HABIB GRANITE PROCESSING (P) LTD. vs V. RAJAGOPAL And CO.

THE complainant is M/s. Habib Granite Processing Pvt. Ltd., M/s. Multi wide Marketing Pvt. Ltd., Singapore placed orders with the complainant company for export of polished granite slabs to ZHUHAI - CHINA. THE complainant had to send 14 wooden crates and 2 boxes as per Invoice No. 09/95-96 and 10/95-96 both dated 31.5.1995 which were to be stuffed in 2 closed top containers. THE case of the complainant company is that they engaged the services of the 1st opposite party company who are the custom house agents for the purpose of filing and processing the papers and connected relevant documents governing the Government procedures and for stuffing the proposed export goods in 2 closed top containers and for safe transportation of stuffed cargo to Madras-Harbour for effective and safe onward shipment in foreign-going vessel. THE complainant sent the goods to the 1st opposite party and the 1st opposite party also acknowledged the receipt of the goods in good condition. For the reasons best known to them the 1st opposite party suggested for loading the cargo in open top containers instead of closed top containers to which the complainant agreed. THE 2nd opposite party company sent a fax message to the complainant on 29.5.1995 that they shall be responsible for the safe handling of the cargo from SANCO CFS to Madras Port through to ZHUHAI - CHINA. To the complainant''s shock and surprise it received a fax message dated 20.7.1995 that one of the containers fell out of the trailer during transportation from SANCO CFS to Madras Port.

ON investigation the complainant understood that the cargo was not properly stuffed into the container and no proper bracing was done between the crate and crate to avoid movement of crates inside the container and the containers were not tied with wire ropes to the trailer to arrest movement of the containers while the trailer was on transit. Stoppers at 4 corners of the containers were not put in the trailer and the incident happened possibly due to the rash driving and sudden application of brakes on seeing some vehicles coming in the opposite direction and because of the carelessness and negligence on the part of the driver of the trailer. Had the 1st opposite party been careful enough, the incident would not have happened. The cargo consisting of polished granites were damaged beyond recognition and were totally unfit for export. The 1st opposite party is wholly responsible for the loss. The 3rd opposite party is the Co-ordinating agent of the 1st and 2nd opposite parties and thus this 3rd opposite party company also is liable for the loss and damage sustained by the complainant. Thus there has been deficiency in service on the part of all the opposite parties jointly and severally. On these grounds, the complainant has prayed for a sum of Rs. 4,69,119/- as the value of the cargo and the sum of Rs. 3,40,111 /- as the custom duty payable on account of the failure to export the cargo. Besides, the complainant has also prayed for several sums on different heads which altogether with the said value of the cargo and custom duty payable, comes to Rs. 12,57,568.25.

The 1st and 2nd opposite parties filed together a common written version while the 3rd opposite party has filed a separate written version. In their common written version, the 1st and 2nd opposite parties contended that the present dispute is only a civil dispute which requires elaborate evidence and therefore it should be agitated in a Civil Court and not in a Consumer Forum. It is further contended that the 1st opposite party was appointed as the Customs House Agent for filing and processing the papers in connection with export of granite slabs to the vessel nominated by the 3rd opposite party. The responsibility of the Ist opposite party ended once the cargo duly stuffed in the containers had been handed over to the trailer operator. The complainant has also agreed for itself to take an insurance policy covering the risks from warehouse to warehouse. The 1st opposite party has denied that the goods were not provided with proper dunnage. It has contended that the allegations that they have not provided with choking woods to prevent shifting of the cargo inside the container is not true. The 1st opposite party had taken all precautions to stuff the container with the necessary protective measures and there is absolutely no truth in the allegations that the goods were not properly arranged or stowed. As to the falling of the container from the trailer, the remedy for the complainant is to proceed against the trailer operator and not the 1st and 2nd opposite parties. The 1st and 2nd opposite parties denied that there was any deficiency in service on their part. As regards the claim of custom duty payable, the complainants are entitled to refund if any customs duty had been paid. The complainant is not entitled to any other compensation. The claims regarding STD calls, travel and other miscellaneous expenses, they are not incidental to or flowing out of the alleged breach of contract. The claim for alleged loss of further business is too remote and as such the complainant is not entitled to such damage. It is further contended that the goods had been insured from warehouse to warehouse and therefore the complainant has no right to claim the alleged loss from the opposite parties. On these grounds the opposite parties 1 and 2 have prayed for dismissal of the complaint.

THE 3rd opposite party have in their written version denied that they are in any way connected with the incident in question and as such they are not liable for payment of any amount to the complainant. The point that arises for consideration is whether there was deficiency in service on the part of the opposite parties and if so what relief can be granted to the complainant.

POINT : It is not in dispute that while the cargo was in transit from SANCO CFS to Madras Port in a trailer, one of the two containers of the goods in the trailer fell off, and due to that the goods were damaged beyond recognition and they had become unfit for export. According to the complainant they had engaged the services of the 1st opposite party for stuffing and packing the goods in containers and sending the containers from their place i.e., SANCO CFS to Madras Port. But the 1st opposite party would contend that their function was only filing and processing export papers and stuffing the cargo in the containers and handing them over to the trailer for transit and with that their function would end and therefore they are not responsible for the incident that occurred during transit. It is not clear from the complaint as to in what way the 2nd opposite party are connected with the complainant or the 1st opposite party, but however it would clearly be seen from a number of circumstances that the 2nd opposite party had been engaged by the 1st opposite party for effecting transit of the cargo. Ex. Al is a letter dated 28.9.1995 written by the 2nd opposite party to the complainant wherein they have clearly stated that they shall be responsible for safe handling of the cargo from SANCO CFS to Madras Port through to ZHUHAI - CHINA. It is not the case of the 1st opposite party that the complainant had engaged the services of the 2nd opposite party. As seen above, both the opposite parties have filed a common written version and are being represented by the same Counsel, and there is nothing stated in their written version to the effect that either the 1st opposite party was responsible or the 2nd opposite party was responsible. These circumstances would show that the complainant had availed of the services of the 1st opposite party not only for preparing the papers, stuffing and packing the goods into the container but also to transport the same from SANCO CFS to Madras Port, and the 1st opposite party in their turn have engaged the services of the 2nd opposite party. A Debit Note dated 20.7.1995 which is one of the Annexure to Ex. A8 which appears to be from he 2nd opposite party to the complainant, the 1st opposite party has claimed a sum of Rs. 4,905/- for transport of containers. This also shows that the 1st opposite party has undertaken to transport granite slabs to the Madras Port. It is not in dispute that during transit one of the containers fell down and the cargo in it got damaged beyond recognition. Possibly the incident should have happened due to rash driving and/or because the container had not been properly tied to the trailer and also may be due to the fact that the cargo had not been properly stuffed in the container. These would clearly show that for the loss occurred, the opposite parties 1 and 2 are liable. As we have stated above, the complainant had hired or availed of the services of the 1st opposite party and the 1st opposite party in turn engaged the services of the 2nd opposite party and the 2nd opposite party has written Ex. Al letter dated 29.5.1995 to the complainant stating that they would be responsible for safe transit. In these circumstances, we are of the view that the 1st and 2nd opposite parties are liable for the loss occurred. As regards the 3rd opposite party, according to the complainant, he is only Co- ordinating agent of 1st and 2nd opposite parties. Therefore they are not in any way liable to pay compensation to the complainant. Coming to the question of quantum of compensation payable, according to the complainant the value of the damaged cargo is Rs. 4,69,119/-. Regarding this, there is no dispute by the 1st and 2nd opposite parties. Therefore this amount they are liable to pay. Regarding the amount of Rs. 3,40,111/-. claimed as custom duty payable, it is not the case of the complainant that they had already paid that amount. The question of getting compensation would arise only if such an amount has been paid, and not before that. According to the opposite parties, if any such amount had been paid that could be got refunded by the complainant. In these circumstances, in the present complaint, the said amount claimed cannot be awarded. Besides, the complainant has also claimed several sums under the headings STD calls, travelling charges of their Commercial Executive, and miscellaneous expenses. As regards these, there is no evidence. The complainant has also claimed a sum of Rs. 2,00,000/- as loss of expected business profit. As to this too there is no evidence. Further the complainant has claimed a ground rent for storing the damaged goods. Regarding this also there is no evidence. And then the complainant has claimed a compensation of Rs. 16,837.25 towards clearing and forwarding charges paid. If this charge had been paid, that should have been for the entire cargo which had been packed in 2 containers and admittedly one of the containers was safe and therefore it is not clear as to what compensation the complainant can be entitled for the damaged goods. As regards the further claim of post accident expenses also there is no evidence.

THUS we find that the opposite parties 1 and 2 are liable to pay to the complainant a sum of Rs. 4,69,119/- being the value of the damaged goods. We order payment, of this amount with interest thereon @ 15% p.a. from the date of complaint till payment. We also order payment of cost of Rs. 2,000/- for this proceeding. These amounts shall be paid within 3 months from today. Complaint allowed with costs.