AFL. LTD. vs LUFTHANSA CARGO INDIA PVT. LTD.

THIS application dated 15.4.2004 is filed by AFL Limited seeking rectification of this Commission''s judgment and order dated 6.1.2004 in Original Petition No. 310/99. The facts briefly are as follows: The petitioner AFL Limited (formerly known as Airfreight Ltd.) accepted goods from three companies (amongst others), namely, Bee Gee Handicrafts, Rattan Textiles and K. Overseas, for transporting to Gemany most expeditiously since the said companies wanted to exhibit those goods (textile) at a trade fair in Frankfurt being held on 14th to 17th January, 1998. They would call these companies as "Trading Companies". The petitioner in turn handed over the goods to Lufthansa Cargo India Pvt. Ltd.. (opposite party) for air transport. The goods were not delivered by Lufthansa Cargo India Pvt. Ltd.. in time at Frankfurt to enable the trading companies to exhibit them.

AGGRIEVED by this the "Trading companies" demanded compensation from Airfreight Ltd. One of them, M/s. Bee Gee Handicrafts also filed a petition on 6th April, 1998 against AFL Ltd. before this Commission (O.P. No. 87/1998) claiming damages worth Rs. 10,10,76,000. Other trading company, Rattan Textiles, Jaipur, also made some claim against AFL Ltd. and AFL Ltd. paid an amount of Rs. 34,298 to Rattan Textiles. A third Company, K. Overseas, Delhi, also withheld Rs. 39,990 which have to be paid to AFL Ltd. In view of these claims against AFL Ltd. and in view of the fact that the actual delay was caused by Lufthansa, Cargo India Pvt. Ltd. in air transporting the goods, AFL Ltd. filed Original Petition No. 310 of 1999 against Lufthansa Cargo India Pvt. Ltd. claiming a compensation of Rs. 10,35,50,298 which comprises the three claims against it by the three named "trading companies" plus legal expenses, damages for loss and business and loss of repetition, etc. When the Original Petition No. 87/98 filed by Bee Gee Handicrafts against AFL Ltd. was taken up, it was brought to the notice of this Commission that the parties amicably settled the matter according to the consent terms recorded on 18.3.2002. In view of the settlement, this Commission by its order dated 18.3.2002 disposed of the complaint in terms of the consent filed before the Commission. The other Original Petition No. 310 of 1999 filed by AFL Ltd. on 9.11.1999 was decided on 6.11.2004 by this Commission. While holding Lufthansa Cargo India Pvt. Ltd. responsible for deficiency in service, the Commission ordered reimbursement of the amount of T5s734,298 and 39,900 paid to AFL Ltd., Rattan Textiles and K. Overseas Ltd. Delhi, respectively. The amounts towards cost of litigation and other expenses were ordered to be paid to the petitioner, AFL Ltd. However, no order was passed about the reimbursement

LUFTHANSA Cargo India Pvt. Ltd. to AFL Ltd. of the amount of claim settled by AFL Ltd. with Bee Gee Handicrafts Ltd. according to the consent terms and endorsed by this Commission. AFL Ltd. has now come with rectification application pleading that since the amounts paid by AFL Ltd., K. Overseas and Rattan Textiles were ordered to be reimbursed by Lufthansa Cargo India Pvt. Ltd., on the same logic the amount paid by it to Bee Gee Handicrafts in terms of consent terms should have been ordered to be reimbursed by Lufthansa Cargo India Pvt. Ltd. It is argued that this is a mistake apparent on record and the amount of Rs. 10 lakh should be ordered to be reimbursed along with interest at 9%]p.a. from 8.L1998

IT is the case of the opposite party, Lufthansa Cargo India Pvt. Ltd. that there is no mistake apparent on record. Its argument is that the settlement in terms of the consent terms was arrived at in O.P. No. 87/1998 which was between Bee Gee Handicrafts and AFL Ltd. and that it (Lufthansa Cargo India Pvt. Ltd.) was not a party to that settlement nor was it a party in O.P. No. 87/1998. In fact Lufthansa Cargo India Pvt. Ltd. argued that the value of the goods of Bee Gee Handicrafts was only Rs. 19,03Q. The goods were described as "free trade" samples of cotton made ups. The total freight paid to AFL Ltd. by Bee Gee Handicrafts for carrying the goods was only Rs. 71,253. Therefore, claim of Rs. 10,10,76,000 made by Bee Gee Handicrafts is a ridiculous claim. Giving the breakup of that claim, it is argued that fancy demand of Rs. 6 crores was made towards loss of business while the total annual business of the party was only around Rs. 6 crores to 7 crores. The rest of Rs. 10,76,000 is claimed towards cost of samples, cost of stalls in the exhibition, cost of exhibition fees, hotel stay, air tickets for two persons from Bee Gee Handicrafts, etc. In the claim the cost of samples was shown in an inflated figure of Rs. 5,95,000 whereas in the invoice their value was shown as only Rs. 19,030. Lufthansa cargo India Pvt. Ltd. claimed that the consent terms are a collusive agreement between the two parties and that it cannot be held responsible for reimbursement of the sum since it was not a party to the same It further adds that the order sought to be rectified was passed on 6.1.2004 and though the consent terms were passed on 18.3.2000, AFL Ltd. had not amended its Petition No. 310/99 by deleting the claim of Bee Gee Handicrafts. We have carefully perused the records and are of the opinion that it is a mistake apparent on record, in view of the fact that Lufthansa Cargo India Pvt. Ltd. was ordered to reimburse the amount paid to the two parties, namely, Rattan Textiles and K. Overseas by AFL Ltd. as it included those claims in its O.P. against Lufthansa Cargo India Pvt. Ltd. Similarly, Bee Gee Handicrafts claim of an amount of Rs. 10,10,76,000 was also included in the Original Petition. Both the Petitions, namely, 87/98 and 310/99 were heard together by this Commission till decision was passed on 18.3.2002 in Petition No. 87/1998 giving effect to the consent terms. Orders passed by this Commission Petition No. 87/98 has been brought on the record of this file Petition No. 310/99. A specific reference has been made to the consent terms in order of 6.1.2004 in O.P. No 310/99. Lufthansa Cargo India Pvt. Ltd. is fully aware of the developments in the other case and is fully conscious of the consent terms and of the order of this Commission. The argument that AFL Ltd. should have amended the plaint in O.P. No. 310/99 has no logic. In fact if it has amended the plaint it could not have claimed the amount by way of reimbursement from Lufthansa Cargo India Pvt. Ltd..

THE argument of Lufthansa Cargo India'' Pvt. Ltd. that the value of the goods shown in the invoice is Rs. 19,030. Whereas the same is shown as Rs. 5,95,000 in its claim is correct. However, the loss suffered by Bee Gee Handicrafts because of its inability to the exhibit the goods in the prestigious trade fair may not be the same as the value of the goods. There is not doubt that the parties suffered mental agony for not being able to exhibit its merchandise in a prestigious exhibition in spite of the best care taken by it. While it is true that Lufthansa Cargo India Pvt. Ltd. was not a party to the consent terms, it was aware of the consent terms and did not protest earlier that the consent terms were wrong, though it complained that the claim of Bee Gee Handicrafts was exorbitant. Since we have ordered reimbursement of amount paid by AFL Ltd. to the other two trading companies, it is clear that the Commission in not ordering reimbursement of the amount paid to Bee Gee Handicrafts is a mistake apparent on the record. However, there is no case for granting any interest on this amount. We ordered that this amount of Rs. 10 lakh should be reimbursed by Lufthansa Cargo India Pvt. Ltd. to AFL Ltd. within a period of one month from the date of receipt of this order failing which it would attract interest at 9%. The order dated 6.1.2004 in O.P. No. 310/99 stands rectified to that extent. The above Miscellaneous Petition is disposed of accordingly.