- (1.) THE complainant s case is that the complainant entrusted totally 159 cartons of the value of 18,392 US $ for carriage to its buyer in France. The first opposite party provisionally confirmed the date of departure and arrival of cargo. The necessary freight charges were paid. It was held out that the goods would reach Hamburg on 22.8.1998. But the goods did not reach on 22.8.1998. The complainant was not informed about the position of the goods or the receipt of goods. While so, the buyer sent a message stating that the goods have not reached, hence, they are not willing to accept the goods. The complainant brought this to the notice of the opposite parties. The 1st opposite party informed the complainant that the goods were lying at TCI Trans Container at Hamburg. The 1st opposite party had not taken any step to file a claim pursuant to the Arbitration award dated 29.10.1998. The complainant made a trip to France and convinced the buyer to accept the goods at 50% of the value. Thus, the complainant sustained a damage of Rs. 15,00,000/ -. Hence, the complaint.
(2.) IN the version filed by the opposite party Nos. 2 and 3, it is contended as follows: There is no privity of contract between the parties. The Consumer Forum has no jurisdiction. The complaint is not maintainable. Further, it is liable to be dismissed under Section 230 of Indian Contract Act. The 2nd opposite party is doing consolidation business. They have ICD at Tirupur and Bangalore. Any customer or agent acting for shippers or consignors would approach the second opposite party and entrust the cargo for consolidation. In case of any time -bound delivery, the 2nd opposite party used to advise the shipper to entrust the cargo at Gateway ports of Chennai, Tuticorin and Cochin. The complainant never informed that there was any contract between the parties regarding the date of delivery. The consignment was only entrusted at ICD Tirpur. At the time of entering into the contract of carriage, there was no stipulation that the cargo should be delivered within a particular time or day. As to the date or period of delivery, no specific request was made. In my event, what was stated by the carrier was only expected time of arrival and expected time of departure. It is impossible to state the exact time the cargo would be delivered. There is no guarantee that the goods will reach the destination within a particular time. Any agreement arrived at between the complainant and their consignee or between the complainant and the 1st opposite party with regard to the timing of delivery is not binding the opposite party Nos. 2 and 3. The mode of transhipment from place -to -place depends upon the traffic. There was a heavy traffic congestion at Colombo. The cargo reached the destination on 29.9.1998. Thus, there was no delay involved. The opposite parties were never informed that time is essence of the contract between the parties. If the complainant had entered into any agreement or had negotiated with their buyer and sold the cargo for lesser price, the loss cannot be passed on to the opposite parties. There is no deficiency in service. The opposite parties were not the parties to the arbitration agreement. There was no loss occasioned by these opposite parties, nor as to the direct consequences of any breach of condition of contract or contractual obligation. Hence, the opposite parties pray that the complaint be dismissed with costs.
(3.) THE entire case of the complainant is based upon the allegation that the opposite parties agreed to deliver the cargo within a particular time. In other words, according to them, the first opposite party provisionally confirmed the date of departure and arrival of cargo vessel. According to the complainant, it was informed that the goods would reach Hamburg on 22.8.1998. But the goods actually reached Hamburg only on 29.10.1998 and there was delay. As a result of which the consignee refused to take delivery and the complainant had to negotiate with the consignee and persuade the consignee to clear the cargo for a lesser price. Thus, they sustained loss of 40%, the value of which is now claimed with interest and other damages. Now Ex. A2 is the bill of lading. It gives the place of delivery of Hamburg and route and place of transportation is given as Colombo. The column relating to date or period of delivery is left blank. Even according to the complainant, the opposite parties gave the expected time of departure from Tuticorin as 31.7.1998 and expected time of departure from Colombo as 5.8.1998 and promised or held out that the cargo would reach Hamburg on 22.8.1998. Regarding the mother vessel, the complainant has mentioned that the expected time of departure from Colombo was 5.8.1998 and expected time of arrival at Hamburg on 22.8.1998. The very word expected time would only indicate the probable time of departure and arrival. The conditions in the bill of lading would itself show that there is no specific agreement between the parties to the effect that the goods would reach Hamburg by or before 22.8.1998. When the goods are carried by sea and for a long distance had to be covered, the expected time of arrival or departure of a ship cannot be foreseen or fixed. So many factors have a role to play in such matters. The congestion in the port, the availability of berths, the availability of space, the conditions in the port, the dock labour unrest, weather conditions, internal and external conflicts and hostilities among nations, political situation are some of the factors which have a role to play. That is why the carriers announce as expected time of departure and expected time of arrival. The very nature of carriage by sea is such that no hard and fast rule can be laid with regard to the time and date of delivery. Therefore, when the complainant alleges that there was a definite understanding by the opposite parties to deliver the cargo by or before 22.8.1998, the burden upon them is to prove the same. We have no records from the complainant to establish this aspect. There is merely an assertion by the complainant which is denied by the opposite parties. There is no written contract nor any undertaking to the effect contended by the complainant. Therefore, the very case of the complainant is not made out.;