IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4861 OF 2012
Virender Khullar … Appellant
Versus
American Consolidation Services Ltd. & ors. …Respondents
WITH
CIVIL APPEAL NO. 9217 OF 2012
J U D G M E N T
Prafulla C. Pant, J.
These appeals are directed against common judgment and order dated
March 22, 2012, passed by National Consumer Disputes Redressal Commission,
New Delhi (for short “NCDRC”) in Original Complaint Nos. 89 of 1995 and 90
of 1995, whereby the Commission has dismissed the complaints of the
appellants, filed under Section 23 of the Consumer Protection Act, 1986, as
against Respondent Nos. 1, 2 and 4. However, the complaints were partially
allowed as against respondent No. 3 M/s. Zip Code, 2615, Elmhurst Lane,
Portsmouth, VA 23701, USA, for an amount of Rs.20,82,902.40 in favour of
appellant Virender Khullar, and Rs.15,27,461.76 in favour of appellant
Girish Chander, with interest at the rate of 12% per annum with effect from
April 01, 1995 till the date of payment.
Brief facts of the case are that the appellants-complainants entrusted
consignments containing men’s wearing apparels in December 1994 to
Respondent No. 1 American Consolidation Services Ltd., Akruti Trade Centre,
402, 4th Floor, Andheri (East), Mumbai (hereinafter referred to as “ACS”),
and cargo receipts were issued to them by Respondent No. 1. As per the
cargo receipts so issued, the consignments were to the order of Respondent
No. 2 Central Fidelity Bank, Richmond VA, USA. Respondent No. 1 on its
part handed over the consignments to respondent No. 4 M/s. Hoeg Lines, Lief
Hoegh & Co., A/S Oslo, Norway/M/s. American President Lines Limited, Tarde
Plaza 2nd Floor, 414 Veer Savarkar Marg, Prabhadevi, Mumbai, for delivery
of the consignments at the port of destination. It is alleged that in the
Bill of Lading issued by the shipping carriers, name of consignee was
changed from Central Fidelity Bank to Coronet Group Inc. besides there
being several other changes in the name and description of the shipper as
Cavalier Shipping Co. When payment was not received till March, 1995, the
appellants/ complainants made enquiry about the consignments. After
servicing legal notice, appellant Virender Khullar filed a complaint for an
amount of Rs.35,31,601.15 in respect of 300 cartons containing men’s
apparels through cargo receipt Nos. 34307, 34308 and 34309, and appellant
Girish Chander filed the complaint for an amount of Rs.29,17,844.76 for 220
cartons containing men’s apparels sent through cargo receipt Nos. 34116,
34117 and 34118, before NCDRC, New Delhi. Initially complaints were filed
only as against Respondent No. 1, i.e. American Consolidation Services Ltd.
(ACS).
Respondent No. 1 contested the complaints and pleaded that Respondent No. 1
received the complainants’ goods on behalf of the buyer/consignee, i.e. Zip
Code Inc. which was part of Coronet Group Inc. as its agent. It is further
pleaded that there was no payment made by the appellants/ complainants for
the service provided by Respondent No. 1, nor there was any contract
between the complainants and Respondent No. 1 for shipment of the goods.
The receipt, custody and forwarding of the goods of the complainants were
governed by the provisions of bailment agreement as mentioned in the cargo
receipts. The bailment agreement provided that from and after the delivery
by Respondent No. 1 to a carrier in accordance with the instructions of the
consignee or other cargo owner, the sole responsibility and liability for
the care, custody, carriage and delivery of goods was that of the concerned
carrier. Respondent No. 1 was under no liability whatsoever in respect of
any failure on the part of the consignee or any other party. According to
Respondent No.1, complainants’ claim, if any, can lie only as against the
principal, i.e. buyer/consignee who appears to have not made payment to the
complainants for the value of the cargo. Since Respondent No. 1 acted only
as an agent of the consignee, i.e. Zip Code Inc., a subsidiary of Coronet
Group Inc, and acted only as a consolidator and forwarder (not a carrier),
it has no liability as provided in Section 230 of the Indian Contract Act,
1872, on behalf of the principal. The carrier of the goods in question was
Respondent No. 4 Hoegh Lines/American President Line Limited, who issued
the relevant Bills of Lading covering the goods. The appellants were duly
informed by Respondent No. 1 about the delivery of consignment to Coronet
Group Inc on surrendering of all the original Bills of Lading. Lastly, it
is pleaded that it is not a case of negligent act or careless handling of
the shipment by Respondent No. 1.
After hearing the parties, the NCDRC, vide its separate orders dated
January 20, 2004, accepted both the claims (to the extent of
Rs.20,82,908.40 of appellant Virender Khullar and claim to the extent of
Rs.15,27,461.76 of appellant Girish Chander) and directed the amount to be
paid by Respondent No. 1 with interest.
However, above orders dated January 20,2004, passed by NCDRC, were
challenged by Respondent No. 1 in Civil Appeal Nos. 2079 of 2004 and 2080
of 2004, before this Court and the same were disposed of vide order dated
September 10, 2009, as under: -
“Heard learned counsel for the parties.
These appeals have been filed against the impugned Judgment of the
National Consumer Disputes Redressal Commission, dated 20th January, 2004.
By that judgment, certain amount has been decreed against the appellant.
Mr. R.F.Nariman and Mr. P.H.Parekh, learned senior counsel appearing
for the appellant, contended that the appellant was only an agent of the
consignee, Zip Code Inc., which is part of the Coronet Group. It appears
that the grievance of the claimants (respondents in this case) is that
certain cartons, which were to be shipped to a party in USA, were allegedly
not delivered there. A claim was made for damages in that respect.
Mr. Nariman has contended that the appellant is only an agent of the
consignee and not the consignee himself. We agree with the contention. In
our opinion, the claimants should have impleaded the consignee as well as
the carrier as parties in the claim petitions apart from impleading the
appellant. The rules of natural justice require that necessary parties
have to be impleaded, which appears not to have been done in this case
before the National Commission.
For the reason given above, we set aside the impugned judgment of
the National Commission and remand the matters to the National Commission
with liberty to the respondents-claimants to implead the consignee as well
as the carrier in their claim petitions. Notice will be issued to the newly
impleaded parties and case will be decided by the National Commission
preferably within six months from the production of a copy of this order.
We make it clear that we have not expressed
any opinion on the merits of the case. All points of law and fact are
expressly left open to the parties.
The amount deposited here by the appellants will be refunded to
them with accrued interest.
The appeals are accordingly disposed of.
No order as to costs.”
In the light of above order, Respondent No. 2 Central Fidelity Bank,
Respondent No. 3 Zip Code and Respondent No. 4 Hoegh Lines/American
President Lines Limited) were impleaded and the case proceeded and decided
afresh by the NCDRC. The case against Respondent No. 3 M/s. Zip Code and
Respondent No. 4 Hoeg Lines/American President Lines Limited appears to
have proceeded ex parte as they failed to turn up in response to the
notices sent to them. There was no relief sought as against Respondent No.
2 Central Fidelity Bank. In the impugned order dated March 22, 2012, it
has been held by NCDRC that it is only Respondent No. 3 Zip Code, the
intermediary consignee of the cartons in question mentioned in cargo slips,
who received the delivery of the consignments without making payment to the
bank or the complainants, and, as such, liable to pay the compensation to
the appellants, and accordingly directed Respondent No. 3 to make the
payment of Rs.20,82,902.40 in favour of appellant Virender Khullar and
Rs.15,25,461.76 in favour of appellant Girish Chander, with interest at the
rate of 12% per annum with effect from April 01, 1995.
Respondent No. 3 has not challenged the above order. Rather, the
complainants have challenged the fresh decision of NCDRC as other
respondents are held not liable to make the payment. Respondent Nos. 3 and
4, even after service of notice, have not turned up to contest the appeals.
Learned counsel for the appellants argued before us that it is Respondent
No. 1 who changed the name of consignee and the name of Coronet Group Inc.
was inserted in the Bill of Lading depriving realization of damages by the
complainants. It is further contended that Respondent No. 1 accepted the
goods from the complainants to be delivered to the order of Respondent No.
2 by engaging a carrier, but it caused the goods to be delivered to Coronet
Group without getting payment realized through the bank. It is further
submitted that in the cases other than Letter of Credit when the goods are
sent on collection basis, the same are consigned to bank, and foreign buyer
is named as party to be notified. As such, the delivery of goods should
not have been allowed to be made without getting realized payment of goods
through Respondent No. 2 Bank. It is also contended that Section 2(d) of
the Consumer Protection Act, 1986, came into force with effect from
15.3.2003, and prior to that there was no exclusion regarding service of
commercial purposes under the Act. Lastly, it is submitted that the
appellants have nothing to do with the consolidation procedure said to have
been agreed between Respondent No. 1 and Coronet Group Inc.
On behalf of Respondent No. 2 Central Fidelity Bank, now known as Wells
Fargo Bank, it is submitted that there is no relief sought against it by
the appellants/complainants in their complaints. It is further submitted
that Respondent No. 2 was only a consignee as per the records of the case,
i.e. it was the consignee as set out in the cargo receipts and the notify
party/intermediate consignee was Zip Code Inc. (respondent No. 3). As
such, it was Respondent No. 3 who was the actual buyer and who was to be
notified by Respondent No. 1 once the consignment arrived in Norfolk, USA.
In turn, Respondent No. 3 was to inform Respondent No. 2, subsequent to
which Respondent No. 3 was to pay for the goods and obtain a certificate
from Respondent No. 2 to show that such payment has been made. It was
subsequent to this process that Respondent No. 2 was to release the goods
to Respondent No. 3. It is further submitted that it is also an admitted
fact that no shipment was ever delivered to Respondent No. 2. The
appellant himself submits that the “shipment was not delivered to the
consignee name in the cargo receipts”. As such, there was no obligation
whatsoever upon Respondent No. 2, that it had to discharge.
We have considered the arguments advanced on behalf of the appellants and
that of Respondent No. 2 and perused the record. Copies of cargo slips,
which are on record, disclose that notified party/intermediary consignee
was Respondent No. 3 Zip Code, 2615 Elmhurst Lane, Portsmouth, VA 23701,
USA. In the column of name of consignee “To order of Central Fidelity Bank
Richmond VA” is mentioned. Cargo slips further disclose that (Vessel,
Voyage) Hoegh Clipper/Eagle Prestige was export carrier.
Admittedly, the goods in question were handed over by the appellants to
Respondent No. 1 as pleaded. But there is neither any pleading nor proof
that the appellants paid any sum for transportation or any other service to
Respondent No. 1 at the time the goods were handed over to it or subsequent
there to. It has been shown on behalf of Respondent No. 1 that Respondent
No. 1 was simply an agent of the buyer with whom the appellants had entered
into contract. It is nobody’s case that the goods were lost in transit.
Rather it is a case where it has come on record that the consignment was
received by Respondent No. 3 Zip Code Inc, a part of Coronet Group Inc.
At this stage, we think it just and proper to reproduce relevant additional
terms and conditions attached with the cargo slips, which read as under: -
“ACS undertakes to receive the goods on behalf of the consignee, hold
the same as an agent and deliver or forward them to carriers or
transporters in accordance with the instructions of the consignee or other
cargo owners for subsequent transportation by water or air carrier and for
distribution and ultimate delivery to the consignee.
xxx xxx xxx
In receiving the goods and pending the consolidation services covered
by this agreement, ACS is acting as agent only for the consignee named on
the face hereof and not as carrier, transporter or distributor of the
goods.
xxx xxx xxx
The shipper hereby acknowledges that ACS acts solely as agent on
behalf of the consignee and shall be under no liability whatsoever in
respect of any failure by the consignee or any other party to do any act or
pay any amounts due in respect of the cargo received hereunder including
but not limited, to the purchase price of such cargo, freight, storage
charges insurance premium, lighterage changes, demurrage salvage charges or
general average contribution.”
Since Respondent No. 1 was simply acting as an agent of Coronet Group Inc,
as such, in view of Section 230 of the Indian Contract Act, 1872 it cannot
be held personally liable to enforce the contract entered between its
principal and the appellants. This Court, in its order dated September 10,
2009, has accepted the plea of Respondent No. 1 that Respondent No. 1 is
not a consignee, but only an agent of the intermediate consignee. That
being so, Respondent No. 1 cannot be held to be liable in respect of claim
made by the appellants. We think it relevant to mention here that in
Marine Container Services South Pvt. Ltd. v. Go Go Garments[1], this Court
has already made clear that defence under Section 230 of Indian Contract
Act, 1872 is available in the cases under Consumer Protection Act, 1986 by
the agents of the principal with whom the complainant had the agreement.
As far as liability of Respondent No. 2 Central Fidelity Bank and that of
Respondent No. 4 is concerned, we agree with the NCDRC that Respondent No.
4 had carried the consignment and delivered the same as per Bill of Lading
and there is no contract between the appellants and Respondent No. 4. Also
Respondent No. 2 Bank cannot be held liable for the deficiency of service,
as the amount was not collected from the consignee, as such there was no
question of remitting it to the appellants/complainants by the Bank. In
the circumstances, respondent No, 3 Zip Code Inc, which is subsidiary to
Coronet Group Inc, the consignee named in the cargo slips, is the only
party which can be held liable for taking delivery without depositing the
price of the goods with the Bank.
For the reasons discussed above, we find no infirmity in the impugned order
passed by the NCDRC and, as such, these appeals are liable to be dismissed.
Accordingly, both the appeals are dismissed. There shall be no order as
to costs.
………………………………J.
[R.K. Agrawal]
………………………………J.
[Prafulla C. Pant]
New Delhi;
August 16, 2016.
-----------------------
[1] (1998) 3 SCC 247
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4861 OF 2012
Virender Khullar … Appellant
Versus
American Consolidation Services Ltd. & ors. …Respondents
WITH
CIVIL APPEAL NO. 9217 OF 2012
J U D G M E N T
Prafulla C. Pant, J.
These appeals are directed against common judgment and order dated
March 22, 2012, passed by National Consumer Disputes Redressal Commission,
New Delhi (for short “NCDRC”) in Original Complaint Nos. 89 of 1995 and 90
of 1995, whereby the Commission has dismissed the complaints of the
appellants, filed under Section 23 of the Consumer Protection Act, 1986, as
against Respondent Nos. 1, 2 and 4. However, the complaints were partially
allowed as against respondent No. 3 M/s. Zip Code, 2615, Elmhurst Lane,
Portsmouth, VA 23701, USA, for an amount of Rs.20,82,902.40 in favour of
appellant Virender Khullar, and Rs.15,27,461.76 in favour of appellant
Girish Chander, with interest at the rate of 12% per annum with effect from
April 01, 1995 till the date of payment.
Brief facts of the case are that the appellants-complainants entrusted
consignments containing men’s wearing apparels in December 1994 to
Respondent No. 1 American Consolidation Services Ltd., Akruti Trade Centre,
402, 4th Floor, Andheri (East), Mumbai (hereinafter referred to as “ACS”),
and cargo receipts were issued to them by Respondent No. 1. As per the
cargo receipts so issued, the consignments were to the order of Respondent
No. 2 Central Fidelity Bank, Richmond VA, USA. Respondent No. 1 on its
part handed over the consignments to respondent No. 4 M/s. Hoeg Lines, Lief
Hoegh & Co., A/S Oslo, Norway/M/s. American President Lines Limited, Tarde
Plaza 2nd Floor, 414 Veer Savarkar Marg, Prabhadevi, Mumbai, for delivery
of the consignments at the port of destination. It is alleged that in the
Bill of Lading issued by the shipping carriers, name of consignee was
changed from Central Fidelity Bank to Coronet Group Inc. besides there
being several other changes in the name and description of the shipper as
Cavalier Shipping Co. When payment was not received till March, 1995, the
appellants/ complainants made enquiry about the consignments. After
servicing legal notice, appellant Virender Khullar filed a complaint for an
amount of Rs.35,31,601.15 in respect of 300 cartons containing men’s
apparels through cargo receipt Nos. 34307, 34308 and 34309, and appellant
Girish Chander filed the complaint for an amount of Rs.29,17,844.76 for 220
cartons containing men’s apparels sent through cargo receipt Nos. 34116,
34117 and 34118, before NCDRC, New Delhi. Initially complaints were filed
only as against Respondent No. 1, i.e. American Consolidation Services Ltd.
(ACS).
Respondent No. 1 contested the complaints and pleaded that Respondent No. 1
received the complainants’ goods on behalf of the buyer/consignee, i.e. Zip
Code Inc. which was part of Coronet Group Inc. as its agent. It is further
pleaded that there was no payment made by the appellants/ complainants for
the service provided by Respondent No. 1, nor there was any contract
between the complainants and Respondent No. 1 for shipment of the goods.
The receipt, custody and forwarding of the goods of the complainants were
governed by the provisions of bailment agreement as mentioned in the cargo
receipts. The bailment agreement provided that from and after the delivery
by Respondent No. 1 to a carrier in accordance with the instructions of the
consignee or other cargo owner, the sole responsibility and liability for
the care, custody, carriage and delivery of goods was that of the concerned
carrier. Respondent No. 1 was under no liability whatsoever in respect of
any failure on the part of the consignee or any other party. According to
Respondent No.1, complainants’ claim, if any, can lie only as against the
principal, i.e. buyer/consignee who appears to have not made payment to the
complainants for the value of the cargo. Since Respondent No. 1 acted only
as an agent of the consignee, i.e. Zip Code Inc., a subsidiary of Coronet
Group Inc, and acted only as a consolidator and forwarder (not a carrier),
it has no liability as provided in Section 230 of the Indian Contract Act,
1872, on behalf of the principal. The carrier of the goods in question was
Respondent No. 4 Hoegh Lines/American President Line Limited, who issued
the relevant Bills of Lading covering the goods. The appellants were duly
informed by Respondent No. 1 about the delivery of consignment to Coronet
Group Inc on surrendering of all the original Bills of Lading. Lastly, it
is pleaded that it is not a case of negligent act or careless handling of
the shipment by Respondent No. 1.
After hearing the parties, the NCDRC, vide its separate orders dated
January 20, 2004, accepted both the claims (to the extent of
Rs.20,82,908.40 of appellant Virender Khullar and claim to the extent of
Rs.15,27,461.76 of appellant Girish Chander) and directed the amount to be
paid by Respondent No. 1 with interest.
However, above orders dated January 20,2004, passed by NCDRC, were
challenged by Respondent No. 1 in Civil Appeal Nos. 2079 of 2004 and 2080
of 2004, before this Court and the same were disposed of vide order dated
September 10, 2009, as under: -
“Heard learned counsel for the parties.
These appeals have been filed against the impugned Judgment of the
National Consumer Disputes Redressal Commission, dated 20th January, 2004.
By that judgment, certain amount has been decreed against the appellant.
Mr. R.F.Nariman and Mr. P.H.Parekh, learned senior counsel appearing
for the appellant, contended that the appellant was only an agent of the
consignee, Zip Code Inc., which is part of the Coronet Group. It appears
that the grievance of the claimants (respondents in this case) is that
certain cartons, which were to be shipped to a party in USA, were allegedly
not delivered there. A claim was made for damages in that respect.
Mr. Nariman has contended that the appellant is only an agent of the
consignee and not the consignee himself. We agree with the contention. In
our opinion, the claimants should have impleaded the consignee as well as
the carrier as parties in the claim petitions apart from impleading the
appellant. The rules of natural justice require that necessary parties
have to be impleaded, which appears not to have been done in this case
before the National Commission.
For the reason given above, we set aside the impugned judgment of
the National Commission and remand the matters to the National Commission
with liberty to the respondents-claimants to implead the consignee as well
as the carrier in their claim petitions. Notice will be issued to the newly
impleaded parties and case will be decided by the National Commission
preferably within six months from the production of a copy of this order.
We make it clear that we have not expressed
any opinion on the merits of the case. All points of law and fact are
expressly left open to the parties.
The amount deposited here by the appellants will be refunded to
them with accrued interest.
The appeals are accordingly disposed of.
No order as to costs.”
In the light of above order, Respondent No. 2 Central Fidelity Bank,
Respondent No. 3 Zip Code and Respondent No. 4 Hoegh Lines/American
President Lines Limited) were impleaded and the case proceeded and decided
afresh by the NCDRC. The case against Respondent No. 3 M/s. Zip Code and
Respondent No. 4 Hoeg Lines/American President Lines Limited appears to
have proceeded ex parte as they failed to turn up in response to the
notices sent to them. There was no relief sought as against Respondent No.
2 Central Fidelity Bank. In the impugned order dated March 22, 2012, it
has been held by NCDRC that it is only Respondent No. 3 Zip Code, the
intermediary consignee of the cartons in question mentioned in cargo slips,
who received the delivery of the consignments without making payment to the
bank or the complainants, and, as such, liable to pay the compensation to
the appellants, and accordingly directed Respondent No. 3 to make the
payment of Rs.20,82,902.40 in favour of appellant Virender Khullar and
Rs.15,25,461.76 in favour of appellant Girish Chander, with interest at the
rate of 12% per annum with effect from April 01, 1995.
Respondent No. 3 has not challenged the above order. Rather, the
complainants have challenged the fresh decision of NCDRC as other
respondents are held not liable to make the payment. Respondent Nos. 3 and
4, even after service of notice, have not turned up to contest the appeals.
Learned counsel for the appellants argued before us that it is Respondent
No. 1 who changed the name of consignee and the name of Coronet Group Inc.
was inserted in the Bill of Lading depriving realization of damages by the
complainants. It is further contended that Respondent No. 1 accepted the
goods from the complainants to be delivered to the order of Respondent No.
2 by engaging a carrier, but it caused the goods to be delivered to Coronet
Group without getting payment realized through the bank. It is further
submitted that in the cases other than Letter of Credit when the goods are
sent on collection basis, the same are consigned to bank, and foreign buyer
is named as party to be notified. As such, the delivery of goods should
not have been allowed to be made without getting realized payment of goods
through Respondent No. 2 Bank. It is also contended that Section 2(d) of
the Consumer Protection Act, 1986, came into force with effect from
15.3.2003, and prior to that there was no exclusion regarding service of
commercial purposes under the Act. Lastly, it is submitted that the
appellants have nothing to do with the consolidation procedure said to have
been agreed between Respondent No. 1 and Coronet Group Inc.
On behalf of Respondent No. 2 Central Fidelity Bank, now known as Wells
Fargo Bank, it is submitted that there is no relief sought against it by
the appellants/complainants in their complaints. It is further submitted
that Respondent No. 2 was only a consignee as per the records of the case,
i.e. it was the consignee as set out in the cargo receipts and the notify
party/intermediate consignee was Zip Code Inc. (respondent No. 3). As
such, it was Respondent No. 3 who was the actual buyer and who was to be
notified by Respondent No. 1 once the consignment arrived in Norfolk, USA.
In turn, Respondent No. 3 was to inform Respondent No. 2, subsequent to
which Respondent No. 3 was to pay for the goods and obtain a certificate
from Respondent No. 2 to show that such payment has been made. It was
subsequent to this process that Respondent No. 2 was to release the goods
to Respondent No. 3. It is further submitted that it is also an admitted
fact that no shipment was ever delivered to Respondent No. 2. The
appellant himself submits that the “shipment was not delivered to the
consignee name in the cargo receipts”. As such, there was no obligation
whatsoever upon Respondent No. 2, that it had to discharge.
We have considered the arguments advanced on behalf of the appellants and
that of Respondent No. 2 and perused the record. Copies of cargo slips,
which are on record, disclose that notified party/intermediary consignee
was Respondent No. 3 Zip Code, 2615 Elmhurst Lane, Portsmouth, VA 23701,
USA. In the column of name of consignee “To order of Central Fidelity Bank
Richmond VA” is mentioned. Cargo slips further disclose that (Vessel,
Voyage) Hoegh Clipper/Eagle Prestige was export carrier.
Admittedly, the goods in question were handed over by the appellants to
Respondent No. 1 as pleaded. But there is neither any pleading nor proof
that the appellants paid any sum for transportation or any other service to
Respondent No. 1 at the time the goods were handed over to it or subsequent
there to. It has been shown on behalf of Respondent No. 1 that Respondent
No. 1 was simply an agent of the buyer with whom the appellants had entered
into contract. It is nobody’s case that the goods were lost in transit.
Rather it is a case where it has come on record that the consignment was
received by Respondent No. 3 Zip Code Inc, a part of Coronet Group Inc.
At this stage, we think it just and proper to reproduce relevant additional
terms and conditions attached with the cargo slips, which read as under: -
“ACS undertakes to receive the goods on behalf of the consignee, hold
the same as an agent and deliver or forward them to carriers or
transporters in accordance with the instructions of the consignee or other
cargo owners for subsequent transportation by water or air carrier and for
distribution and ultimate delivery to the consignee.
xxx xxx xxx
In receiving the goods and pending the consolidation services covered
by this agreement, ACS is acting as agent only for the consignee named on
the face hereof and not as carrier, transporter or distributor of the
goods.
xxx xxx xxx
The shipper hereby acknowledges that ACS acts solely as agent on
behalf of the consignee and shall be under no liability whatsoever in
respect of any failure by the consignee or any other party to do any act or
pay any amounts due in respect of the cargo received hereunder including
but not limited, to the purchase price of such cargo, freight, storage
charges insurance premium, lighterage changes, demurrage salvage charges or
general average contribution.”
Since Respondent No. 1 was simply acting as an agent of Coronet Group Inc,
as such, in view of Section 230 of the Indian Contract Act, 1872 it cannot
be held personally liable to enforce the contract entered between its
principal and the appellants. This Court, in its order dated September 10,
2009, has accepted the plea of Respondent No. 1 that Respondent No. 1 is
not a consignee, but only an agent of the intermediate consignee. That
being so, Respondent No. 1 cannot be held to be liable in respect of claim
made by the appellants. We think it relevant to mention here that in
Marine Container Services South Pvt. Ltd. v. Go Go Garments[1], this Court
has already made clear that defence under Section 230 of Indian Contract
Act, 1872 is available in the cases under Consumer Protection Act, 1986 by
the agents of the principal with whom the complainant had the agreement.
As far as liability of Respondent No. 2 Central Fidelity Bank and that of
Respondent No. 4 is concerned, we agree with the NCDRC that Respondent No.
4 had carried the consignment and delivered the same as per Bill of Lading
and there is no contract between the appellants and Respondent No. 4. Also
Respondent No. 2 Bank cannot be held liable for the deficiency of service,
as the amount was not collected from the consignee, as such there was no
question of remitting it to the appellants/complainants by the Bank. In
the circumstances, respondent No, 3 Zip Code Inc, which is subsidiary to
Coronet Group Inc, the consignee named in the cargo slips, is the only
party which can be held liable for taking delivery without depositing the
price of the goods with the Bank.
For the reasons discussed above, we find no infirmity in the impugned order
passed by the NCDRC and, as such, these appeals are liable to be dismissed.
Accordingly, both the appeals are dismissed. There shall be no order as
to costs.
………………………………J.
[R.K. Agrawal]
………………………………J.
[Prafulla C. Pant]
New Delhi;
August 16, 2016.
-----------------------
[1] (1998) 3 SCC 247
