AIR INDIA LTD. vs RAKESH VAID

THIS appeal is by the opposite party, an international carrier.

ALLEGING deficiency in service respondent-complainant filed a complaint before the Delhi State Consumer Disputes Redressal Commission seeking compensation amounting to Rs. 9,28,077.00. This was on account of alleged loss suffered by the complainant of the goods of the value of US $ 21642 (equivalent to Rs. 5,52,647) which were to be airlifted by the appellant for shipment to Porlamar, Venezuela. Shipment was of ready-made garments and was entrusted to the appellant on 15-11-1991. A sum of Rs. 98,060/- was paid as advance by the respondent to the appellant as freight and other charges. Claim made in the complaint constituted of the following items : "(i) For value of goods US $ 21462 Rs. 5,52,647.00 (ii) Freight paid by the complainant to Rs. 98,060.00 the opposite party (iii) 7% loss of DBK (to be refunded) Rs. 38,685.00 (iv) Loss of premium on entitlement @ 7% Rs. 38,685.00 (v) Damages claimed by the foreign buyer Rs. 2,00,000.00 due to non-delivery of the garments. Rs. 9,28,077.00" State Commission by the impugned order held that there was deficiency in service on the part of the Appellant and directed that the appellant shall pay US $ 21,462/- at the rate prevalent at the time of booking of the goods and Rs. 98,060/-. Claim for other items was rejected.

Aggrieved appellant has come before this Commission. Respondent contended before the State Commission that airway bill is dated 15-11-1991 and the cargo was despatched from New Delhi airport to Porlamar, Venezuela via Frankfurt. The quantity and the description of the goods and price thereof and freight charges were mentioned in the invoice. The goods did not reach the destination within the period of three months allegedly due to the negligence and deficiency in service of the appellant. It is also contended before us, though there is no mention of such an argument before the State Commission that the appellant without authority re-routed the consignment from Frankfurt to Caracas from where it was to be sent to Porlamar. It was further pleaded by the respondent that it requested the appellant by its letter dated 22-1-1992 to change the consignee''s name as the original consignee had refused to accept the consignment. A letter dated 28-1-1992 was written by the appellant to the respondent requesting the respondent to forward ''No Objection Certificate'' from the bank and also requiring a demand draft of Rs. 100/- to enable the appellant-2 to take further action. It was the case of the appellant that respondent did not forward the document as requested by it. At Caracas Custom Authorities detained the consignment as commercial invoice was not attached to the airway bill. Ultimately, the goods were auctioned since there was no response from the consignee even after a period of 30 days of the arrival of the goods.

IT cannot be doubted that carrier in this case was covered by the provisions of the Carriage by Air Act, 1972 which limits the liability of the carrier. That would be sub-rule (2) of Rule 22 of the First Schedule to that Act which is as under : "In the carriage of registered luggage of goods, the liability of the carrier is limited to a sum of 250 francs (US $ 20) per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor at delivery".

However, this limit of liability will not apply if the damage is occasioned by wilful misconduct of the carrier. That would be Rule 25 of the First Schedule which is as under : "25(1) : The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as in the opinion of the Court equivalent to wilful misconduct. (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment." If we refer to the Second Schedule to the Act, it would be the same Rule as under : "25. The limits of liability specified in Rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment".

NOW the goods were detained by the Custom Authorities at Caracas because airway bill was not accompanied by the commercial invoice. State Commission held that it was duty of the air carrier to inform consignor of the requirements of the documents as consignor will be ignorant being a layman and on that account it was held that there was deficiency in service on the part of the appellant. We think approach of the State Commission was not correct. It is the duty of the consignor to furnish all the relevant documents. For this appellant had relied on Rule 16 which is almost similar in both the Schedules and we quote from that Rule in Schedule-II. "16(1). The consignor must furnish such information and attach to the airway bill such documents are necessary to meet the formalities of customs, octroi or police before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier or his servants or agents. (2) The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.

It would be thus seen Rule 16 provides complete safeguards to the carrier in case consignor has faulted in not attaching the necessary documents with the airway bill. No duty is cast on the air carrier to inform the consignor of his statutory requirements. Reliance has been placed by the respondent on sub-rule (2) of Rule 12 to contend that if the document was not available with the airway bill it was the duty of the carrier-appellant to inform the consignor. This sub-rule (2) of Rule 12 has been quoted out of context. It applies when under sub-rule (1) there are different instructions given by the consignor to the air carrier and which air carrier finds it impossible to carry out. Reference to sub-rule (2) of Rule 12 is, therefore, not correct. We have referred to both the Rules in both the schedule as it was not pointed out to us if Venezuela had approved the Hague protocol which amended Warsaw Convention.

IT is not disputed that at the time of booking of the consignment with the Appellant in New Delhi space on Venezuela International Airlines (Viasa) between Frankfurt to Porlamar was confirmed in advance from Venezuela International Airlines Goods were sent from Delhi to Frankfurt only after making such confirmation. However, when the goods reached Frankfurt it was found that it could not be air lifted to Porlamar as pilots of Venezuela International Airlines were on strike. Shipment was, therefore sent on Lufthansa from Frankfurt to Caracas from where it was sent to Porlamar. Grievance of the respondent is that this was unauthorised and without its instructions. Rather it appears that the appellant acted in the best interest of the respondent and made arrangement to have the goods air lifted to Venezuela. These were detained by the Custom authorities at Caracas for no fault of the appellant.

AS a matter of fact it has been the case of the appellant that it had informed the respondent of the requirement of the documents and also followed it but to no effect. Moreover, no action was taken by the respondent regarding change in the name of original consignee in spite of appellant requiring the respondent to forward certain documents including no objection certificate from the Bank and a demand draft of Rs. 100/- towards amendment. We do not find there has been any deficiency in service on the part of the appellant. Appellant can be fastened even with limited liability only if there is any deficiency in service on its part.

Few judgments have been cited at the Bar. But because of the view taken by us, it is not necessary to refer to them. Accordingly appeal is allowed and complaint is dismissed. There will, however, be no order as to costs.