Mr. Justice P.K. Shamsuddin, President— This complaint is filed under Section 12 of the Consumer Protection Act, attributing deficiency in service on the part of the opposite party and claiming compensation of Rs. 10/- lakhs together with interest @ 12%.

2. The material allegations in the complaint are as follows. The complainant was employed in Zambia and during her return she intended to import a Japan make Toyota Corolla Model Car so that she could use it for herself at her native place in Kayamkulam. The car was sent through the ship belonging to the 1st opposite party by the name “M.V. Bharatendu”. The opposite parties represented that the car will be shipped for Cochin on 2.7.1996. The freight charges were also paid. The car reached Cochin and on intimation the complainant went to the dock of the Cochin Port on 8.9.1996 to take delivery of the car. She was shocked to see that the car was completely damaged and it was only a mass of metal scrap. On their application, a company by name MKC & Company who are Marine Surveyors and Assessors was appointed to conduct the survey. They inspected the car on 29.9.1996 with due notice to the opposite parties one and two and their report which was binding on the parties revealed that the car could not be used effectively or properly as it was beyond repair to any extent. The car was damaged due to the negligence of the opposite party. On these allegations the complainant sought a direction to recover Rs. 10,00,000/- from the opposite party.

3. Opposite parties filed a version. It was contended that the complaint was not maintainable in view of the provisions of the Indian Carriage of Goods by Sea Act. It was also averred the right of the complaint to seek legal action of the complainant is time barred inasmuch as the complainant did not take any legal action before the expiry of one year after despatch of the cargo. It is also contended that the complainant is not a consumer. Clause 6 of Article 3 schedule to Indian Carriage of Goods by Sea Act categorically stipulates that the carrier, its agent and servants stand discharged from all liability in respect of loss or damage unless a suit or any other legal proceedings is initiated within one year from the date of delivery or the date on which the vessel in question sailed out of the port after discharge of the cargo. The vessel arrived at Cochin Port on 8.9.1996 and the cargo was discharged and the vessel left the Port in the second week of September, 1996. The complaint is filed long after the expiry of one year from the date of discharge of the cargo at Cochin and therefore the carrier and its servants stand discharged from all the liabilities. The opposite parties also have placed reliance on the decisions of the Supreme Court and Kerala High Court in support of this contention. They also submitted that the car was shipped from the port of Yokohoma, in Japan and the 2nd opposite party is only an agent of the 1st opposite party in Cochin and it had no branch office at Yokohoma port and hence there is no basis for the allegations that the 2nd opposite party had made arrangements with the complainant to carry the car as per letter dated 2.7.1996 on 30.7.1996. There is also no basis for the allegations that the opposite parties have undertaken to ship the car on 2.7.1996 and that the car would reach Cochin port on 30.7.1996. Ship owner or their agents always give only an estimated date of arrival of the vessel. The contract of carriage was between the shipper i.e. M/s. Japan Africa Marketing Company Ltd., and the 1st opposite parties Shipping Corporation of India Ltd., the complainant is the consignee.

4. As per the agreement the car was agreed to be carried on the open deck of the vessel at shippers risk, without any risk or responsibility of the carrier for loss or damage. The shipper also agreed to carry the car on open deck whereby they could avail of the concessional rate of freight. Hence in any view of the matter opposite part