ANNE'S COLLECTION (P.)LTD vs NATIONAL TRAVEL SERVICE

IN this complaint, under Section 17 r/w Section 12 of the Consumer Protection Act, 1986, the complainant has sought compensation in a sum of Rs. 3,25,000/- from the opposite parties.

THE complainant is an Exporter, engaged in the export of silk and other valuable materials. O.P. No. 1 is a General Sales Agent and O.P. No. 2 is the Kuwait Airways. The complainant entrusted a consignment of mulberry silk fabrics to the opprrsite parties to be carried from Bangalore to Barcelona in Spain. Ex. C-1 is the copy of the invoice. The opposite parties carried the said consignment to Barcelona and informed by their letter dated 14.8.92, as per Ex. C2, to the complainant that the consignee at Barcelona had collected the delivery order on 16.6.92. The consignee had not taken the delivery of the said consignment, so the complainant visited Barcelona and found that the opposite parties had not delivered the consignment to the consignee and the material was lying at the airport of Barcelona un-delivered. The custom-authorities were claiming damages to the extent of 1,000 U.S. Dollars. So the complainant asked the opposite parties to send the goods from Barcelona to London and deliver the same to the consignee at London, as per his letter, Ex. C-3. The opposite parties, as per their letter, Ex. C-4, agreed to send the same from Barcelona to London but thereafter did not send the same to London. So the complainant wrote a letter to the opposite parties, as per Ex. C 5, as to why the said consignment had not been sent to London. The O.Ps. by their letter dated 16.12.92, as per Ex. C 6, informed the complainant that the goods could not be sent to London, because the consignment was delivered to the customs main office in Nov., 1992 by the local authorities. The complainant, on receipt of such a message from the opposite parties, as per EX. C6, made claim with the opposite parties for the value of the goods in consignment, but the opposite parties declined to give any compensation to the complainant, so the complainant filed the complaint seeking compensation as referred to above. The complainant has sought compensation in a sum of Rs. 1,25,000/- towards the value of the goods in consignment and a sum of Rs. 2 lakhs as compensation.

Both the opposite parties, though served, remained absent. During enquiry, the complainant filed the affidavit of the Managing Director of the Complainant''s Company in evidence and got Exs. C-1 to C-13 marked in evidence.

WE heard the learned Counsel for the complainant and perused the material placed on the record. Ex. C-1 is the invoice issued by the opposite parties which is dated 22.5.92 to carry Mulberry silk Fabrics from Bangalore to Barcelona in Spain. The complainant has admitted the fact that the said consignment was carried from Bangalore to Barcelona in a safe condition by the opposite parties. Ex. C-2 is the letter written by the opposite parties to the complainant - that shows that the opposite parties on carrying the said consignment to Barcelona, handed over the delivery order to the consignee at Barcelona on 16.6.92. The complainant has admitted this fact as well. The complainant has averred that he had thereafter visited Barcelona and found the consignment lying undelivered at the airport Barcelona, requested the opposite parties to ship the consignment to London to a particular consignee there as per his letter Ex. C-3, which reads, as under: "We refer to our Export Bill No. AC/Exp/ 327 dated 22.5.92 containing 02 Gunny covered bales of 100% Mulberry Silk Fabrics, shipped vide your Airway Bill No. 229 2043 3383 dated 22.5.92 to Spain. We have received confirmation letter dated 11.8.92 from you stating that the consignee has taken delivery of the above consignment on 16.6.92. But when we had gone personally to Barcelona on 29.9.92, we were surprised to. find that the goods are still lying at the Airport undelivered. The customs are also claiming demurrages of US$ 1,000/- for the above goods which the consignee is not prepared to pay. Since the goods are already late now, the party has refused to accept the consignment. We, therefore, request you to kindly transfer the goods to London, to the following party immediately: "M/s. Essex Tools & Traders 20 River Road, Barking Essex IG11 ODG United Kingdom Tel: 594 2989" Kindly do the needful immediately and oblige."

The opposite parties, on receipt of the said letter Ex. C-3, from the complainant, by their letter, Ex. C-4, dated 20.10.92, informed the complainant that they had requested Barcelona to forward shipment to London as requested by the complainant. The letter of the opposite parties to the complainant, Ex. C-4, reads as under : "With reference to your letter AC/EXP/ 327 dated 30 September, 92, we have requested Barcelona to forward shipment to London. We will keep you advised about the delivery details as soon as we hear from London."

THE said consignment could not be shipped to London, so the opposite parties wrote a letter to the complainant, as per Ex. C-6, dated 16.12.92 stating that the consignment-could not be shipped to London as the consignment was delivered to the customs main office in November, 1992 itself to be abandoned by local authorities. THE letter Ex. C-6, reads, as under : "Further to your letter requesting for the subject consignment to be re-directed to London, this is to advise you that the shipment has, now been delivered to the customs main office in November, 92 to be abandoned by local authorities. We regret the goods cannot be sent to London."

THE complainant thereafter sought compensation from the opposite parties for not delivering the consignment to London from Barcelona. The opposite parties had carried out their obligations of carrying the consignment from Bangalore to Barcelona as undertaken by them under Ex. C-1 invoice. Therefore, it cannot be said that the opposite parties, committed any deficiency in service in carrying out their obligations. The complainant, as per his letter E,x. C 3, requested the opposite parties to re-ship the consignment from Barcelona to London. The opposite parties informed the complainant, as per their letter, Ex. C 4, that they had requested Barcelona to forward the shipment to London. Thereafter it cannot be shipped from Barcelona to London, as the local authorities at Barcelona had delivered it to the customs main office in November, 1992 itself.

IT is clear from these facts that there was no further obligations on the part of the opposite parties to re-ship the goods to another country. The opposite parties had simply stated mat they had requested Barcelona to re-ship the consignment to London.

THE complainant, apart from merely instructing the opposite party to re-ship the goods, had not taken any steps to deposit with the opposite parties the charges for such re- transportation which had to be paid by the complainant to the opposite parties. So having regard to these facts, it cannot be said that the opposite parties committed any deficiency in service in this aspect of the matter as well. The National Commission, considered such of the facts in Air India v. N. Uddavan, reported in I (1995) CPJ 190 (NC) and held, as under: "The contract entered into between the complainant and Air India was only for carriage by air of the goods in question from Madras to Gdansk in Poland. The obligation of the 1st respondent in the contract must be regarded as having been fully discharged on the goods having been safely carried to Gdansk and on due intimation being given to the consignee about the arrival of the goods. In law the responsibility undertaken by the carrier came to an end on the expiry of reasonable period from the date on which intimation of arrival was given to the consignee so that he could take delivery within such reasonable period. The fact that the consignee failed to take delivery even after expiry of a reasonable period would not operate to keep alive the responsibility of the carrier for the goods. In law the responsibility undertaken by the carrier came to an end on the expiry of reasonable period from the date on which intimation of arrival was given to the consignee so that he could take delivery within such reasonable period. The fact that the consignee failed to take delivery even after expiry of a reasonable period would not operate to keep alive the responsibility of the carrier for the goods. In the present case, the goods shipped in two consignments had admittedly arrived safely in good condition at the port of destination on 23rd May and 26th May, 1991 respectively. The consignee was given intimation about the arrival of the consignments at Gdansk on 29th May, 1991 and on the expiry of a reasonable period of one week thereafter all obligations of Air India in its capacity as carrier of the goods under the contract of carriage entered between the parties came to an end. Further held: that the liability of the carrier ceases after the expiry of reasonable period from the date of giving intimation of arrival of the goods to the consignee. The legal position is also clear that there is no obligation in law for the carrier to intimate the consignor about the failure of the consignee to take delivery of the goods. Hence we hold that the omission on the part of Air India to inform the consignor about the failure of the consignee to take delivery of the goods does not constitute ''deficiency in service''. Consequently held : Another contention which was very strongly urged on behalf of the complainants is that in not carrying out the instructions given by the complainant to re-ship the goods from Gdansk to Gothenburg in Sweden, Air India had committed very serious deficiency in service and hence they should be held liable to compensate the complainant in respect of the loss sustained by reason of cancellation of the order that had been placed by ''FUR FASHION'' undertaking to pay for and take delivery of both the consignments if re-directed to Sweden. This contention omits to take note of the fact that the contract of hiring of service entered between the complainants and Air India was only for the transportation of the goods to Gdansk and delivery to the consignee have been duly discharged by the carrier. There was no further obligation on the part of Air India to reship the goods to another country, namely, Sweden, unless a fresh contract in respect of such carriage of the goods from Gdansk to Gothenburg was entered into between the parties. Admittedly, there was no such contract and hence there can be no deficiency on the part of Air India in the matter when the original contract has been fully carried out and any fresh arrangement for re-shipment of the goods from Gdansk to Gothenburg in Sweden had not been entered into between the parties. It may also be noticed that apart from merely instructing Air India, to reship the goods, the complainants had not taken any steps to deposit with Air India, despite being called upon by it in the letters and telex messages sent to the complainants, the charges for such re-transportation which had to be paid either in foreign currency or in Rupee-currency with the express approval and permission obtained from the Reserve Bank of India. Huge amounts had also to be deposited with the customs authorities in Gdansk by way of terminal charges, handling fee, storage fee etc. and the goods could be got released only if these amounts were paid at Gdansk in US dollars. Inspite of being informed about the said requirement the complainants had not put Air India in possession of the requested funds for the purpose of getting the goods released from the Polish Customs. It is in evidence that after waiting for some days the Customs authorities in Poland confiscated and sold away the goods because of such nonpayment of dues to them. In these circumstances, the conclusion is inevitable that no deficiency of any kind could be attributed to Air India on the ground that the goods were not re-shipped by them from Gdansk to Gothenburg in Sweden."

Having regard to these facts and in the circumstances of the case, we are constrained to hold that the complainant has failed to substantiate his claim of deficiency in service on the part of the opposite parties. ORDER In the result, therefore, this complaint fails and it is dismissed. The parties are directed to pay and bear their own costs in this proceeding. Complaint dismissed.