KASHMIR CARPETS vs ALITALLIA

Ms.Rumnita Mittal, Member

THE present complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act''). THE case of the complainant, in brief, is that the complainant is a registered partnership firm, having its Registered Head Office at Nopora, Safakadal, Srinagar (Kashmir) and is carrying on the business of sale, purchase and export of Kashmir Arts and Handicrafts including Kashmir handmade carpets. O.P. Nos. 1 and 2 are the carriers and O.P. No. 3 is the agent of O.P. No. 1 who books goods and also receives air freight at the time of booking of goods on behalf of O.P. No. 1. O.P. No. 4 is the banker of the complainant. THE complainant booked 5 bales containing 15 pieces of Kashmir handmade Silk and Rayon Syn carpets vide Airway Bill No. 055-4248 2182 dated 1.11.1997 with O.P. No. 1 through O.P. No. 3 for being carried to St. Lagos Nigeria from Srinagar. THE said consignment as per the contract with O.P. Nos. 1 and 2 was to be delivered to the consignee in the Airway Bill i.e. Allied Bank of Nigeria Ltd., Allied House International Department Broad St. Lagos Nigeria. However, O.P. Nos. 1 and 2 in contravention of the express directions contained in the Airway Bill delivered the consignment to M/s. Afeez Starlight Industrial Co. Ltd., No. 61, Princess Street, 2/F-1, Lagos, Nigeria, the party to whom the goods were sold. O.P. No. 4, being the bankers of the complainant received a letter dated 6.3.1998 from the consignee informing the said O.P. that the drawee of the documents had failed to accept the documents and as such all the documents in original were returned to O.P. No. 4 without any payment. In the meanwhile the O.P. No. 3 on inquiry from O.P. No. 1 informed the complainant on 29.12.1997 that the goods had been delivered to the consignee on 28.11.1997 under delivery No. 198675. In order to confirm the same, the complainant took up the matter with O.P. No. 1 and ultimately O.P. Nos. 1 and 2 admitted their default in delivering the shipment in question to a wrong person without obtaining the required bank release or payment from the buyers of the consignment and as such accepted their liability and offered to settle the matter at USD 20 per kg. i.e. total USD 6486 which included USD 5600 as weight of the shipment and USD 886 as freight charges. THE complainant, however, refused to accept the same and requested for full payment of the cost of the shipment along with other charges incurred together with interest. Since the O.Ps failed to settle the dispute, the complainant, served legal notice dated 13.6.1998 on O.P. No. 1 and thereafter filed a complaint before this Commission praying for compensation of Rs. 15,34,037/- as per details contained in Para 24 of the complaint. O.P. Nos. 1 and 2 filed a joint reply/written version before this Commission wherein several preliminary objections were raised. However, on merits, it was admitted that the consignment in question had been delivered to the actual buyer who was a ''notify'' party mentioned in the Airway Bill though the consignee was M/s. Allied Bank Ltd. Nigeria. It was also admitted that consignment was delivered without the bank release order and as such the O.P. Nos. 1 and 2 had offered to pay compensation of USD 20 per kg. on weight loss basis, together with freight charges, which offer had been refused by the complainant. It was further stated that in terms of Clause 4 of the conditions of contract printed on the reverse of the Airway Bill in question, in case of loss/damage/delay of the consignment, the liability of a carrier to pay damages/compensation is limited only to USD 20 per kg. on weight loss basis, unless a higher value of the goods for the purpose of carriage had been declared by the consignor and supplementary charges been paid in advance to the carrier. Since in the instant case, no higher value of goods had been declared and the column for Declared Value for Carriage on the Airway Bill shows the endorsement ''no value declared'' i.e. (NVD), the complainant is liable to be compensated only to the limited extent of USD 20 per kg. on weight loss basis and as such the O.P. Nos. 1 and 2 in terms of the contract had offered to compensate the complainant on the said basis. As such there was no deficiency in service on the part of O.P. Nos. 1 and 2 and, therefore, the present complaint, filed by the complainant, was liable to be dismissed with costs.

O.P. No. 3 in its reply/written version took the stand that the complaint was not maintainable as against the said O.P. as it was only an agent of the Carrier and its role was limited to accepting the goods, custom clearance and handing over the consignment to the concerned airline. Since the said O.P. No. 3 had carried out its obligations there was no deficiency in service on its part. Furthermore, no relief had been claimed, by the complainant, against O.P. No. 3 and, therefore, the complaint was liable to be dismissed as against the said O.P.

O.P. No. 4 being the banker of the complainant had also taken a similar stand in its reply/written version filed before this Commission. It was stated by the O.P. No. 4 that since no cause of action had been alleged as against O.P. No. 4 and no relief had been claimed against it, as such the complaint was liable to be dismissed as against the said O.P. The parties led their evidence by way of affidavits. On behalf of the complainant, affidavit of Shri Munir Ahmed, partner of the complainant was filed whereas the affidavit of Ms. Kumkum, Cargo Sales Officer of O.P. Nos. 1 and 2 was filed on behalf of O.P. Nos. 1 and 2. The affidavit of Shri K.S. Johar was filed on behalf of O.P. No. 3.

WE have carefully perused the documents/material placed on record and have also gone through the written submissions filed on behalf of O.P. Nos. 1 and 2. WE have also heard the arguments advanced on behalf of the complainant, as well as, O.P. Nos. 1 and 2. O.P. Nos. 3 and 4, however, did not participate in the proceedings after filing their reply and as such were proceeded ex parte vide order/proceedings dated 18.1.2002 and 28.1.2003 respectively. In the instant complaint, it is admitted on the part of O.P. Nos. 1 and 2 that consignment was delivered to a wrong party. It is borne out of the record and admission on the part of O.P. Nos. 1 and 2 that the consignee as per the Airway Bill was Allied Bank Ltd. whereas the consignment was wrongly delivered to the buyer of the consignment without obtaining bank release orders or payment from the said buyer resulting in loss to the complainant. Thus the deficiency in service on the part of O.P. Nos. 1 and 2 stands proved. The only controversy involved in the present complaint, therefore, is as to whether the liability of O.P. Nos. 1 and 2 to compensate the complainant in the circumstances is limited to USD 20 per kg. on weight loss basis, in terms of Clause 4 of the terms and conditions printed on the reverse of the Airway Bill. It is contended on behalf of O.P. Nos. 1 and 2 that as per Clause 4 of the terms and conditions printed on the reverse of the Airway Bill, the liability of said O.Ps. is limited to USD 20 per kg. on weight loss basis and as such the O.P. had offered to pay to the complainant USD 5600 towards the loss of consignment and further amount of USD 886 as freight charges. It was also contended on behalf of O.P. Nos. 1 and 2 that in the Airway Bill in the column ''Declared value of the consignment'' the complainant had neither declared the value of the consignment nor paid any supplementary charges on the same and it was only in case the complainant had declared a higher value of the consignment and paid additional charges for the same that he would have been entitled to claim damages for the value of the consignment. On the other hand, the case of the complainant is that the complainant is entitled to the full value of the consignment as the value for the same had been duly declared in the Airway Bill under the column ''Declared value for custom''. In view of the rival contentions of the parties, it would be pertinent to revert to Section 18 of the Carriage by Air Act, 1972 which reads as under : "18. (1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air." It has also admitted in its written submission filed on behalf of O.P. Nos. 1 and 2, that the liability of a Carrier to pay compensation/damages to the complainant, is limited only in cases of loss/damage or delay to the consignment. In the given facts of the case, it cannot be said that the consignment was delayed or lost or damaged for which the liability of the O.Ps. On terms of the contract is limited, rather as per the case made out by the complainant and admitted by O.P. Nos. 1 and 2, the consignment in the instant case has neither been lost nor delayed nor damaged but the same has been wrongly delivered to a third person without following proper procedure, and in gross violations of express directions contained in the Airway Bill, resulting in monetary loss to the complainant. Thus the deficiency in service on the part of O.P. Nos. 1 and 2 in the instant case is outside the purview of the limited liability of the O.Ps. The complainant has relied upon a decision of the Hon''ble National Commission in case entitled Bhandari Interstate Carriers & Anr. v. M/s. A.K. Synthetic, reported as III (1997) CPJ 42 (NC)=1986-99 Consumer 4328 (NS), wherein the O.P. carrier had delivered the goods without obtaining the consignee copy of the goods receipt. It was held by the Hon''ble National Commission that the complainant was entitled to the full value of the goods along with cost of the proceedings. The facts of the above said case are very similar to the facts of the case in hand and as such we are of the opinion that in the instant case, the loss has been occasioned on account of sheer callousness/negligence on the part of O.P. Nos. 1 and 2 in delivering the consignment to a wrong party without first negotiating the documents through the Bank and obtaining proper release order and, therefore, the O.P. Nos. 1 and 2 are liable to compensate the complainant for the said loss in full.

AS regards the question of quantum of relief to be granted to the complainant is concerned, the complainant has claimed Rs. 11,56,680/- as the cost of the consignment whereas as per the own admission of the complainant and as declared in the Airway Bill in question, the value of the consignment for the purposes of custom was Rs. 9,54,325.79 p. No proof or details of other expenses incurred by the complainant have been placed on record and as such the complainant is entitled to the refund of the said amount of Rs. 9,54,325.79 p. only from O.P. Nos. 1 and 2 together with USD 886 paid as freight charges by the complainant to O.P. No. 1.

ACCORDINGLY, in view of the above discussion, the present complaint, filed by the complainant is allowed with the directions to O.P. Nos. 1 and 2 to pay to the complainant a sum of Rs. 9,54,325.79 p. being the value of the consignment as declared in the Airway Bill together with refund of (equivalent in Indian currency), freight charges of USD 886 together with interest on the above said amount @ 9% p.a. The complainant is also entitled to cost of the present proceedings which are fixed at Rs. 5,000/-. The O.Ps. 1 and 2 are directed to comply with this order within 45 days of the date of receipt of this order. The above said complaint stands disposed of in above terms. Complaint allowed.