State Consumer Disputes Redressal Commission
Mugdha Bathla, vs Polar Air Cargo, on 18 March, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision: 18-03-2008 Complaint NO.C-337/1999 Mrs. Mugdha Bathla, Proprietor M/s Memsahab Exports 3, Priya Darshni Apartments, A/4 Paschim Vihar, New Delhi-110063 Complainant Versus 1. Polar Air Cargo, L-45, Mahipalpur Extension, New Delhi 110037. . Opposite Party No.1 2. Polar Air Cargo, 100, Ocean Gate, 15th Floor, Long Beach, California 90822, United States of America . Opposite Party No.2 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)
1. The complainant, who is an exporter of garments, filed this complaint claiming value of the consignment of Rs. Rs.11,34,825.70 sent through the Opposite Party (in short O.P) and also compensation of Rs. 50,000/- for the mental agony and harassment caused due to the deficiency in service on the part of the O.Ps which resulted in the consignment being auctioned off by the Airport authorities in Dubai.
2. Briefly stated the facts leading to the present complaint are that the Complainant was the Proprietor of the firm M/s Memsahab Exports and was engaged in the business of manufacturing, sale and export of readymade garments. The OP is a Courier Company having its head office in California, USA. Complainant booked consignments through OP at Delhi for Falcon Readymade Garments Factory Ltd.
Sharjah, UAE, on 09.05.1997, 06.06.1997 and 16.06.1007 through Habib Bank AG Zurich at Sharjah. However, the original buyer M/s Falcon Readymade Garments Factory cancelled the order and vide letter dated 25.01.1997, the complainant requested OP to change the name of the consignee to M/s Golden Needle Enterprises, Ajman, UAE in place of Habib Bank and Falcon Ready made Garments Factory. However, the OP did not do so and failed to deliver the consignment to Golden Needle Enterprises at Ajman. On enquiry the complainant came to know that the consignments in question worth U.S. Dollars 27966.00 had been auctioned by the airport authority Dubai. According to the complainant it was the duty of the OP Company to inform the consigner that the consignment was lying at the airport or that the consignee was not coming forward to accept the delivery thereof. The OP Company did not respond to the notice of the complainant claiming the value of the consignment with interest. Feeling aggrieved the complainant has filed the present complaint.
3. While raising the preliminary objection of the complaint being barred by limitation and the complainant being not a consumer on account of having not paid any freight charges to the O.P, the O.P. on merits contended that the consignment reached the destination on various dates of May and June 1997. However, the named consignee failed to take the delivery despite notices of delivery. The complainant was also informed of the same and the complainant responded only in October, 1997, vide letter dated 25.10.1997 seeking change of name of the consignee in respect of only three airway bills out of four. The OP effected the change of the name of the consignee as requested and the new consignee was also informed. However, the new consignee also did not turn up to take delivery. Hence, the consignments were confiscated by the Dubai Customs Authority and auctioned the same on 22.07.1998 to recover storage charges etc.
4. As is apparent from the aforesaid rival claims and contentions of the parties, the main grouse of the complainant is that the O.P. failed to inform the complainant about the non-delivery of consignment to the second consignee and allowed the consignment to be auctioned off.
Even the second consignee refused to take delivery and the information about this was also not sent to the complainant.
5. Parties are always governed by the terms of agreement. In the Airway Bill neither the value of the consignment was declared nor was there any term between the parties that in case of non-delivery, wrong delivery, mis-delivery etc. the O.P. shall be liable to compensate the consignor as to the value of the consignment.
6. The Ld. Counsel for the O.P. contended that as per provisions of Sec.13 (1) Carriage by Air Act, except in the circumstances set out in the preceding rule the consignee is entitled on arrival of the cargo at the place of destination to require the carrier to hand over to him Airway Bill and to hand over the condition set out in the Airway Bill.
7. However, the provisions of Carriage by Air Act, 1972 provide that unless it is otherwise agreed it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives. Rule-13(2) of the Carriage by Air Act, 1972 provides as under:-
(2) Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the goods arrive.
8. In the instant case, lapse on the part of O.P. was in not informing the complainant as to the refusal of the second consignee M/s. Golden Eagle to take delivery of the consignment and this resulted in the auctioning of the consignment that too after inordinate long time. Within July 1997 and October 1998 no intimation was sent to the complainant by O.P.1. The breach of such an obligation amounts to deficiency in service in terms of Sec.1 (1)(g) of the Consumer Protection Act, which means, any fault, imperfection, shortcoming or inadequacy in the quantity, 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.
9. The contention of the O.P. that the obligation of O.P. was only to give notice to the consignee as soon as the cargo arrives does not mean that the carrier is not obliged to consigner as to the fate of the consignment. Conduct of such service providers has to be tested on the anvil of definition of the word deficiency provided by Sec. 2(1)(g) of the Act, which means, there should be no inadequacy in the performance of the service provider, and by not informing the complainant well in time amounts to imperfection and inadequacy in the manner of performance of the contract.
10. Another contention of the Ld. Counsel for the O.P. that freight charges were not paid does not hold water as the O.P. had already debited the charges from the account of the complainant suo moto.
11. The legal objection as to the complaint being barred by limitation has no substance as the cause of action is of subsisting and continuous nature and survives till the grievance of the consumer is redressed.
Even otherwise the cause of action arises from the last communication exchanged between the parties. Moreover, goods were auctioned on 22-07-1998 and the complaint was filed within the period of two years as prescribed by Sec.24A of the Consumer Protection Act, 1986.
12. However, there being no contract between the parties regarding indemnification as to the value of consignment and there being no term in any of the Airway Bill, the O.P. for the aforesaid limited deficiency in service, particularly, in view of the refusal by both the consignees to accept the goods, we deem a lump sum compensation of Rs. 1.00 Lac shall meet the ends of justice.
13. Complaint is disposed of in above terms. Payment shall be made within one month from the receipt of a copy of these orders.
14. Copy of Orders, as per statutory requirement, be forwarded to the parties and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK