State Consumer Disputes Redressal Commission
M/S Dipanty Impex vs M/S Pakistan International Airlines ... on 29 January, 2009
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: 29-01-2009 Complaint Case No. C-277/2000 M/s Dipanty Impex, G-76, Lajpat Nagar-II, New Delhi - 1100 24. .Complainant Versus 1. M/s Pakistan International Airlines Corporation (PIA/PK), Head Office: Quaid-e-Azam International Airport, Karachi 75200, Pakistan. 2. The Manager, M/s Inter Globe Air Transport, General Sales Agent, Pakistan International Airlines Corporation (PIA), Ground Floor, Kailash Building, Kasturba Gandhi Marg, New Delhi. 3. M/s Amarjyoti ( India) Private Ltd., 212-213, Somdatt Chambers II, 9, Bhikaji Cama Place, New Delhi-66. 4. The Oriental Insurance Co. Ltd., Regd. office, Oriental House, P.B. No. 7037, A-25/27, Asaf Ali Road, New Delhi 11000 2. 5. Indian Overseas Bank, Mool Chand Shopping-cum-Office Complex, Defence Colony, New Delhi 1100 24. 6. The Manager, M/s Stadtische Sparkasse, Offenbach am Main, Foreign Trade Department, Postfach 10 19 63, 63019 Offenbach. 7. M/s Black Metall Sportswear Gmbh, Heusenstamm, Herrnster 32, 63065, OFFENBACH/MAIN GERMANY. Opposite Parties 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 or not?
JUSTICE J.D. KAPOOR (ORAL)
1. The allegations in brief are that the complainant, an exporter of ready-made garments, exported a consignment to M/s Black Matall, Germany, Opposite Party No.7 (in short O.P) vide Air Way Bill No. AWB/DEST 214-02326785/FRA dated 12.10.1998 issued by O.P. 3 on behalf of O.P.1 and its General Sales Agent at New Delhi, O.P. No.2. The consignment was insured through O.P.No.4 under Open Policy No. 99/97/CD/A/C3039 and Cover Note No.161623 issued by its Branch located at 2, Central Road, Jangpura, Bhogal, New Delhi.
2. That OP No.1 airlifted the goods from New Delhi for Frankfurt, Germany. The value of the goods was DM 20,520/- (Deutsche Mark) and was declared in the AWB. The complainant paid Rs. 54,147/- towards freight and other charges and accordingly, Freight Prepaid was endorsed on the AWB.
3. That the Consignee for the said consignment was the Bank at Frankfurt, Stadtische Sparkassee Offenback, O.P-6.
The complainant gave Handling Information to O.P. No.1 to notify OP No.7.
4. That OP No.5, complainants bank, sent original of the aforesaid AWB along with other documents to OP No.6 on D/P (Delivery against Payment) basis. Accordingly, OP No. 6 was to collect payment as per documents from OP No.7 and then deliver the documents relating the consignment along with a Release Order commanding OP No.1 to release the consignment to OP No.7. The sum so realized by OP No.6 was to be sent by it to OP No.5 for credit to the account of the complainant.
5. That upon arrival of the consignment at Frankfurt, OP No.1 was to notify OP No.7 of the arrival of goods. OP No.7 was to approach OP No.6 and to pay the value of the goods. In exchange, OP No.6 would have prepared a Release Order in favour of OP No.7 commanding OP No.1 to deliver the goods to the said OP.
6. That OP No.1 was to deliver the goods to the Consignee, OP No.6, or its order. Thus, OP No.1 could deliver the consignment only to such person who would present to it the Original Release Order issued by OP No.6 and to none else.
7. That Indian Overseas Bank, OP No.5, informed the complainant that the consignee, OP No.6, had returned the documents unpaid because OP No.7 had failed to retire the same upon payment.
8. That on the other hand, OP No.2 informed the complainant that the consignment had duly arrived at destination and had been delivered on 22.10.1998. OP No.7 also complained to the complainant that the goods had not reached destination.
9. That the complainant got sent a legal notice dated 23.01.1999 to OP No.2 but in vain. On complainants persistent follow up with OP No.3, OP No.1 sent to OP No.3 a copy of the Release Order allegedly issued by OP No.6 in favour of OP No.7 on the basis of which the goods were released to OP No.7.
OP No.3 delivered a copy of the same to the complainant.
10. That the complainant, therefore, again approached OP No.5 to collect payment from OP No.6. OP No.6 again returned the documents unpaid. Feeling harassed, the complainant approached the office of the Consulate General of India, Frankfurt, Germany, to intervene in the matter. The Consulate wrote to OP No.7 vide letter dated 21.06.1999. However, O.P.7 failed to send any reply to the said letter dated 21.06.1999 or the reminder dated 21.07.1999. Having failed to get any response, the complainant got sent a legal notice dated 22.01.2000 to OP No.6. A copy of the same was endorsed to the Consulate General of India, Frankfurt. O.P No.6 replied to the said notice vide letter dated 25.02.2000. Vide letter dated 10.03.2000, the Consulate General of India also sent a translation of the said reply to the complainant.
11. That OP No.6 informed in its reply that it had not issued any Release Order to OP No.7 and OP No.7 had got released the Consignment from OP No.1 by forging/fabricating the Release Order. It further informed that it had lodged a case in this regard with the Public Prosecutor, Superior Court of Darmstadt, Offenback Branch (Ref. 33 Js 667129/99). The complainant was advised to recover damages from OP No.1 who had released the goods without presentation of an Original Release Order.
12. That from the aforesaid reply of OP No.6 it became clear that it was OP No.1, who had been negligent in delivering the consignment without insisting on the Original Release Order and that it had delivered the consignment on the basis of only a telefax.
13. That though OP No.6 had stated that the goods had been got released by OP No.7 by using fake/forged documents; there is no material with the complainant to substantiate it. OP No.1 had released the goods to an unauthorized person which amounted to willful misconduct, deficiency in service and negligence by not insisting on Original Release Order, when it was mandatory to do so.
14. That by letter dated 12.08.2000, advocates of the complainant sought permission under Section 86, CPC from the Ministry of External Affairs, Govt. of India, to proceed against OP No.1. The said letter was delivered but no reply was received till the filing of the complaint.
15. That the complainant had taken out marine insurance of the consignment in question. In terms of the policy, OP No.4 is liable to make good the loss suffered by the complainant due to theft and/or non-delivery. Because of loss of goods as detailed above, the complainant lodged a claim with the said OP on 15.01.1999 and provided all the necessary documents. The claim has neither been rejected nor settled by O.P-4 even after a lapse of 18 months till the filing of the complaint.
16. On the above allegations the complainant has claimed the following reliefs from the OPs:-
a.
The sum of DM 20,520/- towards cost of goods and interest on the said sum @ 24% per annum from 21.10.1998 onwards till payment, b.
a sum of Rs. 20,000/-
towards amount spent in following up the matter and on legal notices etc. and interest on the said sum @ 24% per annum from the date of notice till payment, c.
A sum of Rs. 2,00,000/-
towards loss of business and interest @ 24% per annum thereon from 23.01.1999 (date of previous legal notice) till payment, and, d.
A sum of Rs. 5,00,000/- towards harassment and agony caused to the complainant.
e.
the sum of Rs. 6,95,040/-
towards cost of goods (DM 20,520/- x Rs.23/- = Rs. 4,71,960/-) and interest on the said sum @ 24% per annum from 21.10.1998 up to 10.10.2000 amounting to Rs. 2,23,080/-, f.
A sum of Rs. 22,093/-
being Rs. 20,000/- towards amount spent in following up the matter and on legal notices etc. and Rs. 2,093/- towards interest on the said sum @ 24% per annum from the date of notice, i.e., 04.05.2000 till 10.10.2000, g.
A sum of Rs. 2,82,400/-
being Rs. 2,00,000/- towards loss of business and Rs. 82,400/- interest @ 24% per annum thereon from 23.01.1999 (date of previous legal notice) till 10.10.2000, and, h. A sum of Rs. 5,00,000/- towards harassment and agony caused to the complainant.
i. A claim of Rs. 14,99,533/- along with pendelite and future interest.
17. In its defence O.P.1 came up with the defence that the complainant is a non-legal entity and the complaint filed by a non-legal entity is non-est and not maintainable. Further that the complaint is also not maintainable for want of statutory as well as contractual notice. The complainant has not served notice upon PIA as required by Rule 27 of schedule II to the Carriage by Air Act 1972. The complainant has also not served contractual notice within 120 days from the date of the booking of the consignment.
The notice dated 04.05.2000 referred to by the complainant in the complaint is the first notice which is beyond both the above mentioned periods stipulated by law and the contract respectively.
18. That as per complainants own averments, it was the notified party who was to give discharge to the OP from the contract of carriage of complainants consignment. It was for the notified party to have obtained release order from the consignee bank. The consignment was released to M/s Black Metall on the basis of the City Saving Banks fax letter dated 21.10.1998.
There was nothing on the face of the bank release order which could arouse suspicion of fraud or forgery being played by the notified party or any one else. The notified party was regular user of PIAs Services; the past record of its dealings had been quite satisfactory and did not give any cause to be suspicious about its dealings. Since, as per the complainants own, the notified party had obtained the delivery of the consignment by fraud/forgery, there can be no question of any deficiency of service rendered by PIA. Therefore, PIA can not be held guilty of deficiency in the service and or liable therefor. As per complainants letter dated 09.11.1998, the complainant was in direct touch with the notified party; it also was to get payment direct from it. The complainant had deliberately withheld and concealed entire transaction and correspondence it exchanged with the notified party.
19. On the other hand, OP-4 the insurance company contended that as per the own admission of the complainant the consignment in question was delivered at the destination to the drawee i.e. OP-7, against release order issued by OP-6 and therefore even if there was any such purported forgery of document regarding the release of consignment the insurance company OP-4 was not liable to indemnify the complainant under the Marine Insurance Policy.
20. We have heard the learned counsels for the parties and have accorded careful consideration to the documents available on record. As regards the objection that the complainant is a non-entity being a proprietorship concern is without any substance as it is a legal entity and the proprietor is the owner and runs the business under a particular name and style and merely that a proprietor runs the business in the name of the company does not make it or him a non-entity.
21. As regards the objection that the complainant has not served Notice on OP-1 as required under Rule-27 of Carriage by Air Act, as contractual / statutory notice was required to be served within 120 days of booking of the consignment, this objection is groundless, in as much as that it was only after the OP-3 agent of OP-1 gave a copy of the alleged forged document to the complainant that he came to know that something had happened and the bank also confirmed that they had not given any delivery note and the limitation started from the date of knowledge, which is 4-5-2000, and the required statutory notice was given within 120 days. It is not from the date of booking, since the OP assured the complainant that the consignment had been delivered, without showing the proof thereof and it was much later that proof was given through OP-3 which was found to be a fabricated document.
22. The main gravamen of the contention of OP-1 is that it was the buyer, OP-7, who had forged and fabricated the document and not OP-1 and, therefore, if there is any liability, it is the liability of OP-7.
Moreover, there is nothing on the face of the bank release order which could tell that any fraud or forgery has been made by the notified party or anyone else. It is also contended that the notified party was regular user of OP-1s service and it was on the basis of past record of its dealings that OP-1 did not entertain any suspicion about the forgery of document by OP-7.
23. The counsel for OP-1 also contended that there are no allegations of the complainant about the connivance of OP-1 in forging or fabricating the said document by OP-7 and delivering the consignment to the disadvantage of the complainant and to the advantage of OP-7.
24. After according careful consideration to the aforesaid contentions of the counsel for OP-1, we find that OP-1 in reply to the legal notice sent by the complainant informed that investigation had been initiated and the result would be out very soon, but OP-1 has not put on record any such investigation report conducted by it. It is necessary for the carrier to deliver the goods only upon receipt of original bank release note and procedure which is contradictory or different from that is not acceptable as has also been held by the Supreme Court in Patel Roadways v Birla Yamah Limited CP 2004 SCC 91.
25. In almost identical case Pearl Syntex Pvt Ltd v KLM Cargo & Ors passed by National Commission applying the aforesaid ratio it was held that the agents or employees committed willful default in not verifying the veracity of Fax when releasing the consignment without bank release note.
26. Here in the instant case, the carrier OP-1 has delivered the goods based upon a Fax document which is admittedly fabricated document because the bank has informed that it never issued any bank release note. Let us assume for the sake of argument as contended by the counsel for OP-1 that OP-1 was required to notify arrival of cargo to OP-7 meaning thereby that he had to deal with that person and if OP-7 had played a fraud by producing a forged bank release note which on the face of it did not appear to be false or forged nor was there any ground for OP-1 to entertain any suspicion against the bonafide of OP-7 and the inference should that the agent of the complainant had played a fraud is as accepted, the fact still remains that OP-1 should have been careful and insisted upon the original bank release note which was a mandatory requirement before parting with the consignment.
27. In the absence of any such allegations of any connivance or malafide on the part of OP-1 in delivering the consignment without retiring the document, still OP-1 is guilty for carelessness in not adhering to the aforesaid requirement of insisting on original bank release note.
28. Even if we accept that delivery procedure has been adhered to and in accordance with that the delivery was effected by Customs Department through Lufthansa German Airlines, still it is the main service provider which has to be taken into consideration for carelessness or any negligence.
29. Taking over all view of the matter and giving concession to the bonafide of OP-1 qua the conduct of OP-7, we allow the complaint in the following terms:-
i) OP-1 shall pay 50% of the consignment value, i.e. 7.00 Lacs.
ii) OP-1 shall pay Rs. 25,000/- as compensation and cost of litigation.
30. So far as the liability of the insurance company is concerned, it is an independent contract and the complainant or any other party amongst the OPs may stake claim in view of the insurance policy, OP-1 being solely responsible for delivering the consignment against the bank release order.
31. Complaint stands disposed of in aforesaid terms. Order shall be complied with within one month from the date of receipt of a copy of this Order.
32. Copy of Order, as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK