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Judgment
ALLEGING deficiency in service on the part of OP on account of which the complainant had to pay detention charges to the Container Corporation of India, the complainant has claimed compensation of Rs. 5,75,999.00 paid as detention charges and Rs. 50,000 for damages with interest.
FACTS of the case in brief are that the complainant had entered into a contract with M/s. PWT Australasia Pty. Limited, Sydney, Australia for the purchase of 320 MT clean soft lead scrap, in October 1996 on CIF basis upto Kandla/Nhava Sheva port, with ultimate delivery at Inland Container Depot, Tughlaqabad, Delhi with Inland Haulage Charges from Indian port to Inland Container Depot, Delhi to be borne by the complainant. The material was to be supplied to the complainant at New Delhi. After the shipment of the material from the destination, the xerox copy of the shipping documents was received by the complainant including the copy of invoice, packing list, certificate of origin, bill of lading and other relevant documents. The OP vide its letter dated 17.12.1996, intimated about the Expected Date of Arrival as 19.12.1996 and required the invoice to be faxed. The complainant and the supplier had repeatedly requested the OP and their shipping company to deliver the containers at ICD Delhi, but they failed to respond to the same.
The OP against the agreed conditions of the shipping company and shipper having granted 7 days free time at ICD Delhi to the complainant, had called upon the complainant, to pay a sum of Rs. 1,09,646 on account of detention charges incurred at Kandla till 24.1.1997. It was the duty of the OP to have delivered the containers at ICD, Delhi, therefore, the OP was under an obligation to ensure that the containers are diligently dealt with and are transferred at ICD, Delhi well in time. Once the free time of 7 days had been allowed at ICD, Delhi, no detention charges could be claimed at any place in between the destination.
ON account of the deficiency of service and illegal withholding of the containers, the complainants were further burdened with total retention charges/ground rent to Container Corporation of India to an extent of Rs. 80,300. ON account of deficiency of service in sending the incomplete documents to the complainant with delay, payment of Rs. 1,28,746 was paid under protest and as such the OP is liable to refund the amount of illegal charges received by it and compensate for interest on the amount, illegally charged by it as detention charges as well as on the amount paid to the Container Corporation of India with effect from the date it has been illegally charged till the date of filing of the present application. Op denied any deficiency in service on its part and raised the following defences- (i) The complainant is not a consumer within the meaning and definition prescribed under the Consumer Protection Act. (ii) Complainant has no cause to maintain the present complaint against the Op since there has been no deficiency in the service. (iii) The Bills of Lading (B/L) based on which the complaint is filed, expressly provides on the face of the document "contract evidenced by or contained in this Bill of Lading is governed by the Law of Korea and any claim or dispute arising hereunder or in connection herewith shall be determined by the Courts in Seoul and no other Courts". (iv) Contract of Carriage is governed by the provisions of the Multimodal Transportation of Goods Act, 1993 which has an overriding effect over all other enactments. (v) The complaint has been filed well beyond the period of nine months, as prescribed by the Multimodal Transportation of Goods Act and is therefore barred by limitation. (vi) The entire claim under the petition has arisen under the combined transport document issued admittedly by the Principal of the Op, Cho Yang Co. Ltd., who has, since 11th September, 2001, been declared bankrupt by a Seoul Court, hence no claim can be sustained/maintainable against the Op. (vii) Op was an Agent of Cho Yang Shipping Co. Ltd. The complaint should have been filed against the Carrier/Principal Cho Yang Shipping Co. Ltd., with whom they had entered into Contract of Carriage, as admitted by the complainant. (viii) There was dispute as to how much free detention should be allowed at Kandla and at Delhi respectively. The O.P. very correctly and on the instructions of the principals, called upon the complainant to pay Rs. 1,09,646.00 on account of detention charges incurred at Kandla. This amount was after giving 14 days free time, 30% and 50% for the 11 x 20'' and 5 x 20'' containers respectively as agreed at Kandla.
AS is apparent the O.P. while denying the claims of the complainant has raised the preliminary objection that the complainant was aware that the O.P. is an agent of Cho Yang Shipping Co. Ltd. and has admitted the same in the complaint as well as in the documents relied upon by them and, therefore, under Section 230 of the Contract Act, 1872, the agents of foreign principals cannot be sued personally nor made personally liable (AIR 1999 Bom. 401) and, therefore, there is no cause of action against the O.P. and that even otherwise the complainant has not disclosed any cause of action against the O.P. and that the complainant should have filed the complaint against the Carrier/Principal Cho Yang Shipping Co. Ltd. With whom they had entered into contract of carriage as admitted by the complainant. There is no dispute that the complainant had availed services of the opposite party may be as an agent of the principal by paying consideration to it from his own and, therefore, he was the direct beneficiary of the services availed and falls within the definition of ''consumer'' as defined by Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 which means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose. Therefore, the provisions of Section 230 of the Contract Act, 1872 that the agents of foreign principals cannot be sued personally were not applicable in the given facts and circumstances of the case. As per terms of the contract the ultimate delivery of the consignment was to be made at Inland Container Depot, Tughlaqabad, Delhi with Inland Haulage Charges from Indian port to Inland Container Depot, Delhi. The material was to be supplied to the complainant at New Delhi. However, the OP granted 7 days free time at ICD Delhi to the complainant and called upon the complainant to pay a sum of Rs. 1,09,646 on account of detention charges incurred at Kandla. This circumstance itself demonstrates the deficiency in service on the part of the OP as the OP was under obligation to ensure that the containers are diligently dealt with and are transferred at ICD, Delhi well in time. Once the OP had allowed free time of seven days it was not open to the OP to claim detention charges at any place between the destinations.
IN view of the aforesaid facts and circumstances of the case and by holding deficiency in service in the aforesaid term, we allow the complaint with the direction to the OP to refund the amount of Rs. 1,09,646 and Rs. 5,000 as litigation expenses.
PAYMENT shall be made within two months from the date of receipt of this order. Complaint is disposed of in aforesaid 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 allowed.