State Consumer Disputes Redressal Commission
Pasco Enterprises vs Air France & Ors on 3 March, 2006
C-83/94 IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 3rd March .2006 Complaint No.83/94 Pasco Enterprises Complainant Ashok Hotel, Through 50-B, Chanakya Puri, Mr. Munish Malhotra, Srinagar-190008 Advocate. Kasshimir. Versus (1) Air France & Ors. Opposite Party No.1 Ashok Hotel, Through 50-B, Chanakyrapuri, Mr. Amar Singh Pasrich, New Delhi-110021. Advocate. (2) Air France Opposite Party No.2 (Cargo Section) Ashok Hotel, 50-B, Chanakya Puri, New Delhi-110021. (3) M/s Johan Enterprises Opposite Party No.3 B-22, Ansal Chamber-II, 6, Bhikaji Cama Place, New Delhi-66. 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 ) Respondent No. 1/Air France Carrier carries on the business of carriers by air and passengers, luggage and goods for consideration. Respondent-3 is the agent of respondent-1. Complainant is engaged in the business of sale purchase and export of carpets. The allegations of complainant giving rise to this complaint are as under:-
(i) Complainant booked 20 bales containing 71 pieces of Kashmir Handmade Handknotted Rayon carpets with respondent-1 through its agent respondent-3 at their Delhi office on 30.12.92. The respondent-3 issued Airway Bill No.057-1125 4176 dt.30.12.92 on behalf of respondent-1 i.e. carriers and also received Rs. 56,100/- as air freight charges from the complainant for such cargo. The cargo which contained 20 bales were booked in the name of Commerz Bank, 2000 Hamburg, Germany and the purchaser of the goods were M/s Asadi Orienteppiche Brook Torkai-16, Hamburg, Germany.
(ii) In April 1993 on enquiry from the carriers about the fate of the shipment, complainants were surprised to learn that their shipment was still lying in the store of the carriers at Hamburg(Germany) Airport and was informed to take necessary steps for the lifting of the shipment. The complainant requested the carriers to keep their shipment in their store at Hamburg Airport till the mater is looked into. It was agreed by the carriers on the condition that the complainant shall pay storage charges.
(iii) In response to the said agreement complainant deposited the Advance towards storage charges Rs. 85,000/- and for this carriers issued No.0131 dt. 2.4.93.
(iv) Immediately after depositing Rs. 85,00/- as advance towards storage charges, one of the partners of the complainant firm started taking necessary steps in arranging visa for his journey to Hamburg Germany so that reasons for not lifting of goods were ascertained. It was on 28.5.93 that one of the partners of the complainants firm namely Mr. Liaqat Ali went to Hamburg Germany for looking into the reasons.
(v) The carriers kept the complainants partner waiting for lifting of goods for one week and ultimately was informed that the goods have already been auctioned.
(vi) The complainant tried to get the explanation from the carriers about their deficiency in service but carriers realising their negligence avoided to give any explanation and even did not give any date of auction.
(vii) The complainant on arrival immediately on 15.7.93 wrote to the carriers for compensating the complainant about the loss which occurred due to the negligence and deficiency in service of the carriers.
2. Hence this complaint.
3. Vide letter dated 16th April 1994 the claimant asked for full cost of the shipment, insurance paid on shipment, freight (air) paid, amount spend by partner of the firm in going to Hamburg Germany and advance storage charges totaling to Rs. 10,84,526. However, the claim was repudiated. Hence this complaint.
4. On behalf of OP No. 1 & 2 the complaint was resisted on the following grounds :-
(i) The crux of the complaint boils down to a receipt for Rs. 85,000/- advance towards storage charges. The contention of the complainant as per paragraph 4-5 of the complaint that this advance of Rs. 85,000/- was storage charges to keep the goods indefinitely till the matter is looked into whereas this amount were received at the complainants request to assist the goods remain with Customs authority in Germany and only on 15th April 1993 the date as per reply and evidence of OP No. 1 & 2 which has not been controverted in the evidence of the complainant. The evidence affidavit of the complainant is silent on the question of how long the storage charges were paid, but the main point is that according to Air France the charges expire on 15th April 1993. German Customs sold the goods at the end of May 1993 and the complainant had indicated that they would be collecting the same before that. Receipt itself does not imply any contract. There are no terms or settlement by which goods were to be stored indefinitely and they were sold by German customs over which the OP No.1 has no control whatsoever, since that is carried out in accordance with the rules and laws of Germany. The entire problem arises because of dispute between the complainant and his consignee who is not a party here. When the consignee did not pay and did not collect goods, they remained undelivered. The complainant was informed that the goods remained undelivered and though he paid some storage charges there was no contract for the goods to be kept indefinitely.
(ii) On the legal aspects the defences of the counsel for OP No.1 & 2 are as under:
(a) Complainant is not a consumer under section 2 (1) (d) (ii) qua the OP NO.1 & 2 as it has not hired or availed any service of the OPs for consideration. As per amended Consumer Protection Act since the services involved relate to commercial purpose, the amended act clarified the situation by which the OPs had, is not maintainable since the goods for shipment were for commercial purpose.
(b) As per Carriage by Air Act there is no duty cast upon the carrier to keep informing the consigner about the fact of his goods even though in this case irregularity report dated 12th February 1993 was given to the complainant and they still did not arrange the goods to be collected. In this regard the Counsel for OP No. 1 & 2 relied upon the following decisions:-
(i) Air India Vs. N. Uddavan & N. Uddavan Vs. Air India and Saddlers Shoes Pvt. Ltd. [ I (1995) CPJ 190 (NC) wherein it was held that there is no obligation on the carrier to give any intimation to the consigner. The relevant paragraphs i.e. 11 & 15 are reproduced below:-
11. We are of the view that the case put forward by the complainant that the consignee had not been intimated about the arrival of the consignment in Gdnsk cannot be accepted as correct. On the other hand the evidence adduced in the case fully substantiates the case put forward by Air India which is reiterated in the statement filed by LOT Polish Airlines (Third Respondent) that the Polish Airlines had advised the consignee about the arrival of the goods on 29th May 1991 and had followed it up with reminders sent on June 11, 1991 and July 19, 1991. There was therefore, no failure on the part of either Air India or its agent LOT Polish Airlines to carry out their obligation to give due intimation to the consignee about the arrival of the goods at the port of destination. The consignee, however, for reasons known to it, failed to take delivery of the goods.
Hence, the first contention put forward by the complainant that Air India was guilty of deficiency in service on the ground of failure on its part to give intimation to the consignee about the arrival of the goods in Gdansk is devoid of factual foundation. We accordingly reject the said plea raised by the complainant.
15. From the above passage it becomes clear that the liability of the carrier ceases after the expiry of reasonable period from the date of giving intimation of arrival of the goods to the consignee. The legal position is also clear that there is no obligation in law for the carrier to intimate the consignor about the failure of the consignee to take delivery of the goods. Hence we hold that the omission on the part of Air India to inform the consignor about the failure of the consignee to take delivery of the goods does not constitute deficiency in service.
( c ) However in the same judgment Rules 12 interpreted to the effect that this rule confined any right on the consigner upon upon the carrier to undertake whatever rights is conferred on the consignor under Rule 12 is capable of being exercised only before the right of the consignee to take delivery of the goods from the port of destination, namely on its being given due intimation of the arrival of the goods (Para 19).
(d) There is no cause of action made on in the complaint and there is no negligence or deficiency in service on the facts of the instant case since the Airline simply accepts some charges as advance for storage and it never undertook to ensure the goods would be kept under the custody indefinitely by the concerned Customs Authorities.
5. As regards the contention of the Counsel for the OPs that advances of Rs. 85,000/- received by the OPs dies not specify the period of 15th April even otherwise in the counter version the OP No.1 has stated in para 2 categorically that on 25th March 1993 the Custom Authorities had already impounded the goods and therefore there was no right to the OPs are not supposed to accept advance payment on 2nd April. Accordingly OP could not have sold the consignment on 27th May.
Even otherwise as per Rule 12 the OPs were under obligation to ask from the consigner for further instructions which were not asked. Not to keep the consigner informed about the day to day progress is difficult that to ask for the instructions before disposing of the goods.
Complainant was telephonically informed for further instructions for taking the delivery of the goods. It was pursuant to this instructions the complainant went to France after arranging for its VISA etc. which took two months time.
Deficiency on the part of the OPs was that the total consignment was sold by way of auction without waiting for further instructions from the complainant and the cost of the consignment has been shown in the receipt issued by OPs dated 30-11-1992 as Rs. 6,58,702/- besides Rs. 56,100/- which was paid by the complainant to the OP towards freight charges and Rs. 85,000/- as advance charges. By any stretch of imagination the advance charges were accepted by the OPs for a specific period and not till further instruction of the complainant is incorrect and unacceptable. Had this been the case OP No.1 & 2 would not have accepted this amount in April 1995 whereas the consignment were impounded by the customs authority in March 1992.
6. Explanation of the OPs that this amount was accepted upto March 1993 the date when the goods were impounded by them was towards charges upto 25th March 1993 amounted to DEM 3830.88 and the balance would have been adjusted upto April 1993 and the goods were sold at the end of May is of no assistance or help to the OPs and does not cut ice.
7. Let us assume for the sake of arguments that the stand taken by the OP is correct still the fact remains that the goods reached Hamburg on 6th January 1993 and the amount of Rs. 85,000/- paid by the complainant till 15th April 1993. So the demurrage even if we calculated from 6th January 1993 to 15th April 1993 i.e. 100 days comes to be Rs. 34,000/- @ 44 DM per day. This demurrage charges till 25th March 1993 comes to DM 3432 by upto 15th April 1993 the complainants had paid DM 4400 equivalent to Rs. 85,000/-.
Cargo was cold in the end of May 1993 and even if we calculated the demurrage charges for the period upto May 1993 these come to DM 1760 equivalent to Rs. 33,000/-. Value of the cargo was Rs. 7,19,114.50. Thus to allow the cargo valued Rs. 7,19,114.50 to be auctioned for non-payment of Rs. 34,000/- was uncalled for as according to the provisions of rule 12 of Air Carriage Rules they were under obligation to call for further instructions with regard to the consignment as they had in the past also particularly with advance storage charges of Rs. 85,000/- had already paid to the OP. The minimum care and caution the OP was expected to exercise was to inform the consigner with regard to the selling of goods as there was no communication. The OP took the advance storage charges on 2nd April 1993 whereas according to the OP on 25th March 1993 goods were already impugned by the Customs authority and therefore the OP were not supposed to take the storage charges of Rs. 85,000/- upto 2nd April 1993 and moreover the document in token of receipt of advance storage charges does not specify any date as to upto which date these charges were applicable.
8. The circumstance of accepting Rs.
85,000/- towards advance storage charges upto 2nd April 1993 itself shows that the goods were under the control of the OP and had these goods not been in their control they would have informed the complainant on 6th January 1993 itself that the goods have reached Hamburg and therefore rule 12 could have been adhered to by the OP requiring the consignment to return the consignment. Bare perusal of rule 12 casts obligation upon OP in such eventuality as we face in the instant case for return of the consignment aerodrome departure instead accepted huge amount of Rs. 85,000/- as demurrage charges and over and above having waited till 24th April without adhering to the requirement of rule 12 either by receiving further instructions from the complainant or by requiring the consignment to be returned at the airport departure or they should have informed the complainant that they have no more any control left with the consignment which shall be on complainants risk. Heaven would not have fallen had the OP taken instructions from the complainant in Aril itself after receipt of Rs. 85,000/- towards demurrage charges and allowed the German Authorities to auction the consignment in May which was mere a month after.
9. Reasonable period has to be determined from these facts since in this case there was no communication between the parties from January 1993 up till 24th April 1993 the care and caution that could have been taken by the OP out of either two things as mentioned in rule 12.
10. Failure of the OP in doing either amounts to deficiency in service which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
11. In the result complainant is entitled for a compensation as to the loss or injury suffered by it in terms of Section 14 (1) of the Consumer Protection Act.
However, taking over all view of the matter and long duration of the goods having been detained and auctioned sometime in May 1993 the information of about which was given in June 1993 and rules of German Customs Authority involved we deem that compensation of Rs. 5,00,000/- (Rupees Five Lakhs) which shall include cost of litigation, would meet the ends of justice.
12. Complaint is disposed of in aforesaid terms.
13. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
14. Announced on the 3rd day of March 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj