National Consumer Disputes Redressal
Zenith Computers Ltd. vs The Managing Director, The New India ... on 27 September, 2001
ORDER
Mr. J.K. Mehra, Member
1. The Complainant in this case had imported 66 numbers of Winchester disk drives contained in four packages weighting 47 Kg. from M/s. Redington Pvt Ltd., Singapore vide airway bill no. SA 655244 (C). The goods were to be delivered at Dabolim Airport, Goa. It was alleged that the consignment was despatched from Singapore on 11.11.91 and on the same date the Complainant, had taken a insurance policy being marine policy (Cargo) on the date. However its effective time is relevant in the present case. The Complainant seems to have drawn a cheque in favour of the insurer, Opposite Party No. 1 on 11.11.91. But apart from date of cheque and the letter, there is nothing to show that the insurance commenced on 11th November because even receipt for the premium is dated 15th November. The cover note issued is also dated 15.11.91. It is the case of the Complainant that the goods were loaded into the container No. 0002 for the shipment and that consignment was not delivered at the port of destination which is Dabolim, which is clear from the certificate of the non-delivery issued by the Respondent No. 2, Indian Airlines. The Complainant lodged a complaint with the Indian Airlines. The complainant also lodged a claim with the Insurance Company. The claim of the claimant was repudiated by the Insurance company for the reason inter-alia that on the date of loss thee was no insurance cover in respect of the goods because the goods were despatched on 11.11.91 and that the consignment reached Dabolim on 11th November itself. It had been pointed out that the consignment had arrived at Bombay on 8.11.91 and was despatched to Dabolim, Goa on 13.11.01. The declaration was made by the Complainant on 9.11.91 whereas the goods had already been despatched on 8.11.91. It appears that Complainant had importer more than one consignment on the same date and the same month containing SQ No. 20 dated 8.11.91 under the same master airway bill and different house airway bills. It had also been found that the consignment of the Complainant along with such other consignments was despatched by the Indian Airlines in same container on the same date i.e. 10.11.91. But the consignment was alleged to have been lost during the transit from Bombay to Goa on 13.11.91. It had come out in the evidence that the cheque No. 563526 dated 11.11.91 for Rs.5,243/- for the amount being premium in respect of the consignment in favour of the New India Assurance Company Ltd. was sent by the Complainant and was received by the Indian Bank through the clearance on 26.11.91. The record of the insurance company shows that the cheque was received by the Company on 15.11.91 and cover was granted thereafter. It had already been noticed above that the cover note was dated 15.11.91. It is not in doubt at all that part from what is alleged in the complaint, there is no independent evidence to support the contention of the Complainant that the cover note was issued or taken on 11.11.91 as alleged. The loss had taken place latest by 13.11.91. Therefore, it can not be assumed that there was any insurance cover in respect of the said consignment on the date of loss. For that reason, no liability can be fastened on to the insurer.
2. Another question which can not be (sic) lost sight of, is that of limitation. The Consumer Protection Act was amended in June, 1993 and Section 24 A provides as under:-
24A-Limitation period:-
(i) the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(ii) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum as the case may be, records its reasons for condoning such delay.
3. In the present case, the Complainant has not asked for any condonation of delay nor has he shown any ground which could bring this case within limitation. In the light of this, present complaint which was filed on 18.2.94 in respect of the claim that arose on 13.11.91 is clearly barred by limitation and no efforts have been made by the Complainant to seek condonation of delay.
4. Therefore, the complaint against the insurer fails on both counts.
5. Coming to the case against Airlines, Respondents 2 & 3 have mainly relied on the plea of limitation and the statutory provisions which placed the upper limit over their liability in respect of the non-delivery of goods under the schedule of Carriage By Air Act. This is based on Warsaw Convention as modified by the Hague Protocol. Both had been accepted in India and enacted as schedule to the Carriage by Air Act. Under the provisions of Article 17 of the Carriage by Air Act, total liability of the Airlines worked out to be US $ 940 @ 20 US $ per Kg. The weight of consignment being 47 Kg., the Respondent No. 2 & 3 should have paid this claim. We are unable to understand as to why the claim which was allowable under the Carriage By Air Act, was not honoured. The Airlines had issued their certificate of non-delivery dated 28.4.92. The limitation for lodging of claim and filing of complaint was also after 28.4.92 against the Indian Airlines. Computation from that date, we find so far as Indian Airlines is concerned, the complaint which was filed on 18.4.92 is within time. We direct that the Indian Airlines should pay the aforesaid amount equal to US $ 940 to the Complainant. The Indian Airlines would also be liable to pay costs which we assess at Rs.5,000/-. No other relief can be granted in the aforesaid facts. The complaint is disposed of in the above terms, that is it stand dismissed against the Insurance Company and decreed against the Indian Airlines to the extent of US $ 940 with cost of Rs.5,000/-.