Delhi District Court
M/S. K. S. Exports vs M/S. Ethopian Airlines on 28 February, 2013
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS:DELHI
CS N0. 322/01.
UID No. 02401C0283172001.
M/s. K. S. Exports
15, Local Shopping Centre
Madangir (Pushp Vihar)
New Delhi.
........... Plaintiff
Versus
M/s. Ethopian Airlines
124, Ansal Bhawan
Kasturba Gandhi Marg
New Delhi.
......... Defendants
Date of institution of suit : 07.11.1996.
Date of reserving for judgment : 26.02.2013.
Date of announcement of judgment : 28.02.2013.
JUDGMENT
1. This is a suit for damages filed by the plaintiff.
2. Briefly stated the facts of the case are :
a) The defendant is an Airline which undertakes carriage of goods by Airlines to different countries. The plaintiff on 29/11/1994 booked 12 packages containing goods weighing 225 kg. with the defendant vide Airway Bill No. 071-0722018 through agent R. B. RamnathLambah & Sons, New Delhi, destined for M/s. Sonogo Marlame Abidjam 20, BP-580 Ivory Coas, East Africa.
b) The 12 packages containing articles which were in apparent CS No. 322/01 M/s. K. S. Exports Vs. M/s. Ethopian Airlines Page 1 good order and condition, weighed 225 kg., though the freight charged by the defendant amounted to Rs. 38,825/- for 252 kg. It is further stated that the value of the goods contained in 12 packages was Rs. 1,42,637/- whereon freight charged was Rs. 38,825/-.
c) Defendant accepted the goods for carriage subject to Carriers Limitation of Liability and condition of contracts printed on the reverse of the airway bill.
d) The goods which were delivered on 12/12/1994 were admittedly damaged and were also short by 31 kgs., mentioned in the damage sheet known as 'Constat De Dommages Merchandises'.
e) The very purposes of sending the goods by air on 29/11/1994 was for immediate delivery whereas the delivery of damaged goods contained in repaired packages was made on 12/12/1994 instead of within a day or so.
f) It is clearly admitted in the damage sheet that all the packages were almost totally damaged and open, almost all the goods were damaged, goods to the extent of 31 kg were missing and only 192 kg in repaired packages were delivered.
g) The articles contained in 12 packages when booked for transport were in the form of sets, just as nighty set consisting of nighty, bra and panty, similarly frock sets, consisting of frock and panty sets.
h) The plaintiff is entitled for damages for missing as well as damaged goods delivered admittedly in repaired packages. It is admitted that all the packages were open during the transit and were repaired. The plaintiff is entitled to damages in view of the terms and conditions reproduced above and printed on the back of the airway bill. The plaintiff is also entitled for the refund of Rs. 38,825/- which was paid on account of carriage charges. The plaintiff is also entitled for CS No. 322/01 M/s. K. S. Exports Vs. M/s. Ethopian Airlines Page 2 interest on the above amount till the date of payment.
3. In the prayer of the plaint, the plaintiff has not disclosed the amount of decree as prayed. However, para 26 of the plaint is perused wherein the plaintiff has valued the suit for the purpose of court fees and jurisdiction at Rs. 3,58,308/- and, therefore, from this para, the court gets inference that the plaintiff has filed the suit for the prayer for relief of damages of Rs. 3,58, 308/-.
4. Written statement filed by the defendant wherein it is claimed that the suit is barred under the provisions of law and there exists no cause of action in favour of the plaintiff and against the defendant. Booking of consignment by the plaintiff with the defendant is not denied. However, the condition of the goods as well as the list of goods as submitted by the plaintiff is denied. It is denied that value of the goods as admitted by the plaintiff for whole consignment was Rs. 1,42,637/-. Terms and conditions referred in the airway bill are also admitted. However, it is denied that goods were delivered short. It is also denied that goods have to be delivered to the destination of the plaintiff within a day or so. Rest of the averments of the plaint were denied.
5. My ld predecessor by order dated 16/08/2001 framed following issues :
i) "Whether the suit of the plaintiff is not maintainable in the present form?OPD.
ii) Whether the plaintiff is entitled to the suit amount, If so to what extent?OPP.
iii) Whether the plaintiff is entitled to interest, if so at what rate?OPP.
iv) Relief."
6. To prove his case, plaintiff examined Sh. Harinder Singh as PW1. He further proved airway bill Ex. A. This witness was cross-examined. Thereafter, plaintiff closed PE. In defence, defendant examined Ms. Guenet Benre, Sales Manager as DW1. He was cross-examined by ld CS No. 322/01 M/s. K. S. Exports Vs. M/s. Ethopian Airlines Page 3 counsel for the plaintiff and thereafter by separate statement, ld counsel for the defendant closed DE.
7. I have gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also heard Sh. Tripat Singh, ld counsel for the plaintiff and Sh. Ankur Bansal, ld counsel for the defendant.
8. Earlier the judgment was given by my ld predecessor on 12/07/2002 and the Hon'ble High Court remanded the case by judgment dated 24/11/2011 in RFA No. 728/02. The Hon'ble High Court decided the issue no. 1 in favour of the plaintiff and accordingly this court has to follow the judgment of the Hon'ble High Court regarding issue no. 1. My issuewise findings for remaining issues are :
9. ISSUE NO. 2.
Whether the plaintiff is entitled to the suit amount, If so to what extent? OPP.
Onus to prove issue no. 2 is upon the plaintiff. The plaintiff proved airway bill as Ex. A. Moreover, defendant also admitted in its written statement regarding contractual relationship through airway bill which is Ex. A. It is the case of the defendant that a notice was served upon the parties on 17/06/1996 as stated by PW1 in examination in chief. However, the said notice is merely marked Y but not proved in accordance with the law by the plaintiff. Moreover, this notice is merely a photocopy which is neither signed by either of the parties. It is further to be observed that no document regarding dispatch of the notice has been brought on the record or proved by the plaintiff. Neither postal receipt is on the record nor any courier receipt or similar has been brought on the record or proved by the plaintiff to prove dispatch of the notice. Plaintiff also did not serve any notice under Order 12 Rule 8 of CPC to the defendant for production of the original CS No. 322/01 M/s. K. S. Exports Vs. M/s. Ethopian Airlines Page 4 thereof. Therefore, this court is of the considered opinion that the plaintiff is not able to prove service of this notice upon the defendnat. Moreover, in examination in chief it is not mentioned by the plaintiff the date of loss of the goods but it is stated that the goods were handed over for the purpose of export to the defendant on 29/11/1994 and notice according to the plaintiff was served on 17/06/1996. It is submitted by the plaintiff that as per the Carriers Act 1865, notice of loss or injury has to be given within six months. Section 10 of Carriers Act, 1865 states :
"10. Notice of loss or injury to be given within six months.- No suit shall be instituted against a common carrier for the loss of, or injury to, [goods (including container, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff]"
10. Further, according to the Carriage by Air Act, 1972 which also accompany with The Second Schedule wherein Chapter III contains Rule 27 which states :
"27. (1) Receipt by the person entitled to delivery of baggage or cargo without compliant is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage.
(2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his disposal.
(3) Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the time aforesaid.CS No. 322/01
M/s. K. S. Exports Vs. M/s. Ethopian Airlines Page 5 (4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part."
Further, this court relies upon M/s. Sailesh Textile Industries Vs. British Airways & Anr. 2003 IV AD (Delhi) 276, wherein it was observed in para 36 :
"Rule 27 (2) of 2nd Schedule of the Carriage By Air Act stipulates that in the event of delay in delivery of the consignment, notice must be given to the carrier within 21 days from the date on which the consignment was placed at its disposal. It is further stipulated that if notice is not given to the carrier, no action would lie against it. Rule 24 of 2nd Schedule of the Act provides that an action for damages founded in cases covered under Rules 18 and 19 can be brought subject to the conditions and limits set out in these rules."
11. Therefore, in case there was any damage the consignee must have been made a complaint to the carrier within seven days of the receipt of the package and failing which according to Rule 27 (1) of the Act, the delivered package or cargo without complaint is a prima facie evidence that the same has been delivered in good condition. No such complaint has been proved by the plaintiff in accordance with the law. There is a document available on the record which is regarding report of damaged goods. According to it the goods arrived at the destination on 07/12/1994 and were delivered on 12/12/1994. But this document does not bear the date of issue. Moreover, this document has also not been proved by any of the parties. Therefore, this document cannot be read in evidence. Thus, neither in Section 10 of the Carriers Act, 1865 nor the Carriage by Air Act, 1972, the claim of the plaintiff is maintainable. Moreover, in examination in chief also the plaintiff has neither stated nor proved about any specific damage. During cross- examination, it is stated by PW1 that it is correct that he did not deliver the goods personally to the airline. Therefore, he is the person who cannot depose about the condition of goods at the time of delivery to CS No. 322/01 M/s. K. S. Exports Vs. M/s. Ethopian Airlines Page 6 the defendant. He has further stated that he did not see in what condition the goods were delivered. Therefore, the entire case has been demolished in view of the testimony of PW1. He has further stated that the goods were sent in packages and those were properly sealed before handing over to the agents. However, no such agent has been called as a witness before this court. DW1 stated that there was no complaint from consignee about the shortage or pilferage or damages. It is further stated that the normal procedure when the consignee takes the delivery of the goods and he found that there is some miss or some damage, he files a report on the spot, if there was shortage then he says that he received only this much and in case of damage or loss he had to fill up the form which is called Cargo Irregular Form on the basis of that form consignee puts his claim and in the present case nothing such has been done. He has further stated that defendant came to know about the alleged damage in the year 1996 when the plaintiff filed the suit in the court. He has further stated that if there is damaged goods normally the procedure is that the consignee would not take the delivery and accordingly to inform the company. During cross-examination, DW1 further stated that to his knowledge goods were delivered to the consignee in the form which was accepted by the defendant and the goods were delivered in the same condition in which condition they were accepted. He has further stated that there are handling agents of the defendant who were delivering the goods to the consignee and they delivered the original receipt to the consignee. He has further stated that since no claim was filed by the consignee, therefore, he was not able to state that the goods were short supplied to the tune of 31 kg.
12. In view of the evidence of DW1 and cross-examination of PW1, this court is of the considered opinion that the plaintiff is not able to prove CS No. 322/01 M/s. K. S. Exports Vs. M/s. Ethopian Airlines Page 7 that there was any damage to the goods or short supply as stated in the plaint by the plaintiff to the consignee. Moreover, the plaintiff is not able to prove that the case is within prescribed limitation as per the Carriers Act, 1862 or the Carriage by Air Act, 1972. Therefore, the plaintiff is unable to discharge the onus to prove issue no. 2 and, therefore, this issue is answered against the plaintiff to the effect that plaintiff is not entitled for any amount as the plaintiff is not able to prove its case.
13. ISSUE NO. 3.
Whether the plaintiff is entitled to interest, if so at what rate?OPP.
Onus to prove this issue is upon the plaintiff. Since issue no. 2 has already been answered against the plaintiff, therefore, there is no question of interest and this issue is also answered against the plaintiff.
14. ISSUE NO. 4.
Relief In view of the observations made herein above, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 28/02/2013. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 322/01 M/s. K. S. Exports Vs. M/s. Ethopian Airlines Page 8