MARIAMMA NARENDRANATHAN vs Shipping Corporation of India

THIS complaint is filed under Section 12 of the Consumer Protection Act, attributing deficiency in service on the part of the opposite party and claiming compensation of Rs. 10/- lakhs together with interest @ 12%.

THE material allegations in the complaint are as follows. THE complainant was employed in Zambia and during her return she intended to import a Japan make Toyota Corolla Model Car so that she could use it for herself at her native place in Kayamkulam. THE car was sent through the ship belonging to the 1st opposite party by the name "M.V. Bharatendu". THE opposite parties represented that the car will be shipped for Cochin on 2.7.1996. THE freight charges were also paid. THE car reached Cochin and on intimation the complainant went to the dock of the Cochin Port on 8.9.1996 to take delivery of the car. She was shocked to see that the car was completely damaged and it was only a mass of metal scrap. On their application, a company by name MKC & Company who are Marine Surveyors and Assessors was appointed to conduct the survey. THEy inspected the car on 29.9.1996 with due notice to the opposite parties one and two and their report which was binding on the parties revealed that the car could not be used effectively or properly as it was beyond repair to any extent. THE car was damaged due to the negligence of the opposite party. On these allegations the complainant sought a direction to recover Rs. 10,00,000/- from the opposite party. Opposite parties filed a version. It was contended that the complaint was not maintainable in view of the provisions of the Indian Carriage of Goods by Sea Act. It was also averred the right of the complaint to seek legal action of the complainant is time barred inasmuch as the complainant did not take any legal action before the expiry of one year after despatch of the cargo. It is also contended that the complainant is not a consumer. Clause 6 of Article 3 schedule to Indian Carriage of Goods by Sea Act categorically stipulates that the carrier, its agent and servants stand discharged from all liability in respect of loss or damage unless a suit or any other legal proceedings is initiated within one year from the date of delivery or the date on which the vessel in question sailed out of the port after discharge of the cargo. The vessel arrived at Cochin Port on 8.9.1996 and the cargo was discharged and the vessel left the Port in the second week of September, 1996. The complaint is filed long after the expiry of one year from the date of discharge of the cargo at Cochin and therefore the carrier and its servants stand discharged from all the liabilities. The opposite parties also have placed reliance on the decisions of the Supreme Court and Kerala High Court in support of this contention. They also submitted that the car was shipped from the port of Yokohoma, in Japan and the 2nd opposite party is only an agent of the 1st opposite party in Cochin and it had no branch office at Yokohoma port and hence there is no basis for the allegations that the 2nd opposite party had made arrangements with the complainant to carry the car as per letter dated 2.7.1996 on 30.7.1996. There is also no basis for the allegations that the opposite parties have undertaken to ship the car on 2.7.1996 and that the car would reach Cochin port on 30.7.1996. Ship owner or their agents always give only an estimated date of arrival of the vessel. The contract of carriage was between the shipper i.e. M/s. Japan Africa Marketing Company Ltd., and the 1st opposite parties Shipping Corporation of India Ltd., the complainant is the consignee.

As per the agreement the car was agreed to be carried on the open deck of the vessel at shippers risk, without any risk or responsibility of the carrier for loss or damage. The shipper also agreed to carry the car on open deck whereby they could avail of the concessional rate of freight. Hence in any view of the matter opposite parties 1 & 2 are not at all responsible for the alleged damage caused to the cargo. It is further averred that during its voyage from Yokohoma to Cochin, the vessel M.V. Bharatendu experienced heavy stormy weather on 21st, 22nd, 23rd, 24th and 25th July, 1996. The Master of the vessel on arrival at Singapore Port, made a note of protest before a Notary Public at Singapore declaring the boisterous weather experienced by the vessel during its voyage from Yokohoma to Cochin. From the note of protest made by the Master of the vessel before the Notary Public at Singapore, it is clear the boisterous weather faced by the vessel was beyond his control and it was purely an act of God. The Master declared that the vessel had encountered very boisterous weather and rough and heavy seas due to which the vessel was rolling and pitching heavily and was shipping heavy seas and spray on forecastle and main deck. It further declared that due to such a rough weather he found that the car stored on main deck abreast No. 2 hatch SIB side had broken, her lashing shifted and was damaged and the same had to be relashed at sea for the safety of the cargo and the ship. In addition other damage to the cargo and vessels structure and fittings may also have occurred which must have been discovered later. The car was damaged when it arrived at Cochin Port. The damage was caused due to act of God. In para 9 of the above complaint, the complainant has highly exaggerated the condition of the car on arrival at Cochin. The Master of the vessel alongwith the crew members made their best efforts to save the car and other cargo carried by the vessel. They took utmost care, caution and vigilance to preserve the cargo from being lost or damaged. They also made their level best to save life of the crew members as well as the other apparatus and belonging of the vessel. Inspite of the best efforts of the Master and the crew the car in question could not be saved from damage because of the boisterous weather and since it was carried on deck as per the contract. The allegations that it was beyond repair was only to exaggerate the claim and to inflate the value of the car. As a customary practice in the shipping trade, the respondents obliged the complainant and the complainant''s clearing agent deputed M/s. M.K.C. and Company as their Surveyors and they filed a survey report that the external body of the car was damaged. They also reported the salvage value can be realised for engine, gearbox, upholstery and four tyres. It is clear that the complainant could have minimised the damage sustained to the car by taking delivery of the car and carrying out necessary repairs. No damage was reported to its engine, gear box and other parts of the car. The car could have been made use of after necessary repairs. At the time of shipment the complainant or their agents or the shipper had not declared or disclosed the value of the car to be Rs. 7 lakhs and the damage caused to the car was only minor damages which could have been rectified or repaired after taking delivery of the car. Ultimately it was contended in view of the provisions of Carriage of Goods by Sea Act the complaint is liable to be dismissed.

THE opposite parties requested the Commission to determine the question of maintainability as a preliminary issue and accordingly we heard the Counsel for the complainant and the opposite party. The issue raised is that in view of Clause 6 of Article 3 of Schedule to Indian Carriage of Goods by Sea Act the complainant''s right is extinguished and the claim is barred.

IN order to appreciate this contention, it would be appropriate to quote Clause 6 of Article 3 of the Schedule of INdian Carriage of Goods by Sea Act which reads as follows: "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 the year after delivery of the goods or the date when the goods should have been delivered".

According to the complainant ship reached Cochin Port on 8.9.1996. According to the opposite parties ship reached on 7.9.1996. Opposite party has produced a certificate from Harbour Master''s Office of the Cochin Port Trust which states that M.V. Bharatendu arrived at Outer roads on 8.9.1996 at 0645 and berthed on the same day at 11.00 hrs. The ship sailed from Cochin on 17.9.1996 at 0700 hrs. The complaint was filed on 10.11.1997 before this Commission. According to Clause 6 of the Article 111 of Schedule to the Indian Carriage of Goods by Sea Act the carrier and 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. From the materials furnished by the complainant as well as by the opposite parties it is clear that the complaint was filed after the expiry of one year after delivery of the goods. The question to be considered is whether by virtue of this provision the complaint is barred and the rights of complainant is extinguished.

LEARNED Counsel appearing for the complainant would contend that under Section 24(A) of the Consumer Protection Act, the complainant has two years period from the date of cause of action. The cause of action arose only when the damaged car was delivered and the complaint was filed within two years from that date. This takes us to the question whether the provisions of Clause 6 Article 3 Schedule to the Indian Carriage of Goods by Sea Act or Section 24(A) of the Consumer Protection Act is applicable to the present case. Consumer Protection Act is a general law in the sense that it applies to all consumers while the Indian Carriage of Goods by Sea Act is a special law governing Carriage of Goods by Sea. Since Indian Carriage of Goods by Sea Act is a special law in our view it is the provision contained in the Indian Carriage of Goods by Sea Act, 1925 that would apply to the present case. Clause 6 specifically states that carrier or ship shall be discharged from all liability unless suit is filed within one year from the date of delivery of the goods or the date when the goods should have been delivered. The Supreme Court had occasion to consider this provision in East and West Steamship Co., CAIR 1960 Supreme Court 1958. It considered whether Clause 3 paragraph 6 or Article 3 to the Schedule of the Indian Carriage of Goods by Sea Act provides for extinction of a right to compensation and whether it is merely a rule of limitation and it held that in view of the international character of the rules the right is extinguished and the provision is not merely a rule of limitation. The question was again considered by the Supreme Court in American Export Isbrant and Incorporated v. Joe Lopes and Another, AIR 1972 Supreme Court 1405, and the Supreme Court quoted with approval the earlier decision. A Division Bench of the Kerala High Court also considered the matter and it was held that in view of the provisions, contained in Clause 3, para 6 of Article III the suit shall be brought within one year from the specified date and if suit is not brought within the time specified, the carrier and ship shall be discharged from liability and that once the liability of the carrier or ship terminates there is no survival of cause of action against them. Sitting as Single Judge of the Kerala High Court, the President of this Commission again considered the legal effect of this provision in K.B. Jacob and Sons, Stevedors, Cochin v. Shipping Corporation of India Ltd., Bombay, AIR 1990 Kerala 256, and it was held three years'' period is not available and the suit filed beyond period of one year is barred.

LEARNED Counsel invited our attention to two decisions. First one is one rendered by Tamilnadu State Consumer Disputes Redressal Commission in Gitanjali Enterprises v. New India Assurance Co. Ltd. and Another, I (1995) CPJ 131, and the other rendered by Karnataka State Commission in B.A. Pai v. M/s. International Services, III (1996) CPJ 316. On going through the decisions, we find that they have no application to the facts of this case. Further in the light of the Supreme Court''s decisions referred to above there cannot be any doubt that the right of the complainant to recover the damage was extinguished as she failed to prefer the claim before the expiry of one year from the specified time.

In the result, the complaint fails on this preliminary ground and therefore it is not necessary for us to consider the other questions. We accordingly dismiss the complaint. However in the peculiar circumstances of the case, we direct the parties to bear their respective costs. Complaint dismissed.