Jindal Photo Films Ltd. vs INDIAN AIRLINES

BRIEFLY the facts are that the complainant is carrying on the business of manufacturing and bulk supply of photographic materials. They booked for air-carriage of photographic materials with the respondent to various persons at different destinations as detailed in Appendix I. It is alleged that due to negligence and wilful mis-conduct of the respondent and their employees, the goods were not delivered at the destinations inspite of the fact that these were placed in the loading containers. They also failed to return the goods to the complainant inspite of repeated requests. They have suffered the loss as detailed in Appendix I for non-delivery of the goods. In addition to the price of the goods, it is alleged, they are entitled to interest @ 15% p.a. from the date of booking till the date of filing the complaint which comes to Rs. 56,216/-. It is further alleged, that the complainant served a notice on the respondent through their Counsel and they paid Rs. 550/- as lawyer''s fee. Consequently they have prayed that the respondent be directed to pay Rs. 5,72,976/- alongwith interest pendente lite to them.

THE complaint has been contested by the respondent. THEy have inter-alia pleaded that the liability of the respondent with regard to the cargo is limited to the extent of Rs. 160/- per kg. of consignment booked under Non International Carriage of Cargo (Other than Baggage and Mail) Regulations, 1980 (hereinafter referred to as ''the Regulations''). As the goods were not traceable the compensation amounting to Rs. 48,960/- @ Rs. 160/- per kg. was offered to the complainant, but that was not accepted by them. It is pleaded, that the complainant is not entitled to the amount as claimed by them. However, they have admitted that the goods have been lost and are not traceable. The first question that arises for determination is, whether the complainant is entitled to the compensation @ Rs. 160/- per kg. or actual price of the goods. In order to determine this question it is necessary to notice Rules 22(2) and 25 of the First Schedule of the Carriage by Air Act (hereinafter referred to as ''the Air Act''), which are as follows : "22.(1) xx xx xx xx (2) In the carriage of registered lauggage and of goods, the liability of the carrier is limited to a sum of Rs. 250/- frances per kilogram, 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 paida 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 sum is greater than the actual value, to the consignor at delivery. 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 is 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."

The learned Counsel for the complainant has vehemently argued that the Central Government can issue notification in the official gazette under Section 8 of the Air Act and apply provisions of the First Schedule to non-international flights. The Central Government under Section 4 of the Carriage by Air Act, 1934, which corresponds to Section 8 of the Air Act, had issued a notification and applied the rules in the First Schedule to the internal carriage by air. Rule 25(1) of First Schedule provides that the carrier shall not be entitled to avail himself of the provisions of the Schedule which excludes or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct. According to him the consignment has been lost because of the wilful misconduct of the employees of the respondent and therefore, the provisions regarding limiting the liability by the respondent do not apply in the present case.

The learned Counsel for the respondent on the other hand, has argued that the Indian Airlines has framed the Regulations under the Air Corporation Act, 1954. Regulation 5(c) prescribes, that in case of loss of a consignment the liability of the corporation shall not exceed the value declared by the shipper in the airway bill and in the absence of such declaration by the slipper, the liability of corporation shall not exceed Rs. 160/-per kg. of the goods destroyed, lost or damaged. It is further provided therein that the claim shall be subject to the proof of the value. He contends that the complainant had not given the vlaue of the goods in the airway bill and consequently the complainant in terms of the said rule was offered an amount of Rs. 14,960/- on weight-loss basis @ Rs. 160/- per kg. which was not accepted by them. In the circumstances they were not entitled to the actual price of the goods as alleged by them.

WE have duly considered the arguments of the learned Counsel. WE agree with the submission of the learned Courisel for the respondent. According to Rule 25, the provisions relating to limiting the liability of a carrier are not applicable if damage has been caused by the wilful misconduct of the carrier or by their agent. Therefore, in order to show that the respondent was liable to pay the full price of the goods, it was incumbent on the complainant to show that there was wilful negligence on the part of the respondent on account of which the goods had been lost. The mere fact that the four consignments were handed over by the complainant to the respondent on four different dates for four different destinations and that all the consignments had been lost or some mis-statement through oversight regarding payment of compensation to the complainant has been made in the written statement, or that some blanks have been left in the written statement, do not show that there was willful misconduct on their part. The wilful misconduct has not been defined in the Air Act. It is well settled that the words used in an enactment are to be given ordinary or general meaning generally. In Stroud''s Judicial Dictionary of Words and Phrases 5th Edition (1986), the word ''wilful misconduct'' has been defined as follows : "(3) (Carriage by Air Act 1932 (c. 36), Schedule I, Art. 25). In order to establish wilful misconduct a plaintiff had to satisfy the Court that the person who did the. act knew at the time that he was doing something wrong and yet did it notwithstanding, or alternatively, that he did it quite recklessly, not caring whether he did the right thing or the wrong thing, quite regardless of the effects of what he was doing on the safety of the aircraft and of the passengers for which and for whom he was responsible (Horabin v. British Overseas Airways Corporation (1952) 2 All E.R. 1016)."

Thus a person can be said to be guilty of wilful misconduct if he knowingly acts in violation of a definite rule of action; in other words if he fails to do a thing wilfully, which he is required to do or vice versa. In the present case the complainant''s learned Counsel did not bring to our notice any provision of enactment, or rule or regulation which was not followed by the respondent while accepting the consignment or when it remained in their custody. He also did not point out any reckless act on their part. He referred to the written statement, and submitted that the respondent stated therein that Rs. 48,960/- had been accepted by the complainant but in fact they had not done so. He also brought to our notice page 6 of the written statement where some blank was left. He further submitted that another consignment booked by the complainant on 19-2- 1992 had not been despatched by the respondent till 3-3-1992. WE do not think that any of the said acts amounts to wilful default. The Counsel further referred to a decision of the Karnataka High Court in Air India v. S.B. International (1986) Karnataka Law Journal 34. This case is distinguishable on facts and he cannot derive any benefit from the observations therein. 6.It is further relevant to mention that the complainant did not give the price of the consignment in the airway bill, though a column has been provided therein for that purpose. In case the value of the goods is declared in the airway bill, the respondent would have been conscious of the fact that if the consignment was lost they would have to pay a huge amount to the complainant and therefore, they would have been more careful in dealing with the consignment.

THE learned Counsel for the complainant also referred to various documents for establishing that the price of the goods contained in all the four consignments was Rs. 5,13,500/-. It is not necessary to decide this matter, as the Regulations have provided the method for determining the price of the goods, if their value has not been declared in the airway bill. Before parting with the judgment it may be mentioned that the complainant is still entitled to get Rs. 48,960/- from the respondent. 10. For the aforesaid reasons we partly accept the complaint and direct the respondent to pay Rs. 48,960/- to the complainant within a period of one month. No order as to costs. Complaint partly allowed.