State Consumer Disputes Redressal Commission
M/S.Crypton Exports Pvt. Ltd. vs Air France on 11 December, 2006
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision : 11-12-2006 Complaint No. C-98/1997 M/s Crypton Exports Pvt. Ltd. - Complainant 9062/3, Ram Bagh Road, Through Azad Market, Mr. Shambhu Sharan, Delhi-11006. Advocate. Verses Air France - Opposite Party 7, Atma Ram Mansion, Through (Scindia House) Mr. Amir Z. Singh Pasrich, Connaught Circus, Advocate. New Delhi-110001. CORAM: Justice J.D. Kapoor, . President Ms Rumnita Mittal . Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. to be referred to the Reporter of not ?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Complainant has sought compensation of Rs. 8,83,930 alleging deficiency in service on the part Opposite Party (OP)-Airlines in as much as that the leather shoes booked with it was not released to the consignee without receiving the payment.
2. Case of the complainant, which is a private limited company, in brief, is that in the year 1994, it received orders for export of ladies leather shoes from M/s Skalka S.R.O., Slovak Republic and entrusted the OP with ordered quantities of leather shoes valued at US $ 15144.74 at New Delhi for carriage by air from Delhi to Slovak Republic. OP was obliged to deliver the said goods to the consignee CESKOSLOVENSKA OBCHODNA BANKA A.S. upon production of the Airway Bill. Entire freight for the carriage of the said goods by the OP was paid in advance. The OP informed that the consignment was delivered to the consignees agent HOTOVOST on 23-05-1994. The complainant was shocked and surprised to learn that the foreign bank CESKSLOVENSKA OBCHODNA BANKA A.S. had not accepted the documents for payment and had not endorsed the documents in favour of anyone. The OP had delivered the said shipment to the said HOTOVOST without any authorization from the consignee. As a result of the negligence of the OP and shortcoming in its services, not only the said shipment had been wrongfully delivered leading to non-realization of the value thereof by the complainant, the complainant was deprived of the benefit under the Income Tax Act.
3. While denying the allegation of deficiency in service the OP raised the preliminary objection that complaint was barred by time as the complainant was aware of delivery of the said consignment having been made on 23-05-1994 whereas he filed this complaint in 1997 i.e. after the prescribed period of two years and even under the provisions of the WARSAW CONVENTION (1929), an action for damage is required to be brought within two years to be reckoned from the date of arrival of the cargo at destination.
Further that the complainant has not filed documents including the status of its outstanding GR-1 nor has the complainant filed any certificate from its bankers regarding the fate of the bill or as to whether proceeds were received towards the foreign bill in question.
4. In support of his contention that the action for damages if not brought within two years is not maintainable, the counsel for the OP has relied upon the following judgments:-
(i) Govind S. Poddar Vs. Cathay Pacific Airways Ltd. & Ors II (2003) CPJ 4 (NC);
(ii) Bharat S. Modi Vs. British Airways II (2002) CPJ 120 (NC)
(iii) Noel Textiles Vs. Jet Air Pvt. Ltd. & Others II (1995) CPJ 121 of Karnataka State Disputes Redressal Commission;
(iv) M/s Sawhney Export House Pvt. Ltd. Vs. Pakistan International Airlines I (1993) CPJ 96 (NC);
(v) CIMMCO Ltd. Vs. Hind Fabrics Pvt. Ltd. & Anr. I(2004) CPJ 229;
(vi) Shree Engineering Works Vs. Dinex (India) Pvt. Ltd. 1996-(CT2)-GJX-0241-NCDRC; and
(vii) Agfa Gevaert India Ltd. Vs. M/s Jitpal X-ray Pvt. Ltd. & Ors. 1994-(CT2)-GJX-0158-NCRDC.
5. Ratio of name of aforesaid authorities is applicable inthis case. The reliance placed by the OP in Bharat S. Modi Vs. British Airways II (2002) CPJ 120 (NC) wherein it was held that under the Consumer Protection Act the two years limitation period requires minimum of an application for condonation of delay is misplaced.
6. Proceedings under the Consumer Protection Act 1986 are independent proceedings and the remedy is additional remedy and not in derogation of any other law for the time being in force.
Even if we accept the contention of the Counsel that action for damages was not brought to the notice of OP within two years and therefore it was barred under the provisions of WARSAW CONVENTION (1929), the fact remains that the claim of the complainant was repudiated by the OP for the first time vide letter dated 29-04-1996 whereas the instant complaint was filed in the year 1997 i.e. within the period of two years as prescribed by Section 24 A of the Act.
7. Cause of action does not necessarily arise from the date of transaction. Cause of action in such cases arises from the date of repudiation of the claim of the consumer as every consumer is expected to wait for reasonable period whenever he prefers a claim with the OP to see the result.
Cause of action depends upon the nature of claim also. Until and unless insurance claim or for that purpose any such other claim is settled by the OP either within a reasonable period or intimation is not given by the OP to the consumer the dispute and the cause of action attains character of subsisting nature.
8. In so far as the WARSAW CONVENTION (1929) is concerned the same principle will apply as we have culled out above. Under the consumer Protection Act the consumer is entitled for a compensation of two components. One component is as to the actual loss suffered by him and another component is for mental agony, harassment, emotional sufferings etc. Supreme Court has widened the concept of compensation in Ghaziabad Development Authority Vs Balbir Singh 1986-2004 Consumer 8287 (NS) as under:
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
9. However the concept of compensation by way of interest under the provisions of Consumer Protection Act was dealt with by the Supreme Court in Sovintorg (India) Ltd. Vs State Bank of India(1999) 6 SCC 406 6 99(SLT) 454 2(99) CPJ 4(SC), and it was held that where the contract does not provide for payment of interest nor does the statute like Consumer Protection Act 1986 provide for payment of interest, the interest can be awarded by way of compensation only on equitable grounds. Observations of Supreme Court in this regard are as under:
There was no contract between the parties regarding payment of interest on delayed deposit or on account of delay on the part of the opposite party to render the service. Interest cannot be claimed under Section 34 of the Civil Procedure Code as its provisions have not been specifically made applicable to the proceedings under the Act. We, however, find that the general provision of Section 34 being based upon justice equity and good conscience would authorize the Redressal Forums and Commission to also grant interest appropriate under the circumstances of each case. Interest may also be awarded in lieu of compensation or damages in appropriate cases. The interest can also be awarded on equitable grounds.
10. The aforesaid view was further fortified by the Supreme Court in subsequent judgment of Ghaziabad Development Authority Vs Union of India and Anr II (2000) CPJ (SC), wherein the Supreme Court raised the following issues: -
i) Whether compensation can be awarded for mental agony suffered by the claimants?
ii) Whether in the absence of any contract or promise held out by the Ghaziabad Development Authority any amount by way of interest can be directed to be paid on the amount found due and payable by the Authority to the claimants?
iii) If, so, the rate at which the interest can be ordered to be paid?
11. Answers to all the aforesaid questions were in the affirmative. As to the rate of interest, Supreme Court held that reasonable interest means it should neither be too high nor too low.
12. Thus there is unvarying judicial unanimity that under the provisions of Consumer Protection Act interest can be awarded by way of compensation where contract does not provide for payment of interest but only when there are equitable grounds and not otherwise. Further that interest should be reasonable which means it should be neither too high nor too low.
13. The OP took the plea that under the rules Bratsilava banks were not authorised to be consignee as they were not in a position to force the third party and as such delivery was not made to the named consignee i.e. notified party under the Airway bill. Further that part payment received by the complainant clearly establishes that delivery was correctly affected. There was neither delay nor damage nor destruction in the cargo. The OP further averred that under Carriage by Airway Act there was neither notice within the prescribed period to the carrier about delay and therefore there was no deficiency in service because the matter was only between the consignee and its buyer. There was no letter of credit to protect the buyers interest and there is no evidence of any failure on the part of the OP.
14. We have accorded careful consideration to the rival contentions. Along with the complaint the complainant has filed the Airway Bill issued by the OP showing that the consignee was the Bank and they had accepted consignment on the term that the consignee would be the bank.
15. From the very first day complainant had written to the OP about the consignment and to make good the loss suffered by them.
However, the OP kept on assuring that they were looking into the matter and they had always given this assurance.
16. Since the factual aspect of the case about the wrong delivery of the consignment have not been effectively controverted or been denied nor has any proof produced by the OP to show that the same was delivered to the actual consignee, still the facts remains that the complainant received part payment of US $ 6700 and therefore in our view liability of the OP shall be only limited to the balance amount of Rs. 2,99,787/- in Indian currency.
17. Taking over all view of the matter we allow the complaint and direct the OP to pay to the complainant balance amount of Rs. 2,99,787/-. In view of the peculiar facts and nature of the case we do not feel inclined to award interest and award lump sum compensation of Rs. 25,000/- besides Rs. 10,000/- as cost of litigation. Payment shall be made within one month.
18. Complaint is disposed of in aforesaid terms.
19. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to record room.
20. Announced on 11-12-2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj