Micro Devices Inc. vs Airport Authority Of India And Ors.

FOR reasons cited in the application for condonation of delay, the delay of 10 days is hereby condoned.

CHALLENGE in this First Appeal under Section 19 of the Consumer Protection Act (for short the "Act") by the Consumer Disputes Redressal Commission, Delhi (for short the ''State Commission'') in Complaint Case No. 233 the Complaint directing the Opposite Party to pay a lump sum compensation of 1 lakh together with cost of 10,000/ -. Succinctly put, the brief facts which are material to the case are: that the Complainant had imported electronic -394 -1363 and DLI -394 -1364 dated 13 -12 -1996 for US $ 2867.40, 3627.60 and 2266.90 under M.A.W.B. No. 057 -Inc., USA, which were delivered by Air France Cargo in two boxes on 23 -12 -1996 and the same were placed under M/s. Air Cargo Service cleared the aforesaid consignment vide Bill of Entry No. 997608 dated 26 -12 -1996. On 03 -the Opposite Parties which revealed that one of the packages had been torn open and the electronic components in electronic components were found in a damaged condition and not in their original packing. Another inspection took.

"Package found damaged and torn condition. Re -examined in the presence of C.H.A. Senior Security Manager,

Electronic components -PMP -S1OT Midori -22 pieces.

Electronic components -C.P. -U.T. Midori -31 pieces.

The goods were not in original packaging".

THE Appellant/Complainant cleared the remaining electronic components on 15 -01 -1997 by paying the customs Opposite Party was informed about the loss suffered by the complainant vide letter dated 29 -08 -1997 and the details (A)

(B) Goods found but not in original packing and were damaged.

THE Appellant/Complainant pleaded that on 31 -07 -1998, the First Opposite Party had sent a letter to him offering Carriage Act, which amount was not acceptable to the Complainant. It was averred that the Complainant had suffered rendered by the Opposite Parties and negligence in discharge of their obligations. It was pleaded that the value of paid accordingly and the attempt of the first Opposite Party, to settle the claim for value less than the declared value. Vexed with the attitude of the Opposite Parties, the Complainant filed a complaint before the State Commission amounts:

THE first Opposite Party filed their reply before the State Commission stating that the Airports Authority of India Act, 1994 and part of its functions is the operation of the Cargo terminal for Storage & Processing of Cargo (Storage & Processing of Goods) Regulations, 1993 notified through the Gazette Notification dated 26.6.1993. The by Customs in terms of Section 45(1) of the Customs Act, 1962. It is admitted by the first Opposite Party that an 27777783/House Airway Bill No. 7460544324 was received in the custody of the Opposite Party from the Carrier General Manifest. This Opposite Party was not aware of the quantity and contents of the consignments at the time. The first Opposite Party lodged an FIR with the police authorities for further investigation, for the reported weight in accordance with the provisions of the Carriage by Air Act, 1972 and in terms of the relevant conditions of the Complainant for settlement of the claim. The Complainant refused to accept the settlement.

THE Opposite Party pleaded that they had taken due and adequate care of the cargo as an ordinary and prudent. They had deployed round -the -clock professionally trained security personnel sponsored by the Ministry of Defence, and security of cargo brought into their custody. At any given time there are at least about 100 Security personnel completely controlled by them, at the entry and exit points. It is further pleaded that the liability for any compensation and loss is limited by virtue of Rule -22(2)(a) of the agreement between the Carrier Airline, (the Second Opposite Party) and endorsement of the Airway Bill. The Carrier Airline as their agent. The claim of the Claimant was accordingly admitted and as no cause of action had attributed to them.

BASED on the evidence adduced and the pleadings put forward, the State Commission in paras 15 & 16 of its "15. Further, the OP admitted the import of air consignment of the said goods landing at the I.G. International delivery from the Airlines, the OP has not noted any of the said goods contained in two packages as being in was present during the inspection. The damage as above was caused to the goods whilst in the custody of the confirm the contents of the said inspection report regarding the torn, damaged and pilfered condition of the goods.

Parties are always governed by the terms of contract. There was no such term of contract as to the liability contents of the stolen or lost goods. But it does not mean that the OP was not liable to compensate the complainant suffered by it. Any custodian of goods has a liability to compensate the person if there is short delivery, pilfered.

DIS -satisfied with this order, the Complainant preferred this Appeal. It is pertinent to note that the Respondent/Opposite Parties did not choose to challenge the impugned order. Therefore, deficiency of service, as this aspect has become final. The only brief point that falls for consideration here is with Commission.

IT is the Appellant''s case that it had imported electronic components worth US$ 8761.90 (as stated in the invoices The consignment, which was in two boxes was placed in the custody of the Respondents and the Clearing Agent, vide Bill of Entry No. 997608 dated 26.12.1996. It is the Appellant''s case that one of the boxes was torn open and presence of the Respondent officials and some of the electronic components were found in a damaged condition and.

THE Appellant had made several attempts for settlement of his claim amount and after a lapse of one year, he settle the claim for a lump sum amount of 50,000/ -. Thereafter, the Appellant had addressed letters to the Respondents replied vide their letter dated 27.11.1998 stating that the loss, if any, was processed on the basis of ''Conditions of the carriage by Air Act, 1972. The learned counsel for the Appellant/Complainant drew our attention to the letter dated 27.7.1998 addressed.

"Regd. AD

ReferenceIGIA/CGO/CLM/97/3843Dated 27/31.7.98

M/S. MICRO DEVICES INC.305, VISHAL BHAWAN95, NEHRU PLACENEW DELHI -19

Sub: Claim under AWB No. 057 -97777783/74665

Dear Sir,

Please refer to your letter dated 2.5.1998 on the above mentioned subject. In this connection, we are of the provisions of the Contract of Carriage since the carrier has entrusted the cargo to us for custody. The THOUSANDS ONLY).

Accordingly, a copy of the following documents are forwarded herewith which may please be furnish.

On receipt of the above, a cheque for Rs. 50,000/ - (Rupees FIFTY THOUSAND ONLY) towards the will be sent to you.

This issues without any prejudice to the rights and contention of the IAAI. We sincerely regret the inconvenience.

Thanking you.

IN the afore -mentioned letter, a lump sum amount of 50,000/ - was offered towards compensation for the loss has been arrived at, has not been stated. The Appellant had refused to accept this offer on the ground that the act. A

(B) Goods found but not in original packing and were damaged.

(C) Business Loss @ 2% per month (8 months) Total (C) Rs. 26777.11

Total Value for Claim = (Total A+Total B+Total C) = Rs. 326,736.11".

THE learned counsel for the Respondents submitted that they are bound by Section 22(2) of the Carriage by Air. "(2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 when the package was handed over to the carrier, a special declaration of the value at delivery and has paid will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the actual.

The learned counsel for the Respondents further submitted that the value of the goods had not been declared perusal of the Airway bill dated 12.16.1996 shows that the value was indeed declared as $US 8761.90 for the purpose from the Appellant herein. The gross weight and the no. of pieces booked is also seen in this document.

A brief perusal of the Master Airway Bill shows that Air France is the Carrier and the value of the declared consignment Bill is a consolidated Airway Bill of the entire Cargo. Annexure -6 is a receipt dated 23.12.1996, issued by the Assistant Appellant referring to the same Master Cargo Bill No. 057 -27777783 and the House Airway Bill No. 7460544324, clearly establish that the Appellant herein has declared the value of the consignment prior to the booking of the goods.

TO reiterate, the finding of the State Commission with respect to deficiency of service has become final and, which the Appellant herein has prayed for. It is evident on the face of the record that the Respondent herein is not Warehouse of the Customs Department and is the Custodian of the Cargo, pending customs clearance. The contract Appellant is not a party. The fact remains that the goods were kept in the Warehouse in the custody of the Respondent contents were damaged. The same was also recorded in the minutes during an inspection done in the presence of who is liable to compensate the Appellant/Complainant for the loss incurred on account of the contents missing from. For the afore -mentioned reasons, we are of the considered view that Section 22(2) of the Carriage by Air Act which evidence the details of the actual loss. The claim of the Appellant herein with respect to the actual loss totalling with respect to business loss, the prayer of the Appellant/Complainant for granting business loss @ 2% per annum increasing the amount of compensation to be paid by the Respondents herein from 1,00,000/ - to 2,99,959/ - with the date of realisation together with costs of 10,000/ -.

IN the result, this Appeal is allowed in part and the order of the State Commission is modified as above. The of this order, failing which the amount would attract an interest of 12% per annum.