State Consumer Disputes Redressal Commission
Excellent Hosiery Products vs Lufthansa Cargo on 26 March, 2007
C-144/97 .IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 26-03-2007 Complaint Case No. 144/1997 M/s. Excellent Hosiery Products, 392-Chhata lal Mian, Darya Ganj, New Delhi 110002. . . . Complainant Versus M/s. Lufthansa Cargo, 56-Janpath, New Delhi 110001. . . . Opposite Party Through Mr. H.L. Tiku, Sr. Advocate CORAM: Justice J.D. Kapoor, President Mahesh Chandra, 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 complainant has filed this complaint alleging deficiency in service on the part of OP in having wrongly delivered the consignment of readymade garments to the buyer without first retiring the document from the consignee Bank and, has therefore, claimed a compensation of Rs.12, 44,109.40.
2. The case of the complaint in nutshell is that it is a registered partnership firm and, in the ordinary course of its business, sent shipment to New York vide airways Bill No.020-3133 6421 dated 26th March, 1996, HAW No.872, from New Delhi to New York. The consignee of the said goods was the Republican National Bank of New York and the notified party was Roytex Inc. in New York. The shipment, in question, referred to above was freight Prepaid. As per the instructions of the complainant, the original documents enclosed with the said airways bill were to be delivered to the consignee.
3. The consignment/shipment reached the destination, i.e. New York, as informed by the O.P. On further enquiries, the complainant was informed that the documents have been delivered to the consignee agent, meaning thereby that the documents have been delivered by the O.P. to the agent/party holding valid and proper authorisation of the consignee bank which in the present case is M/s Republican National Bank of New York.
4. The complainant immediately contacted the consignee bank, who vide their communication dated 06.08.96 informed that they have not so far authorised any agent/party to collect the documents from the O.P. The complainant again approached the O.P. who at this stage changed their stand and informed that the documents have been released to the agent of notified party. As such, the release of documents by the O.P. M/s Tower Group or any other unauthorized party was illegal and unlawful and amounts to gross deficiency in service.
5. The OP has denied its liability on the ground that there is no privity of contract between the Complainant and the Respondent and the complaint is liable to be dismissed on this ground alone.
6. It is further contended that on arrival of the consignment of AWB No.020-3133 6502 dated April 2, 1996, at the instance of the notified party, the O.P. on April 15, 1996 handed over the documents to the said Tower Group for getting the customs clearance pending issue of the bank release which was issued by the consignee bank and the delivery of shipment was taken by the Notified Party.
7. By a letter dated April 19, 1996, the O.P. informed the Complainant that while the delivery of consignment under Airway Bill 020-3133-6491 and 020-3133-6502 were taken by the notified party, the delivery of consignments covered under AWB No.020-3133-6421 and 020-3133 6410 were not taken by the notified party, thus these remained undelivered.
8. The complainant for the first time by its letter dated June 19, 1996 received by the O.P on June 26, 1996, after three months, instead of giving alternate disposal instructions, called upon the O.P to return the documents in full knowledge of the fact that the consignee copy of the Airway Bill and the envelope said to contain the invoice were delivered at the instance of Notified party to their clearing agents namely M/s. Tower Group for obtaining customs clearance. The complainant took no steps with the notified party asking for release of the documents, nor did the complainant request its bankers to call the consignee bank in New York, who were holding the documents, to return the same.
9. To the knowledge of the complainant, the consignee bank namely Republic National Bank, New York on August 6, 1996 had sent a telex to the complainants Bank in New Delhi informing that the notified party had refused to lift the consignment as there were discrepancies which were already notified to it.
10. The complainant having failed to take any steps, including instructions regarding alternative disposal or even disclosing the name and address of the new consignee, pretended to have been identified, the complainant through legal notice dated November 23, 1996 with malafide intentions made knowingly false and frivolous allegations and claimed sum not due to it.
11. The OP carried the shipment in accordance with the conditions of contract appearing on the reverse of the Airway Bill. On arrival of the shipment, the notified party was informed who deputed its clearing agent to receive the set of documents for obtaining customs clearance pending issue of bank release order by the named consignee bank, namely Republican National Bank, New York upon payment by the Notified party being the ultimate consignee.
Despite repeated requests to the notified party as well as to the complainant, neither did the notified party get the consignment released, nor did the complainant give alternate disposal instructions. As the notified party had dispute with the complainant, consequently it refused to get the documents released from consignee bank, a fact which the complainant had known but falsely sought to raise untenable issues with the Respondent so as to unjustly enrich it. The communication dated August 6, 1996 sent by the consignee bank clearly stated that the goods were being refused due to discrepancies and they were still holding the documents on behalf of the Complainant and would return the same as they were not willing to hold on to the documents indefinitely.
12. It was further contended by the O.P that the complainant was otherwise aware of the said fact through its bankers and the consignee bank in New York and the complainant only disclosed the name of alleged alternate buyer M/s V.V. Overseas but failed to disclose the particulars and/or the address with whom it was stated to have agreed to get the shipment released. The complainant neither did take up the matter with the notified party, nor did it call upon the consignee bank to return the documents who were holding the same nor did it disclose the particulars and the address of V.V. Overseas despite requests to enable the O.P. to arrange delivery of the consignment to the alternative buyer.
13. Apart from this, the O.P. denied that there was any deficiency in service on its part and raised the following objections:-
i) There is no privity of contract between the complainant and the O.P. The complainant is not a consumer as defined in Sec. 2(1)(d) of the Consumer Protection Act, 1986.
ii) That M/s. Johar Enterprises, a Cargo Agent under IATA, forwarded to the O.P., Airway Bill issued by the said Johar Enterprises to the complainant at the request of the complainant for carriage of the consignment. In the Airway Bill No. 020 3133 6421 dated 28th March, 1996, the consigner declared was Johar Enterprises and the consignment was consigned to New York.
The consignee was Republic National Bank, NY. On arrival of the consignment at the destination the party to be notified was Roytex International, NY. The consigner did not declare any value of the consignment for carriage.
iii) That said Johar Enterprises also issued four other Airway Bills. In all these airway bills the consignee and the notified party were the same. On arrival of the consignment subject matter of AWB 020 3133 6421 dated 28th March, 1996 at destination, the O.P. informed the notified party of arrival of shipment and the documents pertaining to the shipment were handed over to M/s. Tower Group, the authorized customs clearing agent of the notified party, i.e. Roytex Inc. for getting customs clearance pending issue of the bank release by the consignee bank at the instance of the notified party. The said Tower Group produced a Bank release issued by the Consignee Bank on 15th April, 1996 and the shipments were taken delivery of by the notified party who were in fact the ultimate consignee. The notified party covered under the AWB No. 020 3133 6421 and 020 3133 6410 did not take delivery of the consignment. The complainant for the first time, three months after the goods reached the destination, called upon the O.P. to return the documents. The complainant took no steps with the notified party asking for release of the documents nor did the complainant request its bankers to call the consignee bank in NY who were holding the documents to return the same. The O.P. called upon the complainant to disclose the new consignees name so that the consignment could be delivered to it but the complainant failed to take any steps including giving alternate disposal instructions or even the name and address of the new consignee.
14. While absolving itself from the charge of deficiency in service, the Ld. Counsel for the O.P. has contended that Article-4 of the Carriage by Air Act provides that the airway bill shall be made out by the consigner in three original parts and be handed over with the cargo. First part shall be marked for the carrier and shall be signed by the consigner. Second part shall be marked For the Consignee. It shall be signed by the consigner and the carrier and shall accompany the cargo. The third part shall be signed by the carrier and handed over by him to the consigner after the cargo has been accepted.
15. As all the three copies were original the complainant forwarded its own copy to its bank for onward transmission of the consignees bankers in NY, who returned the original documents to the bankers of the complainant and as such at no point of time the original document was with the O.P. Thus, the allegations of the complainant that the O.P. handed over the original document to the consignees agent are baseless and falsified by the documents filed by the complainant namely the letter from the Republican National Bank, NY to the Bank of Rajasthan Ltd. On 6th August, 1996.
16. With this communication, the original documents were returned to the Bankers of the complainant. O.P. had given large number of communications asking the complainant to give alternative disposal instructions including disclosure of alternate buyer so that the O.P. could transfer the shipment to the alternate buyer but there was no response for three months and it was only by virtue of letter dated 19-06-1996 that the complainant instructed the O.P. to return the original documents to get alteration from the authorities.
17. It is crystal clear from the aforesaid rival claims of the parties that the mischief, if any, was committed by the agent of the complainant for handing over to the ultimate consignee, in procuring the consignment and the O.P. handed over the documents to the agent inadvertently or in good faith.
The plea that O.P. was not in possession of the original documents and gave only photocopies to the agent is difficult to believe as no purpose would have been served if the complainant had retained them as these documents were of no use nor could have accepted by the authorities.
18. For this limited deficiency in service on the part of the O.P, we allow the complaint with the direction to the O.P. to pay Rs. 50,000/- in lump sum.
19. The delay on the part of the complainant for three months in not giving instructions to the O.P. for alternative arrangement resulted in the disposal of the goods by way of auction by customs authorities for which the O.P. cannot be held guilty. More over, there was no such term of contract between the parties saddling the O.P. to indemnify the complainant to the tune of the cost of shipment in such an eventuality.
20. The complaint is disposed of in above terms. Payment shall be made within one month from the receipt of this order.
21. A copy of this order, as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record.
(J.D. Kapoor) President (Mahesh Chandra) Member HK C-144/97 The complainant has filed this complaint alleging deficiency in service on the part of OP in having wrongly delivered the consignment of readymade garments, to the buyer without first retiring the document from the consignee Bank and has therefore, claimed a compensation of Rs.12,44,109.40.
The case of the complaint in nutshell is that the complainant is a registered partnership firm having its office at 392, Chhata Lal Mian, Darya Ganj, New Delhi-110002.
The complainant, in the ordinary course of its business, sent shipment to New York vide airways Bill No.020-3133 6421 dated 26th March, 1996.
HAW No.872, from New Delhi to New York. The consignee of the said goods was the Republican National Bank of New York and the notified party was Roytex Inc. in New York. The shipment, in question, referred to above was Freight Prepaid. As per the instructions of the complainant, the original documents enclosed with the said airways bill were to be delivered to the consignee, which in the present case is the Republican National Bank of New York.
4. The consignment/shipment reached the destination, i.e. New York, as informed by the respondent. On further enquiries, the complainant was informed that the documents have been delivered to the consignee agent, meaning thereby that the documents have been delivered by the respondent to the agent/party holding valid and proper authorisation of the consignee bank which in the present case is M/s Republican National Bank of New York.
The complainant immediately contacted the consignee bank, who vide their communication dated 6.8.96 informed that they have not so far authorised any agent/party to collect the documents from the respondent. The complainant again approached the respondent who at this stage changed their stand and informed that the documents have been released to agent of notified party being shipping freight air-cargo.
As such, the release of documents by the respondent to the said M/s Tower Group or any other concern is illegal and unlawful and amounts to gross deficiency in service.
The OP has denied its liability on the ground that there is no privity of contract between the Complainant and the Respondent and the complaint is liable to be dismissed on this ground alone.
7. On arrival of the consignment subject matter of AWB No.020-3133 6502 dated April 2, 1996 at the instance of the notified party, the Respondent on April 15, 1996 handed over the documents to the said Tower Group for getting the customs clearance pending issue of the bank release which was issued by the consignee bank and the shipment was taken delivery of by the Notified Party.
By a letter No.Gfra 56dated April 19, 1996, the Respondent informed the Complainant that while the consignment under Airway Bill 020-3133-6491 and 020-3133-6502 were taken delivery of by the notified party, the consignments covered under AWB No.020-3133-6421 and 020-3133 6410 were not taken delivery of by the notified party, thus these remained undelivered.
The complainant for the first time by its letter dated June 19, 1996 received by Respondent on June 26, 1996, after three months instead of giving alternate disposal instructions called upon the Respondent to return the documents in full knowledge of the fact that the consignee copy of the Airway Bill and the envelope said to contain the invoice were delivered at the instance of Notify party to their clearing agents namely M/s. Tower Group for obtaining customs clearance. The complainant took no steps with the notify party asking for release of the documents, nor did the complainant request its bankers to call the consignee bank in New York, who were holding the documents, to return the same.
To the knowledge of the complainant, the consignee bank namely Republic National Bank, New York on August 6, 1996 had sent a telex to the complainants Bank in New Delhi informing that the notified party had refused to lift the consignment as there were discrepancies which were already notified to it.
The complainant having failed to take any steps, including failed to give any alternative disposal instructions, even disclosing the name and address of the new consignee, pretended to have been identified, the complainant through its lawyer notice dated November 23, 1996 with malafide intentions made knowingly false and frivolous allegations and claimed sum not due to it.
The OP carried the shipment in accordance with the conditions of contract appearing on the reverse of the Airway Bill and arrived at the place of destination. On arrival of the shipment, the notified party was informed who deputed its clearing agent to receive set of documents for obtaining customs clearance pending issue of bank release order by the named consignee bank, namely Republican National Bank, New York upon payment by the Notified party being the ultimate consignee.
Despite repeated requests to the notified party as well as to the complainant, neither did the notified party get the consignment released, nor did the complainant give alternate disposal instructions. As the notified party had dispute with the complainant, consequently it refused to get the documents released from consignee bank, a fact which the complainant had known but falsely sought to raise untenable issues with the Respondent so as to unjustly enrich itself.
It is submitted that the communication dated August 6, 1996 sent by the consignee bank clearly states that the goods were being refused due to discrepancies and they were still holding the documents on behalf of the Complainant and would return the same as they were not willing to hold on to the documents indefinitely.
It is submitted that the co,plainant was otherwise aware of the said fact having known the same from its bankers through the consignee bank in New York.
It is further submitted that the complainant only disclosed the name of alleged alternate buyer M/s V.V. Overseas but failed to disclose the particulars and/or the address who it was stated to have agreed to release the shipment. It is submitted that the complaint raised the bogy of documents with the respondent when it knew that such documents were with the consignee bank.
The complainant neither did take up the matter with the notified party, nor did it call upon the consignee bank to return the documents who were holding the same nor did it disclose the particulars and the address of V.V. Overseas despite asking so as the respondent would be able to arrange delivery of the consignment to the alternative buyer.