Hamosons Exports Pvt. Ltd. vs SINGAPORE AIRLINES LTD.

THIS appeal has been filed by the appellant against the order dated 31.08.2010 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short, ''the State Commission'') in Consumer Complaint No. 154/2001 - Hamosons Exports Pvt. Ltd. v. M/s. Singapore Airlines Ltd. by which, complaint was dismissed.

BRIEF facts of the case are that complainant/appellant consigned 2720 pieces of Cotton Knitted Fleece Men''s Sweat Shirts, packed in 114 cartons, valued at US$ 32688.20, from Chennai to Newyork, through the opposite party/respondent on 4.10.1999, under Airway bill No. 6181671 1940. Under Airway bill, the consignee was Canara Bank, Foreign Department, Chennai and the name of the customer was mentioned as M/s. Apparel Solutions L.L.C. 1717, Olive Street, St. Louis, MO63103, USA, and the notified party was M/s. Phoenix International Freight Service Ltd. The customer was to make payment through the consignee bank, obtain the original Airway bill, and other connected documents endorsed in their favour, then to take delivery of the consignment, through their clearing agent. The consignee being the banker of the complainant, had endorsed the documents to the bank of America. Though the complainant waited for the collection of the amount, there was no response, and documents were returned by bank of America, to the complainant''s bank, resulting the sum was debited to their account, towards interest charges. A letter was addressed on 16.2.2000, to furnish details, about the status of the consignment for which the opposite party replied that M/s. Phenix International Freight Services Ltd., had cleared and taken delivery of the goods. The delivery, without authorization of the consignee Bank and production of the consignee copy of the Airway bill, was against the established procedure, amounting to unauthorized, irregular delivery, and therefore the opposite party is answerable, for the value of the goods, viz. US$ 32688.20. The customer of the complainant, not only failed to pay the amount, to the complainant, whereas re -consigned the goods, through their forwarding agent, which was informed to the complainant. The complainant informing the development, in order to mitigate the damages, took delivery of the goods, incurring sum of Rs. 1,28,806/ -. The entire loss sustained by the complainant was due to the deficiency in service/gross negligence of the opposite party, in delivering the consignment, to the notified party, without due authorization by the consignee. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. Op resisted complaint and submitted that the shipment entrusted to this opposite party was destined to New York in USA. In the Airway bill, the consignee was mentioned as Canara Bank in Chennai, which had no branch in New York or USA. Therefore, instruction was sought for which the agent informed that party notified in the consignee column of Airway bill viz. Phoenix International Freight Service Ltd. would make arrangement to collect the shipment document, pay the freight charges as mentioned in the Airway bill and clear the consignment. M/s. Phoenix International Freight Services Ltd. being the custom clearing agent cleared the shipment at the airport in USA by paying the freight charge in the absence of the Canara Bank or its Branch in USA. Enquiry also revealed that M/s. Phoenix International Services Ltd. and M/s. Apparel Solution had not received any documents either directly or through any bank for payment. When the complainant claimed details this was informed. Further, the consignment which was re -consigned by M/s. Apparel Solutions LLC 117 Olive Street, St. Louis, USA to the complainant at Chennai through the custom broker M/s. Phoenix International Foreign Services Ltd. by sea thereby establishing that the same consignment has been returned back to Chennai. The fact that the goods were returned by M/s. Apparel Solutions to the complainant, would indicate that there must be some problems either in the payment or in the quality of the goods between the shipper and the Apparel Solutions for which the opposite party cannot be held responsible. There was nothing in the Airway bill to suggest that the customer has to make payment, through the consignee bank or their authorized nominees, and obtain the original Airway bill, and other documents endorsed in their favour to enable them to take delivery of the consignment through their clearing agents. Further there was no indication in the Airway bill also that Canara Bank endorsed the documents to the Bank of America. The delivery has been made by the opposite party in accordance with the terms and conditions of the Airway bill to the notified party, there being no branch of Canara Bank at the address given in the Airway bill which cannot be imagined even as irregular delivery or amounting to deficiency in service. If the complainant had lost the value of the consignment if at all they alone has to be blamed since the complainant consignor ought to have incorporated the correct name and address of his banker at New York which they failed and the opposite party has not failed in its duty and not committed any deficiency and prayed for dismissal of complaint. Learned State Commission after hearing both the parties dismissed complaint against which, this appeal has been filed.

HEARD learned Counsel for the parties and perused record.

LEARNED Counsel for the appellant submitted that inspite of proof of delivery of goods by OP directly to M/s. Apparel Solutions without receiving payment learned State Commission committed error in dismissing complaint; hence, appeal be allowed and impugned order be set aside and compensation may be awarded. On the other hand, learned Counsel for the respondent submitted that as consignee''s office was not in that country and in absence of endorsement pertaining to Bank of America, goods were delivered to the buyer in accordance with procedure, order passed by learned State Commission is in accordance with law; hence, appeal be dismissed. It is not disputed that complainant consigned goods through OP to the buyer and in the airway bill consignee''s name has been shown as Canara Bank. Learned Counsel for the appellant could not show that consignee Canara Bank had any branch office in Newyork or anywhere in USA at that time. As there was no office of consignee Bank, OP rightly contacted notified party in the airway bill M/s. Phonenix International Freight Services Ltd. who made arrangements to collect the documents and paid charges for clearance of cargo and obtained delivery of goods who in turn delivered goods to buyer M/s. Apparel Solutions.

LEARNED Counsel for the appellant submitted that goods were to be sent through Bank of America, but I do not find any such endorsement in airway bill or any instructions to the OP to handover goods through Bank of America. In the absence of consignee Canara Bank office in Newyork OP has not committed any deficiency in getting clearance of goods through notified party M/s. Phonenix International Freight Services Ltd. and delivering goods to the buyer shown in the airway bill. Learned State Commission rightly observed that there was no deficiency on the part of OP in getting goods cleared through notified party - M/s. Phonenix International Freight Services Ltd. as there was no condition mentioned in the airway bill that goods were to be delivered through Bank of America.

LEARNED Counsel for the appellant submitted that as per letter of credit terms, goods were to be delivered through Bank of America after receiving money. This argument is devoid of force because complainant has not placed any evidence on record to substantiate that letter of credit terms regarding payment through Bank of America were intimated to OP and in absence of such intimation OP has not committed any deficiency. By letter dated 2.3.2000, OP rightly apprised to complainant that there was no mention of Bank of America on the airway bill and they were not aware of any letter of credit terms. In the aforesaid letter, it was further mentioned that in the absence of any branch of Canara Bank in Newyork they contacted M/s. Phonenix International Freight Services Ltd. which has been shown as notified in the consignee column of airway bill who paid freight charges and cleared the goods. It was further mentioned that M/s. Phonenix International Freight Services Ltd. and buyer M/s. Apparel Solutions intimated them that no documents were sent to them directly or through any bank for payment. In such circumstances, I do not find any deficiency on the part of OP. Had goods delivered to wrong person or not reached to the destination or reached in damaged condition, OP might have been liable on account of deficiency in service. As goods have reached to the hands of buyers through proper procedure merely because goods have been re -consigned by the buyer to complainant, complainant is not entitled to claim any compensation for reduction of value of exported goods from the OP. It was a dispute between complainant and buyer and OP have unnecessarily been dragged in the dispute without any deficiency on their part.

LEARNED State Commission after elaborate discussion rightly dismissed complaint on the ground that there was no deficiency on the part of OP in rendering any service and rightly observed that it was a dispute between complainant and importer.

LEARNED Counsel for the appellant has placed reliance on judgment of this Commission in OP No. 196 of 1995 - M/s. Sun Pharmaceutical Industries v. Managing Director, Exfin Shipping (India) Pvt. Ltd. & Anr. in which complaint was allowed as documents remained with the bank and goods were delivered by carrier to an unauthorised person on account of which complainant suffered. Aforesaid case is not applicable to the facts and circumstances of this case as in the case in hand documents were not sent through Bank of America and consignee Canara Bank had no branch in Newyork. In such circumstances, goods were rightly delivered to buyer through notified party - M/s. Phonenix International Freight Services Ltd. She has also placed reliance on judgment of Hon''ble Apex Court in : (2011) 10 SCC 316 - Trans Mediterranean Airways v. Universal Exports and Anr. in which order allowing complaint by this Commission was upheld by Hon''ble Apex Court on account of deficiency in service on the part of carrier. In the aforesaid case, name of Bank namely; Barclays Bank, Madrid was shown in the airway bill whereas in the case in hand name of Bank of America has not been shown in airway bill. In the aforesaid case it was also observed that if carrier was of the view that name of consignee was not forthcoming or particulars were insufficient for effecting the delivery of the consignment, it was expected from the appellant carrier to have made enquiries.. In the case in hand as there was no branch of Canara Bank in Newyork, carrier/OP after making due enquiries rightly asked notified party for clearance of goods who paid charges and cleared goods and delivered to the buyer and in such circumstances, I do not find any deficiency on the part OP. On the other hand, learned Counsel for the respondent placed reliance on judgment of this Commission in : III (2002) CPJ 392 (NC) - Air India Ltd. v. Rakesh Vaid in which appeal was allowed and complaint was dismissed as there was no deficiency in service on the part of appellant because respondent did not forward document as required by custom authorities who auctioned goods as per procedure. He also placed reliance on judgment of this Commission in : IV (2005) CPJ 186 (NC) -Beechins Creation Pvt. Ltd. v. T.M.A. International Airlines in which complaint was dismissed as there was no complaint from the importer regarding any damage caused by delayed delivery or complaint on account of deficiency in handing over goods. It was further observed that dispute between the parties was regarding non -payment by importer to exporter which does not fall within purview of consumer dispute under C.P. Act. In the case in hand, importer re -consigned goods for the reasons best known to him and apparently there was dispute of non -payment of value of goods by the importer to the exporter complainant which does not fall within purview of consumer dispute and in such circumstances, complaint was rightly dismissed by learned State Commission. He also placed reliance on judgment of Hon''ble Apex Court in : (2008) 15 SCC 102 0 Citybank N.A. v. Geekay Agropack Pvt. Ltd. & Anr. in which order passed by this Commission was upheld and it was observed that for the recovery of amount of loss complainant has to file civil suit before appropriate court.

IN the light of aforesaid discussion, I do not find any illegality in the impugned order and appeal is liable to be dismissed.

CONSEQUENTLY , appeal filed by the appellant is dismissed. Parties to bear their own costs.