STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

MAHARASHTRA, MUMBAI

Consumer Complaint No.CC/13/487

M/s.Anil & Co.

Through its partner
Mr.Arvind Shah
D-199, T.T.C.Industrial Area
MIDC, Turbhe Pipeline Road
Turbhe, Navi Mumbai 400 705 …..Complainant
Versus
The Shipping Corporation of India
Shipping House, 14th floor
245, Madame Cama Road .........Opponent
Mumbai 400 021.

BEFORE: Justice A.P.Bhangale, President

Smt.Usha S.Thakare, Judicial Member

PRESENT:Mr.Aditya Thakkar-Advocate along with

Ms.Rochita Desai-Advocate for complainant
Mr.S.Hussain-Advocate for opponent

Per Hon’ble Smt.Usha S.Thakare, Judicial Member

M/s.Anil & Co. have filed consumer complaint under section 12 r/w.
section 17 of Consumer Protection Act, 1986, by alleging deficiency in
service against the opponent.
2. M/s.Anil & Co. is a partnership firm. It deals in spices, grains and
packaged food and engaged in the export of the same. The opponent is a
shipping company functioning under Government of India having
substantial interest in various segments of the shipping trade. In the year
2011, the complainant contacted with one M/s.TRS Wholesale Company
Ltd. (established in United Kingdom) for export of 300 bags of ajwain seeds
each of 25 kg and 337 bags of kalonji (nigella seeds) each of 25 kg. total

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637 bags. The total contract was for an amount of Rs.49,371.38$. An
invoice dated 7th October 2011 was issued by the complainant’s firm i.e.
Anil & Co. Pursuant to the said contract, complainant insured the goods for
sum of US $ 54,580 with M/s.Tata AIG General Insurance Co.Ltd. The
Insurance Co. issued certificate of Marine Insurance bearing
no.0800007211/10/11/103. Pursuant to the said contract of export, the
complainant got the Bill of Lading issued on 10th October 2011 from the
opponent bearing no.B/L No.1560 JNP 16655 for combined transport and
part to part shipment of the above said goods. The Port of Lading was JNPT
to the Port of Discharge Felixstowe. The said goods were to be transported
in the vessel named “MSC Melissa”.
3. Accordingly, the goods were delivered to the Shipper i.e. the opponent
on 5th October 2011, for the purpose of transportation. The said goods were
then loaded on Board on 11th October 2011 and finally the goods were
discharged from the vessel at Felixstowe on 01/11/2011. On that day goods
were unloaded at Felixstowe. The goods were in total damaged condition
and were not usable. The damage to the said goods was due to mal
functioning in sewage system of the vessel “MSC Melissa”. The container
was sunk in the raw sewage prior to discharge from the hold of the vessel.
As the goods were damaged, it was necessary to get them surveyed to
understand the quantum of damage and, therefore, Seden Clarke,
independent Marine Surveyors were appointed by the opponent itself for the
said purpose. The surveyor attended to shed part of Felixstowe, AM on 11th
November, 2011 and surveyed the container and goods therein to ascertain
the damage. Report of the surveyor clearly incorporates the mistake and mal
functioning on the part of opponent.
4. It is alleged that after assessing the quantum of damage, the
complainant lodged the claim with opponent for loss of the cargo shipped to
UK on 28/05/2012. The opponent has duly received the said claim. The

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complainant also lodged a claim with M/s.TATA AIG General Insurance
Co. Ltd. There was no reply from the opponent regarding the claim lodged.
The opponent was fully aware of the quantum of damage of the goods and
also fully aware of the fact that the damage was caused due to its negligence
and deficiency of service. TRS Wholesale Company Ltd. through their
representative Mr.Kalpesh Patel followed up with representative of
opponent to expedite the process of claim which was lodged on 02/05/2012.
By an E-mail dated 16/09/2013, the opponent surprisingly for the first time
informed that as the Suit has not been initiated within one year of discharge,
the claim was now been time barred as against the opponent. The opponent
informed that as the complainant failed to take further time extension after
one year on discharge as per Hague Visby Rules, hence they are rejecting
the claim of complainant as it is time barred. The opponent was well aware
about the damage sustained to the goods, which was due to their negligence
and deficiency in service. The opponent failed and neglected to provide
proper service. The opponent is guilty of negligence and deficiency in
service. Therefore, complainant has filed consumer complaint for directing
the opponent to pay the complainant an amount of Rs.33,83,960/- (US $
54,580) for the loss of goods which were damaged by the opponent during
transit. The complainant also claimed an amount of Rs.15 lakhs for loss of
goodwill, loss of reputation, mental torture and agony. The complainant
claimed an amount of Rs.12,45,410/- towards interest on amount of
Rs.48,83,960/- from 28/05/2012 to 31/10/2013. Complainant further
claimed interest on amount of Rs.61,29,370/- @ 24%p.a. from the date of
order till realization.
5. The opponent resisted the claim by filing written version and denied
the allegations of negligence and deficiency in service. All adverse
allegations are denied in toto. It is submitted that the complainant carries
business of export of various products to various customers of World and,

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as such, engaged in commercial activities for generating huge profit. The
business activities carried out by complainant comes under ‘commercial
activity’. The person who carries out commercial activities for business is
not protected under Consumer Protection Act, 1986. The complainant is
not a ‘consumer’ and, hence, complaint is liable to be dismissed on this
ground. Under shipping law complainant’s case is time barred. Complainant
has to bring suit within nine months from the date of delivery of the goods
and under Hague Visby Rules, within a year. The complainant being
regular shipper is well aware of such fact. Complaint is liable to be
dismissed being barred by limitation.
6. It is submitted that shipper M/s.Anil & Co. lodged notice of the said
claim against opponent on 28/05/2012, by hard copies of claim bill, survey
report and copy of a Bill of Lading, which was received by the opposite
party on 07/06/2012. On 11/06/2012, the Cargo Claims Department had
sent email to the complainant company and asked to forward copy of
invoice of the cargo. However, opponent received no reply. On
17/08/2012, the claim documents forwarded to MSC along with a request to
confirm that in the event, opponent settle the claim of the complainant,
whether MSC will reimburse the settlement amount to opponent. In turn
MSC also asked for the packing list and commercial invoice of concerned
claim. Since 28/05/2012, neither consignee nor the shipper contacted
opponent, even time extension was also not sought, as such claim becomes
time barred as per shipping rules printed on the reverse of bill of lading and
as per Hague Visby Rules. Subsequently, MSC has denied its liability
stating it is latent defect and the vessel owner is not responsible for the
same. However, on 06/09/2013, the consignee TRS Wholesale Co.Ltd. sent
an E-mail asking status of their claim, who was duly informed that the claim
is now time barred. Subsequently, in the month of November 2013, the
shipper/complainant approached SCI’s line manager asking status of their

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claim, who was informed that their claim against opponent stands
extinguished on 01/11/2012, as per Hague Visby Rules, and three months
earlier as per Bill of Lading terms and conditions. For almost 1½ year from
the date of lodging of claim, there was no correspondence from the
consignee/shipper and they never approached for time extension to keep
their claim alive. They have covered concerned consignment with
insurance cover with Tata AIG Insurance and the outcome of such
insurance cover is also not disclosed by complainant. The opponent was
surprised to receive notice of complainant. The complaint is time barred and
not tenable. It is filed with ulterior motive. It may be dismissed with costs.
7. On these pleadings of the parties, following points arise for our
determination and we record our findings for the reasons given below:-
Point no.1:- Whether consumer complaint is maintainable before this
Commission?
Answer :- No
Point no.2:- What order?
Answer:- As per final order.
Reasons:-
Point no.1:- It is admitted fact that complainant being regular shipper had
booked the consignment vide Bill of Lading dated 10/10/2011 to deliver the
goods to their consignee -M/s.TRS Wholesale Company Ltd.U.K. The Bill
of Lading is in the name of complainant company. 300 bags of ajwain seeds
each of 25 kg and 337 bags of kalonji (nigella seeds) each of 25 kg. total
637 bags were loaded pursuant to the Bill of Lading in vessel named as
“MSC Melissa”. The Port of Lading was JNPT. The goods were to be
delivered at the Port of Felixstowe. Bill of Lading and other documents
filed by the complainant are not denied. The goods were delivered to the
shipper i.e. opponent on 05/10/2011 for transportation. The goods were
unloaded at Port of Felixstowe on 01/11/2011. The goods were in damaged

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condition. As the goods were damaged, the opponent appointed surveyor.
Report of surveyor Seden Clarke dated 14/11/2011 is at ‘Exhibit E’ in
complaint compilation. It establishes that the goods were damaged and loss
was assessed by the surveyor to US $ 54,580 equivalent to sum of
Rs.33,83,960/-. The complainant lodged claim with opponent which was
rejected on the ground that the claim is barred by limitation. These facts are
not seriously challenged.
Heard learned counsel Mr.Aditya Thakkar along with Ms.Rochita
Desai for complainant and learned counsel Mr.S.Hussain for opponent.
Main objection of the opponent’s is about maintainability of consumer
complaint before this Commission. Learned counsel Mr.Hussain for the
opponent on the basis of the documents urged that cause of action arose on
01/11/2011 when the goods were unloaded at Felixstowe port in a damaged
condition. The claim was lodged by the complainant with opponent on
28/05/2012. The surveyor attended to shed part of Felixstowe, on 11th
November, 2011. The claim of the complainant stands extinguished on
01/11/2012, as per Hague Visby Rules, and three months earlier as per Bill
of Lading terms and conditions. For almost 1½ year from the date of
lodging of claim, there was no correspondence from the consignee/ shipper.
They never approached for time extension to keep their claim alive after
expiry of time limit. The complaint is time barred. The complainant is a
regular shipper and very well knows that the date of accrual of cause of
action in shipping case starts from the date of delivery of the goods to
consignee at port of discharge. The complaint deserves to be dismissed.
Learned counsel Mr.Hussain also harped upon the fact that the
transaction was for ‘commercial purpose’ and, as such, the complainant
does not fall within the definition of ‘consumer’. On that count also the
consumer complaint is not tenable in view of section 2(1)(d) of Consumer
Protection Act, 1986.

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 Learned counsel Mr.Aditya Thakkar for the complainant vehemently
urged that the complainant is in fact a ‘consumer’ within the definition of
Consumer Protection Act, 1986. In view of section 24-A of Consumer
Protection Act, 1986, the complaint is within limitation. Learned counsel
has placed reliance on the judgment of Hon’ble National Commission in the
case of E.I.C.M. Export Limited v/s. South India Corporation (Agencies)
Ltd. reported in 2012(1) CPJ (NC) 494. By this judgment Hon’ble National
Commission has expressly held that complaint under the Act would not be a
suit and, therefore, article providing for limitation of one year would not
apply and the only relevant provision would be section 24-A of Consumer
Protection Act, 1986.
Learned counsel has taken us through the observations made by
Hon’ble National Commission while passing the judgment. On perusal of
ruling it appears that the original petition bearing no.285/1997 filed by
E.I.C.M. Export Limited v/s. South India Corporation (Agencies) Ltd. was
decided by Hon’ble National Commission on 23/01/2012. Said consumer
complaint was earlier decided by Hon’ble National Commission vide order
dated 06/02/2003. The complaint was dismissed primarily on the ground
that it was barred by limitation having regard to the provisions of Clause 6
of Article 3 of Schedule to Indian Carriage of Goods by Sea Act, 1926 and
also relying upon the Hon’ble Supreme Court’s decision in the case of
Narandas Mathuradas Narielwala V/s. Bharat Line Ltd. ,AIR 1960 SC
1058.
Aggrieved by the said order of Hon’ble National Commission,
complainant filed Civil Appeal no.4290 of 2003 before the Hon’ble
Supreme Court. Vide an order dated 21/07/2009, the Hon’ble Supreme
Court on consideration of the provisions of Consumer Protection Act, 1986,
in particular Section 24 of the said Act and Clause 6, Article 3 of the
Schedule to Indian Carriage of Goods by Sea Act, 1926, took the view that

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since a complaint filed before the Consumer Fora is not a suit within the
meaning of Civil Procedure Code, so the said article providing a limitation
of one year for filing the suit in respect of any cause of action for mis-
delivery/non-delivery of goods by sea carrier, was not applicable and it
were the provision of Section 24-A, which provide a limitation of two
years, which would govern the complaint filed before a Consumer Fora
under the provisions of Consumer Protection Act,1986. It is observed as
under:-
“On a plain reading of the aforesaid provision, it is clear that
the aforesaid provision will be applicable in the cases where a
suit is filed. In the present case, the appellant did not file any
suit but filed a complaint before the Consumer Forum”.
It is very much clear that the Hon’ble National Commission while
deciding the case of E.I.C.M. Export Limited v/s. South India Corporation
(Agencies) Ltd. on 23/01/2012, placed reliance on the ruling laid down by
Hon’ble Apex Court in Civil Appeal no.4290 of 2003.
Learned counsel Mr.Hussain for the opponent urged that law laid
down in the case of E.I.C.M. Export Limited v/s. South India Corporation
(Agencies) Ltd. is no more good law in view of law laid down by
Constitution Bench of Hon’ble Apex Court in the case of Ethiopian Airlines
v/s. Ganesh Narain Saboo decided on 9th August, 2011 in Civil Appeal
no.7037 of 2004.
It is informed that Civil Appeal bearing no.7037 of 2004 was directed
against the judgment and order of Hon’ble National Commission, New
Delhi dated 07/01/2004 passed in First Appeal No.190 of 1996.
A two-Judge bench of Hon’ble Apex Court by its order dated
10/11/2009, referred the matter to a larger bench. Said order reads as
under:-
"The questions in this case is whether proceedings before the

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 Consumer Forum are suits. It appears that there are two
conflicting judgments on this point - E.I.C.M. Exports Ltd. v.
South Indian Corporation (Agencies) Ltd. and Another 2009
(10) SCALE 22 and Patel Roadways Limited v. Birla Yamaha
Limited (2000) 4 SCC 91. Hence we are referring the matter to
a larger Bench to resolve this conflict, to be constituted by
Hon'ble the Chief Justice of India."
Hon’ble Apex Court while deciding the case of Ethiopian Airlines
v/s. Ganesh Narain Saboo on 9th August, 2011, in para 74 held as under:-

“74. The controversy involved in this case is no longer res-

integra. This Court in Patel Roadways Limited (supra) clearly
observed that a proceeding before the Consumer Forum comes
within the sweep of term "suit". Again this Court in Economic
Transport Organization (supra) reiterated the principle stated in
Patel Roadways Limited (supra). Both these judgments have
been specifically approved by the Constitution Bench of this
Court in Economic Transport Organization (supra). The view
which has been taken in E.I.C.M. Exports (supra) is clearly
contrary to the view taken by the Constitution Bench judgment
in Economic Transport Organization (supra) and the same
cannot be sustained.”

Hon’ble Apex Court observed that in view of Constitution Bench

judgment in Economic Transport Organisation (supra) the view which has
been taken by the two-Judge Bench of this Court in E.I.C.M. Exports
(supra) is wholly untenable and unsustainable in law.

In view of the judgment passed by Hon’ble Apex Court in the case of

Ethiopian Airlines v/s. Ganesh Narain Saboo, we do not agree with the
submissions of the complainant that limitation of two years for filing the

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case under the Act as provided under section 24-A of Consumer Protection
Act, 1986 will be applicable.

We find substance in the arguments advanced on behalf of opponent

that the complainant cannot be termed as ‘consumer’ as complainant carries
business of export to various customers of World and, as such, engaged in
commercial activities for gaining huge profit and business activities carried
out by complainant comes under ‘commercial activities’ to generate huge
profits by way of export/import of various products. The person who carries
out ‘commercial activities’ for earning huge profit is not protected under
Consumer Protection Act, 1986. The complainant does not fall within the
definition of ‘Consumer’. Complaint is barred by limitation. Hence,
consumer complaint is not tenable. As a result, we answer point no.1 in
negative and pass the following order:-

ORDER

Consumer complaint stands dismissed.

Parties to bear their own costs.

Pronounced on 6th April, 2017.

[JUSTICE A.P.BHANGALE]
PRESIDENT

[USHA S. THAKARE]
JUDICIAL MEMBER
Ms

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