of Customs and Excise, Mombasa seeking permission to re -ship the containers to India had not been delivered to that authority. He got this letter delivered on 12.9.1995. Complainant further alleged that belated delivery of this letter had resulted in auction of container TPXU 6934994 on 5.9.1995 by the Custom Authorities and this inaction amounted to deficiency in service on the part of opposite party. On the contrary, relying on Clause 5 of the bill of lading(s) the opposite party, amongst others, pleaded that its responsibility qua three containers came to an end after their discharge from ships rail to port/customs authorities on or about 12.4.1995. Clause 5 which has been reproduced in written version and which is material, provide thus: ''Carriers responsibility from port to port shipment: ''..............The carrier shall be under no liability whatsoever for loss of or damage to the goods howsoever occurring, if such loss or damage arises prior to loading onto or subsequent to discharge from the vessel......''

Submission advanced by Mr. K.V. Viswanathan for complainant was that after handing over of the containers to Customs Authorities at Mombasa there had been a fresh contract between the parties and thereunder Mombasa agent was obliged to ensure that the letter dated 11.8.1995 reaches the Customs Authorities at Mombasa in time and fabrics stuffed in container TPXU 6934994 not auctioned. He conceded that in view of Clause 5 of bill of lading(s) the complainant did not have any case if he fails to prove a fresh contract between the parties. In support of submission, our attention was drawn by Mr. Vishwanathan to the letter dated 7.8.1995 Exhibit D/5 wherein Mumbai agent of the opposite party was requested to make arrangement to get back the containers through them as also the fact that reshipping of remaining two containers was made through Mombasa agent of the opposite party later on. It is significant to mention that such a plea of fresh contract between the parties was not taken in the complaint. Further, request to make arrangement to send the containers back to Mumbai agent as made in the said letter dated 7.8.1995 without making payment of demurrage and other charges including freight cannot constitute a fresh contract between the parties. To be noticed that reshipping of two containers was made by Mombasa agent some time in last week of October, 1995. How could that re -shipping constitute a fresh contract on date of auction on 5.9.1995? Mombasa agent of the opposite party seems to have sought the permission of Port/Customs Authorities through the letter dated 11.8.1995 which was allegedly sent by post, only as a gesture of goodwill. Assuming that this letter came to be delivered to the said authorities only on 12.9.1995 the same would not be deficiency in service within the meaning of Consumer Protection Act, 1986 on part of Mombasa agent and/or on the part of opposite party. It is the complainant who is to be blamed for auction sale. The containers had reached Mombasa on or about 12.4.1995. Despite the possibility of auction sale due to non -clearance of containers from port area conveyed through aforesaid fax dated 14.8.1995 by Mumbai agent and complainant undertaking to depute representative to Mombasa by the next week by fax dated 16.8.1995, Syed Kasim Hussain was sent only on 12.9.1995 after the fabrics stuffed in said container were auctioned to recover demurrage and other charges by customs/port authorities. Decision in Trustees of the Port of Madras v. K.P.V. Sheikh Mohamad Rowther & Co., (1962) 2 S.C.R. page 915, has no applicability to the facts of present case. Having reached this conclusion the other issues raised in complaint need not be gone into.

RESULTANTLY , the complaint is dismissed with Rs. 15,000 as cost to the opposite party who was unnecessary dragged into this litigation by the complainant. Complaint dismissed.