BALAJI INC vs SR. DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD

IN this complaint under Section 17 read with Section 12 of the Consumer Protection Act, 1986, the complainant has sought compensation in a sum of Rs. 8,26,830/- from the opposite parties i.e., National INsurance Company and M/s. INdian Airlines.

THE complainant-Firm is engaged in Export of Silk Sarees. It entrusted 11 packages containing Silk Sarees to the 2nd opposite party- Indian Airlines who in turn entrusted the same to opposite party No. 3 M/s. Singapore Airlines to carry the same to the consignee in Mauritious. THE said consignment was booked on 18.7.91. Ex. C. 2 is the Air Way Bill issued by opposite party No. 2. THE consignment was valued at U.S. Dollars 58,357.50. It was insured with opposite party No. 1 under Ex. C 3. The consignment reached Mauritious on 21.8.91 in a damaged condition.

The said consignment weighed 589 Kgs. when it was booked at Bangalore. But during shipment at Madras by opposite party No. 1 to opposite party No. 3 the packages found damaged and it weighted only 513 kgs. i.e., shortage of 76 kgs. in weight was found.

THOUGH the consignment reached Mauritious on 21.8.91 but the consignee declined to take delivery of the said consignment as it was found in a damaged condition. So the complainant personally went to Mauritious and arranged for a second buyer who took the delivery of the same on 9.12.91. As the Surveyors of opposite party No. 1 were not immediately available, so the consignment was cleared in the presence of the Customs Authorities. The complainant had sought the survey from the Surveyors of opposite party No. 1 even at the Airport at Madras but the Surveyors of opposite party No. 1 were not available.

THE damage and the shortage at the destination i.e., at Mauritious was found and recorded by the authorities at Mauritious as per Ex. C.5. The complainant made claim with opposite party No. 1-the Insurance Company who repudiated the claim stating that the complainant had acted in violation of the terms and conditions of the policy. The complainant issued legal notice claiming compensation from opposite party Nos. 1 to 3 who denied to comply with the claim of the complainant, so the complainant filed the claim seeking compensation at a sum of Rs. 8,26,830/- from the opposite parties. Opposite party No. 1 filed its version and averred that it is not liable to reimburse the claim of the complainant as the complainant has acted in violation of the terms and conditions contained in the policy Ex. C. 3 by not clearing the consignment within 30 days after the said consignment reached the destination and secondly the complainant had not got the consignment surveyed at Mauritious by Port Louis, Scott & Co. Ltd., as required to be done under the policy Ex. C.3. So it averred that it is not liable to reimburse the loss alleged to have been sustained by the complainant.

OPPOSITE party No. 2-the Indian Airlines-denied its liability alleging that it is carrying the consignment in the same condition it was entrusted to it at Bangalore to Madras. OPPOSITE; party No. 2 further averred that no material is placed on record to show that the consignment was weighed at Madras Air Port and it was found 76 kgs. short in weight at Madras Airport.

OPPOSITE party No. 2 further averred that box Nos. 9 and 11 were of poor quality and so they were found damaged, for which there was some loss in weight and it was liable for the same. Opposite party No. 2 nextly averred that it was liable to pay damages at the equivalent of U.S. Dollars 20 per kg. on the basis of weight loss adjudged under Clause (g) of Sub- section (2) of Section 45 of the Air Corporation Act, 1953 and also as per the provisions embodied in Rule 22(2) (a) and (b) of Schedule II at Chapter III of the Carriage by Air Act, 1972. Opposite party No. 2 on the basis of these averments sought the complaint to be dismissed.

Opposite party No. 3 denied its liability to reimburse the claim of the complainant as the weight of the consignment that was entrusted to it at Madras Air Port was carried and delivered at the destination Mauritious and so far the shortage of weight if any of the consignment it was not liable.

OPPOSITE party No. 3-Singapore Air Lines-on hearing the parties, was deleted by this Commission by its order made on 16.4.94. During enquiry the complainant examined himself as CW 1 and got Exs. C. 1 to C 26 marked in evidence. Opposite party No. 2 filed the affidavit of Senior Assistant in evidence and not Exs. R.1 to R.6 marked in evidence.

WE heard the learned Counsel for the parties, perused the pleadings and the material on record. Ex. C 1 is the invoice of the said consignment. It does not show the weight of the consignment. Ex. C 2 is the Air Way Bill for the said consignment issued by opposite party No. 2 at Bangalore. It gives the weight of the consignment as 589 kgs. of 11 packages.

OPPOSITE party No. 2 has admitted in its version that when the consignment was weighed at Madras Air Port it was the gross weight which was found to be 513 kgs., thus showing a shortfall of 76 kgs.

THIS fact is also revealed from the Air Cargo Transfer Manifest recorded by opposite party No. 2 at Madras when the cargo was transferred to opposite party No. 3 as per Ex. C. 4. Ex. C. 5 is the record maintained at the Customs Clearance Centre in Mauritious while clearing and delivering the consignment to the party at Mauritious. It is as per Ex. C 5 which shows that 465 Sarees were found missing. It does not give the shortage in weight.

It is an admitted fact that the consignment which was given by opposite party No. 2 at Madras Air Port to opposite party No. 3 was carried in the same condition to the distination Mauritious. Therefore, no liability of what soever is cast on opposite party No. 3, who having regard to these facts was deleted by the order of this Commission made on 16.4.94.

OPPOSITE party No. 2 has virtually admitted that it has received the consignment from the complainant at Bangalore under Air Way Bill, Ex. C 2 and the consignment weighed 589 kgs. It transferred the said consignment to opposite party No. 3 at Madras Air Port under Air Cargo Transfer Manifest, Ex. C.4. That shows that the consignment at that stage weighed only 513 kgs. Therefore, admittedly there is shortage of 76 kgs. Opposite party No. 1-the Insurance Company-has averred that it was not liable to reimburse this loss of the complainant because the complainant has acted in violation of the terms and conditions of Ex. C-3-the insurance policy by not clearing the consignment at the destination within a period of 30 days of its reaching the destination and in not getting the survey made of the consignment by Port Louis, Scott & Co. Ltd. Surveyors at Mauritious.

EX. C. 3 is the policy of insurance issued by opposite party No. 1. It provides regarding survey of the consignment as under: "In the event of loss or damage which may involve a claim under the Insurance, immediate notice thereof and application for survey should be given to: At Mauritious in Mauritious Rupees. Port Louis, Scott & Co. Ltd.,1 Corderia Street, Port Louis."

In the present case, admittedly the complainant has not secured the assistance of the Surveyors, referred to therein. The complainant has averred that it could not do so as the Surveyors of opposite party No. 1 were not immediately available. In our opinion, this cannot be a valid ground to get the survey made by some other agency than the one as referred to in the insurance policy. The exclusion Clause in the policy, Ex. C 3 at 3.1.3 reads as under: "In no case shall this insurance cover.... on the expiry of 30 days after unloading the subject-matter insured from the air-craft at the final place of discharge."

IN the present case, the consignment reached Mauritious, the destination on 25.8.91 but the complainant cleared the same at Mauritious on 9.12.91, admittedly long after the expiry of 30 days. The complainant in his evidence has stated thus: "...The consignment, it is ture, reached Mauritious on 25.8.91. We clear this consignment at Mauritious on 9.12.91."

THEREFORE, it is clear that the complainant has in clearing the consignment on 9.12.91 has acted in violation of the terms and conditions specified under the policy of Insurance Ex. C.3. Having regard to these facts, we are constrained to hold that opposite party No. 1- The Insurance Company-is not liable to reimburse the loss sustained by the complainant.

The loss sustained by the complainant, as referred to above, is of 76 kgs. Opposite party No. 2, who carried the consignment from Bangalore to Madras and transferred the same to opposite party No. 3 at Madras the loss of weight was on 76 kgs. as it is evident from the Cargo Transfer Manifest, Ex. C 4.

OPPOSITE party No. 2 in its version at Para 11 has averred thus: "11. Without prejudice to the foregoing, and without accepting any liability whatsoever, the 2nd respondent submits that in the event of this Hon''ble Commission holding it responsible for any deficiency of service, then, it is liable only to account for the alleged loss of weight discovered at Madras when the consignment was transferred from its custody to the custody of the 3rd respondent. In that event, since no value of the consignment was declared by the complainant for carriage in the Airway Bill, this respondent is liable to pay damages at the equivalent of USD 20 per kg. on the basis of the weight loss adjudged by this Hon''ble Commission. This is as per the Regulations framed by this respondent in accordance with the powers conferred by Clause (g) of Sub-section (2) of Section 45 of the Air Corporation Act, 1953 as amended and also as per the provisions embodied in Rule 22(2) (a) and (b) of Schedule II at Chapter III of the Carriage by Air Act, 1972."

In our opinion, having regard to this provision of law referred to therein, opposite party No. 2 is liable to pay the U.S. Dollars 20 per kg. to the complainant i.e., U.S. Dollars 20 x 76 would be 1,520 Dollars. In Indian currency it would work out to Rs. 1520 x 36=Rs. 54,720/-. Having regard to these facts and in the circumstances of the case, we are constrained to hold that opposite party No. 2 committed deficiency in service in making short delivery of the consignment of the complainant to opposite party No. 3 and therefore, we hold that opposite party No. 2 is liable to pay a sum of Rs. 53,720/- to the complainant.

IN the result, therefore, this complaint is allowed in part. Opposite party No. 2-M/s. INdian Airlines-is directed to pay a sum of Rs. 54,720/- with interest at 15% p.a. from 21.8.91 till the date of its payment to the complainant. Opposite party No. 2 shall also pay a sum of Rs. 2,500/- to the complainant towards costs of this proceeding. Opposite party No. 2 shall pay the sums so awarded to the complainant within a period of 60 days from the date of this order. Complaint partly allowed with costs.