ABDUL MAJID And BROTHERS vs OMEGA SHIPPING PVT. LTD.

ON account of delivering of cargo to its buyer M/s. Unicorn, (Ophasselt) Belgium without receiving the payment the complainant firm has claimed compensation of Rs. 14,96,160 equivalent to US $ 41,560 along with interest @ 18% w.e.f. 21.5.1996 alleging deficiency in service on the part of the O.Ps.

CASE of the complainant, in brief, is that complainant is a partnership firm, dealing in business of exports of handicrafts. O.P. No. 2 are carriers who have their agents O.P. No. 3 at Belgium and O.P. No. 1 in India having offices at Bombay and Delhi. O.P. No. 4 is the Cargo agent of complainant. Complainant availed services of O.P. No. 4 who acted as Cargo agent of complainant and delivered the consignment consisting of 127 packages of the value of US $ 18,001 to O.P. No. 1 agents of O.P. No. 2 in India. O.P. No. 1 after receiving goods for shipping from Bombay to Antwepen (Belgium) issued Shipped-on-Board Bill of lading dated 14.11.1995. The complainant handed over to its bankers original bill of lading invoice. Complainant was informed by its bankers Overseas Bank on 8.5.1996 that original documents have been received back from the drawee bank as ''UNPAID''. The complainant wrote to O.P. No. 3 that they had committed flagrant violation of all shipping norms by delivering the container of cargo to buyer without demanding: (i) The original B/L duly endorsed by the Drawee''s Krediet Bank. (ii) Krediet Bank''s certificate of payment of all cost of our cargo. (iii) Express release order from us or our cargo agent M/s. Francis Shipping Agency, Bombay, or our Indian Overseas Bank. (iv) Letter of indemnity under our permission/consent.

Services of O.P. Nos. 1 to 3 suffered from deficiency who admitted that consignment has wrongly been delivered to M/s. Unicom. O.P. No. 1 was disclosed agent of O.P. No. 2 hence was liable to compensate for loss caused to complainant. O.P. No. 3 agents of O.P. No. 2 at Belgium gave wrongful delivery to M/s. Unicom. O.P. No. 2 are carriers and principals of O.P. Nos. 1 and 2 and, therefore, jointly liable. Hence this complaint.

Denying the allegations the O.P. No. 1 took the plea that the complaint is not maintainable as O.P. No. 1 are only the local agents of the Carrier Himalaya Express NV, Belgium/O.P. No. 2 and the bill of lading was issued by O.P. No. 1 only as agents of O.P. No. 2. O.P. No. 1 was not personally liable and the remedy is only against O.P. No. 2.

O.P. Nos. 2 and 3 raised the objection of territorial jurisdiction and asserted that the State Commission does not have the territorial jurisdiction against O.P. No. 2 on account of its being Belgium based shipping company. The claim was time-barred and even the liability, if any, of the carrier has become extinguished under Article 3 Rule 6 of the Carriage of Goods by Sea Act. O.P. No. 3 also raised the objection that the complaint against O.P. No. 3 is not maintainable against it since the O.P. No. 3 are the agents of disclosed principal Himalaya Express N.V., Belgium, who are O.P. No. 2 in the present complaint.

AS is apparent from the aforesaid conspectus of facts the main liability is of O.P. No. 1 which has an office in India being the agent of O.P. No. 2 the main carriers. The learned Counsel for O.P. No. 1 has in its defence made two-fold contentions. Firstly that where the principal has been disclosed the agents cannot be used under Section 230 of the Indian Contract Act and secondly that the complaint as such is barred by limitation under Article 6 of Carriage of Goods by Sea Act, 1975. It also took the plea that the complaint is time-barred. Let us see what aforesaid two provisions say. Section 230 of the Indian Contract Act reads as under : "Sec. 230. Agent cannot personally enforce, nor be bound by, contracts on behalf of Principal - In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them."

Article 3 Rule 6 of Carriage of Goods by Sea Act reads as under : "Article 3 Rule 6-Unless notice of loss or damage and general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading."

SECTION 3 of the Consumer Protection Act, 1986, provides an independent and additional remedy seeking compensation as to the loss or injury suffered by the Consumer on account of negligence of the service provider or breach of term of contract. This remedy is not in derogation of any other law for the time being in force. SECTION 3 provides as under: "3. Act not in derogation of any other law-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."

WHENEVER any service provider based in foreign country evolves system or mechanism of getting the business through its agent in another country, the agent is directly as well as vicariously liable for the acts of omission and commission or deficiency in service on the part of the principal and in such kinds of contract as the one in question neither the provisions of Section 230 of the Indian Contract Act are applicable nor Article 3 Rule 6 of the Carriage of Goods by Sea Act are applicable. These are provisions vis-a-vis relationship between agent and principal. Deficiency in service on the part of the principal renders the agent through the principal as it is the agent who had procured business and through whom the consideration was paid and the services availed. Such an arrangement assumes relationship of consumer and service provider between the person who had given cargo for delivery against consideration and the agent of the principal as well as place where the principal operates through this agent assumes territorial jurisdiction for seeking redressal of the grievance by the consumer.

So far as the contention that the cause of action started from the date of delivery it does not hold water as the cause of action continues till the last communication between the parties or after serving legal notice or receiving reply from the erring party. Cause of action in such type of cases is continuing and of subsisting nature and accrues further from the date of serving legal notice upon the erring party and then from the date of reply as the wronged party always makes efforts in getting the grievance redressed by way of communication or talks which does not mean that wronged party has been sitting pretty for years.

CONSUMER Protection Act prescribes two years period from the cause of action that arose lost and not from the date of delivery or date of booking of consignment etc. These provisions are independent provisions for the purpose of filing complaint under the CONSUMER Protection Act. Carriage by Air Act or Carriage of Goods by Sea Act are for the purpose of filing claim under the Carriage Act or any other Act and not for the purpose of seeking compensation under the CONSUMER Protection Act as the word ''compensation'' referred in the CONSUMER Protection Act has wide connotation and includes damages suffered by a consumer as to the mental agony, emotional sufferings, physical discomfort, financial loss, etc. Deficiency on the part of the carrier is writ large in as much as that it delivered the container cargo to the buyer against the instructions of the complainant and the retirement of the requisite documents. As regards the liability of agent it is the as that of the carrier as it is through this agent that the services of O.P. No. 2 were availed. It is not a case like ordinary relationship of principal or agent. Here the principal is a firm of foreign country and have appointed O.P. No. 1 in India as their agent. Complainant availed the services of carrier agent/O.P. No. 4 and on behalf of the complainant delivered the consignment in question to O.P. No. 1, the agents of O.P. No. 2 in India. The services of O.P. No. 2 were availed by the complainant through O.P. No. 2 through its agent/O.P. No. 4 and as such is the direct beneficiary of the service provided by O.P. No. 1 and in that context O.P. No. 2 were the direct beneficiary of the complainant and the complainant has direct relationship of consumer with service provider of O.P. Nos. 1 and 3.

FOR the foregoing reasons we allow the complaint in the following terms: "O.P. Nos. 1, 2 and 3 are jointly and severally liable for the deficiency in service and they shall make the payment of US $ 18,001 equivalent in the Indian currency at the rate prevalent at the relevant time and further make compensation of Rs. 25,000 for the mental agony and harassment suffered by the complainant and Rs. 10,000 as cost of litigation." Complaint is disposed of in aforesaid terms. Payment shall be made within one month from the date of receipt of the order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and, thereafter the file be consigned to record room.

COPY of the order be sent to Presidents of all the District Fora. Complaint disposed of.