National Consumer Disputes Redressal
Air France vs M/S. Registan Exports on 25 May, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 87 OF 2007 (From the order dated 15.09.2006 in Complaint No. 17/1996 of Delhi State Consumer Disputes Redressal Commission) Air France 7 Atma Ram Mansion Scindia House, Connaught Circus, New Delhi 110001 Appellant Versus Registan Exports E-13, Bihari Marg, Bani Park, Jaipur Rajasthan 302016 Respondent BEFORE HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant Mr. Aditya Jain, Advocate For Mr. Amir Singh Pasrich, Advocate For the Respondent NEMO PRONOUNCED ON : 25th MAY 2011 JUDGEMENT
PER JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER This appeal is preferred by original opposite party no. 1, feeling aggrieved by judgement and order rendered by State Consumer Disputes redressal Commission, Delhi (hereinafter referred to as the State Commission) in complaint case no. C-17/1996. By the impugned order, the State Commission directed the appellant to pay compensation of Rs.50,000/- on account of belated delivery of the consignment, loss of future business and cost of litigation, to respondent no. 1, i.e., the original complainant.
2. For the sake of convenience, parties may be referred to as per their nomenclature in the proceedings of the complaint before the State Commission. The appellant is OP No. 1, the respondent no. 1 is the original complainant. The original OP No. 2, M/s. Continental Carriers Pvt. Ltd. IATA is not joined as party in the appeal as no relief was granted against the OP No. 2 by the State Commission.
3. The complainant deals in business of manufacturing and export of readymade garments, precious and semi precious stones and like items. Admittedly, the complainant despatched the consignment consisting of readymade garments, leather sleepers, perfumed sticks (agarbattis) and semi-precious stones through OP No. 2, i.e., M/s. Continental Carriers Pvt. Ltd. IATA which was to be carried by air cargo of OP No. 1 (appellant). Thus, the cargo services of the OP No. 1 were availed by the complainant for the carriage of goods from New Delhi to CIUDAD DEL ESTE, Paraguay, South America. That place is accessible only by road or through some another carrier.
4. There is no dispute about the fact that the OP No. 1 (appellant) issued the airway bill dated 25.11.1994. The goods were ready for shipment at the international airport, New Delhi on 23.11.94. The airway bill was issued by the original opposite party No. 2 for and on behalf of OP No. 1 vide air consignment note 057 / Del / 2040 2840 on 25.11.94. Though the goods were ready to be lifted as on the date of issuance of the airway bill, i.e., 25.11.94, it is an admitted fact that the OP No. 1 actually lifted the goods from New Delhi airport on 30.11.1994. The goods did not reach the destination within a reasonable period.
The complainant made certain enquiries.
The buyer informed him about non-delivery of the goods. He gathered information that the cargo was lying at Paris airport on 30.11.1994.
The cargo reached to Sau Paulo on 13/14.12.1994 and thereafter had been transferred to Foz-Du-Igwasu through another airline by name Viracao Airlines. Ultimately, the cargo was collected by the consignee on 31.01.1995.
5. The complainant came out with a case that he had received the purchase order from the buyer on certain conditions, one of such conditions being that the goods shall be reached at the destination prior to commencement of Christmas festival. The OP No. 1 (appellant) did not follow the instructions.
The payment was not given by the buyer due to non-delivery of the goods. The belated delivery caused loss of future business and reputation. The buyer also declined to pay the freight charges. The total compensation of Rs.18,69,512/- was sought by the complainant, inclusive of the price of the goods, loss of goodwill, mental agony, freight charges etc.
6. The OP No. 1 resisted the complaint on the ground that there was no privity of contract between itself and the complainant. It was further contended that there was no special instruction to carry the consignment and effect delivery prior to the Christmas vacation. The complainant had never represented that there was special urgency for transportation of the goods. The OP No. 1 further raised objection regarding limitation. It was further contended that the complainant had no right to claim the compensation in as much as cargo had reached the destination and the consignee had accepted the delivery without any protest. According to the OP No. 1 (appellant) the complaint was filed in order to avoid payment of freight charges. Another limb of the defence was that considering the Rule 12 of Schedule II of the Carriage by Air Act, 1972 and Rule 27 (ii), the complainant has no right to seek any compensation. According to the OP No. 1 (appellant) there was no deficiency in the service nor the complainant was its consumer and as such the complaint was liable to be dismissed.
7. It appears from the record that the complaint was filed prior to delivery of the goods to the consignee, at the place of destination. It further appears that the complainant received the price of goods in question from the consignee during pendancy of the complaint. The only question that survived for consideration was in respect of right to claim compensation on account of the delayed delivery.
8. We have heard learned counsel for the appellant. None appeared for the respondent. The counsel for the OP No. 1 (appellant) would submit that when the consignment was delivered and received at the port of destination on 31.01.1995, there was no continuity of cause of action because the consignee did not raise any complaint of loss of goods or damage to the consignment. It is argued that there was no cause of action available to the complainant when the OP No. 1 carried out its obligations. Learned counsel invited our attention to Rule 12 and 13 of the Schedule II of the Carriage by Air Act Rules in support of his contention that the complaint must be made within 21 days from the date on which the cargo had been placed at the disposal of the carrier. He argued that the provisions under the Carriage by Air Act, 1972 are applicable to the facts of the present case and, therefore, complaint ought to have been dismissed as barred by limitation.
9. We have perused the relevant documents and the letter correspondence between the parties. The consignment note (Annexure A-II) shows that the complainant is the consigner. The consignment was to be reached to Landers Imp & Exp, CIUDAD DEL ESTE Paraguay, South America (via FOZ DU IGWASU). The shipment was booked through M/s. Continental Carriers Pvt. Ltd. IATA. The cargo was to be lifted at New Delhi Airport. The goods consisted of readymade garments with semi precious stones, perfumed sticks and leather sleepers. The Airway bill was issued on 25.11.1994. The letter correspondence shows that M/s. Continental Carriers Pvt. Ltd. IATA gave instructions to the effect that the shipment should go by Arrow air from Miami to the destination, i.e., FOZ DU IGWASU. The letter correspondence, however, shows that the cargo had not reached the destination even till 12.12.1994. The complainant requested the agent, i.e., M/s. Continental Carriers Pvt. Ltd. IATA to furnish the details of the onward flight from Paris to the destination. The complainant further issued letter dated 15.12.1994 to M/s. Landers Imp & Exp regarding the non-delivery of the goods and the cause of action that was contemplated. It appears that the OP-1 (appellant) issued letter dated 21.07.1995 (Page 71 of the paper-book).
The context of the letter is as follows:-
Dear Sir, We acknowledge the receipt of your letter dated 7th July 1995.
We have received a telex from the delivering carrier Viacao Airlines stating that the shipment has been delivered to the consignee on 31st January 1995 and no irregularity was noticed at the time of delivery.
We however regret the delay in transit at Sao Paulo.
10. Perusal of the above referred letter would make it crystal clear that the shipment was delivered to the consignee on 31.01.95. It is also manifest that there was delay in the transit at Sao Paulo. The OP no. 1 simply expressed regrets for the delay.
The delay was not of reasonable period.
Once it is found that the delivery of the consignment was effected after a considerable delay, it goes without saying that there was deficiency in the service undertaken by the OP No. 1 as a carrier. There is nothing on record to show that the respondent no. 1 carried out the instructions for shipment of the goods through Arrow Air from Miami to the destination. The OP No. 1 never came out with a case that service of Arrow Air was unavailable at Miami port due to any reasons beyond its control.
The cargo was lifted at New Delhi Airport on 30.11.1994 yet it had travelled upto Sao Paulo up till mid of December 1994. The delay in carriage of the cargo between 14.12.1994 till reaching it at the destination on 31.01.1995 is not satisfactorily explained by the OP No.1.
True, the Airway bill does not show any urgency clause or particular date of delivery of the consignment being the outer limit. Still, however, the cargo ought to have been delivered within a reasonable time frame.
11. So far as the contention of the OP No. 1 about absence of privity of contract between itself and the complainant is concerned, it is difficult to countenance the argument of the learned counsel. The Airway bill itself shows that the complainant is the consigner and the consignment was booked through M/s. Continental Carriers Pvt. Limited. M/s. Landers Imp & Exp is shown as the consignee. It is obvious that the carriage contract was entered into by the complainant with the OP No. 1 through agency of the OP No. 2.
Therefore, the OP No. 1 is the service provider in relation with the complainant. In other words, the complainant is the consumer qua the OP No. 1 (appellant). The complainant is a beneficiary of the transaction. The interest in the consignment would stand transferred in favour of the consignee only after the consignment is delivered and the consigner will be paid for the value of the consignment. The complainant could be regarded as a beneficiary of the cargo service and is, therefore, a consumer within the meaning of section 2(i)(d) of the Consumer Protection Act, 1986. It cannot be said, therefore, that the complainant had no locus standi to file the complaint. One cannot be oblivious of the fact that it was the complainant, who suffered loss of future business, reputation and was subjected to mental agony due to belated delivery of the consignment.
12. The learned counsel for the OP No. 1 (appellant) submitted that when the consignment was accepted by the purchaser without demur and entire payment was made to the complainant, the latter had no reason to file the complaint. We do not agree. It appears that 50% of the payment was received by the complainant after much delay.
In the meanwhile, he had lost goodwill and reputation due to the negligence committed by the OP No. 1 on account of the belated delivery of the goods.
13. The learned counsel referred to observations in Air India Vs. N. Uddavan [I (1995) CPJ 190 (NC)]. In the given case, the fact situation is on different footings. It has been held by this Commission that the carrier, i.e., Air India was not under obligation to transit the goods from the original place of destination to another place as directed by the consignee. This Commission examined import of rule 12 in part III of Chapter II of schedule II of Carriage by Air Act 1972. It was found by the National Commission that the failure of the consignee to take the delivery was the primary cause of the loss that was alleged.
In the instant case, however, the consignee obtained the delivery and the delay caused in delivery of the consignment on part of the carrier, i.e., OP No. 1 gave rise to the complaint.
14. Learned counsel further referred to Shailesh Textile Industries Vs. British Airways & Anr. [2003 (69) DRJ 683]. The finding given by the Delhi High Court on issue No. 5 by itself cannot be taken as ratio decideni.
The learned single judge decided the suit no. 1253 / 79 in the original jurisdiction and referred the finding on issue regarding impact of non-service of statutory notice under Rule 27 (2) of the Schedule II of the Carriage by Air Act. Rule 27 (2) reads as under:-
Rule 27(1) xxxxxxxxxxx (2) In the case of damage the person entitled to the delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his disposal.
15. The Rule 27(2) may be invoked when a claim is set-up by the consignee. It does not cover the claim put-forth by the consigner and particularly when the consigner had no knowledge about the delivery of the consignment as well as the condition of the goods reached at place of consignment.
Moreover, no compensation is awarded by the State Commission in respect of any loss of the goods or the damage to the goods. Reliance is also placed on Pakistan International Airlines vs. Sanjeev Wadhwa & Anr. [I (2003) CPJ 54 NC]. That case was also in respect of damage caused to the suitcase during the transit. Complainant in that case had not declared value of the items in the suitcase. The facts of the present case do not match with the facts obtained in Pakistan International Airlines Vs. Sanjeev Wadhwa & Anr. (supra).
The counsel further relies on Southern Petrochemical Industries Corpn. Ltd. & Anr. [I (2007) CPJ 74 (NC)].
It was held by this Commission that where the insurer had settled the claim of the complainant, who had abandoned all the rights and interest in the insured goods in favour of the insurer, he had left with no right to recover the compensation for loss of consignment.
This case law is of no avail to the OP No. 1 (appellant) because the complainant had never abandoned his claim to seek compensation.
16. The consignment was admittedly delayed and, therefore, it is but natural that the complainant was put to mental stress. The consignee had not received goods within a reasonable time and, therefore, must have nagged the complainant. The mercantile transactions require prompt delivery of the goods as per the order.
The complainant might have suffered future loss of business, which cannot be quantified because the loss of goodwill was not specified by the complainant in terms of money. The State Commission, therefore, awarded a consolidated amount of compensation. The impugned judgement and order appears to be reasonable and proper.
The belated delivery of the consignment can be regarded as deficiency in the service. We, therefore, do not find any substantial reason to interfere with the impugned judgement and order. The appeal is dismissed. No costs. The statutory amount be refunded to the appellant alongwith the accrual of interest, if any.
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(V.R. KINGAONKAR J.) PRESIDING MEMBER .
(VINAY KUMAR) MEMBER RS/