BLOKS INTERNATIONAL vs INDIA OVERSEAS BANK

COMPLAINANT availed the services of O.P. No. 1 Indian Overseas Bank for negotiating the documents for the purpose of export of handicraft items to USA. In return O.P. No. 1 availed the services of O.P. Nos. 2 and 3 as a courier by way of transmitting the documents through courier. Since the documents could not reach the destination the goods exported by the complainant also did not reach to its consignee. On account of deficiency in service on the part of the O.Ps. the complainant has through this complaint sought compensation of the value of consignment of the goods amounting to Rs. 1,30,683.70 p. with interest @ 18% holding the O.Ps. jointly and severally liable besides the cost of the complaint.

FACTS lie in a moderate compass. The complainant procured an order for export of items of handicrafts comprising bone brass necklaces and brass purse for the value of US Dollars 2685.10 from its foreign buyer M/s. Profile Du Monde, Los Angels, USA. As all the export documents are required to be negotiated through banks only the complainant hired the services of respondent No. 1 and handed over the documents for sending the same to the said buyer for delivery through Colombia National Bank, California, USA. O.P. No. 3 DHL Worldwide Express is carrying on courier services worldwide and O.P. No. 2 is its agent in India. On 17th January, 1999 O.P. No. 1 informed the complainant that bills sent against its reference No. 442/C/485082 had been returned unpaid and immediate action was required. Letter dated 24.1.1999 was delivered by the complainant to O.P. No. 1 to forward the said documents to the alternative buyer namely M/s. Unique Craftstitch, Los Angels on 30 days D.A. basis through the same Bank i.e., Colombia National Bank. Admittedly the goods were sent through Airway Bill No. 026 6848 8932 dated 30.11.1989 and concerned items were airlifted as per invoice No. 139/1989 dated 20.11.1989. Unfortunately the documents did not reach the alternative buyer which should have in normal course reached within 7 days. The alternative buyer sent a tax message dated 30.3.1990 to the complainant in that regard and also informed that the demurrage on goods on account of delay will be borne by the complainant. The complainant contacted the Colombia National Bank and O.P. No. 1 assured the complainant that they would look into the matter soon. The complainant received a letter dated 12.7.1990 from Colombia National Bank that the documents sent to them have not been received. The complainant received another fax message from alternative buyer on 9.8.1990 informing the complainant that they have still not received any documents. In spite of having brought the fax messages to the notice of O.P. No. 1, O.P. No. 1 is alleged to have failed to take any steps and did not respond to several letters written by the complainant in this regard. For the first time the O.P. No. 1 informed the complainant on 22.12.1990 that the reply from O.P. Nos. 2 and 3 was still awaited. Ultimately on 10.1.1999 the O.P. No. 1 informed the complainant that the aforesaid documents were lost in transit. The complainant has alleged that the O.Ps. handled the documents in most irresponsible and negligent manner and the consignment could not be released by the Customs Authority causing loss to the complainant.

However, the O.P. No. 1 has disputed the factum of complainant having brought to the notice of O.P. No. 1 the fax messages dated 30.3.1990 and 9.8.1990 and so much so the last letter dated 7.9.1990 followed by legal notice dated 19.10.1991 nowhere mentioned about the aforesaid faxes. According to O.P. No. 1 it had vide letter dated 10.9.1991 informed the complainant that they had taken up the matter with O.P. No. 2 through whom the documents were sent to Colombia National Bank and O.P. No. 2 regretted their inability to trace the records. Further that the documents were sent through courier on the instructions of the complainant vide letter dated 4.12.1989 and not at the instance of O.P. No. 1 and, therefore, it was the responsibility of the complainant to follow up the documents with O.P. Nos. 2 and 3 was independent of O.P. No. 1. Furthermore the complainant agreed to the following term of the agreement stipulating that all transactions were in all respect at his entire risk and responsibility: "Customer letter of authority for collection and negotiation of bills, etc.- I/we may have occasion from time-to-time to hand you for collection or negotiation Cheques, Drafts or Bills of Exchange (with or without documents attached) and I/we hereby agree to your forwarding the same to your agents for the time being for collection or negotiation. In the event of your having no Independent Collection Agent at any centre. I/we hereby authorise you to send cheques by mail directly to the drawee bank itself. In addition to your ordinary rights as holders of such Cheques, Drafts or Bills of Exchange you are authorised to accept in payment thereof a banker''s cheque or banker''s cheques on ........ or other cities and in the event of such cheque or cheques not being paid on presentation to debit the amount to my/our account with all charges incurred thereon. It is understood that these transactions are in all respect at my/our entire risk and responsibility."

Last but not the least the O.P. No. 1 has also taken resort to the Article to the Uniform Rules for Collection - ICC Publication 322. According to Article if the document is delayed or lost in transit or multilated in transit the utility bank consigning the document will not be responsible. The said Article reads as under: "Article 4: Banks concerned with a collection assume no liability or responsibility for the consequences arising out of delay and/or loss in transit of any messages, letters of documents, or for delay, mutilation or other errors arising in the transmission of cables telegrams, telex or communication by electronic systems, or for errors in translation or interpretation of technical terms."

IN support of its claim the complainant produced and proved the following docu-ments: (1) Letter dated 4.12.1989 along with packing list, invoice, Airway Bill were annexed. These documents show the valuation of the consignment. (2) Letter dated 7.9.1990 informing O.P. No. 1 that the documents have not reached the destination. Similarly followed by letters dated 30.10.1990 and 22.12.1990. (3) Letter dated 10.1.1991, reply of O.P. No. 1 informed the complainant about the inability of O.P. Nos. 2 and 3 about the tracing of the documents. (4) Copy of Taxes dated 30.3.1990 and 9.8.1990 received by the complainant from the alternative buyers about non-receipt of the documents. (5) Letter dated 12.7.1990 of the Colombia National Bank confirming the non-receipt of the documents. (6) Letter dated 22.11.1990 addressed to O.P. No. 1 to O.P. No. 3 stating that they are not in a position to tell that whether the documents were delivered or not. (7) Letter dated 5.4.1991 of O.P. No. 1 to complainant acknowledging receipt of letter dated 7.3.1991 of the complainant. (8) Legal notice dated 19.10.1991 claiming the damages which was received by O.P. No. 1 and replied vide letter dated 23.11.1991 exonerating its liability from the consequences of non-receipt of the documents.

We have heard the Counsel for the parties at length and accorded our careful consideration to the documents on the record as well as the rules and terms of account opening form referred by O.P. No. 1. As regards the contention of the Counsel for O.P. No. 1 that its responsibility arose had it sent the documents in question on its own and not through courier as insisted by the complainant. We do not find any merit as the letter of request shows that request was made to despatch the documents through courier for early receipt whereas in ordinary course the same would have been despatched through mail. The complainant did not name any courier agency. It only made simplicitor request to send through courier. Such request made by the complainant in any way did not absolve O.P. No. 1 from its liability to take reasonable precaution in despatching the documents by any permissible mode. The O.P. No. 1 was not bound by any such instructions that there was possibility of the documents reaching their destination at the earliest if sent through courier agency.

AS regards the effect of the above referred account opening term it is pertinent to mention that it was merely current account opening form and this term was only applicable in respect of despatch of documents. The close perusal of the term shows that the transaction of the despatch of the documents was for export purpose and was an independent transaction. The contention of the Counsel for O.P. No. 1 that the complainant is engaged in the business of exports only and therefore its account opening form related to export only and negotiation of documents outside only. This contention does not find favour with us as it relates to collection or negotiation of cheques, drafts or bills of exchange with or without documents attached and there is not an iota of reference in this term that this will apply to export of documents or negotiation of documents. The very nomenclature of the document, which is ''Account Opening Form'' shows that it pertains to operation of the account and collection or negotiation of drafts or bills of exchange of documents. Now we come to the Article 4 of the Uniform Rules for Collection. It provides as under : "Article 4 : Banks concerned with a collection assume no liability or responsibility for the consequences arising out of delay and/or loss in transit of any messages, letters or documents, or for delay, mutiliation or other errors arising in the transmission of cables, telegrams, telex or communication by electronic systems, or for errors in translation or interpretation of technical terms."

According to the complainant this Article does not absolve the O.P. No. 1 from the allegation of negligence though nor does it unsaddle it from the liability or responsibility for the consequences arising out of delay and/or loss in transit of messages, letters of documents, or for delay, mutilation or other errors arising in the transmission of cables, telegrams, telex or communication by electronic systems, or for errors in translation or interpretation of technical terms.

ON the contrary the Counsel for the complainant contends that the responsibility of O.P. No. 1 ceased after transmitting the documents to the destination through courier service as requested by the complainant and over and above the complainant cannot take advantage of its delay and laches in approaching O.P. No. 1 after 7 months by way of letter dated 7.9.1990 in spite of its knowledge that in ordinary course the documents would have reached in a week and since the courier service maintains the record only for 3 months the O.P. No. 2 was not able to trace the record at the relevant time when complainant approached the O.P. No. 1.

IN our view Article 4 comes to the rescue of O.P. No. 1 inasmuch as O.P. No. 1 was merely acting as an agent of the complainant for despatching documents and if at all any negligence or deficiency in service was there it was on the part of O.P. Nos. 2 and 3. However, the Counsel for O.P. Nos. 2 and 3 made an attempt to absolve its liability and raised multifarious contentions; firstly there was no privity of contract between the complainant and O.P. Nos. 2 and 3; secondly the Airway Bill Nos. referred by O.P. No. 1 at the time of inquiry from O.P. Nos. 2 and 3 was incorrect and, therefore, no proper reply was given by O.P. Nos. 2 and 3 and thirdly even in the complaint the complainant has not mentioned the correct particulars of the Airway Bill and lastly that the complaint is time-barred inasmuch as that the consignment was handed over to O.P. Nos. 2 and 3 on 10.2.1990 whereas the complaint was filed on 31.7.1993 which is beyond 3 years.

In our view none of the aforesaid contentions holds water. So far as the complaint being time-barred is concerned, the cause of action arose lastly when the O.P. No. 1 sent a letter to O.P. Nos. 2 and 3 seeking status of the consignment and lastly when the O.P. Nos. 2 and 3 informed by letter dated 15.4.1999 that they are not in a position to trace out the record.

AS regards the privity of contract the O.P. Nos. 2 and 3 are liable merely because their services were availed on behalf of the complainant. Though the complainant had no privity of contract with O.P. No. 2 and 3, but in these proceedings they have chosen not to contest. Even otherwise indirectly the complainant can avail compensation on account of deficiency in service on the part of O.P. Nos. 2 and 3 as their services were availed by O.P. No. 1 as agent of the complainant. There was no need for the complainant to enter into contract with O.P. Nos. 2 and 3 independently. Whatever O.P. No. 1 did and whatever services O.P. No. 1 availed, it was on behalf of complainant. As regards the plea that incorrect particulars of Airway Bill was referred by O.P. No. 1 and no particulars was referred by the complainant, this plea does not cut ice as nowhere the O.P. Nos. 2 and 3 have pleaded that the particulars mentioned in the complaint were incorrect nor have they ever brought this fact to the notice of O.P. No. 1.

EVEN if it is so, the fact remains that the consignment never reached its destination which was despatched through O.P. Nos. 2 and 3. At this stage to ask O.P. No. 1 to claim compensation from O.P. Nos. 2 and 3 for one purpose of transmitting it to the complainant would be neither feasible nor reasonable and would be against the interest of consumer who is sole sufferer. In the result we find O.P. Nos. 2 and 3 guilty of deficiency in service. To say that their liability is limited to the extent of compensating a person for the amount they charged courier is utterly devoid of merit as compensating a consumer for deficiency in service is independent remedy. Liability of a courier service may be limited but deficiency in service causing mental agony and harassment is a cause for compensating the sufferer. May be such a consumer not entitled to claim for the loss of business or the value of the article despatched through courier but he cannot be denied compensation on account of mental agony and harassment he suffered due to deficiency in service. If provider of services are left with the liability as propounded by the Counsel for O.P. Nos. 2 and 3 then they would be given a licence to be as deficient or negligent as they may like and consumers will be left high and dry which the law does not permit. In view of the foregoing reasons we allow the complaint against O.P. Nos. 2 and 3 only and award compensation of about Rs. 25,000/- jointly and severally. We also award Rs. 2,000/- towards cost of litigation. This amount shall be paid within one month. Complaint is disposed of in above terms. 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. Complaint disposed of.