JOSEPHINE JOHN vs AVIATION EXPRESS PVT. LTD.

THE complainant Ms. Josephine John, Proprietrix, M/s. Sunny Exports, is an exporter of leather garments and leather goods. In pursuance of an order received by her, she handed over a consignment of 150 pieces of ladies leather jackets contained in 10 cartons valued at Rs. 2,46,698/- to the 1st opposite party on 30.11.1993 and paid necessary freight charges and other incidental charges amounting to Rs. 22,352/-. THE 1st opposite party had handed over the goods to their Agent, the 2nd opposite party-M /s. Hermes Travel & Cargo Limited. THE 2nd opposite party engaged the services of the 3rd opposite party- M/s. Singapore Airlines to send the goods from Madras to Manchester under an Air Way Bill raised by the 2nd opposite party. THE case of the complainant is that the documents of the consignment were routed through UCO Bank, Chetpet Branch, Madras, and the said goods were sent under an irrevocable Letter of Credit bearing No. 10265 HK. THE said Bank negotiated the bill and paid the full value of the goods viz., Rs. 2,46,698/- against the documents. THE foreign buyer, after satisfying that the goods had reached the Port of destination should approach his Bank and after paying the value of the goods, receive the documents from his Bank and hand over the same to the consignee, and the consignee after handing over the same to the Airlines, shall take delivery of the goods. While so, the complainant received a letter dated 25.2.1994 from UCO Bank stating that the bill had not been paid and calling upon the complainant to pay the same immediately on receipt of the said letter. THEreupon the complainant contacted the 1st opposite party and requested them to find out the whereabouts of the goods, but the 1st opposite party did not do so. THE complainant then, contacted the 2nd and 3rd opposite parties, but they too were not able to give any proper information about the goods. THEreafter, the said UCO Bank again sent a letter dated 27.4.1994 to the complainant informing her that the applicant of the Letter of Credit had rejected the documents and calling upon the complainant to settle the matter amicably. THE 1st and 2nd opposite parties sent a reply stating that the complainant should check up the matter with the 3rd opposite party. But the 3rd opposite party has not sent any reply. UCO Bank sent a letter dated 8.12.1994 intimating the complainant that they have received back the original documents. THE original documents without being cleared, no one could have taken delivery of the consignment, nor the complainant has received back the goods. THE complainant then sent a notice through her Lawyer to all the three opposite parties but in vain. According to the complainant, it was only because of the attitude of the opposite parties the complainant could not get the value of the goods nor the goods back. From the reply received from the 1st and the 2nd opposite parties it would appear that the goods have been delivered without the original documents. On these grounds, the complaint has been filed praying for a direction to the opposite parties to pay to the complainant the value of the goods viz., Rs. 2,46,698/- with interest thereon and also compensation.

THE 1st opposite party in their written version deny that they are responsible for any loss that would have occurred to the complainant in the transaction. THEy have contended that the goods have reached Manchester on 9.12.1993 and the consignee has taken delivery of the same on 15.12.1993. THErefore, no claim can be made against them. The 2nd opposite party has filed a written version contending that it is not the case of the complainant that the consignment had not been delivered to the carrier and therefore, there cannot be any deficiency in service on their part and hence, the claim against them is liable to be dismissed.

The 3rd opposite party in their written version would contend mat on verbal instructions by M/s. Court International Limited, the goods have been delivered to M/s. Little Woods by their handling agents British Airways at Manchester. Therefore, there is no deficiency in service on their part and they are not liable to the complainant in any way. Hence the complaint is liable to be dismissed.

THE point that has to be considered is whether there was any deficiency in service on the part of the opposite parties in respect of the transaction in question. On a careful perusal of the complaint, it is seen that according to the complainant, the whereabouts of the goods were not known. But it is the definite case of the 3rd opposite party- Carrier that the goods have been delivered to M/s. Little Woods on the instructions of the Notified Party M/s. Court International Limited, at Manchester. A look at the Air Way Bill Ex. A-5 shows that the said M/s. Court International Limited - Notified Party is also the consignee. The 3rd opposite party has also filed Ex. B-17-a letter from the said M/s. Court International Limited to M/s. Singapore Airlines, stating that they could confirm that the goods in question had been delivered to their Agent. We find absolutely no reason as to why we should not believe this exhibit as a genuine document. Nor was it argued by the complainant that this document should not be believed as true. Therefore, it would appear manifest that the goods had been delivered by the 3rd opposite party to the consignee-M/s. Court International Limited which is also the Notified Party according to the Air Way Bill. We do not find in the complaint any. specific charge of deficiency in service made against any of the three opposite parties. As regards the 1st and 2nd opposite parties, absolutely no allegation of negligence or lapse on their part is alleged by the complainant. Therefore, as regards them, there is no case at all in the complaint. As regards the 3rd opposite party, it is however argued that they delivered the consignment to the consignee without verifying whether they had the original documents which should have been obtained by the buyer of the goods from his Bank of Manchester, and this amounts to deficiency in service on their part. But are unable to see any merit in this submission. As seen supra, in the Air Way Bill, M/s. Court International Limited is both the consignee and the Notified Party. It is to them the consignment had been delivered. It is not stated either in the Air Way Bill or anywhere else that the consignment must be delivered to the consignee only on production of the original documents, nor there is any law that requires so. That being the case, we are unable to appreciate the argument that without verifying whether the original documents have been cleared in the Bank the consignment should not have been delivered to the consignee. In support of this contention of the complainant, an order of this Commission in SVNR Exports v. Air India, 1995 (1) CPR 753; and another decision by the Delhi High Court in M/s. Anil Kumar v. Air India & Ors., AIR 1986 Delhi 312, are cited. But in both these orders, the consignment, instead of delivery to the consignee, had been delivered to a wrong person. However, it is argued that it is stated in those orders that the consignment should have been delivered only when the Air Way Bill was presented. But it is not clear as to on what basis it has been stated so. Therefore, according to us, the said two orders are not of any assistance to the complainant in this case.

THUS considering, we are constrained to hold that the complainant failed to make a case against any of the opposite parties for payment of the amounts claimed in the complaint. In the result therefore, the complaint is dismissed. But in the circumstances of the case, there will be no order as to costs. Complaint dismissed.