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4. Instead of flying the cargo on 24.12.92 by BA-138 as per the Airway Bill, OP:1 lifted the consignment one day earlier i.e. on 23.12.92 by BA-144 at 00.05 hrs. IST (19.35 GMT on 22.12.92 and arrives at 9.45 hrs. IST (05.15 hrs. GMT) on 23.12.1992, whereas the complainant was not aware of the change. It is stated that the instructions of change of name of consignee were not followed by both the respondents and as a result of which the consignment was delivered to M/s. E.U.F. London, directly without invoking bank and this action of both the respondents brought great loss to the Complainant. As per the Letter of Credit, payment should be made after 30 days sight and the German Co., i.e., M/s. Regime Modervertriebs has to make payment to the German Bank within 30 days form the date of clearance. The Complainant's bank at Tirupur, Tamilnadu did not receive and payment form the German Bank and then, the Complainant was reminded about the said non-payment from his Bank. Ever since, the Complainant has been frantically requesting for information regarding the non-delivery of the consignment. Finally on 21st June, 1993, as a reply to many reminders and letters from Opposite Party: 2, on 9th June, 1993 and 14th June, 1993 to Opposite Party 1 the latter replied to Opposite Party. 2 that "due to some aberration in the system consignment was delivered to the consignee without obtaining the bank release order" and expressed their regret for inconvenience caused due to misdelivery of the consignment.

26. The entrustment of goods was done to Opposite Party: 1 by Airway Bill dated 21st December, 1992 according to which the consignment was to be transported only on 24th December, 1992 by British Airways. 138 and the change of Consignee was effected 7-8 hrs before the flight was to leave is admitted. By lifting the cargo one day earlier, contrary to the AWB, Opposite Party 1 unilaterally disabled the consignor to exercise the right U/S 12(1) of Carriage by Air Act. Opposite Party 2 sent a Fax to Opposite Party 1 on 9.6.93 where they enquired "With reference to the above we have requested your office over and over again your office has been good to send messages to your London office to get delivery details but sorry to say that inspite of so many reminders we have not received any firm reply from your end and the shipper has been very upset at us for the same. We earnestly request you to please get us the delivery details and also confirm that it delivered then through the Bank only. Kindly treat this matter as very urgent and reply. Tks N Regds." Their own admission comes through vide letter dated 21st June, 1993 by the Cargo Officer Mr. G.S. Paranjape to Opposite Party: 2 which stated "due to some aberration in the system consignment was delivered to the consignee without obtaining the bank release order we regret inconvenience caused to the shipper and you". This statement made by Opposite Party: 1 is on admission of deficiency in service, because they have no idea as to the whereabouts of the consignment, even then, in June, 1993.

28. Opposite Party: 1 vide their letter dated 14th June, 1993 promised to find out whether the consignment was delivered through the German Bank and vide their letter dated 21st June, 1993 admitted the mistake of delivering the consignment without Bank release order and regretted for the 'aberration' and promised to process the claim vide their letter dated 24th July, 1993, where they asked for documents to process the claim. In fact, it is their own letters, the internal correspondence and the sea change attitude from one letter to another shows admission of deficiency in service and the apathetic approach towards the Complainant's loss of huge amount itself represents negligence on their behalf. We do not see any merit in the argument of Opposite Party: 1 that Opposite Party: 2 and Complainant are in-connivance and that if at all Opposite Party: 2 alone is responsible for any deficiency in service. Whether Opposite Party: 2 is the agent of the Complainant is not the point but who recovered full payment from the Complainant is important and that undisputedly is Opposite Party: 1.