Kiran Overseas Export Limited vs Thai Airways International Limited

M /s. Kiran Overseas Export Limited, the complainant, has filed this complaint against Thai Airways International Limited, the Opposite Party, for deficiency in service.

M /s. Kiran Overseas Export Limited, which is engaged in the business of exporting garments, hired the services of the Opposite Party to transport finished coloured sheep skin leather for garments to M/s. Shandong Garments, China. The consignment was entrusted to That Airways at New Delhi, the port of loading being the Indira Gandhi International Airport, New Delhi to China as the country of destination. Two invoice Nos. 275 and 277 dated 12.9.1996 were raised for US $ 39,150 and US $ 38,340 aggregating to US $ 77,490 which is equivalent to Rs. 30,22,110 (1 $ =Rs. 39 as on that date). On 16.9.1996, two Airway bill Nos. 217 -19396705 an 217 -19397616 both dated 16.9.1996 were prepared against prepaid freights of Rs. 1,04,610 and Rs. 1,02,634 respectively. It is contended by the learned Counsel for the complainant that the opposite party communicated to them that the said consignment has been delivered to the consignee, M/s. Shandong Garments/Mr. Liu Wei, China on October 5, 1996 vide their letter dated 25.10.1996 from its Qingadao Office. It is only then the complainant realized that the opposite party has delivered/released the consignment to M/s. Shandong Garments, China without production of documents by the latter. It is contended that the consignment, which was handed over to the opposite party could not be delivered to the consignee without production of documents and hence it is to be held as deficiency in service on the part of the opposite party. It is also averred that the complainant did not receive any payments in respect of the said consignment either from the opposite party or the bank or the consignee, M/s. Shandong Garments, China.

IT is contended that the consignment was in turn handed over to Air China by the opposite party on their own for onward carriage but the complainant has no privity of contract with Air China in respect of the consignment in question, and it is the opposite party who entrusted the consignment with Air China for onward carriage without consent or concurrence or knowledge of the complainant and thus are vicariously liable to compensate for the deficiency in service on their part. Opposite Party has acted on their own in the said matter by handing over the consignment to Air China as a final carrier and they have to own up to any deficiency of Air China because Air China is not an agent appointed by the complainant. It is also submitted that in any event Opposite Party is liable to pay US $ 43640 at US $ 20 per kg., on the basis of the gross weight of the consignment which was 2182 kgs. although the prayer in the complaint is for the actual value of loss of consignment and compensation. Due to the negligence and deficiency in service on the part of the Opposite Party, complainant has filed this complaint claiming the loss/damage suffered by it along with mental pain/agony and harassment. The complainant has prayed that the Opposite Party be directed to pay the following amounts as given hereunder: (a) (i) Cost of unpaid goods as per Invoice No. 275 for US $ 39150 Rs. 15,26,850.00 (ii) Cost of unpaid goods as per Invoice No. 277 for US $ 38340 Rs. 14,95,260.00 Total : Rs. 30,22,110.00 (b) (i) Pre -paid freight charges for the consignment Rs. 2,07,244.00 (ii) Mental pain, suffering and agony, loss and damage on this account Rs. 1,00,000.00 Total : Rs. 3,07,244.00 Gross Total : Rs. 33,29,354.00

IT is submitted that this amount of Rs. 33,29,354 be paid with interest at the rate of 18% per annum w.e.f. 5.10.1996 till the date of payment.

AS against this, learned Counsel, Mr. Wadhwani, for the Opposite Party submitted that consignment was booked through the cargo agent, M/s. Unica Freight Movers, New Delhi who is an IATA appointed cargo agent and who has an independent legal entity. M/s. Unica has prepared the Airway Bill on behalf of the complainant but it has not been made a party to this complaint. In the Airway bill, M/s. Unica has stated "on carrier" without giving name of the carrier for carriage of the consignment ex -Bejing to Qingdao. When the agent of the consigner did not choose the actual carrier ex -Bejing but handed over the consignment for "on carriage" then the first carrier has right to choose "on carrier" based on two considerations, namely, availability of the space with it and the speed with which it can deliver the consignment at destination. In the present case, the "on carrier" is China Eastern Airlines because it is one of the national carriers of China. The consignment was handed over to China Eastern Airlines on 20.9.1996 to be taken from Beijing to Qingdao. In the Airway Bill, it is recorded to notify the arrival of the cargo to M/s. Shandong Garments. Accordingly, M/s. Shandong Garments has been notified and they received the consignment. Opposite Party is required to contact the shipper if the carrier is unable to contact the consignee or the consignee refuses to take delivery of the consignment. In the present case, there was no property irregularity report given to Opposite Party on any aforesaid issues since the above conditions did not exist in the present situation. Opposite Party informed the complainant on 5.10.1996 that the consignment has been delivered to destination, M/s. Shandong Garments, who is the consignee, as named in the Airway bill.

THE Opposite Party deputed Mr. Jatinder Pal Singh, who is working with Thai International as Area Sales and Operations Manager, Cargo, India who is posted at Delhi, who went to Qingdao to find out the status of the consignment. Mr. Singh visited Qingdao and stated on affidavit that the cargo on arrival was handed over to the customs authorities. It is further submitted that the Customs Department told Mr. Singh that their agent would liaise with all the concerned departments of the Government for clearance including bank before granting delivery to the person who is entitled thereto.

MR . Singh inquired from the bank and found that the letter of credit had epxired before the shipper despatched the goods. Bank only treated the consignment as direct booking and allowed the goods to be treated as direct booking. Bank authorities told Mr. Singh that all the record after completion of transactions is consigned by the bank to its warehouse where these are periodically destroyed. It is further contended by the learned Counsel for the opposite party that there is no deficiency in service on that behalf as the consignment has been delivered to the consignee as per the Airway Bill. Although this Airway Bill is dated 16.9.1996, the complaint has been filed on 21.9.1998 and complainants have not chosen to write to the consignee regarding the whereabouts of the consignment after despatching valuable goods for which payment is to be received. No correspondence whatsoever has been produced by the complainant to show that the consignee did not get the consignment.

IT is submitted by the learned Counsel for the opposite party that under instruction 14 of the TACT Rule, 48 April, 1999, a shipper or an agent on behalf of the shipper is required to insert the declared value for carriage in box No. 15 of the Airway Bill and when no value is declared, NVD'' shall be inserted. The said instruction No. 14 is reproduced hereunder: "(a) The declared value for carriage, as specified by the shipper, shall be inserted. (b) Where no value is declared, NVD'' shall be inserted."

IT is submitted that the consignor did not declare the value of the consignment in the Airway Bill in the present case and that he cannot claim the same having not declared. The maximum liability of Thai Airways would be for 2182 kgs., which is the gross weight of the consignment, which should be paid at the rate of 20 dollars per kg. which would amount to US $ 43640. Lastly, for non -joinder of Air China and M/s. Unica Freight Movers, who were the acting cargo agents and the consignee, M/s. Shandong, at Qingdao to this complaint by the complainant, the complaint cannot be decided without any evidence to prove that the consignee did not receive the consignment.

WE heard both the parties and perused the record. We find that there is no merit in this complaint, and the same is required to be dismissed on the following grounds:

FIRSTLY , the complainant has not filed any documents to show their concern regarding the consignment being not delivered to the consignee M/s. Shandong Garments as per the Airway Bill. The complainant has chosen not to file any documents or correspondence with the consignee when it has been brought to his knowledge that the consignment was not delivered to the consignee. There was no reason for the complainant to shy away from disclosing all the facts and doing correspondence between themselves and the consignee to show and prove their averments. We cannot believe that a consignor did not correspond or contact the consignee for payments after having sent the consignments, which caused him heavy loss of the cost of the consignment. A mere statement that consignee did not receive the consignment and that the Bank has not received any money in return, is not believable.

SECONDLY , there is no reason for us to disbelieve the affidavit filed by Shri Jatinderpal Singh who is working with the Opposite Party who went to Qingdao and submitted that the custom authorities have indicated that the consignment was delivered to M/s. Shandong Garments and that the notice was duly served upon them as per the normal practice in trade and in force. It is submitted by the Opposite Party that the carrier would contact the shipper for alternate disposal instructions only if (i) it is unable to contact the consignee and notify party at the destination; or (ii) if the consignee refuses to take delivery of the consignment. That neither of these conditions existed and hence the destination airport did not issue any property irregularity report to Thai Airways and hence it is to be believed that the consignment has been delivered at the destination.

THIRDLY , as per the procedure, the documents were handed over to the Customs authority and it is the consignee who approached the Customs authorities for grant of delivery of their respective consignment and the Customs authority ensured that all the requirements for the delivery were complied with by the consignee. Especially part shipments and shipments on "charges collect" basis are not allowed to be brought into China, therefore, there is hardly any scope for post arrival discrepancies or irregularities. The carriers have no say in the working of the Customs authorities in China. On arrival in the Qingdao, the consignment along with the accompanying documents were handed over by the Eastern Airlines China to the local Customs authorities in accordance with the relevant laws, practice and procedure in China. The consignments could not have been released to any body else but to theconsignees by the Customs authority considering the strict adherence of rules in the country and further if there is a wrong delivery of consignment the procedure is such that the Customs Officials would have been punished for non -adherence of the procedures and rules for delivery of the consignment.

FOURTHLY , it is surprising that the complainant despatched the goods after the letter of credit had already expired. If that is the case this consignment is treated as direct booking and bank is not concerned with the same as the letter of credit has expired and the requirement to process the documents by the bank does not arise. If that is the case, the matter ends there considering complainant who is fully aware of the fact that the bank is not a party to process the documents and further be held for payments later.

FIFTLY , in our view, complainant voluntarily or may be of ignorance of the practice and procedure took the risk of consignment after the expiry of the letter of credit. If that is the case, they have to blame themselves for what transpired or the complainant has otherwise received the money through other means and this complaint has been filed with the motive to extract some money from the Opposite Parties.

IN our view, complaints filed with the motive of extracting money from the Opposite Parties cannot be encouraged. Complainant has not shown any urgency of the matter if he was put to so much loss by showing the documents, correspondence or any other evidence and a casual complaint nearly at the end of two years after the cause of action itself shows that he has not really been put to any loss as alleged in the complaint.

IN view of the aforesaid discussion there is no merit in this complaint and it fails and dismissed for the same. There shall be no order as to costs.