Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
By this consumer complaint a grievance is placed against the opponent No.1 who is supplier of goods alleging that the goods supplied were defective and damaged; compensation is claimed accordingly. Opponent No.2 is a company appointed by the Bank of Tanzania to survey the consignment at the time of dispatch and after its arrival at destination port in Tanzania.
2. Undisputed facts are that complainant-Al Ameer Enterprises Ltd. (hereinafter referred to ‘complainant’) is a foreign company situated in Tanzania. It had ordered Nipa Cycle basket with lid (M) which is a plastic household articles manufactured by opponent No.1-National Plastic Industries Ltd. in a quantity of 1250 dozens at the rate of US $ 9.50 per dozen, total amounting to US $ 11,875/-. Said supply was to be made on C&F basis through sea route. Other conditions were that packing was to be of export standard in assorted colours, payment would be 100% against presentation of original documents by the complainant, the amount of freight would be borne by opponent No.1, the insurance during transit required to be taken by the complainant and shipment of the goods would be by sea freight in full container load and it was also agreed that the goods would have to be inspected prior to the shipment, as a mandatory prerequisite, by opponent No.2 at Mumbai. Said dispatch was accordingly made as per Invoice No.62/97 dated 15/02/1997 and bill of lading was also accordingly raised. Opponent No.2 after inspection of the goods before dispatch, issued a Clean Report dated 25/03/1997. It reached the port of destination in Tanzania and the goods were delivered on 17/03/1997 and the cargo was further cleared from the Customs on 13/04/1997. At the time of delivery also packing of the goods contained in the container was found proper and delivery was accordingly taken.
3. It is the case of the complainant that since they had to clear the earlier stocks, the goods were kept lying in their godown for about two months and thereafter, as per the requirement and orders with them, they had supplied the goods from the consignment to various buyers. However, they started receiving complaints from those buyers and those buyers also returned the goods stating that the goods were broken and as such were not fit for use. The complaints were brought to the notice of opponent No.1 by a fax message dated 27/07/1997. Opponent No.1 replied in following words :-
“RECEIVED YOUR FAX MESSAGE. WE ARE EXTREMELY SORRY FOR WHAT HAS HAPPENDED. WE WOULD REQUEST YOU TO KINDLY SEND US THE PHOTOGRAPHS OF THE DAMAGED GOODS AND ALSO PLEASE LET US KNOW AS TO HOW WE SHOULD COMPENSATE TO YOU FOR THIS. AFTER GETTING A CLEAR PICTURE OF THE TOTAL LOSS, WE WILL WORKOUT THE COMPENSATION.”
4. Inspection of the damaged goods was also arranged by the complainant through franchise of opponent No.2 only and based upon their report, ultimately, a consumer complaint was filed with following prayers :-
“a) This Hon’ble Commission direct/order/decree the Opposite Parties jointly and severally to pay a sum of US$ 62,652.04 to be converted into Indian Currency at the time of the order together with 18% from 6/8/97 till payment and or realization.
b) For such further and other reliefs as this Hon’ble Commission may deem, fit, proper and expedient in the circumstances of the case.
c) For costs of filing this complaint.”
5. The complaint was opposed by opponent Nos.1&2 by their separate written versions on record. They both challenged the status of the complainant as a consumer within meaning of Consumer Protection Act, 1986 (‘the Act’ for brevity) alleging that since the complainant is a foreign company, without permission of the Central Government, they could not file a consumer complaint under the Act and at the second instance, it is submitted that since the goods were supplied to the complainant in the course of business and which the complainant had procured for resale, complainant is not a consumer within meaning of Section 2(1)(d)(i) of the Act. Point of pecuniary jurisdiction is also raised stating that when the complaint was filed on 07/08/1997, the consignment was worth US $ 62,652.04 (INR 27,24,110.70). They also disputed that the consignment supplied was of damaged goods and damage to the goods supplied, if any, could not be attributed to opponent No.1. Loss if any was occurred at the place of complainant. The goods when shipped were in proper condition and order and were not damaged. It was the liability of the complainant to take the insurance cover for transit during the shipment and complainant was solely responsible for the goods once delivered at the destination port. With this they asked to dismiss the consumer complaint.
6. Opponent No.2 also submitted that they have no privity of contract with the complainant and they are unnecessarily impleaded in the complaint and claimed compensation and costs.
7. The complainant relied upon the affidavit of his Constituted Attorney which was filed along with the complaint of Mr.Jitubhai Gandhi. Opponent No.1 relied upon the affidavit of Mr.Umesh Laxman Shenoy and opponent No.2 relied upon the verification affidavit of its Legal Manager Mr.Gaurishankar Thirunavukkarasu. The documents produced on record and documents referring to correspondence and bill of lading as well as invoice are relied by both parties.
8. At the outset, it may be mentioned that report of damage and assessment carried out at the place of complainant as alleged by the complainant by franchise of opponent No.2 is denied by opponent No.2 stating that it is an independent company incorporated in India and registered under the Indian Companies Act and had nothing to do with any other companies either working in Tanzania or elsewhere.
9. We heard both the parties at length. Perused the record.
10. At the outset, it may be mentioned that the complainant, admittedly, is a foreign company and had no branch office or business place in Mumbai. The complaint is filed through its Constituted Attorney Mr.Jitubhai Gandhi, whose authority is challenged by both the opponents. It is also submitted by opponent No.1 that Mr.Jitubhai Gandhi is their business rival since he had also manufactured the same category of goods as of opponent No.1 and complaint is ill motivated. The complainant failed to give any answer to this objection and show that he is a consumer within meaning of the Act and could file this consumer complaint.
11. Admittedly, the Nipa Cycle basket with lid ((M) plastic household articles in bulk quantity was purchased by the complainant as their trading activity and for resale. Therefore, in view of definition of the consumer within meaning of Section 2(1)(d)(i) of the Act, he is not a consumer. At the time of filing of a consumer complaint, referring to valuation for the purpose of jurisdiction, an Invoice value of the consignment and compensation claimed, supra, is relevant. It is the claim to the extent of US $ 62,652.04. However, rate of foreign exchange on that particular date is not mentioned or placed before us by either of the parties. Therefore, we find it not possible to appreciate this objection regarding pecuniary jurisdiction.
12. The goods were lying in the custody of the complainant after they were delivered at the port of designation on 17/03/1997 and actually received and got cleared by the complainant on 13/04/1997. The first complaint was made in the month of August 1997, till then in which condition the goods were lying was not made known. This is important because even on survey at the time of taking delivery and clearing the consignment, no damage to the goods was reported. This also assumes importance because when the goods were shipped, the same were surveyed by opponent No.2 and found to be in proper condition and not damaged. Therefore, once goods were loaded in good condition on the ship, the liability of opponent No.1 comes to an end. Further more, even if some of the goods were found damaged and returned by the buyers from the complainant, two questions arise as to whey the goods, if were damaged, were supplied to its buyers by the complainant. In fact, complainant did not expect to supply any damaged goods and since he had supplied those goods, the presumption is that he had supplied them without any damage condition. At the second instance, no evidence is led to prove the nature of and quantum of damages. Looking to some photographs to which reference is made, in fact such evidence is not tendered in this case, some of these plastic articles were found broken, certainly, it has nothing to with the manufacturing defects by any stretch of imagination. Since the goods were in good condition when loaded on the ship, it cannot be said that damaged goods were shipped or supplied to the complainant. Under the circumstances, we find that even the case relating to the damaged goods or manufacturing defects in the goods is not substantiated by the complainant. Therefore, no compensation for either defective goods or otherwise could be claimed by the complainant from opponent No.1.
13. Opponent No.2 comes in a picture since in view of requirement of Bank of Tanzania about inspection of the goods before their dispatch and loaded on the ship for shipment. Opponent No.2 was engaged by Bank of Tanzania. It had no privity of contract with the complainant. Their role was limited and no where it is a case of complainant that they failed to discharge in their such function. There is no evidence also to substantiate any such case against opponent No.2. Therefore, consumer complaint is clearly misconceived as against opponent No.2.
14. For the reasons stated above, we hold accordingly and pass the following order :-
-: ORDER :-
1. Complaint stands dismissed.
2. Complainant to bear its own costs and shall pay `25,000/- as costs to each one of the opponents.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 15th March 2013.
