M K Carpets vs Sea World Shipping And Logistic Pvt Ltd

AGGRIEVED by the dismissal of its complaint No. 51/SC/97 by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ''the State Commission'') vide an order dated 1.8.2003, the original complainant has filed the present appeal.

THE complaint before the State Commission was filed by M/s. M.K. Carpets, a proprietorship concern, dealing in manufacture and export of carpets through its Manager and Attorney Mithilesh Kumar Roy against M/s. Samrat Shipping and Transport Systems (P) Ltd. (substituted by Sea World Shipping and Logistics Pvt. Ltd.), Elegance Shipping Agencies (substituted by Shree Ganesh Freight Forwarding, Clearing and Forwarding Agent) and M/s. Samrat Shipping Company Pvt. Ltd. (substituted by Sea World Shipping and Logistic (P) Ltd.), claiming a sum of Rs. 14,28,312 from them jointly or individually with interest @ 18% p.a. and compensation, etc., alleging deficiency in service on the part of the above named parties in performing their obligations under the contract for carriage and delivery of a consignment of 58 rolls of woollen carpets which was handed over to the Shipping Line thought the forwarding agents (respondent Nos. 1 and 3) for carriage by sea and delivery to M/s. Bowa Import GMVH, Industri Estrabe-8a, 6718, Gruemstadt, Germany. It was averred that the complainant had received on order for purchase of carpets from M/s. Bowa Import GMVH, Industri Estrabe-8a, 6718 Gruemstadt, Germany and in order to execute the said export order, the complainant had entrusted consignment of 58 rolls of woollen carpets valued at Rs. 6,00,650 to the above named-shipping company through M/s. Elegance Shipping Agencies, forwarding agent, on 24.12.1995 with the stipulation that consignment would be transported upto Bombay by road and from Bombay it would be shipped to Hamburg by the shipping company. According to the complainant, the consignment was transported to Mumbai where the shipping company, namely, the Contship Containerlines through respondent Nos. 1 and 3, took the cargo at Bombay port for shipment to Hamburg by sea and issued Bill of Lading No. B/L No. 13501 dated 9th January, 1996 clearly mentioning therein (ocean freight pre-paid). On receipt of original Bill of Lading, the complainant sent the same, invoice and other relevant documents to its banker, namely, Allahabad Bank Bhadohi - respondent No. 4 for sending the said documents to the banker of the buyer/consignee, viz., Kreissparkasse Gruenstadtandes Bank Industriestraba Grunatadt-1 Germany with the clear instructions that the foreign bank shall hand over the original Bill of Lading to the buyer / consignee only on receipt of the payment as per the invoice. Vide a communication date 3.2.1996 the complainant was informed that the cargo in question had been loaded on the ship which sailed on 29.1.1996 and reached the destination sometime later. Since the payment of the consignment was not forthcoming from the foreign bank, the complainant made inquiries with Allahabad Bank and to its shock and surprise learnt that the consignment had been delivered to the consignee/notified party under instructions of the shipping agent to its counter part at Hamburg pursuant to certain forged Bills of Lading presented to the shipping agent purportedly containing the instructions of the complainant to effect the delivery of the consignment without the consignee having retired the Bill of Lading on making payment to the foreign bank. The original Bill of Lading and other documents sent to the foreign bank were returned to Allahabad Bank, Bhadohi unpaid stating that the documents were not retired and payment was not made by the buyer (notified party). Alleging deficiency in service on the part of the opposite parties, viz., the agent and the forwarding agent in delivering the consignment against the instructions of the complainant without receiving payment, the complainant filed the complaint seeking damages from them on different counts.

THE complaint was resisted by OP Nos. 1 and 3 denying any deficiency on their part and their liability to compensate the complainant on that count. M/s. Elegance Shipping Agencies remained unrepresented and were proceeded with ex parte. The State Commission, going by the respective pleas and on its own reading of the evidence and material produced on record and understanding of the legal position, dismissed the complaint primarily on the ground that opposite party Nos. 1 and 3 had acted as agents of the shipping line with its head office in the United Kingdom and a branch at Hamburg and since the said foreign company was not made a party in the complaint, no liability could be fixed on opposite parties going by the provisions of Section 230 of the Contract Act. Yet another ground for non- suiting the complainant in his claim was that the State Commission found itself somewhat handicapped in recording a finding about the genuineness or otherwise of the Bills of Lading on the basis of which the above-named opposite parties had acted and instructed its counter-part to deliver the goods.

WE have heard Mr. Satyendra Kumar Roy, Authorised Representative of the appellant, Mr. N. Ganapathy, Advocate, learned Counsel representing respondent Nos. 1 and 3 and Mr. Ashok Kumar Jain, Advocate, learned Counsel representing respondent No. 4 and have given our thoughtful consideration to their respective submissions. Respondent No. 2 remained unrepresented on record even at the appellate stage.

DURING the pendency of the appeal, it was brought to the notice of the Commission that the constitution of the respondent Nos. 1, 2 and 3 had changed sometime in 2007 and consequently on a prayer made by the complainant, existing respondents were ordered to be substituted with newly constituted respondents as fully described in the title of the appeal.

BEFORE we dwell on the submission of the parties, it is also pertinent to note that on being served notice in the appeal, respondent No. 4-Allahabad Bank filed three original Bills of Lading which it claimed to have received back from the foreign bank along with other documents without payment. Since it was claimed by respondent Nos. 1 and 3 that they had instructed their counterpart at Hamburg to deliver the consignment in terms of the instructions of the complainant and pursuant to the production of original Bills of Lading (three copies) containing a certain endorsement purportedly made by the complainant, we called upon respondent Nos. 1 and 3 to produce the said Bills of Lading for consideration and in order to decide the controversy. Since one set of original Bill of Lading had already been produced by respondent No. 4 the other two Bills of Lading which were in the possession of respondent Nos. 1 and 3 were also produced. In this way two sets of Bill of Lading - three produced by respondent Nos. 1 and 3 and other three produced by respondent No. 4 are available on record.

THE set of three Bills of Lading produced by respondent Nos. 1 and 3 were put to Shri M.K. Rai who denied the same as original Bills of Lading as also his signatures/initials appearing above the rubber stamp of M.K. Carpets on the reverse side of these Bills of Lading. In these circumstances, it was considered advisable to obtain the opinion of handwriting expert on the point as to which of the two sets of Bills of Lading, viz., one set produced by respondent No. 4 - Allahabad Bank and the other by respondent Nos. 1 and 3 were the genuine / original Bills of Lading and whether the endorsement and rubber stamp impression appearing on the Bills of Lading filed by respondent Nos. 1 and 3 bore the signature / initials of Shri M.K. Rai. To that end, specimen signatures of M.K. Rai were obtained but that of the other signatory Mr. N. Padmanabhan who had signed the Bills of Lading could not be obtained because he was stated to have left the services of respondent No. 1 and 3. Therefore, respondent Nos. 1 and 3 produced a photocopy of another Bill of Lading No. 42519 dated 13.8.1996 in respect of a different consignment sent by M/s. Tinna Overseas Limited, A-151, Maya Puri, Phase-II, New Delhi to the order of Barclays Bank PLC, Clifton House, 83/117, Euston Road, London, NW12RA which according to respondent No. 1 contained the admitted signature of N. Padmanabhan. The two sets of Bills of Lading, specimen signature of M.K. Rai and the above referred Bill of Lading containing the admitted signatures of N. Padmanabhan were sent to CFSL, New Delhi for examination and giving report on the above issues. The Scientific Officer of CFSL has furnished a report, the effect of which we will consider at the appropriate stage in this order.

NOW coming to the ground of challenge to the findings recorded and order passed by the State Commission, the Authorised Representative of the appellant has raised several contentions. In regard to the finding that respondent Nos. 1 and 3 being simply agents of foreign shipping company, namely, Contship Containerlines Ltd., London, could not be held liable for any deficiency in service in the absence of their principal under the provisions of Section 230 of the Contract Act, the Authorised Representative of the appellant contended that this finding is based on incorrect appreciation of the facts and circumstances of the present case and is not in consonance with the settled legal position in that behalf. In any case, he submitted that this finding of the State Commission has been gone into by this Commission on an earlier occasion on 27.2.2008 when on consideration of the matter, this Commission has observed as under: "Heard the learned Counsel for the parties."

This Appeal is filed against the judgment and order dated 1.8.2003 passed by the State Consumer Disputes Redressal Commission, U.P., in Complaint Case No. 51/SC/97 holding that the respondents, M/s. Samrat Shipping and Transport Systems Pvt. Ltd. and others, acted as agents for a foreign company which was not a party before the State Commission. In our view, the order passed by the State Commission is on the face of it erroneous. The State Commission has not applied its mind to the provisions of Sections 230 and 233 of the Contract Act. Further, in the case of Link International & Anr. v. Mandya National Paper Mills Ltd., (2004) 6 SCC 516, the Apex Court has specifically held that in such cases the agent would be liable. The relevant discussion is as under: "In this case, admittedly, the appellants had acted as agents. We will presume that they had not entered into the contract on behalf of the principal. The fact still remains that two Courts have, on the basis of evidence, concluded that the appellants had facilitated playing of a fraud upon the respondent. If that be so, the appellants as agents would be personally liable to the respondent for whatever loss is caused to the respondent. Section 233 of the Contract Act permits the respondents to recover either from the agent or from the principal or from both.........."

In this view of the matter, this Appeal is required to be allowed. However, with regard to the merits of the case, learned Counsel appearing on behalf of the respondents submitted that as the State Commission has not decided the same, the matter may be remitted to the State Commission. As against this, learned Counsel appearing on behalf of the appellant pointed out that the complaint was filed in 1997 and if the matter is remitted to the State Commission at this stage, it would again take another 10 years because before the State Commission, more than 35,000 cases are pending. In such a situation, we direct that the parties shall be heard on merits. It is contended by the learned Counsel for the appellant that, before the State Commission, all the relevant documents were produced. In these set of circumstances, liberty is granted to both the parties to file additional documents within a period of 8 weeks from today".

The above finding and observations of this Commission, having not been challenged, has attained finality and, therefore, we must at once hold that the said finding of the State Commission non-suiting the complainant on the above premise is legally unsustainable and stands already set aside.

AS regards the merit of the case, it appears that the State Commission could not return a definitive finding as it found it impossible to do because a dispute arose about the genuineness of the Bills of Lading relied and acted upon by respondent Nos. 1 and 3 for giving instructions to their counter part for effecting delivery of the consignment to the consignee. We are, therefore, required to go into the merits of the case in order to see as to whether there was any deficiency in service on the part of the respondents in the carriage and delivery of the consignment.

THE undisputed position which emerges in this case is that complainant M/s. M.K. Carpets had dispatched consignment of 58 rolls of woollen carpets valued at Rs. 6,00,650 for its carriage and delivery to a foreign buyer/consignee in Germany through the forwarding agent, Elegance Shipping Agencies, having its office at Bhadohi with the stipulation that the consignment will be transported from Bhadohi to Bombay by road and then from Bombay to Hamburg by sea on arrival of the consignment at Bombay. Respondent Nos. 1 and 3 issued three Bills of Lading bearing Shipper''s Ref. No. EUACSAMBBY-F (HAM)/350 dated 9.1.1996 under its signature and seal containing the description of the shipper (the complainant), the notified party as M/s. Bowa Import GMBH, Industriestrabe 8A, 6718, Gruenstadt-1, Germany, nature of consignment i.e. 58 Rolls of Indian handknotted woollen carpets (woollen yarn 80% + Cotton Yarn 20%) weighing 4000 kilo freight prepaid covered by invoice No. MKC/45-5-96 dated 24.12.1995 RBI Code No. KM:000951 I.E. Code No. 1590000773 and also made endorsement in the form of a rubber stamp "Shipped on board on 9.1.1996". The three copies of Bills of Lading (all original) were handed over to respondent No. 2 which was received by the complainant and the complainant, in turn, submitted the same to Allahabad Bank along with relevant invoice and other documents. Allahabad Bank, in turn, made its own endorsement Pay/deliver to the order of Kreissparkasse Gruenstadtandes Bank" and forwarded the same to the above-named bank with the forwarding letter dated 12.1.1996 with a request to collect the payment from the foreign buyer and to remit the amount of the consignment to the local bank. However, as the payment was not forthcoming, the complainant approached M/s. Elegance Shipping Agencies-respondent No. 2 and then respondent Nos. 1 and 3 in order to know the status of the consignment whether the consignment had reached the destination and, if so, what had happened thereafter to the consignment. Accordingly, respondent No. 4-Allahabad Bank pursued the matter with the foreign bank. To the dismay and shock of the complainant, he was informed that the consignment of carpets had been delivered purportedly on the basis of the instructions contained in Bills of Lading in their possession to the foreign buyer. It then became clear to the complainant and respondent No. 4-Allahabad Bank that respondent Nos. 1 and 3 had issued instructions to their counterpart at the destination to deliver the consignment to the foreign buyer on the strength of some forged/unauthorized Bill of Lading with endorsement of the complainant on the reverse side of the Bill handed over back to respondent Nos. 1 and 3, without the consignee retiring the original Bills of Lading after making payment of the value of the consignment. Respondent Nos. 1 and 3 pleaded that they had not committed any deficiency in service as the consignment was carried to the destination and delivered to the consignee as per the endorsement of the complainant on the reverse side of the Bills delivered by respondent No. 2 who had been engaged by the complainant as its forwarding agent.

THE authorized representative of the appellant has strongly urged before us that delivery of the consignment in the above manner was the result of fraud and forgery committed by respondent Nos. 1 and 3 themselves or in collusion with respondent No. 2. According to him, another set of Bills of Lading as produced by respondent Nos. 1 and 3 could not have come into existence, once all the three original Bills of Lading issued by respondent Nos. 1 and 3 at the time of taking the goods on board had been forwarded by Allahabad Bank to the foreign bank for collection of payment. On the other hand Mr. Ganpathy, learned Counsel representing respondent Nos. 1 and 3 submitted that the Bills of Lading which were presented to them by respondent No. 2 with the endorsement of the complainant are the genuine Bills of Lading. In any case, he submitted that respondent Nos. 1 and 3 could not have entertained any doubt about the genuineness of the endorsement on the said Bills of Lading (because they had been handed over by respondent No. 2) and, therefore, they cannot be held liable for having committed any fraud or deficiency in service by acting upon the instructions contained on the said Bill of Lading and directing the delivery to the foreign buyer.

THIS takes us to the important question as to whether the set of Bills of Lading (three Nos. ) produced by respondent Nos. 1 and 3, on the strength of which they claim to have instructed their counterpart to deliver the consignment to the consignee / notified party, are the genuine Bills of Lading issued by them or forged ones and, if so, under what circumstances another set of Bills of Lading was prepared by respondent Nos. 1 and 3. Respondent Nos. 1 and 3 claimed that the set of Bills of Lading produced by them was the genuine one which was denied by the complainant because according to the latter, the original Bills of Lading had already been sent by Allahabad Bank to the foreign bank for collecting payment. In these circumstances, we considered expedient to obtain the opinion of a handwriting expert in order to decide the controversy effectively. Accordingly, the two sets of Bills of Lading viz., (A-1 to A-3) with admitted signature of N. Padmanabhan, the other set of Bills of Lading (A-4 to A-6) filed by respondent Nos. 1 and 3 as also specimen signature of M.K. Rai taken in the Commission and the admitted signature of N. Padmanabhan (A-7 to A-8) on photocopy of another Bills of Lading were forwarded to the Central Forensic Science Laboratory (CFSL), New Delhi for examination and report. A report dated 8.1.2010 was received from CFSL which would categorically show that the comparison and examination was done by Mr. N.K. Aggarwal, Principal Scientific Officer (Document) who had experience of 33 years in the field of questioned documents examination and had reported more than 1500 cases involving thousands of exhibits. On examination of the documents referred above, the expert concluded as under: "Handwriting evidence points to the writer of the admitted English signature marked as A-1 to A-3 and A-7/8 purported to be N. Padmanabhan being the person responsible for writing the questioned English signatures as Q-1 to Q-3 due to the following reasons-II. The authorship of the questioned English signatures marked Q-4 to A-6 could not be connected to the writer of the standard signatures marked S-1 to S-5 and A-4 to A-6 purported to be of Shri M.K. Rai due to the following reasons:

NEITHER the complainant nor the learned Counsel for respondent Nos. 1 and 3 raised any objection to the finding and conclusion of the handwriting expert. In these circumstances, we have no reason to discard the said report and in our view also the same can be relied and acted upon as an opinion of expert within the meaning of Section 45 of the Indian Evidence Act.

THE above findings of the handwriting expert leads to the inevitable conclusion that the set of Bills of Lading (A-4 to A-6) bears the signature/initials of Mr. N. Padmanabhan who is the signatory to the original Bills of Lading (A-1 to A-3) but the signature/initials purportedly of M.K. Rai appearing on the back of these Bills of Lading are not those of M.K. Rai (they did not tally with the specimen signature of Rai). This means that the said signatures/ initials on the endorsement appearing on the reverse side of the Bills of Lading have been forged by someone with some oblique motive. The set of Bills of Lading A-4 to A-6 having come from the possession of respondent Nos. 1 and 3, it was for them to explain the reasons and circumstances under which another set of Bills of Lading was prepared by their officer and how a forged endorsement purportedly made in the name of Mr. M.K. Rai came to be made on the reverse side of these Bills of Lading.

MR. Ganpathy, learned Counsel for respondent Nos. 1 and 3 could not explain by any good reasoning except advancing a plea that this set of Bills of Lading was produced before them by the forwarding agent Elegance Shipping Agencies and, therefore, in all probability it should be construed as the handiwork of some person connected with M/s. Elegance Shipping Agency rather than that of respondent Nos. 1 and 3. It appears to us that this is an attempt to oversimplify a complex situation because the set of Bills of Lading could only be handiwork of forgery, not only that of Elegance Shipping Agencies but also some employee(s) of respondent Nos. 1 and 3. The very fact that another set of Bills of Lading was prepared by Mr. N. Padmanabhan, a responsible officer of respondent Nos. 1 and 3 and the reasons for doing so are not forthcoming is sufficient indicator of the fact the said officer was in hand and glove with the representative of M/s. Elegance Shipping Agencies and they must have connived to perpetrate a fraud upon the complainant without any inkling to the complainant because he, having forwarded the genuine Bills of Lading to the foreign bank through respondent No. 4-Allahabad Bank, could not think of any such fraud. In the meantime based on the forged Bills of Lading and the forged endorsement on their back, the respondent Nos. 1 and 3 instructed the unauthorized delivery of the consignment to the consignee.

ON consideration of the entirety of the facts and circumstances and the material obtaining on record, the inevitable conclusion is that the complainant has been a victim of fraud and forgery perpetrated by respondent Nos. 1 and 3 in connivance with respondent No. 2 so as to cause not only pecuniary loss and injury to the complainant (inasmuch as he was deprived of the value of the consignment) but also mental harassment and agony arising out such overt acts of the respondents. The authorized representative of the complainant states that he made several trips to Bombay in order to find out the truth at heavy expense. Accordingly, we hold that respondents No. 1 to 3 have not only committed deficiency in service as defined in Section 2(1)(s) of the Consumer Protection Act,1986 but this deficiency was the result of fraud and forgery which respondents No. 1 to 3 had perpetrated (or, colluded in perpetrating) in order to deprive a small time businessman /exporter.

MR. Ganpathy, learned Counsel representing respondent Nos. 1 and 3 also raised a legal objection in regard to the maintainability of the complaint on the date it was filed before the State Commission. The basis of this objection is Clause 6 of the Article III of the Indian Carriage of Goods by Sea Act 1925 which inter alia provides as under: "6. Unless notice of loss or damage and the 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 the 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. The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection. In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen: Provided that a suit may be brought after the expiry of the period of one year referred to in this sub-paragraph within a further period of not more than three months as allowed by the Court.] In the case of any actual or apprehended loss or damage, the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods."

ACCORDING to Mr. Ganpathy, the cause of action in the case in hand even as per the appellant''s own showing, had arisen sometime in December 1995 when the consignment of goods was handed over to the carrier for carriage and delivery through Bill of Lading in question or, at best, in March 1996 when the consignment was delivered to the consignee / notified party at Hamburg, Germany but the complaint in the present case was presented only on 4.6.1997, i.e., much after the period of expiry of one year from the date when the cause of action had arisen. On the other hand, contention of the authorized representative of the appellant company is that since the complaint has been filed under the provisions of the Consumer Protection Act, 1986, the said Article (supra) has no application and the complaint would be governed by the provisions of Section 24A of the CP Act, 1986, which provides limitation of two years for filing a complaint and, therefore, the complaint so filed by the complainant in June 1997 is much within the prescribed period. The question as to whether the limitation prescribed under Clause 6 of Article III of the Indian Carriage of Goods by Sea Act, 1925, or that provided under Section 24A of the Consumer Protection Act, 1986, is applicable, is no longer res integra and has been specifically considered and finally answered by the Apex Court in the case of E.I.C.M. Exports Ltd. v. South Indian Corpn. (Agencies) Ltd. and Anr., III (2009) CPJ 73 (SC). The whole gamut of the issue has been discussed and decided by the Apex Court by observing as under: "Learned Counsel for the appellant has contended that the National Commission has erred in dismissing the complaint as barred by limitation, applying the Indian Carriage of Goods by Sea Act, 1925 in which limitation of one year has been provided. He further contended that this Act does not apply at all to the facts of the present case and instead Section 24A of the Consumer Protection Act, 1986 will apply. On a plain reading of the aforesaid provision, it is clear that the aforesaid provision will be applicable in the case where a suit is filed. In the present case, the appellant did not file any suit but filed a complaint before the Consumer Forum. The word ''suit'' has a technical meaning which denotes proceedings instituted under Section 9 of the Civil Procedure Code, 1908. All legal proceedings in the country are not suits. There are petitions/complaints/applications before various Tribunals or authorities but they are not suits as per Section 9 of the CPC. In our opinion, a complaint before Consumer Forum is not a suit, and hence, the Indian Carriage of Goods by Sea Act, 1925, is not applicable to the facts of the present case and the Consumer Protection Act, 1986, will only be applicable."

WE have, therefore, no manner of doubt that the complaint filed by the complainant was not hit by the provisions of Clause 6 of Article III of the Indian Carriage of Goods by Sea Act, 1925, and was filed well within the prescribed period of limitation under Section 24A of the Consumer Protection Act, 1986. We do not find any merit in the objection raised by the learned Counsel for respondent Nos. 1 and 3.

FROM a conspectus of the above discussion, it is manifest that the respondents have not only committed deficiency in service per se by delivering consignment of the carpets to the consignee unauthorisedly and without instructions from the complainant-consignor but this was done by committing forgery in the Bill of Lading and perpetrating fraud on the complainant, thereby causing not only pecuniary loss and injury to the complainant but also harassment and mental torture due to their above said acts. In these circumstances, the complainant is required to be compensated suitably not only for the loss and injury but also for the mental harassment and torture suffered by it.

THE ultimate question which remains to be answered is as to what would constitute a suitable compensation in the present case. Complainant has claimed a total sum of Rs. 14,28,312 under the following heads: (i) Value of the goods as per invoice dated 24.12.1995 D.E.M. 24026.40 (German currency) One D.E.M.=Rs. 25 Equivalent to Rs. 6,00,650.00 (ii) Burden of interest amount at 21% of Allahabad Bank Bhadohi on advance of Rs. 6,00,000.00 uptil May 1997 Over the Bill. Rs. 1,80,000.00 (iii) Interest at 18% per annum from 26.3.96, when the value of the goods on delivery became due, on the Invoice value till 4.6.97 (i.e. one year two months 10 days). Rs. 1,29,139.00 (iv) Freight and other charges, Road Transport charges Rs. 27,523.00 (v) Loss of Business: At least 10% profit on Rs. 24 lakh, Being four times of the above Invoice value, due to negligence of O.Ps. Rs. 2,40,000.00 (vi) Mental Torture due to the negligence of the opposite parties Rs. 1,00,000.00 (vii) Miscellaneous expenses incurred in correspondence by way of Fax, Registered letters, Telegram, Courier service, etc. Rs. 50,000.00 (viii) Loss of drawback Rs. 90,000.00 (ix) Lawyers fee of Rs. 10,000 and cost of litigation Rs. 1,000 Rs. 11,000.00 Total: Rs. 14,28,312.00

IN this regard. Mr. Ganpathy next contended that even if the answering respondents are to be held liable to compensate the complainant, their liability under the Indian Carriage of Goods by Sea Act, 1925, will be restricted in terms of Rule 5 of Article IV of the said Act and the shipping line/respondents cannot be asked to pay the compensation as per the invoice value. The said rule reads as under: "5. Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with goods in an [amount exceeding 666.67 Special Drawing Rights per package or unit or two Special Drawing Rights per kilogram of gross weight of the goods lost or damaged, whichever is higher], or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. 2 ........................"

GOING by the above provision, it is contended by Mr. Ganpathy that the appellant, at the best, is entitled to claim a sum of Rs. 4,28,560 which has been calculated @ 2SBR per kg. for 8000 kgs. (one SBR in equivalent to Rs. 53.5700. In our opinion, even this contention put forth on behalf of the respondent Nos. 1 and 3 has no merit because the above quoted Rule would restrict the liability of a carrier or shipper only where the nature and value of the goods to be carried has not been declared. In the case in hand, it cannot be said that the nature and value of the goods was not declared to the shipping company. From a bare perusal of the Bill of Lading, it is apparent that the respondent Nos. 1 and 3 were duly notified about the nature and value of goods. The invoice number, its date and all other particulars of the said invoice, a copy of which must have been received by them are recorded in the Bill of Lading. The invoice declared the nature of goods as rolls of Indian hand-made carpet, the total value of which was Rs. 6,00,650 . We have, therefore, no manner of doubt that the appellant is entitled to the entire value of the goods as per the invoice which is Rs. 6,00,650 because the complainant could not receive the payment of the consignment from the consignee due to respondent No. 1 and 3 having issued instructions to their counterpart at the destination to deliver the consignment to the consignee without honouring the Bill of Lading and making the payment of the value of the goods as per the invoice of the goods. Besides this, the complainant is also entitled to a sum of Rs. 30,394 paid towards freight charges which was admittedly received by the respondent Nos. 1 and 3.

THE next important question is as to what, in the given facts and circumstances of the case, other damages the complainant can legitimately be allowed. It appears that the complainant is a small businessman engaged in the manufacture and export of carpets and for that he had taken financial assistance from the Allahabad Bank, respondent No. 4. Material has been filed on record to the effect that due to non-payment of the outstanding dues of the Bank, the Bank had filed recovery proceedings before the Debt Recovery Tribunal against the complainant and on that account the complainant must have suffered loss and injury. In any case, complainant has been deprived of considerable amount for a long period. Keeping in view the prevalent rate of interest during the last decade of the last century, we are of the opinion that the complainant is entitled to minimum interest @ 12% p.a. w.e.f. 1st April, 1997 till the date of payment on the above amount. Having regard to the entirety of the facts and circumstances of the case, in particular, that the complainant has been a victim of fraud and forgery committed by the respondents in preparing a forged set of Bill of Lading and having unauthorisedly delivered the consignment to the consignee without the latter making necessary payment to the foreign bank and the complainant had to rush to Mumbai on several occasions and consequent harassment and mental torture suffered by its sole proprietor, we are of the opinion that it is a fit case where we should grant further compensation for harassment and mental torture suffered by the sole proprietor of the complainant. We grant Rs. 1 lakh to the complainant on that account. We also consider it appropriate to award the cost of the proceedings which we quantify at Rs. 25,000.

IN the result, the appeal succeeds and is hereby allowed and the impugned order passed by the State Commission dismissing the complaint is hereby set aside. The complaint is partly allowed and the respondents are hereby called upon to jointly and severally pay a sum of Rs. 6,31,044 (Rs. 6,00,650 as value of goods and Rs. 30,394 as freight charges) with interest @ 12% p.a. w.e.f. 1.4.1997 till the date of payment. We also award a sum of Rs. 1 lakh as compensation to the complainant. The amount as directed above shall be paid within six weeks from the date of the order, failing which the amount of Rs 1 lakh shall also carry interest @ 12% p.a. till the date of payment. We also award a sum of Rs. 25,000 to the complainant as costs of the proceedings throughout. The First Appeal stands disposed of accordingly. Appeal allowed.