MANAGER, AIR INDIA vs K.K. MOIDU

THIS appeal is directed against the order passed by the District Forum, Kozhikode, in opposite party No. 461/95. Opposite parties 2 and 3 are the appellants.

THIS appeal filed out of time alongwith a petition to condone the delay of 33 days in filing the appeal. For the reasons stated in the accompanying affidavit and taking a lenient view in the matter we condone the delay. Shortly stated, the allegations in the complaint are as follows: The complainant booked some cargo from Abu Dhabi to Thiruvananthapuram on 12.4.1993. The booking was done through the first opposite party, an agent of Air India. The complainant was told by the first opposite party that the cargo would reach India within three weeks and that intimation of arrival of cargo will be given to him by registered post. As there was no information, he approached 2nd opposite party, the Manager of Air India, Thiruvananthapuram, on 3.5.1995 and enquired about the cargo. When he was told that if he had no intimation from Air India he must come on receipt of intimation from Air India. Since he did not have any intimation he made enquiries at Abu Dhabi through his friends and knew that the cargo had already reached Thiruvananthapuram as early as 30.4.1995. He came to Trivandrum on 3.7.1995 but was again told that he will be informed when the cargo arrives even though the information he received from Abu Dhabi was conveyed to the officer. Finally the 2nd opposite party traced out the information when he approached through some officer of Customs Department, but he had to pay Rs. 9563/- as demurrage charges. He had to go back to raise the amount and got the baggage on 9.7.1995. It was on account of the negligence of the 2nd opposite party that he had to pay demurrage charges and suffer other kinds of losses and incur unnecessary expenses which he assessed at Rs. 55.000/-. He claimed a compensation of Rs. 55,000/-.

Opposite parties 2nd and 3rd filed their version through the District Sales Manager, Contending that the Cargo Arrival Notice had been sent to the complainant under certificate of posting on 1.5.1995 immediately after arrival of the cargo and that the complainant had not contacted the 2nd opposite party till 3.7.1995. Delivery order was issued on 3.7.1995, but the complainant took delivery of the baggage on 7.7.1995. The allegations of the complainant that he was asked to wait for the intimation on 3.7.1995 etc. were denied. There was no negligence on their part. The 4th opposite party filed version stating that they had collected only the corrected amount as demurrage and the opposite party was not liable to pay any compensation. It was also contended that the District Forum has no territorial jurisdiction to entertain the complaint.

BEFORE the District Forum the complainant was examined as CW 1 and Ext. Bl was marked. Exhibit Bl is the extract of page No. 85 of the Postage Register maintained by Air India. On the basis of this register it was argued that there was intimation to the complainant of the arrival of the cargo under certificate of posting and the complainant did not approach the Air-port and collect the cargo inspite of intimation. The District Forum took the view that there is no evidence to show that intimation was really received and the intimation should have been given by registered post. In other words intimation alleged to have been given under certificate of posting cannot be considered as proper. In that view it held there is deficiency on the part of the opposite parties 2 and 3 and passed an order directing opposite parties 2 and 3 to pay Rs. 9,563/- which is the demurrage actually from the complainant.

AGGRIEVED by the said order this appeal has been preferred. Learned Counsel appearing for the appellant submitted that the District Forum, Kozhikode, has no territorial jurisdiction as cause of action did not arise within the jurisdiction of the Calicut District Forum. Learned Counsel invited our attention to 3 decisions of the National Commission. First case cited is the ruling in Indian Airlines Corporation and Others v. Consumer Education & Research Society, Ahmedabad (II (1991) CPJ 686 (NC)). In that case the National Commission held that: "It is clear beyond doubt that where the defendant against whom a suit is proposed to be instituted is a Corporation, the suit will lie only in the Court within the local limits of whose jurisdiction the sole or principal office of the corporation in India is situated except in cases where a cause of action has arisen at any other place where the Corporation has subordinate office in which event the suit can be instituted in a Court within whose jurisdiction such subordinate office is situated".

It also stated that- "In their opinion it will be much more reasonable to assume that in respect of complaints instituted against a Corporation Parliament intended that the Forum before which a complaint is instituted should have either the nexus or accrual of the cause of action within its territory or the location of the Principal Office of the Corporation within its territory. We would therefore, held that unless one of these tests is satisfied, the institution of the complaint before the Consumer Redressal Forum whether it be a District Forum or State Commission will not be legal and the Forum cannot validly exercise jurisdiction for adjudicating upon such a complaint". But this was rendered prior to the amendment to Section 11 by Act 50/93 by adding the words "carries on business or has a branch office" before the words "voluntarily resides" or and also the words "carries on business or "personally works for gain". Therefore after the amendment and in view of this decision is not applicable to the facts of this case."

The second decision relied is that one rendered by the National Commission in Indian Airlines Corporation v. Patel Ramubhai Shankar Lal and Another (II (1993) CPJ 205 (NC)) The National Commission held that- "No part of cause of action of the complainant in respect of this incident had arisen any where in the state of Gujarat and Head Office of the opposite party being situated only in Delhi, the State Commission, Gujarat had no territorial jurisdiction to entertain a complaint in respect of this incident and conduct any adjudication over the same".

The facts of the case narrated in this decision do not show that the opposite party carries on business or has branch office within the territorial jurisdiction of the District Forum and therefore the principle laid down therein would not apply to this case.

NEXT decision relied on by the learned Counsel is the ruling of the National Commission in Gulab Hotchand Bhagchandaney v. Egypt Airlines & Another (III (1994) CPJ 172 (NC)). That was a case where the complainant alleged that he purchased a return ticket for his wife and one ticket for himself from Bombay to Barcelona and they boarded the plane at Bombay on 4.7.1993. Before the plane was to take off all the passengers were told to leave the plane as there was security check. At that time it was raining heavily. After about Seven hours passengers were allowed to board the plane. They travelled to Cairo where complainant and his wife stayed for one day and left for Barcelona on 5th July, 1993. When the complainant and his wife got down at Barcelona Airport they found their baggage was completely wet and water pouring out from the baggage. Every thing was damaged. The complainant was carrying, in his baggage some business samples and some of these became wet and damaged and lost their colour. The dresses of the complainant were completely stinking and wet and were unusable. He immediately reported the matter to Egypt Airlines Office where he was told to come later and fill the required forms. The complainant went to a hotel and stayed for one day. He could not negotiate the business as every thing was spoiled, wet, damaged, colourless and stinking. He could not wear his dress and this business plan which he had organised seven months in advance got recked due to the negligence of Egypt Airlines. He went to Madrid to see if he could procure some business there but as the samples had become wet and damaged and stinking he could not do anything. He came back to Barcelona, the Egypt Air Staff, Merisol who completed all his papers and certified and recommended Egypt Airlines for arranging compensation. On return to India the complainant made enquiries from Egypt Airlines, Bombay where he was informed that no letter for compensation has been received in that office. It was in those circumstances the complaint was failed and the National Commission observed that- "In subsequent application the complainant has alleged that they were not properly treated by the Egypt Airlines Authorities at Barcelona, and therefore they are of the opinion that no compensation on that ground can be claimed in India under the Consumer Protection Act as the cause of action for that claim occurred at Barcelona."

In this case also we do not find any contention being raised that the opposite party had a branch within the jurisdiction of the Forum where the case was filed. At any rate we do not find any discussion or consideration on the amendment carried out to Section 11 of Act 50/93.

CONSUMER Protection Act itself is a Social Welfare Legislation and Section 11 as amended lays down as follows: "A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction; (a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office) or personally works for gain, provided that in such case either the permission of the District Forum is given, on the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. In the light of Clause (c) of Section 11, there can be no doubt that a complaint can be instituted in a place where cause of action arose or any part of cause of action arises. The above section also provides that complaint can be instituted in a District Forum whether the local limits of whose jurisdiction the opposite parties or any one of them reside or carry on business or where the opposite party has a branch office. That being the position we do not find any reason to restrict the scope of Section 11 of the CONSUMER Protection Act, and hold that no complaint can be instituted in a District Forum even if the opposite party has a branch within the local limits of that District Forum.

We may also point out that we do not find any prejudice being caused to the opposite parties in instituting the complaint where the opposite party has branch office.

It is contended by opposite parties 2 & 3 that the communication was sent under certificate of posting and Exhibit Bl was produced to substantiate the same. However, there is no evidence to show that the communication was received by the complainant. There is no guarantee that a letter sent under certificate of posting will be delivered to the addressee. There is also no method to ascertain whether such letter was delivered to the addressee. We have no doubt that the complainant would have approached the opposite party and collected the cargo if intimation was received by the complainant. Para 13 of Schedule II of Carriage by Air Act Provides that- (1) Except in the circumstances set out in the preceding rule, the consignee is entitled on arrival of the cargo at the place of destination to require the carrier to hand over to him the air way bill and to deliver the cargo to him on payment of the charges due and on complying with the conditions of carriage set out in the air way bill. (2) Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives.

Learned Counsel for the appellant argued that the above provision does not specify that letter of intimation should be sent by registered post and therefore the requirement of this provision is satisfied by sending notice under certificate posting-

WE are unable to accept this contention. Notice referred to in Clause 2 of Rule 13 should be an effective notice and in our view notice under certificate of posting cannot be considered to be an effective notice. In our opinion the above provision obliges the carrier to send the letter of intimation by registered post or some other mode of service, which would ensure delivery of letter of intimation to the addressee so as to treat it effective notice. So we are unable to hold that there is proper service of notice of the arrival of the cargo to the consignee and failure to do so would amount to deficiency. In the circumstances we do not find any error in the finding entered by the District Forum. The complainant was forced to pay demurrage on account of the delay in taking delivery and this was due to the failure of the opposite party to sent an effective notice as provided in Para 13 of Schedule II of carriage by Air Act. The District Forum has only directed the opposite party to pay to the complainant an equal amount by way of compensation, which he paid as demurrage. There is no merit in the appeal and it is accordingly dismissed. Appeal dismissed.