The carrier's liability as an insurer under the Carriage of Goods by Sea Act, 1925, and the entitlement of the complainant to damages as per the Act's provisions.

Mr. Justice M.B. Shah, President—It is the say of the complainant that it is doing business in the name and style of Malti Exports and is engaged in the business of manufacturing, sale and export of carpets and allied items. Opposite party No. 1 is engaged in the business of clearing, forwarding and shipping agents and inter alia engaged in the business of providing services for transportation of goods by sea. Opposite party No. 1 is the agent of opposite party No. 2, namely, Natpar Lines.

2. It is submitted that one Rossweiner Teppichfabrik Traugott Bauch GmbH, Germany, had placed an order on the complainant for purchase of carpets. The buyer specifically stipulated shipment through the opposite party in its order. Thereafter, the complainant paid ocean freight amounting to Rs. 51,328/- for shipment of the consignment for which a receipt dated October 4, 1996 was issued by the opposite party. Ocean bill of lading is dated 4.10.1996.

3. The bill of lading specifically provides: Consignee—Unto Order; Notify party — Rossweiner Teppichfabrik Traugott Bauch GmbH, Germany; Marks and Numbers: ME/RT/Harmburg, 3822/3965; No. of Pkgs. Or Shipping Units : 144 Rolls; Description of Goods and Pkgs.: Indian Handknitted Woollen Carpets (1719.89 sq. mts.) (1728 Pcs); Gross Weight: Gr. Wt. 7945.00, Net Wt. 7657.00.

4. It was also agreed that the delivery of the said consignment to the foreign buyer was to be made after negotiation of document through the Bank. The complainant’s Bank is State Bank of India, Bhadhoi and the purchaser’s Bank is Volksbank Ochtrup eG, Germany. As per the terms and conditions the foreign buyers could only take delivery of the consignment by presenting the original bill of lading which the foreign buyer was to obtain from its foreign Bank after furnishing the Bank guarantee in the sum of DM 58,474.56 being the value of the said consignment.

5. It has been pointed out that as per the terms of bill of lading which was a document of title, it was made clear that the goods were to be delivered to the order of the consignee subject to his making the payment or providing a Bank guarantee by way of negotiations with the Bank, namely, Volksbank Ochtrup eG, Germany.

6. It is alleged that in breach of the said condition, the opposite party wrongfully delivered the consignment to the foreign buyer without the production of original documents and the foreign buyer had not given any Bank guarantee or made any payment in respect of the consignment.

7. Thereafter opposite party No. 1 by its communication dated November 20, 1996 alleged that the consignment in question has been delivered to the buyers against original bill of lading. However, complainant again received a copy of the communication dated November 26, 1996 from the foreign Bank to its banker that foreign Bank was still holding all documents including the original bill of lading.

8. In this view of the matter, the complainant by its letters dated 28th and 29th November, 1996 called upon the opposite party No. 1 to confirm the delivery status of the consignment. There was no response from the opposite party. Hence, legal notice dated 3rd December, 1996 was given.

9. It is contended that because of the wrongful delivery of the consignment in breach of the condition and without obtaining the original bill of lading, opposite party No. 1 acted negligently and, therefore, they are liable to pay the loss suffered by the complainant. It is stated that consignment was worth DM 58,474.56 and the same in Indian Rupees works out to Rs. 14,61,850/-. It is, therefore, prayed that opposite parties are liable to pay the said amount with interest and damage, in all, Rs. 22,31,485/- with interest @ 18% p.a.:

Evidence in support:

(a) The ocean bill of lading dated 4.10.1996 is produced on record wherein there is a specific condition—”If required by the Carrier one (1) original bill of lading must be surrendered duly endorsed in exchange for the goods or delivery orders”. It is signed on beh