National Consumer Disputes Redressal
Bharathi Knitting Co. vs British Airways And Anr. on 28 September, 2001
ORDER
Mrs. Rajyalakshmi Rao, Member
1. This Complaint is filed by M/s. Bharati Knitting Co., a sole proprietorship concern represented by its proprietor Mr. V. Rajalingam, having their office at 42, Valipalayam Extension, Bharathi Street, Tirupur, Tamilnadu. The Complaint is regarding deficiency of service regarding export consignment to be delivered by Opposite Party No: 1) M/s. British Airways and M/s. Zeus Air Services, Opposite Party No: 2) through whom the booking was done. The facts of the case are as follows:-
2. The Complainant sent a consignment of 22,320 pieces of cotton knitted ladies pullovers valued of DEM 1,09,368 (equivalent Indian rupees being Rs. 19,58,448/-) under an Order No: 2027 dated 13th October, 1992 by M/s. Regime Modevertriebs GMBH of Germany to be delivered to M/s. E.U.F. London Ltd., Route Master Building, Walton Avenue, Pelistine G.B. Suffolk, IF 118 HE (U.K.) and accordingly raised invoice No. 79 dated 27th November, 1992 for the said sum. M/s. Zeus Air Services (opposite party No. 2) were entrusted to do the documentation and custom clearance and the consignment was delivered to M/s. British Airways (Opp. Party No. 1) on 22nd December, 1992 after all the clearances were fulfilled. According to the Airway Bill No. 125-3747-0661 dated 21st December, 1992, was raised and the consignment was to be lifted and taken on 24th December, 1992 by flight B.A.No. 138.
3. It is stated by the Complainant that though initially the name of the consignee was M/s. E.U.F. London Ltd., a direction was given to notify M/s. Regime Products, Robert-Busch Str-3, 7038 Holzerlingen, Germany, after the dispatch formalities were over, he opted to change the name of the consignee to German Bank i.e., "SUEDWEST DEUTSCHE LANDS BANK", Girwestdeut-Che, Mannheim, Germany" with instructions to notify the original consignee M/s. E.U.F. London Ltd., and "Regime Products". After the goods were dispatched, Opposite Party: 1 was informed to make sure that the Bank alone should be specifically treated as Consignee. As per this arrangement, M/s. E.U.F. London Ltd., should take delivery of the consignment through the Bank.
4. Instead of flying the cargo on 24.12.92 by BA-138 as per the Airway Bill, OP:1 lifted the consignment one day earlier i.e. on 23.12.92 by BA-144 at 00.05 hrs. IST (19.35 GMT on 22.12.92 and arrives at 9.45 hrs. IST (05.15 hrs. GMT) on 23.12.1992, whereas the complainant was not aware of the change. It is stated that the instructions of change of name of consignee were not followed by both the respondents and as a result of which the consignment was delivered to M/s. E.U.F. London, directly without invoking bank and this action of both the respondents brought great loss to the Complainant. As per the Letter of Credit, payment should be made after 30 days sight and the German Co., i.e., M/s. Regime Modervertriebs has to make payment to the German Bank within 30 days form the date of clearance. The Complainant's bank at Tirupur, Tamilnadu did not receive and payment form the German Bank and then, the Complainant was reminded about the said non-payment from his Bank. Ever since, the Complainant has been frantically requesting for information regarding the non-delivery of the consignment. Finally on 21st June, 1993, as a reply to many reminders and letters from Opposite Party: 2, on 9th June, 1993 and 14th June, 1993 to Opposite Party 1 the latter replied to Opposite Party. 2 that "due to some aberration in the system consignment was delivered to the consignee without obtaining the bank release order" and expressed their regret for inconvenience caused due to misdelivery of the consignment.
5. It is urged by the Complainant that it was only after six months, Opp. Party. 1 discovered that the consignment was delivered without obtaining the bank release order and this wrong action caused great loss to his business and since Opposite Party No. 1 acknowledge that fact, it is an admission of their fault and hence amounts to clear deficiency of service. The second opposite party then pursued the matter with Opp. Party: 1 asking for delivery details and the Complainant wrote a letter to Opposite Party: 1 on 12th July 1993 stating that they have to own up for their irresponsible actions and claimed the total invoice value of the consignment along with 21% interest from them referring to their admission in their reply where they admitted that the delivery of the consignment was done without obtaining the bank release order.
6. In reply to the above letter, the Opposite Party No. 1 had stated vide their letter dated 24th July, 1993 that in the event of documents being returned by the bank, they will process the claim as per the general conditions of the carriage for cargo. "As all the claims are subject to proof of value we would require following information/documentation from you". Accordingly all the details, which were required by the Opp. Party 1, were submitted by the Complainant vide letter dated 18th August 1993. However, the first Opp. Party failed and neglected to take any further steps or keep the Complainant informed about the progress. Since there was no information forthcoming the Complainant sent a number of reminders to Opposite Party: 1 and Opp. Party No. 2, but in vein. Hence the Complainant sent a legal notice dated 6th October 1994 to both of them. It was then that Opposite Party N o. 1 responded vide their letter dated 12th October, 1994, stating that they had forwarded this claim to its Head Quarters in London Insurance Branch for their consideration.
7. Subsequently, Opposite Party No. 1, sent a reply through its solicitor vide letter dated 21st October, 1994 claiming that by the time the fax was received from Opp. Party No. 2 to them for the change in the name of consignee i.e., at 16.10 hours IST (11.40 GMT) on 23rd December, the agent of E.U.F., was in the process of clearing the goods through Customs. Opposite Party 1 further contended it was because of the delay in sending the communication by Opposite Party No. 2, the goods were wrongly delivered to E.U.F. London and hence their responsibility ceases for wrong delivery of goods. The agent of the original consignee demanded the consignment upon arrival and Opposite Party: 1 had to give the documents and that once documents are given, even if the change of consignee takes place just before actual physical delivery of consignments nothing could be done and that Section 13(1) Carriage by Air Act compels British Airways to deliver consignment is the gist of the stand Opposite Party 1 has taken in reply..
8. The Learned Counsel for the Complainant argued mainly on three grounds:
(a) It is an admitted fact that accounting to the Airways Bill dated 21st December, 1992 the aircraft was to leave only on 24th December, 1992 and necessary intimation as to change of consignee was given over 7-8 hours before the aircraft was to leave. Contrary to airway bill, by lifting the cargo one day earlier i.e. on 23.12.1992, Opposite Party: 1 unilaterally disabled the petitioner to exercise its right to change the name of the consignee under Section 12(1) carriage by Air Act. Had they lifted the cargo as per Airway Bill on 24th, the change of the consignee would have been effected and Opposite Party: 1 would have delivered the consignment only to the Bank. This change of consignee's name was to ensure and to enable them to receive the payment. He urged that Opposite Party No. 1 did not ensure to comply with the instructions which amounts to deficiency in service.
(b) Through Opposite Party 2, repeat instructions were given to London office of Opposite Party 1 at 16.28 hrs. IST (11.58 GMT) and at 16.52 hrs. IST (12.22 hrs. GMT) regarding the change in the name of the consignee to which Opposite Party 1 sent a telex from London at 18.04 hrs. IST (13.34 hrs. GMT) on 23.12.1992 whereby the information was given that the original consignee collected the documents and has already entered Customs for clearance.
After receipt of the intimation as to change of consignee, Opposite Party: 1 not only did not carry out the instruction in spite of having time till 24.12.92 but also did not inform the petitioner about its inability to carry out the instruction, whereby they have not adhered to rules checking the condition of carriage in AWB and deliver accordingly. Opposite Party: 1 is obliged to inform the petitioner about its inability to carry out the change under Section 12(2) of carriage by Air Act which they have but mislead giving wrong information.
(c) The conduct of Opposite Party: 1 is lacking in bona fides when they argue regarding delivery of the consignment that it is effected on 23rd December, 1992 whereas the documents on record show otherwise, that their agent Viscount International in London took the delivery on 24.12.92 and physical delivery only after two months. Apparel Export Promotion Council vide their letter dated 4th November, 1996 clarifies to the petitioner that according to the Licensing Authority of the importing country the import License No. 391340 SF was issued on 28th January, 1993 against the export Certificate for clearance and this proves physical delivery could not be effected as alleged by Opposite Party No. 1. The Party "Regime Products" who was taken delivery stated in their fact dated 25th March, 1993 to the petitioner that they took delivery only in February, 1993 i.e., two months after arrival of the consignment, which is in contradiction to the statements made by the Opposite Party No. 1 regarding the date of delivery being 23.12.1992.
9. Above all this, the correspondence between Head Office in London and office in Bombay of Opposite Party: 1 which has been field a sin the affidavit of Mr. Ganu Dewnani, Cargo Officer clearly indicate the consignment was collected on 24th February 1993 at 12.25 hrs. by Viscount Cargo on behalf of E.U.F. London Ltd. Instead of stating the facts as happened, Opposite Party: 1 tried to cover their mistakes and misled the petitioner. Had the petitioner been informed of the factual position that the consignment was still in the warehouse in the airport in the ti me gap between December, 1992 and February, 1993, he would have taken legal action in London and would have obtained injunctive orders from the Court and petitioner lost their opportunity to do so only due to the apathetic behaviour of Opposite Party: 1 which amounts to deficiency in service.
10. It is further contended that in the Airway Bill, Opposite Party : 1 itself endorsed the change of consignee on 23rd December, 1992 and affixed its rubber stamp also. Having done the endorsement, and after the message as to change of consignee being received by them on 23rd December, 1992 at 4.45 p.m. delivery was still done to wrong party on 24th December, 1992. Firstly, they failed to comply with the petitioner's request and further committed mistake by not informing the petitioner/consignor and now Opposite Party: 1 in desperation, stated taking false pleas, such as that Opposite Party: 2 is not their agent and that the petitioner may have received full payment for the consignment form the consignee and that no loss caused to them.
11. As far as the contention raised by Opposite Party No. 1 that Opposite Party No. 2, the Complainant's Agent, it is an admitted fact that Opposite Party: 2 received their commission form Opposite Party: 1 as their agent and the petitioner has not paid any commission or remuneration for the said transport of the consignment. It is urged by the Complainant that Opposite Party No. 2 being their agent, Opposite Party: 1 has to own up to the deficiency of service rendered together to the Complainant and make good for the loss suffered by them.
12. It is also submitted by the Learned Counsel that their Banker's Letter dated 31st March, 2001, of Indian Overseas Bank that the amount DEM 109,368.00 was outstanding in their books against their Bill No. UBDF/095/N/433310, Invoice No. 29 dated 27th November, 1992 negotiated on 28th December, 1992 was returned. The Chartered Accountant of their Company also gave a Certificate stating that the above money under the said transaction in discussion has not been realised upto 4th April 2001 as per their accounts. It is contended that as a result of the unresponsive and lethargic attitude of Party 1, the Complainant suffered heavy losses i.e., loss of goodwill, loss of business and is entitled to claim compensation form the opposite parties. Opposite Party: 1 had asked for all the details of the consignment and considered through its solicitors to pay the amount but latter declined to do so.
13. The Complainant prayed that Opposite Party should pay the following amounts:-
I) a sum of DM 109868 (Rupees 19,58,448/-) Rupees Nineteen lakhs fifty eight thousand four hundred forty eight, towards value of goods.
ii) Rs. 7,19,729.64 (Rupees seven lakhs nineteen thousand seven hundred twenty nine and sixty four paise only) towards interest @ 21% p.a. from 15th March, 1993 to the date of filing of this complaint.
iii) Further interest @ 21% on a sum of Rs. 23,23,120/- from the date of petition till date of payment, and
iv) Rs. 10,00,000/- (Rupees Ten lakhs only) towards mental agency, lost business opportunities and lose of goodwill and
v) Cost of the Complaint.
14. The Learned Counsel for British Airways i.e., Opposite Party: 1 submitted that the Complainant's contention that the consignment was scheduled to be carried by British Airways 138 on 24th December 1992 was instead carried by British Airways 144 on 23rd December, 1992, a day before the date specified in the airway bill which is attributed to be deficiency in service is devoid of merit and unsustainable in law. It is unsustainable because this plea had not been taken either in the Complaint or in the rejoinder or in the affidavit in evidence. Therefore it is clearly an after thought and Opposite Party was not given opportunity to meet with such a plea till the end. It is contended that the submission is illogical because there was no bar or restrictions on Opposite Party: 1 from carrying the consignment on a date earlier to 24th December, 1992 because the date was stipulated to be so more as an outer date for carriage of the consignment. A change in the name of the consignee was not contemplated at the time the consignment was handed over to the them and accordingly the date 24th December 1992 was also not stipulated by these consignor.
15. It is further contended that the reason for the change in the name of the Consignee given by Opposite Party: 2 in their fax on 23rd December, 1992, is "the consignee is stating he cannot clear due to season holidays" is and therefore carriage of the consignment on 23rd December, 1992 has no relevance at all. Besides this very fax has on the face of it reads as "Shipment on British Airways 144/23rd December 1992" which meant Opposite Party: 2 and the Complainant are both aware that the date has been changed and there was no protest from them regarding such a change of date. The reason stated was "due to reason holidays" stands belied inasmuch as the consignee demanded and received documents of the cargo immediately on its arrival at London on 23rd December, 1992, complied with all the formalities and took the delivery and carried the same to Germany on 24th December, 1992 is the reply of Opposite Party 1.
16. Opposite Party: 1 further denied that the name of "M/s. E.U.F. London Ltd." was clearly indicated i.e., the Airway Bill as "Notify Party" in the "Consignee Copy or "Delivery receipt" which goes with the cargo, these changes were made in the carriers copy and may also be in shipper's copy which are in possession of Complainant or Opposite Party: 2. This is the reason why the staff handling the cargo at London was not aware of the change in the name of the consignee at the time 07-55 GMT i.e., 12.25 IST (Indian Standard Time) when they handed over the documents of the Cargo to M/s. E.U.F. London Ltd., through its agent Viscount International. Opposite Party: 1 submitted that the cargo becomes subject to the Consignee's instruction immediately upon its arrival when the consignee exercises its right in accordance with Rule 13 of Schedule II to the carriage by AIR Act, 1972 and hence there is no deficiency in service.
17. It is stated that the Complainant had the letter of credit on hand on 1st December, 1992 and accordingly the Airway Bill was made on 21st December, 1992, no logical reason in explained by him as to why he consigned the cargo to M/s. E.U.F. London Ltd., in the first place and not to the Bank. Besides, the Complainant had sent the consignment to the Bank on "Documents on acceptances" basis on 30 days credit. The Complainant not to receive the price of the consignment upon delivery thereof. Upon the failure of the consignee to pay the price of the goods on expiry of 30 days from the date of acceptance of the documents, the only remedy available to the Complainant was to take legal action to recover the same from the buyer. It is averred that the Complainant concealing material and relevant evidence to support his case and by not doing so adverse inference has necessarily to be drawn against his favour. The Learned Counsel argued that original documents relating to entire transaction i.e., bill of exchange, invoice, order, placed by the purchase, books of accounts and record relating to GRI and RBI clearance are not produced by the Complainant.
18. As for the status of Opposite Party: 2 being the agent of British Airway i.e., Opposite Party: 1 the Learned Counsel urged that Opposite Party: 2 was the agent of the consignor clarifying the position of Opposite Party: 2, it is stated that he cargo is approved and appointed by IATA to play the role of an independent middlemen/broker who is in charge of sales of a large number of air carriers, without any authority vested unto it, to represent the carriers and cannot vary/alter any of the conditions of the contract for any reasons whatever. A carrier is not bound by the representation of the IATA agent unless the agent is specifically authorised in writing by the carrier. As per the rules 5 and 6 of Schedule II to the Carriage by Air Act, it is required that the contract of carriage is in writing. Therefore it is submitted by Opposite Party: 1 that any representation made by the IATA agent would be inadmissible in evidence under Section 91 and 92 of Evidence Act. On the other hand, it is further stated that the IATA agent represents the consignor to the consignor to the carriage and he is not only to liase with carrier on behalf of the shipper but also deals with Customs Authorities, Airports Authority and other agencies and makes and cuts and the Airway Bill on behalf of the Consignor, which in the present case is Opposite Party: 2 who liased with British Airways and was engaged by the Complainant.
19. Lastly, the Learned Counsel mentioned the oral statement made by the Complainant that the said complaint was filed against Opposite Party: 1 because the purchaser of their consignment died before the making payment. The Complainant has not placed nay document on records as to what had transpired between him and the buyer of the goods in spite of specific objection raised by Opposite Party: 1. In view of the above submissions, the Learned Counsel argued that Opposite Party: 1 is not liable to pay and compensation to the Complainant as there is neither any deficiency in the service rendered by them nor there is any negligence on their part. The claim is an exaggerated amount and since no amount is due to the Complainant, the question of interest claimed by the Complainant thereon does not arise. He submitted that the Complaint should be dismissed with costs for filing baseless, imaginary complaint.
20. The Learned Counsel for Zeus Air Services Pvt. Ltd., Opposite Party: 2 submitted that being approved IATA (International Air Transport Association) Cargo agent, he was engaged by the Complainant to forward the cargo cleared through customs and book the consignment through Opposite Party: 1 which was complied with. These services were rendered free of charge and hence is excluded U/S 2(o) of the Consumer Protection Act and the Complaint is not maintainable against them. He further clarified that 5% commission was paid to them by Opposite Party: 1 only. It is further submitted that Opposite Party: 1 has been paid the revised freight amount of Rs. 2,84,084/- as agreed to vide letter dated 23rd December, 1992 and this is not denied by any of the parties concerned with. In effect, it is solely the responsibility and liability of Opposite Party: 1 for any deficiency in service or negligence which can be attributable, and Opposite Party: 2 is not to be blamed for. The consideration was received by Opposite Party: 1 and they have neglected in their duty to deliver to the proper party disregarding the instructions sent by the Complainant.
21. It is that there were three communications sent by them to Opposite Party: 1, on 23rd December, 1992, i.e., (I) fax dated 23rd December, 1992 at 16.45 hrs., (ii) letter dated 23rd December, 1992 for correcting consignee name where the AWB copy of Opposite Party: 1 duly initiated and sealed by Mr. Das of Opposite Party: 1, (iii) letter dated 23rd December requesting for green copy of AWB to amend the rate and freight charges to the attention of Mr. Basla Iyer of Opposite Party: 1. Opposite Party 2 contended that choice of route of booking or the choice of airlines was also in connivance with the complainant that has been indicated Party: 1 is baseless and false. It is stated that Opposite Party: 1 is falsely misleading in their statement that the goods were delivered on 24th December, 1992 where as they were lying in the customs warehouse till 24th February, 1993 after being cleared from Customs. It is contended that Opposite Party: 1 has not produced any proof of documents such as cargo arrival notice to the Consignor with date and time mentioned, delivery note/gate which is issued at the time of goods leaving out of the jurisdiction of the customs warehouse.
22. Opposite Party: 2 contended Opposite Party: 1 was a party to the changes in the AWB and is in knowledge of the change of consignee name and initiated and stamped on the face of their own copy. Having been party to their change themselves they cannot disown their responsibility because they chose on the own to send the consignment on earlier date then the scheduled date and hence could not comply with the request of the Complainant's to change the consignee's name. Besides, the fact, which Opposite Party: 1 themselves had admitted that the goods were cleared only on 24th February, 1993 show that there is some discrepancy because customs clearance cannot take two months. It is further contended that carriers handed over the documents of the cargo to M/s. E.U.F. London through their agent at 7.55 hrs. GMT (12.25 hrs IST) on 23rd December, 1992 who soon thereafter had put appearance in the customs and had commenced the process of taking delivery of the cargo is not believable. Having not produced nay evidence on this behalf, Opposite Party: 1 cannot blame Opposite Party: 2 acting in connivance with the Complainant. Opposite Party: 1 delivered the goods to the wrong party when the instructions were available with them well in the time and having been in custody of goods from the time of dispatch till the time of delivery, the deficiency in service lies with Opposite Party: 1 and submitted that the complaint be dismissed against Opposite Party: 2 as not maintainable either in law or on facts.
23. Having heard their oral and written submissions, the points of reference to be decided as per the contentions made by the Complainants are:
a) Whether there is any deficiency in service?
b)If the above is an affirmative, then by whom? i.e., opposite Party: 1 or Opposite Party 2?
c) The amount to be awarded?
24. The admitted facts by all concerned parties is that the consignment has been booked by Complainant to be sent by Opposite Party: 1 through Opposite Party: 2 and consideration for the same was paid by the Complainant and accepted by Opposite Party: 1. The consignment was duly delivered to Opposite Party: 1 by Opposite Party: 1 by Opposite Party: 2 after all the formalities were completed and Opposite Party: 1 was in the custody of the said consignment from the time of dispatch till the time of delivery which is also an admitted fact. The main problem arose when the Complainant decided to change the name of the Consignee on 23rd December, 1992 then the chain reaction started. First, we will deliberate on the point whether the Complainant can change the name of the Consignee after AWB has been prepared. At this stage, we refer to Rule 12 (1) of the Schedule-II to the Carriage by Air Act, 1972.
"Subject to his liability carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the aerodrome of departure or destination, or by stopping it in the course of the journey or any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the airway bill, or by requiring it to be returned to the aerodrome of departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and he must repay expenses occasioned by the exercise of this right."
25. There is no dispute as regards the Complainant's communication to Opposite Party: 2 to change the name of the consignee which was communicated on the same date i.e., 23rd December, 1992 because the consignment was to be airlifted only on 24th December, 1992. Hence Complainant is not at fault to have asked for the change of the name of the Consignee on 23rd December, 1992 because according to Rule 12 (1) he has right to do so. The issue is Opposite Party: 1 having acknowledged the information and duly singed and stamped the Airway Bill, regarding the changes, now cannot take a stand, that they disown any responsibility or liability because the consignment passed hands to the Consignee and the rights of Opposite Party: 1 ceases immediately. Henceforth the fact still remains that the consignment was delivered to wrong consignee and that is not disputed. The contention raised by Opposite Party: 1 that the Complainant is paid by the Consignee and that no harm was caused to him, has no ground because in the present case the Indian Overseas Bank and their auditors have on affidavits, stated that the amount has not been paid by the consignee and the account is still pending on their records as unpaid and there is nothing else on record to show any payments are being done partly or fully.
26. The entrustment of goods was done to Opposite Party: 1 by Airway Bill dated 21st December, 1992 according to which the consignment was to be transported only on 24th December, 1992 by British Airways. 138 and the change of Consignee was effected 7-8 hrs before the flight was to leave is admitted. By lifting the cargo one day earlier, contrary to the AWB, Opposite Party 1 unilaterally disabled the consignor to exercise the right U/S 12(1) of Carriage by Air Act. Opposite Party 2 sent a Fax to Opposite Party 1 on 9.6.93 where they enquired "With reference to the above we have requested your office over and over again your office has been good to send messages to your London office to get delivery details but sorry to say that inspite of so many reminders we have not received any firm reply from your end and the shipper has been very upset at us for the same. We earnestly request you to please get us the delivery details and also confirm that it delivered then through the Bank only. Kindly treat this matter as very urgent and reply. Tks N Regds." Their own admission comes through vide letter dated 21st June, 1993 by the Cargo Officer Mr. G.S. Paranjape to Opposite Party: 2 which stated "due to some aberration in the system consignment was delivered to the consignee without obtaining the bank release order we regret inconvenience caused to the shipper and you". This statement made by Opposite Party: 1 is on admission of deficiency in service, because they have no idea as to the whereabouts of the consignment, even then, in June, 1993.
27. We sent through all the records to see whether OP: 1, at any stage replied to Opposite Party 2 and the complainant before 1996 regarding the Custom Clearance papers and the warehouse details as to where the consignment was held up for two months in order to acquit or absolve themselves from the confusion created in the minds of the consignor as to where the consignment has gone. On repeated queries regarding the whereabouts of the consignment, OP: 1 had to just give the details of the said consignment if only it concerned itself genuinely as its responsibility and cannot absolve themselves by mere reply that they were looking into it. The inordinate delay in finding out the whereabouts of the consignments does not discharge his responsibility and a mere statement "due to some abberration" and does not explain as due to which abberation they could not discharge their duty. OP: 1 cannot abdicate their responsibility in simple terms and allow time to pass on where as the consignor was left with financial burden and losses to put up with due to this consignment. We find OP: 1 has not come up with explanation or documentation of the custom clearances and warehouse details to clearly absolve themselves and no logical explanation is forthcoming as to why they were not pursuing the matter expeditiously, till the year 1996, when the affidavit given by Mr. George Harris from London and Mr. Ganu Dewnani are filed in the Commission.
28. Opposite Party: 1 vide their letter dated 14th June, 1993 promised to find out whether the consignment was delivered through the German Bank and vide their letter dated 21st June, 1993 admitted the mistake of delivering the consignment without Bank release order and regretted for the 'aberration' and promised to process the claim vide their letter dated 24th July, 1993, where they asked for documents to process the claim. In fact, it is their own letters, the internal correspondence and the sea change attitude from one letter to another shows admission of deficiency in service and the apathetic approach towards the Complainant's loss of huge amount itself represents negligence on their behalf. We do not see any merit in the argument of Opposite Party: 1 that Opposite Party: 2 and Complainant are in-connivance and that if at all Opposite Party: 2 alone is responsible for any deficiency in service. Whether Opposite Party: 2 is the agent of the Complainant is not the point but who recovered full payment from the Complainant is important and that undisputedly is Opposite Party: 1.
29. On the issue to decide which one of the opposite parties are liable for the deficiency of service, we find the Opposite Party: 1 i.e., British Airways is clearly at fault and not Opposite Party: 2. The Complainant gave the intimation at 16.28 hrs. IST (11.58 hrs. GMT) on 23rd December, 1992 and after the receipt of this information, at 18.04 hrs IST (13.34 hrs. GMT). on the same day, except for a small note in the telex which says that they could not deliver to the Bank because the agent of the original consignee has put in his papers and received the consignment immediately, there is no other official documentation or evidence to prove that it really happened so till the year 1996. The entire issue that OP: 1 could not deliver to the Bank because consignee collected the documents and collected the consignment and also took delivery of the consignment does not speak loud from any proof of documents. OP: 1 only relied on a scribbled note on the fax to OP: 2 as the proof which is not believable and a professional and International airlines not producing any other documents or evidence is surprising. Opposite Party: 1 did not bother to inform the Complainant about its inability to carryout the instructions regarding the change of the consignee. U/S 12 (2) of carriage by Air Act, 1972 "If it is impossible to carry out the orders of the Consignor the carrier must so inform him forthwith" which Opposite Party: 1 did not comply with. Apart from sending the cargo one day earlier and apart from not complying with the requirement of Section 12(2) of carriage by Air Act, 1972 the conduct of Opposite Party: 1 regarding the actual delivery of the cargo is in question. The clinching evidence came in through the affidavit of Mr. D.G. Harris filed in 1996, which did not refer to in these submissions.
30. It is surprising why OP: 1 did not stress on the affidavit filed by Mr. Harris came in with all the relevant documents related to B.A. Cargo details during 23rd and 24th December, 1992.
31. The affidavit field by Mr. David George Harris, the Cargo & Loss Control Manager of British Airways, Heathrow Airport is in the year 1996 where he states that the computer record which is known as BA80 shows the details of the cargo history - " I can see from the BA80 computer record that flight BA 144 was scheduled to arrive from Bombay at 0530 hours GMT on 23rd December, 1992. Following arrival the goods would have been off loaded from the aircraft and taken to the BA world cargo centre. The Airway bill documents were entered onto the BA computer at 0755 hours GMT as is evidenced by the entry on the BA80 computer record as shown at "HC13". The cargo was entered onto the BA Computer with the first entry timed at 0901 hours GMT and the last at 1210 hours GMT on 23rd December, 1992.
32. I can see from the BA cargo Goods Release Note that the goods were collected at 1225 hours GMT on 24th December, 1992".
33. It is only in the year 1996, OP No. 1 brought out this affidavit for the first time wherein it is admitted that the goods were released from the their cargo centre at 1225 hours on 24th December, 1992 which was not disclosed earlier to the complainant or OP No. 2 inspite of their persuits. OP No. 1 brought out on record, the Warehouse Location Record, Delivery Receipt, Goods Release Note and Copy of AWB (carrier copy) only in 1996 after the complaint is filed while booking in the cargo delivery and the same could have been given to OP No. 2 and the complainant in the year 1992 itself. OP No. 1 has not endeavoured to get the affidavit of Viscount International who processed the documents and took the release of the cargo on 24.12.92 at 12.25 hrs from OP No. 1. OP No. 1 had the information of the change of the consignee on 23.12.92 at 16.10.hrs IST (at 1140 hrs. (GMT) and also had 24 hours on hand to be able to let the complaint and OP No. 2 to know and under Rule 12, they had to stop delivery of the consignment to Viscount International. Instead, they misguided OP No. 2 and the complainant that the goods were delivered on 23.12.92 and disabled him further form the taking action through Court.
34. If the Shipper's copy and carriers copy show that the consignee is the Bank and to say consignee copy did not have change of name and that is how they claimed the goods and to say these changes were done in collusion between OP No. 2 and to prove so the Complainant OP No. 1 did not bring any evidence to support their contention such as the copy of the consignee.
35. The actual delivery of the consignment took place on 24th February, 1993 at 12.25 hrs. because import licence was granted only on 28th January,1993 and this is admitted in the reply of Opposite Party No. 1 vide telex from London on 24th February, 1993 at 18.04 hrs. IST (13.40 GMT). Whereas throughout Opposite Party: 1 was pleading that the cargo was released after all the clearances were done on 23rd December, 1992 itself and that once documents are claimed by consignee under Rule 13(1) of Carriage by Air Act, 1972 nothing could be done. We refer to Rule 13 (1) which is "Except in the circumstances set out in preceding rule the consignee is entitled on arrival of the cargo at the place of destination to require the carrier to hand over to him the airway bill and to deliver the cargo to him on payment of the charges due and on complying with the conditions of carriage set out in the airway bill it is clear that the right of original consignee to take delivery", under Rule 13 (1) is subject to the consignors rights under Rule 12 (1) to change the consignee at any time before delivery. Rule 13 (1) starts with a clause subject to Section 12, besides the delivery of consignment has taken place only on 24th December, 1992 at 12.10 GMT and Opposite Party: 1 was aware of delivery proceedings and this information was not given to the Complainant intime to enable him to take legal action in London and he could have obtained injunction orders from the court before the consignment left the premises of the warehouse and that is two months. Instead, Opposite Party 1 was misleading Complainant that the delivery was given on 23.12.92 itself whereas clear 24 hrs. time was till there from appearance of the agent to the delivery of cargo on 24.12.92 and of course it was not even cleared out of there premises till 24.2.93. Under Rule 12 of Carriage by Air Act, complainant exercises his right to give instructions for change of delivery of the consignment.
36. Rule 13 is a sort of exception to Rule 12. It provides that consignee is entitled of delivery of the cargo but required the carrier to hand over to him AWB and to deliver the cargo to him. Contention of op. 1 is that before the instructions could arrive from the consignor documents had already been delivered to M/s. Viscount International, agent of the consignee. op. 1 washes off its hands and take refuge under rule 13.
37. It is, therefore, for the op. 1 to prove that it had acted under rule 13. In support of its case it has also filed an affidavit of one Mr. Ganu Dewani, Cargo officer based in Delhi at the relevant time he was the Cargo Officer dealing with the subject consignment. He is not aware of the happenings at London. He has no personal knowledge of that and he has not produced any documents in support of his affidavit. The verification to the affidavit reads as under:
"I, the above-named deponent do hereby verify that the contents of this affidavit are true and correct to my knowledge and belief. Verified at Delhi on this 26th of March, 1996."
38. We do not know what statements in the affidavit are true to the knowledge and what to the belief of the deponent. In fact the verification is not valid and we may not read the affidavit in evidence as regards the dealings of op. 1 after the cargo left India. Verification does not show that Mr. Ganu Dewani has any personal knowledge or that the contents of the affidavit are based on records maintained at London office of op. 1 From where he derives his knowledge of the activities of op. 1 at London, we do not know. It is a case where there is no evidence by the BA to prove its contention of its case falling under Rule 13. In fact, it is from the affidavit of Mr. Harris of op. 1, we see that the delivery of the cargo was done on 24.12.92 and under Rule 13(1) and (2), it is imperative on the part of op. 1 to make sure after the information was received on 23.12.92 about the change of the consignee and the cargo was still not delivered and is still in their possession to ensure the Complainant (Consigner) knows of the proceedings because under Rule 13(1) it says "to deliver the Cargo to him, on payment of the charges due and on complying with the conditions of Carriage set out in the airway Bill." In this case, there is a discrepancy in the name of the consignee in the Carriers Copy/shipper's copy vis-a-vis Consignee copy on that day 23rd and 24th December, 1992. They cannot deliver the cargo unless the information is given first to the consignor under Rule 12(2). The affidavit filed by Mr. G. Harris shows that delivery of the cargo was not given adhering to the conditions of Carriage set out in the AWB and any discrepancy in AWB, the cargo should not have been delivered and for doing so that op. 1 had enough time.
39. If the Complainant never filed the complaint, the information of the consignment was never forthcoming from op. 1 and that too came only two years after filing the complaint and four year after the incident took place. Is it not a laid back attitude on the part of op. 1? Not bothering to reply and by not giving information required by the Complainant for him to run his business smoothly and is compelled to give the information only when the complaint is filed in the Commission. Sum and substance of the matter is the Complainant is put to loss on account of negligence by op 1 in the performance of its services.
40. Opposite Party No. 1 being silent for nearly four years and not coming forward with proper explanation about the details of the delivery of the consignment, copy of the delivery letter of the consignee to the consignor is surprising to us because it does not take months and years for them to supply these, considering the fact they deal regularly with all these authorities in London, U.K. i.e. airport, Customs, Warehouse, agents of the Consignee etc. This indifferent behaviour of OP: 1 makes us believe that they have not come forward straight to clear the confusion immediately as to how it all happened and onus is upon OP: 1 to discharge the burden which they failed to do. There is no cogent, convincing and reliable evidence and corroboratory documents to show that they tried to adhere to the conditions and instructions on AWS in the absence of AWB produced by Consignee OP. 1 has to own up to the Carriers copy.
41. From the above discussion, it clearly spells out that there is a deficiency on the part of OP 1 in rendering the service and on that account, the complainant has suffered a loss for which he has to be compensated. The goods were delivered for carriage on 24th December, 1992 and the complainant was appraised of the fate of the consignment in 1996. This inordinate delay of two years itself constitute a clear case of deficiency of service on the part of the OP No. 1.
42. In view of the above discussions and in the interest of justice,we feel that the Complainant should be paid the amount of Rs. 19,58,448/- and interest on the amount @ 12% from 24th January, 1993 till the date of actual payment. Keeping in mind 30 days of benefit of credit through Bank is there for realisation of their amount. As for further interest claims and claim towards mental agony, loss of business opportunities and loss of goodwill are not considered because no evidence was led to prove these losses. We feel Rs. 10,000/- should be paid by Opposite Party: 1 to the petitioner as cost of the complaint.
ORDER
43. We direct opposite party: 1 to pay Rs. 19,58,448/- and interest on this amount @ 12% from 24th January, 1993 till the date of payment of Rs. 10,000/- as cost to the complainant.