State Consumer Disputes Redressal Commission
Station Manager, vs M/S. D-Link (India) Ltd., on 13 December, 2011
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA Appeal No. 60/09 Appeal No. 61/09 Station Manager, National Aviation Company of Indian Ltd., (Indian Airlines), Dempo House, Panaji-Goa ..Appellant V/s. 1. M/s. D-Link (India) Ltd., Plot No. L.5, Verna Electronic City, Verna-Goa. 2. MSAS Global Logistic (India) Pvt. Ltd., Plot No. 77, Verna Industrial Estate, Verna-Goa .Respondents Adv. J. Ramaiya present for the Appellant. Adv. Balkrishna Natekar present for the Respondent No. 1 Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 13/12/2011 ORDER
[Per Justice Shri. N. A. Britto, President] These appeals 60 and 61 are directed against orders dated 21/05/09 of the District Forum [North Goa, Dispute Redressal Forum]. As the facts involved are common and so also the law applicable thereto, both the appeals, by consent of parties, are taken up for final disposal.
2. These appeals have been filed by O.P. No. 2 in complaint cases Nos. 77/2001 and 78/2001.
3. The Complainant is a Public Limited Company and are manufacturers, dealers, importers and exporters of products for use in computer installation, computer networking, spare parts etc. and for the purposes of transportation of their products within the country as well as abroad they have been utilizing the services of Indian Airline.
4. The case of the complainant (O.P. No. 1 in these appeals) is that the complainant on instructions of one of their customers namely M/s. Duplex Trade and Manufacturers, Colombo, the complainant dispatched a consignment of 720 pieces of Networking Products for Computers such as Ethernet Cards, Hubs, Print Server, Media Coupler etc. against invoices dated 14/7/2000 and 15.7.2000. The said consignments were loaded by freight forwarders of the complainant namely MSAS BULE SKIES vide Air way Bill No. GOI 02 000 66 dated 19/7/2000 and Airway Bill No. 058-38260806 dated 19/07/2000. The said consignments landed in Mumbai on 24/07/2000 and then were transshipped from Mumbai to Colombo on 27/07/2000 by Madras-Colombo Flight IC 573. The said consignments were delivered to the consignee on 2/8/2000.
5. The case of the complainant is that there was Pilferage while in transit and in the first case, Complaint No. 77/01, 100 pieces of Ethernet Cards were found to be missing and the value of which was Rs. 61,610/- including the expenses incurred towards freight charges, custom clearances charge, Central Warehousing Corporation charges etc., while in the second case, Complaint No. 78/01, 97 pieces of different items, namely 50 pieces of Ethernet Cards, 5 pieces of Hubs, 2 pieces of Internet Servers, 5 pieces of Print Servers, 50 pieces of PCMCIA Ethernet Cards, 25 pieces of Fast Ethernet Cards, 5 pieces of Media Coupler were found to be missing valued at Rs. 2,74,289/-
6. The complainant therefore raised a claim of Rs. 61,610 in the first case and of Rs. 2, 74,289/- in the second case and for compensation of Rs. 50,000/- in each of the cases for mental torture, inconvenience and harassment.
7. The case of the O.P. No. 2 was one of denial. O.P. No. 2 stated that the complainant has not specially declared the items and their number and further pleaded that their liability for missing cargo is limited only upto sum of US dollars 20/- per kilo. O.P. No. 2 also pleaded that the warehouse of O.P. No. 2 at Mumbai Airport is guarded by Security staff of Indian Airlines and there are no chances of pilferage at Mumbai. In terms of established procedure of re-taping and repacking without customs permission is impermissible or prohibited. It was also stated that broken parcels are not accepted by Indian Airlines and therefore they prayed for dismissal of the complaint.
The Learned District Forum has allowed the claim of the complainant in toto in the sum of Rs. 61,610/- and Rs. 2,74,289/- respectively with interest @ 12% and has granted compensation of Rs. 5000/- by way of cost, in each case.
8. At the time of hearing of these appeals Shri. J. Ramaiya Learned Counsel of the Appellant has made 3 submissions. Shri. Ramaiya has submitted that the Learned District Forum did not at all appreciate the evidence produce by the parties properly. Learned Counsel has submitted that the Complainant had not disclosed the value of the consignment as required by sub section (2) of section 22 of the Carriage by Air Act, 1972 and therefore the Complainant was not entitled to the value of the goods lost as claimed by the complainant and awarded by the District Forum. Learned Counsel submits that the District Forum was bound to follow the provisions of the Carriage by Air Act, 1972 and relying on Proprietor, Jabalpur Tractors Vs. Sedmal Jainarain and Anr. [JT1995(8)SC155, 1995(6)SCALE256,1995Supp(4)SCC107, [1995]Supp4SCR561] has submitted that the Consumer Protection Act is not in derogation of any other law and therefore the said Carriage by Air Act 1972 was required to be followed. Learned Counsel then submits that the complainant did not make Indian Airlines i.e to say National Aviation Company of India Ltd., as a party to the proceedings and without impleading the said company, no order could have been made against the Station Manager of the said Indian Airlines.
9. On the other hand, Adv. Shri. Balkrishna Natekar the learned Counsel on behalf of the Complainant has submitted that the complainant was not informed by O.P. No. 2-the Appellant herein, that the complainant was required to make a special declaration as regards the value of the goods which were to be transshipped as required by sub section 2 of Section 22 of the Carriage by Air Act 1972. Learned Counsel submits that the said requirement is against the public policy.
Learned Counsel has also placed reliance on Patel Roadways vs. Birla Yamaha Ltd [2000(3) Bom. C.R. 312] and has submitted that it was not necessary for the Complainant to have proved any negligence on the part of the Indian Airlines.
10. We have perused the records and proceedings of the District Forum.
The complainant had filed its Affidavit-in-Evidence through its Company Secretary alongwith the documents such as invoices, packing lists and shipping bills. O.P. No. 2 had also filed his Affidavit-in-evidence.
11. Chapter III of the Carriage of Air Act, 1972 deals with the liability of the carrier and sub section 1 of Section 18 of the said Act provides that the carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air. Sub Section 2 of Section 18 further clarifies that the carriage by air Act comprises the period during which the luggage or goods are in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever. Sub Section 2 of Section 22 reads as follows:-
(2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of Rs. 250 francs per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the actual value to the consignor at delivery.
12. We are not impressed with the submissions made by Shri. J. Ramaiya, the Learned Counsel on behalf of the Appellant/O.P. No. 2. A perusal of the invoice, the packing list and the shipping bill of the first consignment would show that eleven Packages were dispatched containing 720 pieces valued at 7824.56 US dollars. The 5th column of the invoice also indicates the rate of DE 528 CT(E.Net cards) as 8.75 US dollars. So also rates as against other items have been shown. Likewise the net weight of 720 pieces was given as 198 kgs and gross weight as 203.5 kgs. The shipping bill also gives the value in US dollars corresponding to Rs. 348193/- As regards the 2nd consignment it can be seen that 4 packages were dispatched having 97 pieces having net weight of 66.5kgs and gross weight of 68.5kgs valued at 4795.05 US dollars corresponding to Rs. 213381/-. It is therefore obvious that the complainant had made declaration in the shipping bill and thus had substantially complied with the provision of sub section (2) of section 22 of the said Act. Therefore, in our view there is nothing in Section 22 (2) of the Carriage by Air Act 1972 which is of assistance to the case the Appellant/O.P. No. 2. In fact it is not the case of O.P. No. 2 that the consignments were delivered intact; his evidence is based on surmises. The Learned District Forum has accepted the version given by the complainant in the affidavit in evidence and there is no reason for us not to accept the same. No other reason has been put forward to discard the evidence of the complainant. In the circumstances therefore the first two submissions made on behalf of the Appellant have got to be rejected.
13. Coming to the last submission of Shri. Ramaiya, it may be that Indian Airlines is a Corporation established under the Air Corporation Act, 1953 and therefore ordinarily ought to have been made a party to the proceedings. However, we are not inclined to dismiss the Complaint on that technical ground alone.The Indian Airlines had sufficient opportunity to defend its interests through the appellant/OP No. 2. There is no dispute that the consignment was accepted by the Appellant/O.P No. 2 on behalf of the said Indian Airlines at their office at Dempo House, Panaji. The Indian Airlines would certainly be liable for the vicarious act of its servant including that of the Station Manager for short delivery of the dispatched articles.
A consumer ought not be deprived of his rights in the beneficial consumer jurisdiction on technical grounds.
Hardly any one would know that Indian Airlines is the pseudonym for National Aviation C o of India Ltd.
The CP Act is meant to revolve round the consumer and is designed to protect his interests. In this regard we may refer to the Order dated 25/01/08 of the National Commission in first Appeal No. 436/2005 filed by Shardha D. Kamble and Anr. Referring to the Judgement of the Apex Court in the case of M/s. India Photographic Company Ltd., V/s. S. D. Silva (1986-1999 Consumers 5043) the National Commission reiterated that the Consumer Protection Act 1986 has been enacted to provide for better protection of the interests of the consumers by making provisions for the establishment of consumer councils, other authorities for the settlement of consumer disputes and for matters connected therewith. The Act was enacted as a result of wide spread Consumer Protection movement. On the basis of the report of the Secretary General on Consumer Protection dated 27th May, 1983, the United Nations Economic and Social Council recommended that the world governments should develop, strengthen and implement a coherent consumer protection policy taking into consideration the guidelines set out therein. The reference to the consumer movement and the international obligations for protection of the rights of the consumer, provision has been made herein with the object of interpreting the relevant law in a rational manner and for achieving the objective set forth in the Act. Rational approach and not a technical approach is the mandate of law.(emphasis supplied). Reference was also made by the National Commission to its earlier order dated 13/12/07, in Revision Petition No. 2721/07 wherein it was observed that unfortunately the present case was taken by State Commission and the District Forum in dismissing the complaint by holding that father/mother of an aggrieved person or his Power of Attorney is not entitled to file complaint under the Consumer Protection Act, 1986 which was erroneous. It was reiterated that under the Act, technicalities are not to be encouraged because the only procedure, which is prescribed under the Act is to follow the principles of natural justice and to decide the matter after hearing both the parties. It was further observed that Repeatedly it has been observed that complaint alleging defects in goods or deficiency in service can be entertained on receipt of a letter stating sufficient facts and the cause of action. If required, it can be entertained after recording statement of the Complainant and if grounds are made out, notice is required to be issued to Opposite Party.
14. In another unreported order dated 9/11/2001 in Revision Petition No. 120/2000 filed by Q. Raj Motors, the National Commission observed that it is not desirable to take a technical view in order to deprive a party of his right.
Procedure merely gives guidance as to how justice is to be rendered but the procedure which comes in the way of rendering justice is to be given a go by. Salutary guidance which the Consumer Protection Act provides is that principles of natural justice should be complied. A Consumer Forum is required to follow the rules of natural justice though it is not bound by the strict rules of Code of Civil Procedure.
15. In our view the interests of the Indian Airlines Corporation have been sufficiently defended by its Manager in the proceedings before the District Forum, who has filed the present appeal. In the facts of the case we are not inclined to dismiss the claim of the complainant only because the Indian Airlines as Company or Corporation was not made a party to the proceedings before the District Forum. The appellant accepted the consignment on behalf of the Indian Airlines and therefore is bound to make good the loss of behalf of Indian Airlines, for short delivery.
16. The Appellant has how given up the objection that at the relevant time the complainant did not meet the definition of the expression consumer. The complainant was a consumer at the time when the cause of action arose in its favour as well as when the complaint was filed and in this context we may refer to para 13 of the order dated 4/3/2010 in the case of R.D. Goel & Co. Pvt. Ltd (2010 2CPC
284) wherein the National Commission observed that the complaint was maintainable as the controversy related to the period prior the amendment of Section 2 (I) (d) as even a commercial transaction in relation to hiring or availing of services was not excluded from the scope and ambit of Section 2 (I) (d) (ii) of the Consumer Protection Act 1986.
17. No other issue has been raised by the Appellant/O.P. No. 2 and as such we find that there are no merits in these appeals which are hereby dismissed with no order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President