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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2022

(Arising out of SLP (Civil) No. 16722 of 2015)

M/s Bawa Paulins Pvt. Ltd. … APPELLANT

Vs.

UPS Freight Services (India)

Pvt. Ltd. and Another ... RESPONDENT(S)

J U D G M E N T

NAGARATHNA, J.

Leave granted.

2. This Civil Appeal has been filed assailing the impugned judgment

and order dated 30.04.2015 passed by the National Consumer

Disputes Redressal Commission (hereinafter referred to as ‘National

Commission’ for the sake of convenience) at New Delhi by which the

National Commission has allowed Appeal No. 6 of 2010 filed by

respondent Nos.1 to 3 and set-aside the judgment and order dated

09.02.2009 passed by the State Commission, New Delhi.

3. The National Commission vide impugned order has reduced the

amount of compensation to Rs.10,000/- (Rupees Ten Thousand) as

against the amount granted by the State Commission to be paid to the

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appellant herein i.e., a sum of Rs.13,79,901/- (Rupees Thirteen Lakhs

Seventy-Nine Thousand Nine Hundred and One), together with

compensation of Rs.50,000/- (Rupees Fifty Thousand) and cost of

litigation amounting to Rs.10,000/- (Rupees Ten Thousand).

4. The issue involved in the present appeal is in a very narrow

compass and relates only to the quantum of compensation that the

appellant is entitled to receive from the respondents.

5. The appellant herein- original complainant, a private limited

company, filed a consumer complaint before the State Commission

against the present respondents-opposite parties. Respondent No.1-

UPS Freight Service (India) Pvt. Ltd. (formerly known as M/s Fritz

Freight Forwarding India Pvt. Ltd.) and respondent No.2- M/s Fritz

International are the subsidiaries and agents of respondent No.3- M/s

Fritz Companies Inc. to administer, look after and carry out the

business of respondent No. 3, in India. Respondent No.4- Bank of

Boston is the consignee’s bank and respondent No.5- M/s County Seat

Stores, New York is the consignee company.

6. IA No. 1 of 2015 seeking deletion of respondent No.5 was allowed

and IA No. 40994 of 2017 for deletion of name of respondent Nos. 2 -

M/s. Fritz International and respondent No. 3- M/s. Fritz Companies

Inc. was allowed by this Court and were deleted from the array of

parties vide order dated 17.07.2017. Respondent No.5- M/s County

Seat Stores was deleted from the array of parties vide order of this

Court dated 08.07.2015.

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7. Succinctly stated, the facts of the case are that the appellant

herein during the course of its business entered into a contract with

respondent No.5 for export of two hundred and thirty-four (234)

packages of MN’s 100% CTN Twill messenger bags for a total invoice

value of US$ 31,920 (equivalent to Rs.13,79,901/- approximately). The

mode of payment was agreed to be through Letter of Credit (“LC”, for

short) against the Forwarder Cargo Receipt (“FCR”, for short). For the

said purpose, respondent No.5 consignee appointed respondent No.4

as the purchaser’s bank through which the Letter of Credit was opened

in favour of the appellant. Respondent Nos. 1-3 were appointed as

forwarding agents to collect the goods from the appellant and forward

the same.

8. As per the terms of the agreement and the Letter of Credit, the

shipment was Free on Board (“FOB”, for short), from New Delhi to

Baltimore M.D. Respondent No.5 consignee appointed Respondent

Nos.1-3 as their forwarding agents/consolidators to execute the entire

transaction for respondent No.5 with the appellant herein. A Purchase

Order dated 30.10.1998 was issued in that respect.

9. On 11.02.1999, the appellant issued shipping instructions to

respondent Nos.1 to 3 about the consignment from New Delhi to

Baltimore and respondent No.1 in turn issued a FCR to the appellant

on 22.02.1999.

10. Immediately after shipping the goods, the appellant presented the

documents including the aforesaid FCR to its bank, namely, Canara

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Bank for negotiating with respondent No.4 – Bank to release the

payment against the Letter of Credit which was opened in favour of the

appellant herein.

11. By letter dated 08.03.1999, respondent No.4 informed the bank

of the appellant that in accordance with the Uniform Customs and

Practice for Documentary Credits (“UCP 500”, for sake of convenience),

the documents had been refused and that the Letter of Credit could not

be honoured on account of discrepancies in the FCR issued to the

appellant. The first discrepancy was late shipment. The second

discrepancy was that respondent No.1 mentioned the port of loading to

be Jawaharlal Nehru Post Trust (“JNPT”, for short), Bombay instead of

FOB, New Delhi on the FCR.

12. By letter dated 18.03.1999, respondent No.4 - Bank informed

appellant’s bank that they had approached respondent No.5 for

approval to pay the sale consideration but Respondent No.5 was not

willing to honour such request and thereafter the documents were

returned to the appellant’s bank i.e., the Canara Bank for further

disposal.

13. On being notified by the appellant’s bank of Respondent No. 5’s

refusal to release the sale consideration, the appellant approached

respondent No.1 herein in connection with the negligence on their part

in mentioning the wrong point of loading in the FCR. Respondent No.1

then issued a letter/certificate dated 30.03.1999, rectifying the error

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and mentioning therein that the shipment was loaded from FOB, New

Delhi and was effected from JNPT, Bombay.

14. As per the appellant’s version, the aforesaid letter/certificate was

accepted by respondent No.4 Bank which thereafter released the

documents to respondent No.5 but later respondent No.5 returned the

documents to respondent No.4 Bank and in order to camouflage their

misdeeds, they had put ink on the endorsement which respondent No.4

Bank had made on the reverse side of the FCR. In the meanwhile,

respondent Nos.4 and 5 acted in connivance and got the goods cleared

and refused to accept the documents. As per the appellant, after

receiving the documents including the FCR, the appellant got done

infrared scanning of the reverse side of the FCR and detected the

misconduct of the respondents.

15. The appellant herein neither got the goods back nor did they get

any payment in respect of the said goods and therefore the aggrieved

appellant approached the concerned State Commission by way of a

complaint claiming Rs.13,79,901/- (Rupees Thirteen Lakhs Seventy-

Nine Thousand Nine Hundred and One) as value of goods consigned;

Rs.4,53,666/- (Rupees Four Lakhs Fifty-Three Thousand Six Hundred

and Sixty Six) as interest at the rate of 24% p.a., and Rs.1,50,000/-

(Rupees One Lakh Fifty Thousand) in lieu of loss of profit.

16. The State Commission vide order dated 09.02.1999 allowed the

complaint filed by the appellant herein and directed the respondents to

pay a sum of Rs.79,901/- (Rupees Seventy-Nine Thousand Nine

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Hundred and One). As there was a typographical error in the figure, it

was later corrected to Rs.13,79,901/- (Thirteen Lakhs Seventy Nine

Thousand Nine Hundred and One) towards loss suffered by the

appellant, Rs.50,000/- (Rupees Fifty Thousand) towards compensation

for mental agony and harassment and Rs.10,000/- (Rupees Ten

Thousand) towards cost of litigation. The pertinent findings of the State

Commission can be encapsulated as under:

i. That the appellant herein had acted as a beneficiary of the

services rendered by respondent Nos.1 and 2 and as such is a

consumer within the meaning of Section 2(1)(d)(ii) of the

Consumer Protection Act, 1986 (hereinafter, referred to as the

Act of 1986).

ii. That respondent Nos.1 and 2 admitted that the port of loading

was mentioned as JNPT, Bombay instead of FOB, New Delhi.

The said error was rectified only on 30.03.1999 when

respondent No.1 wrote a letter seeking rectification/correction

of the FCR.

iii. That the whole transaction was covered by Letter of Credit

opened by respondent No.4 Bank and thus filing of

bankruptcy application by the respondent No.5 had no effect

on the payment that the appellant was entitled to receive.

iv. that due to the negligence of the respondent Nos.1 and 2, the

Letter of Credit was not honoured by respondent No.4 and

therefore the appellant had to suffer loss due to negligence of

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the respondent Nos. 1 and 2. That more than ten years had

passed and respondent Nos.1 and 2 have to make up for the

loss suffered by the appellant herein.

17. The appellant herein filed an application seeking rectification of

the typographical error in the judgment and order of the State

Commission dated 09.02.2009 wherein the loss of amount towards loss

was mentioned wrongly mentioned as Rs.79,901/ - instead of

Rs.13,79,901/-. The State Commission vide its judgment and order

dated 17.03.2009 rectified the error and granted Rs.13,79,901/ -

(Rupees Thirteen Lakhs Seventy-Nine Thousand Nine Hundred and

One) towards loss suffered by the appellant, Rs.50,000/- (Rupees Fifty

Thousand) towards compensation for mental agony and harassment

and Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation.

18. Aggrieved by the judgment and order passed by the State

Commission, respondent Nos. 1 to 3 approached the National

Commission by way of an appeal. The National Commission vide order

dated 18.08.2010 admitted the appeal and condoned the delay of 216

days subject to depositing a sum of Rs. 10,00,000/- (Rupees Ten

Lakhs) with the National Commission within a period of four weeks

from the date of order. The National Commission by the impugned

judgment and order disposed of the appeal filed by respondent Nos. 1

to 3 herein by allowing the same and setting-aside the judgment and

order passed by the State Commission. The National Commission held

that the order of the State Commission holding respondent Nos.1 to 3

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liable to the extent of the price of the goods, Rs.50,000/ - as

compensation and Rs.10,000/ - as cost of litigation could not be

sustained and respondent No.1 was thus directed to pay a sum of

Rs.10,000/- as compensation to the app ellant herein along with

interest at the rate of 9% per annum from the date of filing of the

complaint till the date of the payment. The pertinent observations of

the National Commission are encapsulated as under:

i. That although it was an admitted position that a mistake was

committed by respondent No.1 herein while issuing the FCR

to the appellant herein by showing that the shipment would

be loaded from JNPT, Bombay instead of FOB, New Delhi ,

nevertheless, the aforesaid mistake was not noticed by the

appellant while forwarding the documents to its banker. Thus,

the deficiency on the part of respondent No.1 in rendering

services could have been redressed had the appellant been

vigilant.

ii. That it could not be gathered from the letter dated 18.03.1999

as to why the respondent No.5 was not willing to accept the

document for payment. That it was not clear whether the

unwillingness on the part of respondent No.5 was due to late

shipment of the goods or due to the wrong port being

indicated.

iii. That the mistake in the document could not have been the

reason for respondent No.5 declining to accept the documents

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for payment unless the consignment itself had not reached its

destination on account of the aforesaid mistake. That it was

not the case of the appellant herein that the consignment had

not reached Baltimore at all. Therefore, the description of the

port is inconsequential. Further, no evidence was produced by

the appellant to prove that the return of documents was solely

on account of mistake committed by respondent No.1 herein.

iv. That the appellant herein did not lose the price of goods

exported by it to the US on account of the mistake committed

by respondent No.1 while issuing FCR. That it could be

possible that the appellant lost its price of goods due to the

connivance between the respondent No.4 and respondent No.5

as was contended by the appellant, as a result of the alleged

endorsement made on the FCR which was later on concealed

by putting ink on it. However, such conduct of Respondent No.

4 and 5, which may have resulted in loss in the price of the

appellant’s goods, could not be attributed to the mistake in the

FCR.

19. Aggrieved by the reduction in the amount of compensation, the

appellant-original complainant has approached this Court by way of

the present appeal.

20. We have heard Sri Rajiv Garg, learned counsel for the appellant,

Sri Sudhanshu S. Choudhari, learned counsel for respondent No.1 and

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Sri Vikas Kumar, learned counsel for respondent No.4 and perused the

material on record.

21. Learned counsel for the appellant at the outset submitted that

the State Commission was right in assessing the claim of the appellant

and had rightly granted the same, whereas, the National Commission

has erred in reducing the said amount towards the loss of goods,

compensation for mental agony and harassment and the cost of

litigation. The submissions of the learned counsel for the appellant are

summarised as under:

21.1 That the appellant was, as a seller, only obliged to hand-over the

consignment at New Delhi to respondent No.2 , which the

appellant had duly carried out and therefore the appellant

became entitled to sale consideration. However, the appellant was

deprived of the same for no fault of his and solely owing to

deficiency and negligence of the respondents herein.

21.2 That respondent Nos. 1 to 3 admitted before the State

Commission their mistake in wrongly mentioning the port of

loading as JNPT, Bombay instead of FOB, New Delhi on account

of inadvertence and accordingly, a correction was carried out

later. It is due to the mistake of these respondents that

respondent No.4 - Bank failed to honour the FCR and declined

the payment in favour of the appellant herein.

21.3 That respondent Nos. 1 to 3 also admitted before the National

Commission their mistake of writing the wrong port of loading in

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the appeal and accepted that it was due to an oversight on their

part. The said appeal was also time-barred, being filed after a

delay of 216 days. This was not appreciated by the National

Commission

21.4 That the National Commission failed to notice that respondent

Nos. 1 to 3 had acted in collusion with respondent Nos. 4 and 5

and they got the consignment released from Customs in USA with

the same FCR which could have been done only at the behest of

respondent Nos.1 to 3 who were the shippers of respondent No.5.

The appellant was thus deprived of both the goods as well as the

sale consideration.

21.5 That the Letter of Credit (LC) was irrevocable, the FCR was

prepared by the respondent Nos. 1 to 3 on the instructions given

by the appellant herein. Therefore, respondent No.4 had no

option but to release the payment without any objection.

21.6 That the National Commission erred in noting that respondent

Nos. 1 to 3 were appo inted jointly by the appellant and

respondent No.5 and therefore held that they could not be held

liable to pay for the complete loss and therefore reduced the

amount of compensation. However, the fact of the matter is that

the respondent Nos. 1 to 3 were appointed as the shippers, solely

by the respondent No.5 – the buyer/consignee of the goods as per

an FOB contract.

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21.7 That the delay in payment could not be attributed to the appellant

herein since the Letter of Credit specified that the consignment

had to be shipped in the month of March and the appellant herein

on 11.02.1999 had informed the shippers to take the delivery.

Any delay occasioned was only on account of the conduct of the

shippers in taking delivery of the goods and not on the part of the

appellant.

21.8 That the facts narrated above would demonstrate that the

respondents acted in collusion with each other to deceive the

appellant herein. The modus operandi was to issue a defective

FCR and withhold the documents till the expiry of the Letter of

Credit and thereafter, rectify the FCR and in the meanwhile, get

the goods delivered without payment of consideration to the

appellant.

22. Per contra, the learned counsel for the respondent No.1 supported

the judgment and order passed by the National Commission and

contended that the National Commission has rightly set-aside the order

passed by the State Commission, thereby reducing the compensation

and amount payable to the appellant. The submissions of the learned

counsel for the respondent No.1 are epitomized as under:

22.1 That had the appellant herein been vigilant, the FCR could have

been corrected before presenting the same to the banker.

22.2 That the endorsement on the reverse side of FCR had been

made prior to Respondent No. 4 issuing the letter dated

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18.03.1999 to the bank of the appellant i.e., the Canara Bank.

That the National Commission was right in holding that the

return of the documents could be on account of the connivance

between respondent Nos.4 and 5 and not on account of the error

in names of port of loading i.e., JNPT, Bombay instead of FOB

New Delhi by respondent No.1 while issuing the FCR. Therefore,

respondent Nos. 1 to 3 are not responsible for the payment.

22.3 That the endorsement made on the reverse side of the FCR and

later on concealed by putting ink on it and the return of

documents by respondent No.4 cannot be attributed to the

mistake in the FCR but solely to the acts of connivance on the

part of respondent Nos.4 and 5.

22.4 That the goods exported by the appellant were seized by the U.S.

Customs and thereafter auctioned by the Customs to recover the

dues. The whole transaction failed since respondent No.5 had

filed for bankruptcy under the US laws and the goods went to

General Order due to non-payment of freight, ocean duty etc. by

respondent No.5.

22.5 That respondent No.4 had clearly stated in their letter dated

18.03.1999 that respondent No.5 was not willing to make the

payment. The appellant did not take any action against

respondent No.5 for recovery of money even after knowing that

it refused to pay inspite of release of the goods. Thus, the

respondent Nos.1 to 3 are nowhere concerned with the

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transaction between the appellant and respondent No.5 and

thus are not responsible for the said payment.

23. Having heard the learned counsel appearing for the respective

parties, the following points would arise for our consideration:

(a) Whether the National Commission was justified in reversing

the judgment and order passed by the State Commission

thereby reducing the amount of compensation that the

appellant herein was entitled to?

(b) Whether the judgment and order of the National Commission

calls for any interference or modification by this Court?

(c) What order?

24. It is an admitted position that the goods in the consignment have

been delivered to the respondent No.5 on 17.02.1999 and this fact has

not been disputed any of the parties herein. The only issue before this

Court is whether the compensation ought to have been paid to the

appellant and as to what should be the quantum of the said

compensation, if at all the same is to be allowed.

25. The State Commission had awarded compensation of

Rs.13,79,901/- towards loss suffered by the appellant plus

Rs.50,000/- towards compensation for mental agony and harassment

plus Rs.10,000/- towards cost of litigation. The National Commission,

on the other hand, reduced the compensation to Rs.10,000/ - only

along with an interest at the rate of 9% per annum from the date of

filing the complaint till the date of payment. It is also noted that the

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National Commission directed the payment of such amount from the

amount deposited by the respondent No.1 before the National

Commission while filing the appeal and the remaining amount was

directed to be refunded to respondent No.1 after deducting the amount

payable to the appellant herein.

26. On a perusal of the purchase order issued by respondent No.5

dated 30.10.1998 to the appellant, it is clear that respondent No.5

herein placed an order for Two Hundred and Thirty Four (234)

packages of MN’s 100% CTN Twill Messenger Bags. The mode of

payment was agreed to be through an irrevocable Letter of Credit. The

Letter of Credit was opened in favour of the appellant herein by

respondent No. 5 through respondent No.4 Bank. Accordingly, the

appellant herein issued shipping instructions to respondent No.1 along

with the copy of the invoice, packing list and a copy of the Letter of

Credit, on 11.02.1999. It is noted that the said document shows

‘invoice basis’ as FOB, New Delhi and records that the shipment mode

would be by sea from New Delhi to Baltimore. It is further noted that

respondent No.5 appointed respondent Nos .1 to 3 as its

shippers/forwarding agents and the said shippers/forwarding agents

issued FCR dated 22.02.1999.

27. It is also undisputed that the Letter of Credit was for a specific

period of time i.e., till 28.02.1999 and was extended till 06.03.1999.

The appellant has brought the extension letter to our attention. In the

meantime, the documents including the FCR were submitted by the

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appellant to its bank, namely, Canara Bank for collection of the

proceeds from respondent No.4 Bank. It is noted that the documents

submitted by the appellant along with the FCR w ere refused to be

honoured by respondent No.4 by way of a telex dated 08.03.1999,

citing two discrepancies, one, being late shipment and the other, being

that the port of loading was shown as JNPT, Bombay instead of FOB,

New Delhi. By letter dated 18.03.1999 addressed by respondent No.4

Bank to the appellant’s bank, respondent No.4 returned the FCR and

other documents to the appellant citing the reason that respondent

No.5 is unwilling to make the payment.

28. It is further noted that in the meantime, a letter/certificate was

issued by respondent No.1 rectifying the error and stating that the

shipment is ‘FOB Delhi’ and is being effected from JNPT Port at

Mumbai. Learned counsel for the appellant has also brought to our

attention, a legal notice dated 13.10.1999 sent by the appellant to

respondent Nos.1 to 3 herein wherein the appellant alleged that it was

because of the discrepancy in the FCR, wherein the wrong port of

loading had been entered, that the Letter of Credit in favour of the

appellant could not be honoured. Further it was also alleged that there

also has been negligence on the part of the respondent Nos. 1 to 3 in

not filing the Bill of Entry with the Customs due to which their

shipment was seized by the Customs.

29. It is also the case of the appellant herein that the respondents

herein have acted in collusion with each other and have got the goods

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cleared based on the said FCR itself without paying the sale

consideration to the appellant. It is alleged that the respondents put

an ink blot on the endorsement to camouflage their misdeeds.

Aggrieved by the non-payment of dues as well as the action of the

respondents in getting the goods released, the consumer complaint was

filed.

30. In the instant case, the sale of goods was through a ‘FOB’

contract. ‘FOB’ contract means a contract “Free on Board”. By

such a contract the seller is to put on board at his own expenses

which means this is a contract for sale of goods to be delivered

free on board a ship. The buyer must name the ship upon which

they are to be delivered and the seller must put them safely on

board, meet the cost of doing so and for the buyer’s protection,

give possession of them to the ship only upon the terms of a

reasonable and ordinary bill of lading or other contract of

carriage; there the contractual liability of the seller as seller

ceases and delivery to the buyer is complete as far as he is

concerned. The goods are then at the risk of the buyer, he is

responsible for the freight, and subject to the seller reserving

the right of disposal, the property passes to the buyer. The price

being payable against the bill of lading, they are at the risk of

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the buyer and he must pay the price on presentment of the bill

of lading even if the goods have been lost.

31. Under the ‘FOB’ contract the seller is under no duty to

make advance arrangements for shipping the goods or to bear

any expense beyond that of putting the goods on board. That

while putting the goods on board the seller is directly a party to

the contract of carriage and he may be bound to get the bill of

lading issued in buyer’s name on the terms usual in the trade.

32. The bill of lading is an instrument signed by the master of

shipping in his capacity of the carrier acknowledging the receipt

of the merchant goods. There are usually three parts – one, is

to be retained by the consigner of the goods; another, is sent to

the consignee and the other one, is preserved by the master of

the ship.

33. Undoubtedly, the appellant herein availed services provided by

the respondent Nos. 1 to 3 and respondent No. 4 is a beneficiary of

such services, therefore the appellant would fall under the definition of

a ‘consumer’ as is under Section 2(1)(d)(ii) of the Act of 1986.

34. It is common knowledge that in international transactions, letter

of credit is used as a mode of ensuring payment and performance of

the contractual terms. A letter of credit is a document issued by a bank

(issuing bank) on behalf of a party (applicant) in favour of another party

(beneficiary) under which, the issuing bank undertakes to pay to the

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beneficiary, certain sums of money subject to compliance of the terms

and conditions of the letter of credit. In an international transaction,

the beneficiary is the seller who requests the applicant (buyer) to

furnish a letter of credit from any bank which is recognized worldwide

(issuing bank). The letter of credit is issued in favour of a beneficiary

on the request of an applicant after furnishing securities as may be

demanded by the issuing bank. A seller can ask the issuing bank to

honour the letter of credit to his own bank (confirming bank) within a

certain maturity date. The seller is required to produce certain

documents regarding proof of delivery of goods, commercial invoice, bill

of lading, insurance documents etc. before the confirming bank. On

scrutiny the confirming bank would ask for advice of the issuing bank

to confirm whether the documents produced by the beneficiary is

compliant to the terms and conditions of the letter of credit. Once the

issuing bank confirms the document, the confirming bank is obligated

to pay to the beneficiary on demand, the credit amount and in turn

recover the same from the issuing bank.

35. In Hindustan Steel Workers Construction Ltd. V G.S.

Atwal & Co. (Engineers) (P) Ltd. [ (1995) 6 SCC 76] this Court held

that a letter of credit is independent of and unqualified by the contract

of sale or underlying transactions. The autonomy of an irrevocable

LOC is entitled to protection and as a ru le, courts refrain from

interfering with that autonomy. If courts interfere in such transactions,

it would be prone to misuse by the applicant party to gain undue

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advantage leaving the issuing bank at peril in the international

financial market.

36. As per Section 2 (g) of the Act of 1986, ‘deficiency’ is defined

as “fault, imperfection shortcoming or inadequacy in the quality,

nature, and manner of performance which is required to be maintained

by or under any law for time being in force or has been undertaken to

be performed by a person in pursuance of a contract or otherwise in

relation to any service.”

37. What is needed to be assessed here is whether the admitted error

on the part of the respondent Nos. 1 to 3 would amount to deficiency

in service or not. In the factual matrix of the present case, it is noted

that the appellant herein vide its letter dated 11.02.1999 gave shipping

instructions to respondent Nos. 1 to 3 wherein it was mentioned that

the shipment is from FOB, New Delhi to Baltimore. However, despite

clear instructions vide the said letter, respondent Nos. 1 to 3

negligently recorded the port of loading to be JNPT Bombay. It is due

to this negligence as well as deficiency in service of the respondent Nos.

1 to 3 that the respondent No. 4 Bank refused to accept/honour the

documents including the FCR and the same was returned to the bank

of the appellant. Due to refusal of honouring the said documents, the

sale consideration was not paid to the appellant herein who suffered

loss as well as mental harassment and agony.

38. It is further observed that the appellant herein received the

telex/letter on 08.03.1999 wherein the documents including the FCR

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were refused. It is only after the appellant approached respondent No.1

to issue a certificate/letter rectifying the error regarding the wrong

point of loading that the respondent No.1 issued such a

certificate/letter dated 30.03.1999 mentioning that the shipment was

loaded from FOB New Delhi and effected from JNPT Bombay.

39. The National Commission in the impugned order has held that it is

an admitted position that a mistake was committed by the respondent

No.1 while issuing the FCR to the appellant. The State Commission has

based its decision on the said reasoning. When it is admitted that a

mistake was committed by the respondent No.1, it is not correct to say

that the said mistake was not noticed by the appellant while forwarding

the documents to its bank and that the appellant should have been more

vigilant. It would be incorrect to now say that the appellant should have

exercised due diligence in that regard. The National Commission has

categorically held that there was deficiency in rendering services by the

respondent No.1, therefore, the National Commission ought not have

reduced the compensation payable to the appellant herein.

40. In view of the aforesaid discussion, we find that the National

Commission was not right in setting aside the judgment and order

passed by the State Commissio n and therefore, the impugned

judgment and order passed by the National Commission is liable to be

set aside.

41. In the result, the appeal filed by the appellant-complainant is

allowed and the impugned judgment and order passed by the National

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Commission is hereby quashed and set aside and the judgment and

order passed by the State Commission is restored. The respondents,

being severally and jointly liable, shall make the payment of the

amount as assessed by the State Commission within a period of two

months from today. In the event the respondents fail to pay the said

compensation within the stipulated time, the appellant shall be at

liberty to seek remedy in accordance with the law.

42. If pursuant to the order of the State Commission, any amount

has been deposited by the respondents, the same shall be withdrawn

by the appellant in accordance with the order of the State Commission.

If any amount has already been paid to the appellant by the

respondents herein, then the balance amount, if any, as awarded by

the State Commission shall be paid to the appellant within a period of

two months from today.

43. Pending application (s), if any, shall stand disposed of.

..…..……….……………J.

(B.R. GAVAI)

..………….……………J.

(B.V. NAGARATHNA)

NEW DELHI;

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th NOVEMBER, 2022.