K.RAJAN Vs. P & O CONTAINERS LTD.

JUDGEMENT

(1.) COMPLAINT was filed, inter alia, alleging that complainant is an exporter of textile fabrics. He handed over to the opposite -party for safe carriage from Mumbai to Mombasa three containers containing textile fabrics as detailed below:

(2.) IT was stated that as Emke Garments Kenya Ltd. consignee did not take delivery of Containers the complainant approached Mumbai agent of the opposite party on 7.8.1995 for bringing back the containers to Mumbai undertaking to pay required charges and freight. Mumbai agent asked the complainant to contact their Mombasa agent M/s. Mackenzie Maritime Ltd. Complainant instructed Mombasa agent to re -book the containers to Mumbai. Since there was no information from the agent, the complainant deputed his representative Syed Kasim Hussain on 12.9.95 to Mombasa. Shri Hussain was shocked to find that the letter dated 11.8.1995 addressed to Collector of Customs and Excise, Mombasa seeking permission to document the three containers to India had not been delivered till then by Mombasa agent. This letter was delivered to the said authority on 12.9.1995. In the meantime textile fabrics of one of the containers No. TPXU 6934994 was auctioned on 5.9.1995 by the said authority. It was further alleged that non ­delivery of the letter dated 11.8.1995 to the said authority by Mombasa agent of the opposite party amounted to deficiency in service. Amount of Rs. 27,09,601.70 equivalent to US $ 77.974.15 being the invoice value of textile fabrics contained in above container, Rs. 40,518.75 being the amount of freight paid, Rs.42,443 being the amount of insurance amount, Rs. 22,000 being the expenses incurred by the representative deputed to Mumbai from Madras. Rs. 66,000.00 being the expenses incurred by the representative sent to Mombasa. Rs. 2,98,212.50 being the amount of interest paid to Bank, Rs. 28,975.00 being the amount spent on correspondences. Rs. 5,000 being the fee paid to lawyer at Bombay and Rs. 5,00,000.00 by way of compensation for mental agony, totalling Rs. 37,12,750.40 were claimed by the complainant from the opposite party.

(3.) OPPOSITE party contested the complaint by way of filing written version. It was not denied that three containers were entrusted to it for safe carriage from Mumbai to Mombasa as alleged. The containers were carried in vessel M.V. SUSAK Voyage -18 and handed over to Mombasa Custom Authorities at Mombasa on or about 12th April, 1995. Under the contract of carriage covered by the bills of lading issued by the answering opposite party, the responsibility of opposite party came to an end on containers being discharged from the ships rail on to the wharf/quay. It was alleged that Emke Garments Kenya Limited, consignee did not take delivery of the containers covered by three bills of lading issued by answering opposite party. One of the containers No. TPXU 6934994 was auctioned by the Customs Authorities on 5.9.1995 to recover demurrage and storage charges due on the containers. Mumbai agent of the opposite party had made it clear in the fax dated 14.8.1995 that Mombasa agent did not have any control once the goods were listed for auction by Custom Authorities and in the past efforts by Mombasa agent to prevent auction sale of goods by Customs Authorities had proved futile. It was stated that Mombasa agent of the answering opposite party had sent a letter dated 11.8.1995 to the Principal Collector of Customs and Excise, Mombasa for permission to re -ship the three containers back to India as the consignee had refused to take them. Letter was sent by post. Copy thereof was again tendered to the Custom Authorities on 12.9.1995. It was denied that there was any deficiency in service on part of Mombasa agent as alleged. Complaint was stated to be barred by limitation under the Carriage of Goods by Sea Act, 1925. It was further alleged that Commission did not have territorial jurisdiction to entertain and try the complaint as alleged negligence deficiency in service on the part of Mombasa agent occurred at Mombasa. It was also alleged that in the list for auction issued by Custom Authorities the particular of third container was erroneously mentioned as TEXU 69349944 instead of TPXU 69349944. Thus, Mombasa agent sent auction sale notice to the consignee only in regard to balance two containers. It was claimed that Syed Kasim Hussain, representative of complainant reached Mombasa on 11.8.1995 and was seen in the company of consignee. He contacted the Mombasa agent for the first time on 12.9.95. Textile fabrics contained in container TPXU 69349944 were sold by Customs Authorities at the behest of said representative who was in hand and glove with the consignee. Further, despite repeated requests to the Customs Authorities the information to whom the textile fabrics were sold and price, etc. was not made available to Mombasa agent of the replying opposite party. Liability to pay the amount claimed was emphatically denied.