LUFTHANSA GERMAN AIRLINES vs Dharmendra Carpets

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the Act) against the judgment and order dated 23.10.1996 passed by District Consumer Forum, Mirzapur in complaint case No. 190/94.

A complaint was filed by the respondent/complainant claiming relief of compensation of Rs. 5.00 lacs on the ground that the complainant booked 12 rolls consisting of 60 pieces of Indian Handknotted woollen pile carpets on 16.6.1992 for a price amounting Rs. 4,19,600.16 to be carried from New Delhi to Amsterdam, Holland through opposite party Nos. 1 to 3 and invoice No. 23 was issued in respect of above material. The said consignment was handed over by complainant to opposite party No. At Mirzapur who handed over the said rolls of carpets 60 pieces consignment to opposite party Nos. 1 and 2 At New Delhi for their shipment from New Delhi to Amsterdam, Holland. The opposite party No. 1 after receiving the goods issued to complainant Cover Note No. Airway Bill No. 220 -2355 -7730 dAted 19.6.1992 Delhi/Amsterdam in respect of above consignment. When the aforesaid consignment arrived Amsterdam the complainants original buyer consignee M/s. Davoud Perzische Tapijten, ADM., DE, Ruyterweg 50, 1056 GK Amsterdam did not take delivery of the goods in question due to any reason. It was further alleged thAt thereafter the complainant visited Amsterdam and negotiAted and settled the mAtter with the buyer but as the documents relAting to the consignment in question had in the meantime returned back to India by the correspondent bank the buyer assured the complainant thAt as soon as the documents are sent back to the buyer, the buyer will retire the same At once but because of the extraordinary incident in India on 6.12.1992 the law and order was disturbed and documents could not be sent in time to the correspondent bank. It was further alleged thAt since the instructions were not deliberAtely carried out to arrange to store the goods in question in a bonded warehouse the intimAtion about the alternAtive buyer was given to the appellant but details still were not sent by the appellant and the retirement of goods was avoided by the appellant on the ground of non -receipt of the storage charges and subsequently it was alleged thAt the appellant got the goods auctioned causing irreparable loss, hence the complaint. 3. In the written stAtement the plea of the appellant was thAt the consignment booked on 19.6.1992 was airlifted from New Delhi to Amsterdam and the same was airlifted from New Delhi under Airway Bill No. 220 -2355 -7730 dAted 19.6.1992. It was carried to its destinAtion in accordance with the terms and conditions of the contract of carriage and the said consignment reached the airport of destinAtion safe but despite repeAted remainders remained undelivered as the consignee failed to pick up the consignment from airport. Thereafter the complainant was kept duly informed about the delivery stAtus of the consignment vide letters dAted 5.8.1992, 25.8.1992, 27.8.1992 and even the complainant was warned of the eventuality of the consignment being confiscAted and consequently being auctioned by the local custom authority At Amsterdam in case the consignment continued to remain undelivered. It was further pleaded thAt notwithstanding thAt the aforesaid consignment remained undelivered the complainant failed to give any alternAte instructions to the appellant and their reminder dAted 3.9.1992, 10.9.1992, 13.10.1992 and November 19, 1992 nothing was done. It was further averred thAt on sending letter dAted 25.11.1992 the complainant informed the appellant thAt the consignee has finally agreed to take delivery of the consignment and the complainant agreed to pay off the outstanding charges. The compliance was not made and from time -to -time promises were made but the consignment were not got released and ultimAtely vide letter of July 2, 1993 the complainant was informed thAt the consignment was due for auction shortly and further vide letter dAted November 17, 1993 it was informed thAt consignment was finally auctioned on September 14, 1993 and October 26, 1993. Even the details of the auction were sent and after adjustment from receipt of auction proceedings the outstanding dues were informed. Besides the merits legal objections with regard to lack of jurisdiction of the District Forum the complaint being barred by principle of res subjudiced and complaint being barred by limitAtion, were also taken.

AS referred to above the District Forum passed the impugned judgment and order.

WE have heard Mr. D.K. Pandita, learned Counsel for appellant and Mr. Rajesh Chadha for respondent and perused the entire record. As regards the pleas with regard to lack of jurisdiction the complaint being highly time barred and res subjudiced, these objections are of no favour to the appellant. The complaint was filed in the year 1994 whereas the letter was sent by the appellant on 17.11.1993 informing auction of consignment. In view of Section 24 of the Act the complaint was filed within time. The principle of res subjudice in the instant case is not application for the reason that Civil suit filed in the Court of District Judge, Delhi was between appellant and complainant as well as Agent of appellant. This complaint has been filed in District Consumer Forum, Mirzapur and the finding of the District Judge, Delhi by any stretch of imagination cannot be said to be binding on District Consumer Forum. The cause of action since apparantly accrued at Mirzapur the District Forum, Mirzapur was competent to decide the complaint. Thus preliminary objections raised by the Counsel for appellant are of no consequence.

NOW comes the point of maintainability of the order of the District Forum on merit.

MR . Pandita while on one hand argued that the complaint was not maintainable as there was no deficiency of service on the part of the appellant Mr. Chadha for respondent has argued that since the appellant did not discharge its obligation the compensation awarded by the District Forum was justified and proper. Mr. Pandita relied on the provisions of Rules 12, 13 and 14 framed in Carriage by Air Act, 1972 and further relied on the ratio as contained in the case of Air India v. N. Uddavan, reported in I (1995) CPJ 190 (NC) and stressed that the liability of carrier ceases after expiry of reasonable period from the date of giving intimation of arrival of the goods to the consignee. He further submitted that there is no obligation for the carrier to intimate the consignor about the failure of the consignee to take delivery of the goods. The facts as have come up are clear that the carrier was the appellant and the consignment was to be lifted from Delhi to Amsterdam in safe and sound condition. It is further clear that the parties are not at variance that the consignment were carried to its destination in accordance with the terms and conditions of the contract of carriage. It is also clear that after the consignment reaching to the Amsterdam the initial consignee did not accept the consigned goods and intimation thereof was given to the consignor who on one or the other reason has been informing the appellant to bear with him for the inconvenience and intimation on one pretext or the other was being given that they were in search of the new buyer as the initial consignee has refused to accept the goods. The facts also remained that the goods after getting it reached safely at Amsterdam was allowed to remain dumped for more than reasonable period. It is also clear that usual charges as well as other charges were not paid though promissed by the complainant on several times. Under the circumstances the appellant vide letter dated 28.7.1993 informed the complainant the consignment was due for the auction shortly and ultimately when no heed was paid and dues were no liquidated after the auction of the consigned goods on 14.9.1993 and 26.10.1993 receipts of the auction proceedings were made and outstanding dues were claimed. The relevant documents form part of the record letter dated 21 June, 1993 makes the position clear as follows: ''Your new consignee has not yet taken delivery. The position has been well explained to you in our letter dated 12.5.1993. The above shipment will be delivered to your new consignee only after they pay all outstanding charges. In any case, no further action is possible from our side as the matter is solely between you and your new consignee. While on the subject we have to remind you to please settle our outstanding invoice No. 50100 1062 10328 dated 30.11.1992 for Rs. 2,57,537.40 without further delay.'' Attempts of writing letters from complainant side in this regard by some letters could only be said to be eyewash and makes it clear that what was being written by the complainant was in fact not meant for being implemented. In Halsburys Laws of England (4th Edition, Reissue) Vol. 5(1) the law governing this topic is enunciated in paragraph 456 in the following terms : ''Non -acceptance by consignee -The liability of a common carrier as an insurer of the safety of goods ceases if the consignee is not to be found at the address given by the consignor, or if the goods are tendered to the consignee and refused. Thereafter the carrier becomes an involuntary bailee, although he continues to owe a duty of reasonable care in effecting a delivery of the goods to a claimant and may owe a more general duty of reasonable care for the safe keeping of the goods. Where the goods are refused by the consignee the carrier need not give notice of the refusal to the consignor, but should do what is reasonable in the circumstances. Where the goods are refused because the consignee is not prepared to pay the carriage demanded, the goods should not be returned at once to the place of departure, but should be kept at the place of destination for a reasonable time.''

RULE 12 of Air Act, 1972 makes it clear that consignor has the following rights : (i) Right to dispose of the cargo by withdrawing it at the aerodrome of departure or destination. (ii) Right of stopping it in the course of the journey of any landing. (iii) Right of calling for it to be delivered at the place of destination in the course of journey to a person other than consignee named in the Air way bill, or (iv) Right by requiring it to be returned to the aerodrome of departure.

HOWEVER , any right as aforesaid can be exercised provided the following conditions are fulfilled: (i) Liability to carry out of obligation under the contract of carriage; (ii) Right of disposition cannot be exercised in such a way as to prejudice the carrier or other consignor; and (iii) He must repay any expenses occasioned by exercise of the rights. We are afraid that the consignor complainant did not carry out obligation under the contract of carriage as the consignee did not retire the goods at Amsterdam after reaching of the goods, did not pay the dues of storage and even the new buyer did not retire the goods after paying all the dues. Even the consignor did not comply with a letter of making the payment of Rs. 4.00 lacs for good being returned to the aerodrome of departure. In the instant case also there is no fresh contract reduced into writing after the cargo reaching the destination i.e., Amsterdam. It was, therefore, only on the strength of correspondence that further obligations were desired and there was no failure on the part of the appellant in carrying out the obligations. Rather the obligations were fettered and jeopardised by the complainant as at no point of time any dues were paid. In the instant case the carrier has discharged its obligation and acted as insurer of the safety of the goods by getting it airlifted from New Delhi to Amsterdam. The consignee was informed but the goods were not retired and although it was no obligation of the carrier to inform the consignor about the refusal of goods by the consignee yet information about the same was sent to the consignor by the appellant and in the circumstances waiting for long period of more than one year the carrier has done all which were justified and reasonable. The learned District Forum while passing the impugned judgment and order totally ignored the obvious facts non -justifying the merit of the complaint and allowed the complaint.

THUS the impugned judgment and order passed by District Forum are liable to be set aside and the appeal is liable to be allowed. ORDER The appeal is allowed. The impugned judgment and order passed by District Consumer Forum, Mirzapur are set aside. Parties will bear their own cost. Mr. Vinod Shankar Chaubey, Member -Honble President, myself and Honble brother Raghunath Prasad jointly heard and decided this appeal. We are all in agreement with the order. But I want to record my difference about the use of word retire for the goods. On page 7 at one place it has been mentioned ''the new buyer did not retire the good''. At another place it has come ''...the goods were not retired''. There might be similar use in other places in the judgment. 2. Actually in the field of mercantile activities when some consignment is shipped to the foreign land Bill of Lading is very important document for ensuring the payment. In the foreign land the consignee makes the payment and the endorsement for payment is made on the B.L. through the bank there, signifying the payment in favour of the shipper that is called retiring BL or retiring document and after that the goods will be delivered to the consignee against the payment. Hence retire word cannot be prefixed with the goods. 3. I concur with the order. Appeal allowed. - - - - - - - - - - - - - - - - -