NATIONAL INSURANCE CO LTD Vs. SAMBIT TRIPATHY

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.) ONE of the main issues which arises for determination in this complaint is whether Mombasa agent of the opposite party was deficient in service in having allowed the textile fabrics stuffed in container TPXU 69349944 auctioned by Customs Authorities at Mombasa on 5.9.1995. Some of the correspondence exchanged between the parties need be referred on that issue. Fax dated 7.8.1995 Exhibit D -5 sent by the complainant to Mumbai agent of the opposite party, omitting immaterial portion reads thus: