AIR INDIA vs SVNR EXPORTS

THIS appeal is directed against the order passed by the State Consumer Disputes Redressal Commission, Madras allowing the complaint in relation to non-receipt of the amount of cargo sent through the appellant.

THE State Commission awarded following reliefs : "(1) The opposite party shall pay to the complainant, a sum of Rs. 4,88,799/- with interest thereon at 18% from 1.3.1993 till payment. (2) The opposite party shall pay compensation of Rs. 25,000/- to the complainant. (3) The opposite party shall also pay costs of Rs. 2,000/- to the complainant."

Facts in brief giving rise to filing of this appeal are as under : SVNR Exports, complainant sent a consignment comprising 14 cartons of leather garments weighing 430 kg to Moscow through Air India on 21.12.1992. The value of the goods was 16,000 US $. The freight of Rs. 32,799/- was paid. The consignee was the Northern European Financial Company (EVRO Finance) and the notified party was Aero Navagasia, Moscow. The air bill and other documents were sent through Union Bank of India to the consignee Bank, Evro Finance, Moscow. The delivery was to be made to the notified parties on payment. The payment was not received in time. Subsequently, M/s. Crup Exports, the commission agent informed that the payment of the bill would be made by 15.2.1993. On 22.2.1993 the opposite party Airways also informed that as per the communication received from their Moscow office, the shipment was delivered to the consignee Evro Finance on 12.1.1993. The complainant would "understand" that the goods had not been delivered to Evro Finance. The complainant filed a claim for "value of the consignment namely, Rs. 4,56,000/- equivalent to US $ 16,000/- with interest from February 1993 till payment and compensation in this amount Rs. 1,00,000/-."

THE appellant neither disputed the receipt of the consignment through cargo agent M/s. Skylift cargo any further nor disputed that the consignee was Northern Europeon Finance Company (Evro Finance, Moscow) and the notified party was Aero Navagasia, Moscow. The appellant claimed that the consignment was transported by Air India Flight No. A1-411 on 26.12.1992 from Madras to Delhi and by Flight A1-515 on 27.12.1992 from Delhi to Moscow. The consignment was delivered to the consignee M/s. Evro Finance on 12.1.1993. It was confirmed by M/s. Crup Exports Pvt. Ltd. by letter dated 20.1.1993. There was no basis at all in the contention that the consignment was not delivered. Consequently the appellant was neither deficiency in service nor the appellant was liable to pay any sum to the complainant.

WE have heard the Counsels for the parties and gone through the record. As regards the delivery of cargo to Evro Finance the State Commission took the view that there was absolutely nothing on record to show that the delivery had been made to the consignee Evro Finance on 12.1.1993. One Mr. Silin as per Exhibit B-3 purports to have received the cargo. Ex. B-4 also did not show that the consignment had been delivered to Evro Finance. The appellant having failed to prove authenticity of the delivery note, drew an adverse inference to the effect that the appellant failed to establish "conclusively that consignment has been delivered to Evro Finance." The letter of the commission agent, M/s. Crup Exports Pvt. Ltd., on 15.2.1993 receiving the amount did not absolve the O.P./appellant from the liability for unauthorised delivery of the goods without the production of the original air way bill authorising delivery by the consignee Bank or its assignee. Since the delivery has been made without the original Air Way Bill, the State Commission held the appellant/O.P. deficient in service and granted the aforesaid reliefs.

LEARNED Counsel Mr. Lalit Bhasin has taken us through the documents filed. It appears that Mr. Silin belonged to the Department of Commercial activity of Aero Navagasia, Moscow State Research and Development Institute. He is the person who had allegedly received the goods on behalf of Aero Navagasia, Moscow. It appears to rightly contended by Mr. Bhasin that the Air Way Bill Ex. B-2 showed the signatures of Mr. Silin and that the consignment was delivered on 12.1.1993. Letter dated 5.1.1995 written by Mr. Silin itself clarifies the facts that the amount of US $ 24,367/- was transferred from the account of Aero Navagasia, Moscow with Evro Finance Ltd. with respect to contract of delivery No. TRS/AER/007/92. The letter also indicated that "we forward herewith a copy of the Bank transfer form reflected the payment, KRUPS should transfer this above mentioned sum on the account of the firm-supplier "SVNR Exports" but probably it was not done." It is also contended that the appellant could not be held liable if Evro Finance (or M/s. Corps Exports Pvt. Ltd.) failed to pay to the complainant.

ON the other hand, the contention of the learned Counsel for the complainant is the appellant could have produced the Air Way Bill endorsed by the consignee Bank to deliver the goods to authorised representative of Aero Navagasia, to show justification of their stand. Anything short of production of Air Way Bill endorsed by the consignee Bank to deliver the cargo would not constitute a valid defence. It is contended that the documents which the appellant produced and the affidavit filed by them nearly established that notified party received the goods in not due course but unauthorisedly which in no way provided any valid defence to the claim of the omplainant/respondent. It appears in the light of the submissions made that the consignment ultimately was delivered to Aero Navagasia, Moscow and from the letter dated 5.1.1995 it is apparent that the amount was transferred to the Evro Finance from the account of the Aero Navagasia, Moscow but Aero Navagasia appears to have paid the amount to M/s. Crup Exports. M/s. Crup Exports Pvt. Ltd. should have transferred this amount in the account of the complainant, SVNR Exports but, in all probability it was not done. If the payment was to be made to the complainant and even if it is presumed in terms of letter of Mr. Silin that the amount deposited with the Bank was paid to Crup Exports it could not be said that at least the appellant was not negligent or there was no deficiency in service. As per affidavit dated 5.1.1995 and other evidence on record it cannot be said to be proved that there was any endorsement made by Evro Finance authorising delivery of the consignment. There is a letter of Evro Finance on record which reads as under : Attn. Mayour (S. Chattopadhyay) Dear Sirs, By request of our client "AERONA-VAGASIA", Moscow, hereby we inform you that we are in position to release payment to KRUPS EXPORTS PRIVATE LIMITED against presentation documents under Addendum No. TRS/AER/007/92 dated 20.3.1992 to the contract No. TRS/AER/007/92 dated 10.6.1992. Best regards, S. Lykov Deputy general director

IF Evro Finance is giving above information to the complainant then it could not be presumed that they have authorised the delivery of the consignment to Mr. Silin of Aero Navagasia, Moscow. It is mentioned on invoice that the terms of delivery and payment against document as is evident from invoice, Air Way Bill (the official translation filed of the Air Way Bill) does not indicate at all that there was any endorsement. It would exclude all possibilities of any endorsement of Evro Finance. This would lead us to draw an inference that without there being any valid endorsement the goods were delivered. Thus the appellant had delivered the consignment without any authority from Evro Finance as claimed by the respondent/complainant. If the documents were sent to the purchaser or the beneficiary of the contract and Bank, Evro Finance had been made the consignee, in ordinary course of business one is supposed to presume that it was sent only for the purpose of ensuring payments of the consignment in terms of the Bill of Goods before delivery of the consignment.

IN view of the above we find it difficult to accept the contention of the Air India that they had delivered the goods on the authority of Evro Finance and in terms of the instructions. Consequently, the appellant were deficient in service and are liable to compensate the complainant by paying a sum equal to the value of the shipment. Since the value of the shipment had been proved by the complainant and nothing has been brought to our knowledge to reverse or modify the findings of the State Commission in regard to the value of the consignment, the complainant is entitled to gut Rs. 4,88,799/- in terms of the invoice. Insofar as the rate of interest is concerned there may be some justification in the submission of the learned Counsel for the appellant that the rate of interest was on a higher side. Seeing the rate of interest awarded by the Banks on Fixed Deposits from 1.3.1993 to 31.3.2001, we think it should be reduced to 12% for the aforesaid period and thereafter the rate of interest shall be 9% in view of the reduction of rate of interest in the Bank rate on Fixed Deposits. With the above said modifications about rate of interest the appeal stands disposed of.