The main legal point established in the judgment is the liability of the carrier under the Carriage of Goods by Sea Act, 1925, and the limitations of the Marine Insurance Act in covering the risks of the consignment.

Mr. B.K. Taimni, Member—Complainant D.K. Lall, Sole Proprietor M/s. Lall Enterprises has filed this complaint alleging deficiency in service on the part of opposite parties.

2. It is the case of complainant that after receiving export orders of handicraft items on payment against D.A. (Delivery against Acceptance), took up the work of exporting the said merchandise, comprising miniature paintings to M/s. Pandikas and iron furniture and iron handicraft to M/s. Natural Selection International, both in Spain. In all, the said export items were packed in 122 cartons. Miniature paintings in one carton for M/s. Pandikas and iron furniture in 121 cartons for M/s. Natural Selection International. These packages were checked and cleared by Custom Authority at Jodhpur and these 122 cartons were stuffed in one container vide stuffing sheet on record. For exporting goods the complainant hired the services of the 1st opposite party Samrat Shipping and Transport System Pvt. Ltd. having its offices in Delhi and Jaipur through its local agent M/s. Sai Shipping, Arihant Complex, Jodhpur who forwarded the container to Bombay where it was put on board vessel named CMBT Himalaya belonging to the 2nd respondent M/s. Contship Container Lines Ltd. This export cargo of 122 cartons were also insured with the 3rd opposite party M/s. National Insurance Company Ltd. under its Marine Cargo/Inland Transit Policy issued by 3rd opposite party to cover all risks with ICCA and SRCC risk and warehouse to warehouse risk. The consignment reached Barcelona, Spain on 1st March, 1997. While 121 cartons have been duly received by M/s. Natural Selection International, one carton marked for M/s. Pandikas comprising miniature paintings was never received/delivered by the consignee. Correspondent Bank has returned the documents unretired. Thus alleging deficiency on the part of the OPs this complaint has been filed praying for following reliefs :

(i) Award compensation by way of damages in favour of the complainant to the tune of Rs. 39,23,225/- (Rupees Thirty Nine Lacs Twenty Three Thousands and Two Hundred Twenty Five only) as claimed in this complaint against the Opposite Party/Parties found liable to answer the complaint and in the light of the facts and submissions made in the present complaint.

(ii) In case the Hon’ble Commission do not sustain the complainant’s claim as aforementioned to the extent stated above, the Hon’ble Commission may award compensation equivalent to the value of the miniature silk paintings i.e. Rs. 31,97,025/- (Rupees Thirty One Lacs Ninety Seven Thousand and Twenty Five only) and interest thereon from the opposite party/parties found liable to pay the same.

(iii) Award interest @ 2% p.a. (at the bank lending rate) on the said amount of compensation from March, 1997 till the date of final payment of the claim by the opp. parties.

3. Opposite parties 1 and 2 have filed almost identical written versions. Their stand is that complainant is not a consumer. This case involves complex question of fact and law, which cannot be dealt in by the Consumer Forum. On merits their stand is that the complainant never stuffed/exported one carton containing miniature paintings and has falsely declared these to the opposite parties. Bill of Lading clearly shows ‘Shipper’s load/stock count’ meaning thereby that 1st and 2nd opposite parties are not aware of the contents of the said consignment. The bill of lading also states ‘particulars declared by the shipper, not checked by the carrier’. Another plea is that under Clause 17 of Bill of Lading and Article IV Rule 5 of Carriage of Goods by Sea Act, 1927 liability of loss or damage is limited to 2 SDRs per kgs., hence limited to 400 SDRs for loss of 200 kg., of miniature paintings which in Indian rupees comes to Rs. 21,428/-. It is also their case that the complainant is not their consumer as no freight was paid by the complainant to the 2nd opposite party. It was an F.O.B. contract.

4. Their further defence i