JWF EXPORTS vs NEW GLOBE AIR SERVICES LTD.

COMPLAINANT has filed this complaint for a direction to the O.Ps. to pay a sum of Rs. 6,51,796 being the value of the consignment along with interest at the rate of 24% per annum from 16.2.2001 till the date of realization and for compensation under different heads.

THE facts, in this case, are as follows: THE complainant is a partnership concern engaged in the business of manufacturing and export of silk fabrics and other materials. O.P. 1 is an agent to provide the services of freight carriers to carry the goods from one point to another and is the carrier agent of O.P. No. 2 which is engaged in Air Travel Business. O.P. 3 is a Clearing House Agent. THE complainant had handed over the consignment to O.P. 3, to be delivered at Hanmi Bank, USA through O.P. 2. THE said Hanmi Bank on receipt of the consignment had to notify the arrival of the consignment to the M/s. Chador Tex Inc., No. 841, S. Wall Street, Los Angeles, CA 900 14, U.S.A. THE contents of the consignment were 100% natural silk fabrics and fabrics made of natural silk and the value of the same being $ 13989.19 US Dollars which is equivalent to Rs. 6,51,796 as on the date of shipment. THE term of the delivery is, consignment was to be delivered as against the payment. THE consignment belonging to the complainant was handed over by O.P. No. 3 to O.P. No. 2 through O.P. No. 1 for transportation from Bangalore to Los Angeles on 25th January, 2001 at Bangalore. When M/s. Chador Tex Inc. was informed to take the delivery of the consignment by paying the value of the goods to the Hanmi Bank, M/s. Chador Tex Inc., by its fax letter dated 31st January, 2001 sent to the complainant requested to release the consignment on credit basis. THE complainant did not agree to the said request, and, therefore, M/s. Chador Tex Inc. could not take delivery of the consignment sent by the complainant. Thereafter, the complainant with the help of the South Indian Bank Limited at Bangalore directed the O.Ps. to change the consignee and requested them to deliver the consignment to M/s. Dillu Inc., No. 117, West 9th Street, Suite No. 509, Los Angeles, California-900 15 by its letter dated 14.2.2001.

In this regard, the complainant has paid a sum of Rs. 500 by cheque dated 14.2.2001 drawn on South Indian Bank Limited, Bangalore City Branch to Aviation Travels Private Limited which is the agent of O.P. No. 2.

AFTER the receipt of the letter dated 14.2.2001, O.P. No. 1, on the very same day informed O.P. No. 2 to deliver the consignment to the following address: M/s. Dillu Inc., No. 117, West 9th Street, Suite No. 509, Los Angeles, California - 900 15.

Relying upon the said letter, Opposite Party No. 2 delivered the consignment to M/s. Chador Tex Inc.

THE complainant after having come to know the correspondence with M/s. Dillu Inc., the consignment was not delivered to M/s. Dillu Inc. Hence, the complainant has filed this complaint before this Commission. O.P. 1 has filed its version denying its liability stating that acting upon the instructions of the complainant amended the name of the consignee in the airway bill and handed over the same under the covering letter to O.P. No. 2. It is further stated that there is no privity of contract between the complainant and O.P. No. 1, and, therefore, the complainant is not entitled to seek any relief. O.P. No. 2 filed its version stating that as per the amended air way bill, the consignment was delivered to M/s. Chador Tex Inc., and, therefore, there is no deficiency in service on its part so as to pay any compensation in favour of the complainant. O.P. 2 in its version has denied the receipt of the letter dated 14.2.2001 written by the complainant addressed to O.P. 2.

O.P. 3 is only a Clearing House Agent, and, therefore, no liability can be fixed on O.P. 3 even though the complainants were to establish the deficiency in service as against O.Ps. 1 and 2. All the parties have filed their affidavits by way of evidence in respect of their pleas. The parties have also produced the documents.

THE documents produced by the complainants are marked as Exh. C.1 to C.19. THE documents produced by O.P. No. 2 are marked as Exs. R1 to R9. Documents produced by O.P. No. 1 are marked as Exs. R10 and R11. The points that arise for our consideration in this case are as follows: (1) Whether the complainant has proved the deficiency in service on the part of the O.Ps. as pleaded in the complaint? (2) If so, to what relief the complainant is entitled to?

The fact that the complainant had entrusted the consignment containing silk fabrics for transportation from Bangalore to Los Angeles to O.P. No. 2 through O.P. No. 1 is not disputed. The fact that the goods were delivered to M/s. Chandor Tex Inc., by O.P. No. 2 is also not disputed. The fact that the consignment was not delivered to M/s. Dillu Inc., is also not disputed.

THE complainant has produced the airway bill dated 25.1.2001 which is marked as Ex. C-1. From this airway bill, it is seen that the consignee is Hanmi Bank, Downtown Office, 950 South Los Angeles CA 90015, U.S.A. It is also seen the consignment is required to be delivered to M/s. Chandor Tex Inc. though Hanmi Bank is shown as the consignee. THE value of the goods declared as per the airway bill is $ 13989 US Dollars. THE Hanmi Bank is shown as the consignee because the goods are to be delivered by Hanmi Bank to M/s. Chandor Tex Inc., after the payment towards the value of the consignment to the Hanmi Bank. As per the terms of the contract, the goods are required to be delivered to M/s. Chandor Tex Inc. after the payment of the value of the consignment to the Hanmi Bank but M/s. Chandor Tex Inc. did not come forward to take the delivery of the goods as it was not in a position to arrange the payment of the value of the consignment. This has made the complainant to inform O.P. 2 to deliver the consignment to M/s. Dillu Inc. through O.P. No. 1 by its letter dated 14th February, 2001. THE copy of the said letter is marked as Ex. C-4. O.P. 1 is the agent of O.P. 2. O.P. 1 does not dispute the receipt of the said letter. According to O.P. No. 1 the said letter was handed over to O.P. 2., whereas, O.P. 2 in its version denies the receipt of the said letter. The learned Counsel appearing for opposite party No. 2 submitted since O.P. 2 has not received the letter dated 14th Febuary, 2001 has delivered the goods to M/s. Chador Tax Inc. relying upon the letter written by O.P. 1 on 14th February, 2001 itself. The said letter has been produced by the complainant along with the letter dated 27th March, 2001 which is marked as Ex. C-15. The very same letter has been produced by O.P. 2 which is marked as Ex. R-4. As per this letter, the consignment is delivered to: M/s. Chador Tex Inc. Dillu Inc., 117, West 9th Street Suite No. 509, Los Angeles CA - 90015.

FROM this letter, it is seen that the consignment is to be delivered to M/s. Chador Tex Inc. but the address given is of M/s. Dillu Inc. Pursuant to the said letter, the amended air way bill is also issued which is marked as Ex. R-6. As per the amended airway bill, the name of the consignee is shown as M/s. Chador Tex Inc., Dillu Inc., West 9th St., Suite No. 509, Los Angeles, and in the middle, the name of the notified person to whom the goods are to be delivered has been deleted. According to O.P. 2 since the name of the consignee is shown as M/s. Chador Tex Inc., the opposite party No. 2 has delivered the goods to M/s. Chador Tex Inc., and, therefore, there is no deficiency in service on its part so as to pay any compensation in favour of the complainant. From the facts narrated above, it is seen O.P. 1 having not denied the letter Ex. C-4 written by the complainant ought to have informed the opposite party No. 2 to deliver the consignment to M/s. Dillu Inc. and not to M/s. Chador Tex Inc. But opposite party No. 1 negligently mentioned the name of M/s. Chador Tex Inc. though the address of the said M/s. Chador Tex Inc. is of M/s. Dillu Inc. This in our view is a clear case of deficiency in service on the part of O.P. 1.

THE learned Counsel appearing for O.P. No. 2 submitted that as per the amended airway bill, they have delivered the goods to M/s. Chador Tex Inc. and, therefore, there is no deficiency in service on its part. As per the terms of the contract, the consignments were to be delivered to M/s. Chador Tex Inc., though the name of Hanmi Bank is shown as a consignee as per Ex. C-1 as against the payment of value of the consignment. So far as the mode of delivery of the consignments either to Hanmi Bank or to M/s. Chador Tex Inc. is concerned, it is as against the payment of the value of the consignment.

OPPOSITE Party No. 2 denies the receipt of the letter dated 14th February 2001 i.e., Ex. C-4 written by the complainant to O.P. 2. If that were to be the case, opposite party No. 2 is not aware of the fact that the consignments were to be delivered to M/s. Chador Tex Inc. though the address furnished is of M/s. Dullu Inc. Further O.P. 2 ought not to have delivered the consignment to M/s. Chador Tex Inc., unless it produces the receipts for having paid the value of the consignment to Hanmi Bank, as per the terms of the contract. According to the learned Counsel for opposite party No. 2 since the name of the consignee is changed in the airway bill, O.P. 2 has delivered the consignments to M/s. Chador Tex Inc. as they are under the impression that the delivery is not as against the payment of the value of consignment. No doubt, the name of the consignee is changed in the amended airway bill but the term of the contract as agreed as per the earlier airway bill i.e., Ex. C-1 is that the delivery of the consignment as against the payment. The said contract is binding on the complainant and O.P. 2 which had undertaken to transport the consignment from Bangalore to Los Angeles. If that is so, before delivering the consignment to M/s. Chador Tex Inc., O.P. No. 2 ought to insist the M/s. Chador Tex Inc., to produce the receipt for having paid the value of consignment to Hanmi Bank.

Assuming that the O.P. No. 2 delivered the goods to M/s. Chador Tex Inc., on information from O.P. No. 1, the O.P. No. 2 ought to have obtained the consent of the complainant before delivering the goods, as it has denied the receipt of the letter dated 14.2.2001 written by the complainant to O.P. No. 1. In this regard no efforts have been made by O.P. No. 2 to get the consent of the complainant before delivering the consignment to M/s. Chador Tex Inc. Therefore, in our view O.P. No. 2 is also negligent in delivering the consignment to M/s. Chador Tex Inc., without insisting for payment before delivering of the consignment. This in our view is a deficiency in service on the part of O.P. No. 2 also.

THE learned Counsel appearing for O.P. No. 2 further submits that the complainant has not pleaded in so many words stating that O.P. No. 2 had not obtained the consent of the complainant before delivery of the consignment. Assuming that the said fact is not pleaded in so many words, the fact remains that O.P. No. 2 has delivered the consignment to M/s. Chador Tex Inc., without insisting for payment even though the said consignment was to be delivered to M/s. Chador Tex Inc. though Hanmi Bank is shown as the consignee in the airway bill under Ex. C-1. According to it, as there is a change in the name of the consignee, there is no reason to insist the consignee to pay the value of the consignment before delivery. It is not the case of O.P. No. 2 that either the complainant or O.P. No. 1 instructed O.P. No. 2 to deliver the consignment to M/s. Chador Tex Inc. without any payment. When such being the case, there is a duty cast upon the opposite party No. 2 to ascertain whether the consignment has to be delivered as against the payment by consulting or by obtaining the consent of the complainant. In this case, no such efforts have been made by O.P. No. 2 before delivering the consignment to M/s. Chador Tex Inc.

IT is not in dispute that the complainant has no doubt changed the consignee since M/s. Chador Tex Inc. had not come forward to pay the value of the consignment and has also asked the O.Ps. to deliver the consignment to M/s. Dillu Inc. on credit basis. But, as stated earlier, O.P. No. 2 pleaded its ignorance about the said information. The consignment is also not delivered to M/s. Dillu Inc. In this process, the complainant is deprived of the value of the consignment. According to the complainant M/s. Chador Tex Inc. though had taken delivery of the goods has not paid any amount towards the value of the consignment. If that is so, the complainant is entitled for the value of the consignment with interest from O.Ps. 1 and 2 since O.Ps. 1 and 2 jointly and severally are liable to make good the loss. In the event, if the complainant has filed this complaint for recovery of the value of the consignment and damages having recovered the value of the consignment from M/s. Chador Tex Inc., it is open for O.Ps. 1 and 2 to institute a separate proceedings as against the complainant either for recovery of money or to prosecute the complainant under the criminal law as the complainant shall not be allowed to enrich himself unjustly.

THE learned Counsel appearing for O.P. No. 2 has taken us through the general conditions of carriage for cargo and submitted that the O.Ps. are not liable to make good the loss if any, if the complainant had suffered any damage or loss. Article 14 of the said condition provides that carrier is not liable to the shipper in respect of any damage unless such damage is proved said to have been caused by the negligence or wilful intention of the carrier. From this, it is seen that if the carrier is negligent in discharging its duties and if there is any wilful fault on the part of the carrier in delivering the consignment, the carrier is liable to pay damages in favour of the shipper.

IN the instant case, the complainant has entrusted the consignment to O.P. No. 2 for transportation and delivery as against the payment to M/s. Chador Tex INc. But the carrier negligently delivered the goods to M/s. Chador Tex INc., without insisting for payment or production of the documents from the Bank for having paid the value of the consignment and, therefore, in our view, the carrier is liable to make good the loss suffered by the complainant. The complainant has stated the value of the goods as Rs. 6,51,196.80 which is equivalent to $ 13989.19 as on the date of shipment. This fact is not disputed by the O.Ps. Apart from this, the complainant has also sought for compensation for mental agony and also for the expenditure incurred by him so as to go over to U.S.A. to ascertain whether in fact the consignment was delivered to the consignee or not. So far as the air fare charges spent by the complainant to go to U.S.A. is concerned, we are of the view that the complainant has not produced any material to substantiate that he had gone to U.S.A. only for this purpose except a plea in the complaint. The complainant is also not entitled for compensation towards mental agony, since we are proposing to award interest on the amount payable to the complainant.

For the reasons stated above, we hold that the O.Ps. are liable to pay the value of the consignment with interest. In the result, we pass the following: ORDER Complaint is allowed in part. O.Ps. 1 and 2 are jointly and severally directed to pay Rs. 6,51,196.18 to the complainant with interest at 12% p.a. from 25.1.2001 i.e., from the date of airway bill (Ex. C.1) till realization. The O.Ps. 1 and 2 are also directed to pay Rs. 10,000 to the complainants as the costs of this proceeding. Complaint partly allowed.