PRESIDENCY KID LEATHER LTD. vs SINGAPORE AIRLINES LTD.

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainant is a company incorporated under the Indian Companies Act and is the manufacturer and exporter of finished leather goods. On 19.3.91 it delivered to the opposite party Singapore Airlines a consignment of finished leather goods valued at US $ 4732 under airway bill No. 618-1360-5922 to be delivered to Donghwa Bank, International Department, Seoul, Korea. A second shipment was also delivered to the opposite party Singapore Airlines on 12.4.91 under airway bill No. 618-1361-2896 for the value of US $ 985-70 to the same destination. THE notified party is M/s Y and B Company Ltd., Seoul who is the ultimate consignee-foreign buyer THE original airway bills, invoices and other documents were sent to Donghwa Bank, Seoul and the foreign buyer has to negotiate the documents by payment of the bill amounts, get endorsements in its favour and take delivery of the consignments. As the sale amounts were not received, the complainant gave several telex and fax messages to M/s. Yand B Co., and to the Foreign bank without response. It then wrote to the opposite party about the fate of the consignment and the opposite party informed the complainant that the consignments were handed over by their handling agent at Seoul to the foreign buyer. According to the complainant, the opposite party Singapore Airlines has delivered the consignments to the foreign buyer Y & B Company without the production of the original airway bills duly endorsed by the Bank in favour of M/s. Y & B Company on payment of the sale proceeds and the complainant has therefore lost the sale proceeds of these two consignments. THEre was gross deficiency in service and negligence on the part of the opposite party and the complaint has been filed to recover the value of the two consignments totalling US$ 5717-70 with interest at 24%. The claim is resisted by the opposite party. Mr. Zainal B. Arifin Samari, Manager, Southern India, Singapore Airlines has filed the counter affidavit. The receipt of two consignments under airway bill Nos. 618-1360-5922 dated 19.3.91 valued at US $ 4732 and 618-13612896 dated 12.4.91 valued at US $ 985-70 for transport to Seoul in Korea as admitted. As the consignments were not paid for, by way of abundant caution, the complainants (consignor) designated the Donghwa Bank as the consignee and the Y & B Company as the notified party. When the shipments arrived in Korea, the handling agent of Singapore Airlines, M/s. Air Korea sent the Cargo Arrival Notice to the consignee Donghwa Bank and the notified party M/s. Y & B Company. According to the opposite party, it is the practice in Korea that when a shipment arrives, the Airlines verifies with Customs that all documents are in order. "Any discrepancies such as partial shipment, incomplete documents etc. must be resolved and if the documents are not in order, would result in the shipment being stored in the customs pending warehouse, in the custody of the Customs Authorities. Once the shipment goes into the custody of the Customs, the matter is out of the Airlines'' control and as such the responsibility of the Airlines is ended. The Customs then deals directly with the ultimate consignee who is usually the notified party with the Bank acting as an intermediary. Placing reliance under Article 8.1(a) of the General Conditions of Carriage for Cargo, it is contended by the opposite party that the shipments have been handed over to the Customs Authority at Seoul as per the above Rules and regulations of the country and the obligations of the opposite party Airlines ceases. It is also contended that Donghwa Bank refused to endorse the airway bills in favour of the notified party M/s. Y & B Company as it disputed the payment of 25% interest demanded by the bank in accordance with the complainant''s instructions and since there was a breach of the contract M/s. Y & B Company chose to abandon the shipments. There was no deficiency in service on the part of the opposite party and the complaint is misconceived.

Exhs. A1 to A37 and B1 to B12 are marked by consent. The complainant has examined Mr. Syed Iqbal Ali one of the Directors of the complainant company as PW1. The opposite party has examined Mr. Arun Kumar, Cargo Sales Supervisor of the opposite party as RW1 and Mr. Desmond Dcosta, Cargo Sales and Service Officer of Singapore Airlines as RW2.

THE points that arise for determination are : (1) Whether there has been any deficiency in service or negligence on the part of the opposite party Singapore Airlines ? (2) To what relief, if any, is the complainant entitled ? Point No. 1: The complainant which is an incorporated company is the manufacturer and exporter of finished leather goods. It has delivered two consignments to the opposite party through the opposite party''s local forwarding agent Airogo Travel and Cargo Private Limited, Madras on 19.3.91 and 12.4.91 for transportation by air to Seoul. Exh. B4 is the airway bill No. 618-1360-5922 dated 19.3.91 for the first consignment of the value of US $ 4732 and Exh. B5 is the airway bill No. 618-1361-2896 dated 12.4.91 in respect of the second consignment of the value of US $ 985-70. The freights are prepaid. In both these airway bills the consignee is Donghwa Bank, International Department, Seoul, Korea (hereinafter referred to as the foreign bank). In both these airway bills, the notified party is M/s. Y & B Company which is the ultimate consignee and foreign buyer. The complainant has sent the two airway bills, the invoices and other documents through its Madras Bank, Syndicate Bank to the foreign Bank at Seoul. The Foreign buyer M/s. Y & B Company has to negotiate the documents with the foreign bank by payment of the bill amounts, got endorsements in its favour and take delivery of the consignments from the Airways. This is an universally acknowledged International commercial practice intended to ensure due payment of the sale proceeds of the Cargo by the buyer. As the complainant''s local Syndicate Bank did not receive payments from the Foreign Bank, the complainant sent several fax messages to the foreign buyer Y & B Company Ltd., under Exh. A1 dated 18.4.91, Exh. A2 dated 4.5.91, Exhs. A3 and A4 dated 8.5.91, A5 dated 17.5.91 and Exh. A6 dated 11.6.91, but there was no response. The Foreign bank was also addressed under Exh. A10 by the complainant''s local Syndicate Bank again without response. The complainant, therefore, contacted the opposite party Airlines, who under Exh. A7 communication dated 18.6.91 informed its local forwarding agent M/s. Airogo TVS and Cargo Pvt. Ltd., Madras that the first consignment under Exh. B4 was delivered to the consignment under Exh. B4 was delivered to the consignee in April, according to the information received from their handling agent at SEOUL (SELKYKE). Subsequently under Exh. A12 dated 30.7.91 the opposite party, Singapore Airlines informed their local agent Airogo TVS and Cargo Pvt. Ltd., that the consignment under Exh. B5 was handed over to Mr. LEE/ CHANWOO on 23rd April under the letter of authority given by M/s. Y & B Company President. It is not in dispute that the foreign buyer Y & B Co. Ltd., has not made any payment to the Foreign bank and retrieved the original airway bills and other documents with endorsements in its favour. According to the complainant, the opposite party Airlines has delivered the two consignments to the notified party Y & B Co. Ltd., without the production of original airway bills duly endorsed in its favour by the foreign bank on payment of the bill amounts and that the complainant is thereby deprived of the sale proceeds by the two consignments. If this contention of the opposite party is true, this is a clear case of deficiency in service and negligence on the part of the opposite party Singapore Airlines. As per the contract of carriage covered by Exhs. B4 and B5 Airway bills, the opposite party Singapore Airlines has to deliver the consignments to the consignee Foreign bank or to the notified party with the bank''s endorsements in its favour. Where the goods are delivered in contravention of the conditions of carriage, it amounts to deficiency in service and negligence (vide Branch Manager, Economic Transport Organisation v. M/s. Synco Textiles (P) Ltd., 1992 (1) CPR 811 (NC).

THE main defence put forward by the opposite party is that as per Article 8.1 of the conditions of carriage marked as Exh. B10, the consignments have been delivered to the Customs Authorities at the Airport at Seoul and the opposite parties are absolved of all liabilities. THE relevant condition runs as follows: "Delivery to the consignee shall be deemed to have been effected when the consignment has been delivered to Customs or other Government Authorities as required by applicable law or customs regulation, and carrier has delivered to the consignee any authorization from carrier required to enable the consignee to obtain release of the consignment and has forwarded the notice of arrival.."

But this is not the stand taken by the opposite party at the initial stage, when it sent Exh. A7 and Exh. A12 communications to its forwarding agent at Madras M/s Airogo TVS and Cargo Pvt. Ltd. In Exh.A7 letter dated 18.6.91 the opposite party has stated that the first shipment sent under Exh. B4 airway bill has been delivered to the consignee as per information received from the opposite party''s handling agent at Seoul (SELKYKE). No doubt the consignee under Exh. B4 is the Foreign Bank, but it is nobody''s case that the consignment has been delivered to the bank. The bank deals only with money and not with goods and there is no acknowledgment from the bank for the receipt of any goods. The consignee mentioned in Exh. A7 is only the ultimate consignee namely, the Foreign buyer Y & B Company. Exh. A12 makes the position quite clear .It is clearly stated therein by the opposite party that the second consignment sent under Exh. B5 airway bill has been delivered to Mr. LEE/CHANWOO on 23rd April against the authorised letter issued by M/s. Y & B Company President as per our handling Agent SELKYKE. A belated and feeble attempt has made by the opposite party to explain Exhs. A7 and A12 communications as not relating to the goods but only to documents, by examining RW1 and RW2 who are the officials of the Singapore Airlines at Madras. According to them the reference to delivery of shipment and consignment in Exhs. A7 and A12 and is to the delivery of the documents and not the goods as such. The explanation is, to say the least ludicrous. What are the documents with the Airlines to be handed-over to the foreign buyer except the copies of the Airway bills ? The consignor''s copy, the invoices and other documents are with the foreign bank to be negotiated by the foreign buyer and those are the documents necessary for taking delivery after due negotiation with the foreign bank. It is therefore idle to contend that the shipment and consignment mentioned in Exhs. A7 and A12 referred to documents and not goods. Exhs. A18 and A19, both dated 19.8.91 are letters addressed to the opposite party''s office at Madras by its forwarding agent Airogo Travels and Cargo Pvt. Ltd. asking for details as to whether the two consignments have been delivered to the notified party Y & B Company after obtaining any letter of authority/release order from the consignee foreign bank and the opposite party''s Madras office has replied under Exh. A23 dated 18.11.91 that the matter has been referred. " to our Head Office at Singapore to investigate and to take up the matter without handling agents Korean Airlines, Seoul and we would revert to you as soon as we hear from Singapore." What is significant is that there is no explanation that the reference to shipment in Exh. A7 and consignment in Exh. A12 meant the documents and not the cargoes as such. No further communication has been received from the opposite party after verification with the handling agents at Seoul putting forward any such explanation. It is pertinent to point out that no affidavit has been filed by anyone on behalf of the opposite party''s handling agents at Seoul as to the nature of the disposal of the cargo and whether the documents alone were handed over to the foreign buyer M/s. Y & B Company, especially because Exhs. A7 and A12 are based on the information given by the handling agent at Seoul. We may also point out that though there is a specific reference to Exh. A7 letter of the opposite party in the complaint filed before this Commission, the reply affidavit filed on behalf of the opposite party has not attempted to explain that the term " Shipment" in Exh. A7 meant only the document. PW1 who is one of the Directors of the complainant company has in his evidence before us referred to Exh. A7 and A12 letters from the opposite party and spoken to the delivery of the consignments to Y & B Company without the bank''s documents. No suggestion has been put to him that Exhs. A7 and A12 referred to the documents only and not to the good. The explanation now offered at the bar that Exhs. A7 and A12 referred only to documents has to be mentioned only to be rejected. Having thus categorically admitted in Exh. A7 and Exh. A12 that the shipment and consignment have been delivered to the foreign buyer, Y & B Company, the opposite party has shifted its stand and has come forward with the contention that the consignments have been delivered to the Customs Authorities at the Airport at Seoul basing reliance of Exh. B10 condition quoted above. This condition does not form part of Exhs. B4 or B5 airway bill. Be that as it may, we shall now consider whether the consignments have been really delivered to the Customs Authority directly by the opposite party at the Airport at Seoul. It is an Internationally recognised practice that where goods are imported by air or by sea and handed over to the airport, seaport or Customs Authority of that country, the officer of that authority checks the goods with the manifest of the Airlines or the Steamer. The manifest contains several items of goods with the consignment numbers which are also marked in the consignments. Where the items tally in full, the officers of the airport, seaport or customs ticks the items as ''O.K.'' and where there is short delivery or damage, the quantity short delivered or the nature of damage is noted against the particular item. The manifest which is signed by the checking authority is irrefutable proof of delivery of the consignments to the airport, seaport or Customs Authority. Where are the manifests of the opposite party evidencing the delivery of there consignments by the opposite party to the Customs Anthority at the Airport at Seoul ? The explanation that the opposite party Singapore Airlines carries thousands of consignments daily and it is not possible to trace these manifests is not what is expected of an International Carrier like the Singapore Airlines, especially in this age of computerisation. Then what about the copy of the manifest with the Customs Authorities in Seoul? Was any attempt made to summon and produce that copy atleast ? No. The inference is irresistible that the manifests if produced, would be unfavourable to the opposite party the Singapore Airlines has failed to substantiate its contention that the consignments have been delivered to Customs in accordance with the above condition and is, therefore, absolved of its liability.

EXH. A21 is the telex message from the foreign buyer Y & B Company Limited to the complainant dated 12.11.91 in answer to several enquiries made by the complainant about the payment for the consignments. EXH. A21 reads as follows: " WE ARE VERY VERY SORRY THAT WE INFORM YOU TO SHIPPING-BACK ABOVE TWO INVOICE TO YOU AFTER KEPTING SILENCE FOR ALONG TIME. BUT, WE CAN NOT HELP TAKING THIS KIND OF ACTION SINCE WE ARE CLOSING DOWN LEATHER BUSINESS. HOW CAN WE APOLOGY YOU! SORRY AGAIN. PLS UNDERSTAND OUR SITUATION. THANK YOU FOR YOUR GOOD SERVICE AND COOPERATION DURING OUR BUSINESS. WE HOPE YOUR PROSPEROUS BUSINESS."

It is clear from EXH. A21, the Foreign buyer Y & B Co. Ltd., has taken possession of the consignments and wants to ship back the consignments to the complainant for the reason that they are closing down their leather business. Unless Y & B Co. Ltd., had taken possession of the consignments, there is no question of shipping back those consignments to the complainant. Then we come to EXHs. B2(a) and (d). EXH. B2(a) is in respect of the consignment sent under EXH. B4 airway bill and EXH. B2(d) is in respect of the consignment sent under EXH. B4 airway bill. These letters are addressed by the foreign buyer Y&B Co. Ltd., to the Customs Authorities at Seoul informing them that the Foreign bank demanded interest at 25% under instructions from the consignor complainant, that it was unwilling to pay the amount and hence the Customs Authorities are requested to ship back the goods. These two letters are dated 27th Feb. 92 and come 3 months and 15 days after EXH. A21 communication to the complainant dated 12.11.91. Under EXH. A21, as already pointed out, the Foreign buyer wanted to ship back the consignments as it was closing down its business. It has now trotted out another excuse for sending back the goods. But one thing is clear and that is, the foreign buyer has taken possession of the goods, as otherwise it will have no right to call upon the customs to ship back the goods to the complainant. EXHs. B7 and B8 are the commercial invoices for the reshipment of the consignments back to Madras and they show the foreign buyer Y & B Co., as the Shipper/Exporter. This fact proves beyond doubt that Y & B Company has taken delivery of the consignments which are being reshipped by it to Madras.

BASING upon Exhs. B2 (a) and (d) letters written by the Foreign buyer Y &B Co. Ltd., to the Customs Authorities, an argument is weaved by the Learned Senior Counsel for the opposite party that the consignments have been delivered by the opposite party Airlines directly to the Customs and the goods are therefore, lying with the Customs. This argument has the merit of attractive plausibility but a little scrutiny is sufficient to expose the fallacy behind it. We have already held that the opposite party has failed to establish delivery of the goods to the customs direct. The opposite party Singapore Airlines has produced a booklet entitled " HOW TO TRADE WITH KOREA" issued by KOTRA (KOREA TRADE PROMOTION CORPORATION ). At page 60 of this booklet we find the procedure for import of goods into Korea and we extract below those passages in full for proper appreciation. "Receipt of Transport documents" The foreign exporter having received the L/C, ships the goods according to the conditions of the L/C and negotiates with the exporter''s bank a documentary bill which is issued using the transport documents as security. The exporter''s bank then sends the transport documents to the bank which issued the L/C, and after the L/C opening bank has verified that the conditions of the transport documents are consistent with those of the L/C, it settles the account of the import transaction and transfers the transport documents to the importers. The importer submits the bill of lading (B/L), to the shipping company and collects the imported freight. If, however, the freight has already arrived but the transport documents have not, the importers may present a letter of guarantee (L/ G) to the shipping company and receive the freight in advance, after receiving from the importer''s bank the L/G prepared under fixed conditions."

Customs Clearance: The importer unloads the imported freight and places it in a bonded area. Then the importer submits a report to the Superintendent of the customs house. The customs clearance report can only be prepared by a consignee (importer), employing a certified customs specialist or a certified Customs Clearance Corporation. Upon receipt of the import report, the customs house inspector will verify that the contents of the imported merchandise correspond with that described in the import authorization form and confirms that the documentation is in order. The tariff on the merchandise is then calculated and levied and an import approval is presented to the person reporting the import. This person may remove the imported merchandise from the bonded area. After doing so, the import procedures are completed." A reading of the above passages would show that the importer first takes delivery of the consignment from the carrier on the production of the bank''s documents and then it is he who places the goods in the bonded area for customs clearance. After Customs clearance and payment of the tariff, the importer may remove the merchandise from the bonded area to his premises. There is no provision or procedure for handing over of the consignments by the Carrier directly to the Customs Authorities. In the instant case Y & B Co. Ltd., has subtly managed to take delivery of the consignments from the opposite party Singapore Airlines or its handling Agent without the authority of the bank and has placed the consignments in the bonded area for Customs clearance. It is seen from Exh. B2(d) that the customs clearance has also been given. But, Y & B Co. has not chosen to remove the consignments to its premises for reasons best known to itself. Evidently, the foreign buyer Y & B Co. Ltd., had second thoughts and wanted to wash its hands off these two consignments. It has therefore allowed these consignments to remain in the customs bonded area but they have remained there as the goods of the Foreign buyer Y & B Co. Ltd., which has taken delivery of them from the opposite party Airlines or its handling Agent at Seoul without proper documents. Subsequently the foreign buyer Y & B Co. Ltd., has taken steps to send back the goods to the complainant on one pretext or other. It is then contended by Mr. Ramakrishna, the Learned Senior Counsel for the opposite party that the complainant has initially approached the Foreign buyer for payment and having failed to realise the money from the Foreign buyer it has turned against the opposite party carrier for compensation and hence the complainant is estopped from throwing the burden on the opposite party. In the first place there is no plea of estoppel in the counter statement and cannot be entertained.

Under Exh. A1 dated 18.4.91, A2 dated 4.5.91, A3 and A4 dated 8.5.91, A5 dated 17.5.91, A6 dated 11.6.91, A8 dated 5.7.91., A13 dated 31.7.91, A14 dated 2.8.91 and A17 dated 7.8.91, the complainant had made repeated representations to the foreign buyer Y & B Co. about the details of payment without any response. The complainant could not at that time have had any knowledge of the delivery of the consignments to Y & B Co. without the bank''s authority. Exh. A7 dated 18.6.91 and Ext. A12 dated 30.7.91 are from the opposite party informing the complainant about the delivery of the first and second consignments to Y & B Co. but these letters are silent about the agency which authorised release of the goods. On 17.7.91 the complainant has written Exh. A9 letter to its local Syndicate Bank enclosing copy of Exh. A7 letter from the opposite party in respect of the first consignment requesting the local bank to write to the foreign bank claiming payment with interest. The local Syndicate Bank has immediately written to the foreign bank under Exh. A10 dated 18.7.91. It is stated therein as follows: " Since the goods were consigned to you and the documents were on sight D/P terms, we are confident that the payment was made to you by the drawee. We request you to inform us the date of payment to our account with Citi Bank, Newyork to enable us to reconcile our account." Exh. A16 is another letter dated 5.8.91 by the local Syndicate Bank to the foreign bank in respect of the second consignment and it is in the same term as Exh. A10. Exh. A16 runs thus : "We presume you would have collected the amount of the bill before giving delivery order. As we have not received payment, please expedite with interest at 18% P.A. from 23.4.91 to the credit to our account at Newyork."

The complainant has then written to the opposite party''s forwarding agent at Madras, M/s. Airogo Travel and Cargo Pvt. Ltd. Exh. A15 letter dated 14.8.91 in the following terms: "We have consigned the goods to the order of Donghwa Bank, International Department, Seoul, Korea. The letter obtained from Singapore Airlines only says date of delivery of cargo. But it is silent about the name of the agency which authorised to release of the cargo. In other words only Donghwa Bank, Seoul is the agency to give authority to release the cargo by virtue of their being the consignee under the airway bill. In case, the Airlines representative had delivered the goods not against the proper authority of the bank, then we have to lodge our claim against the Airlines. Alternatively if the consignee Donghwa Bank has itself authorised release then we have to lodge our claim on the bank. In view of the same please obtain the following specific information :- (1) Was the consignment released against the authority of Donghwa Bank or not? (2) Please call for the full details of the authority who authorised release of the cargo. The matter is being viewed very seriously by the Exchange Control Department, Reserve Bank of India, Madras and hence we need your assistance in ascertaining the information."

The Madras Cargo agent has written Exhs. A18 and A19 letters dated 19.8.91 to the opposite party requesting it to find out whether the Airlines had obtained any letter of authority/release order from the consignee the foreign Donghwa Bank. It is as clear as daylight from the above Exh. A15 letter dated 14.8.91 of the complainant, that though it had come to know of the delivery of the two consignments to the foreign buyer Y & B Co. it did not know at that time whether the delivery had been made with or without the authority of the consignee foreign bank. This letter further informs the opposite party in clear terms that if the goods had been delivered to Y & B Co. without the authority of the bank, the complainant will have to lodge a claim against the Air carrier and in the alternative if the consignee foreign bank had authorised the release, the complainant will lay a claim against the consignee foreign bank. At no point of time, has the complainant abandoned or relinquished or given up its right to proceed against the Air lines. On the contrary it had put the opposite party Airlines on notice under Exh. A15 letter dated 14.8.91 that it would lay claim against it if the goods had been delivered without the authority of the foreign bank. This is followed by Exh. A20 letter dated 25.10.91 to the opposite party directly. The following are excerpts from the letter. "As per your letter (copy enclosed) the above two consignments were delivered (to a person /firm who is not the consignee) on 8th April and 23rd April 91 respectively. You have confirmed vide your letter that the goods were delivered under the authority of a person/firm who is not the consignee whereas they ought to have been delivered only under bank''s authority and seal i.e. Donghwa Bank. There has been a lapse on your part by way of wrongful delivery. Under the circumstances, we hereby lodge our claim as under.:- and the Rupee equivalent has to be on the rate ruling on the date of your settlement."

We are convinced that soon-after coming to know that the delivery to Y & B Co. had been effected by the opposite party of or its handling agent without the authority of the consignee bank, the complainant has preferred its claim against the Airlines.

FURTHER we fail to see how the question of estoppel can arise in this case. The doctrine of estoppel is embodied in Section 115 of the Indian Evidence Act which runs as follows :- "When one person has, by his declara-t ion, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."

For the application of this principle of estoppel against a person, three conditions must be satisfied :- (1) The person against whom estoppel is pleaded must have made representation to another person, by declaration, act or omission; (2) The other person must have believed that representation to be true; and (3) That other person acting upon that belief must have changed his position to his detriment.

All these three conditions must be concurrently satisfied but not one of them is available here. The complainant has at no time made any representation to the opposite party that it would look only to Y & B Company for payment and not to the carrier. At the risk of repetition we may point out that as soon as it came to entertain doubt about the delivery without the authority of the consignee bank, the complainant has put the opposite party on notice of its claim against the carrier in case the delivery was without the Bank''s authorization. There is therefore no question of the opposite party acting on any representation of the complainant and changing its position to its detriment. The complainant is not therefore estopped from claiming relief against the opposite party. There is no rule of law which disentitles the complainant from proceeding against the carrier for the unauthorised delivery of the consignments to the foreign buyer without the production of the original documents from the bank on payment of the bill amounts It is then contended by the Learned Senior Counsel for the opposite party with considerable emphasis that the complainant has chosen on unscrupulous unworthy, unreliable foreign buyer and it cannot now throw the burden on the Airlines. It is exactly for this purpose that the papers are sent through bank and if only the opposite party and its handling Agent at Seoul had followed the normal and legal procedure and handed over the consignments to the foreign buyer on the production of the documents from the bank duly endorsed in its favour, the complainant would certainly not have found itself in this unfortunate predicament. If the foreign buyer failed to turn up to take delivery with the relevant documents from the bank and it is not possible for the carrier to carry out the orders of the consignor, it is the duty of the Air carrier to inform the consignor forthwith, as laid down in Article 12(2) of the Warshaw Convention and the Hague Protocol which are incorporated in Schedules I & II to the Carriage by Air Act of 1972 and sought the consignor''s instruction for disposal of the consignments. In such a case, the consignor instructs the carrier either to deliver the goods to another named consignee or to send back the goods or to dispose of the same and remit the money. Instead of following this established procedure, the opposite party Singapore Airlines or its handling Agent has in a casual, cavalier and negligent manner handed over the consignments to the foreign buyer Y & B Company Ltd., without the production of the documents from the bank duly endorsed in its favour. Such a conduct is unworthy of an International Air Carrier and deserves the severest condemnation.

IT is emphatically urged by the Learned Senior Counsel for the opposite party that the carrier or its Agent has no right to hand over the consignments to the notified party without the production of the original airway bills duly endorsed by the consignee bank in its favour and hence the opposite party Airlines or its handling Agent could not have and would not have delivered the goods to the foreign buyer. This is begging the question. This amounts to putting up the legal procedure as a defence to an accusation of violation of that procedure. The opposite party''s handling Agent at Seoul has contemptuously violated the established norm, either negligently or in collusion with the foreign buyer who has tactfully manoeuvred to take delivery without payment of the sale proceeds to the foreign bank. The opposite party is vicariously liable for the default committed by its handling agent and it is open to the opposite party to seek indemnity from its handling agent, who in turn can proceed against the foreign buyer. The refusal of the complainant to take back the goods sent by the foreign buyer through Gordon Woodroffe Limited under Exhs. B7 and B8 commercial invoice came up for adverse comment in the hands of the Learned Senior Counsel for the opposite party. Under Exh. A21 dated 12.11.91 the foreign buyer Y & B Company Ltd., has informed the complainant of shipping back the consignments. Immediately the complainant has sent Exh. A22 fax message on the same day refusing to take back the goods. It is pointed out in Exh. A22 telex message that the foreign buyer wants to ship back the goods after 6 months, that the Indian Government does not allow re-import of the goods and that the complainant could not know about the condition of the goods. After this reply, the foreign buyer has waited for 3 more months and shipped back the goods by the end of February 1992 through Gordon Woodroffe Limited. The goods have however arrived at Madras four months later in July 1992 as is evident from the Cargo arrival notice to the complainant under Exh. A32 dated 13.7.92 nearly one year and 4 months after the shipment of the consignments from Madras under Exhs. B4 and B5 in March and April, 1991. The complainant was legitimately concerned about the contents of the consignments and their condition. The consignments have not been returned by the Airlines or by the Customs but by Y & B Company, (vide Exhs. B7 and B8) and have therefore to be treated as fresh imports. The complainant had therefore to obtain an import licence from the concerned authorities and a "No Objection Certificate" from the Reserve Bank of India, as stipulated in the Cargo Arrival Notice issued by Gordon Woodroffe Limited under Exh. A32 dated 13.7.92. The complainant has therefore, rightly refused to accept the consignments and we find no default on the part of the complainant on this aspect. On a conspectus of all the above facts and circumstances, we hold that the opposite party Singapore Airlines'' handling Agent at Seoul has unauthorisedly and illegally delivered these two consignments to the notified party Y & B Company Ltd., without the production of the original airway bills and other documents duly endorsed by the foreign bank in its favour, as a result of which the complainant has been deprived of the value of both these consignments. There has been gross deficiency in service and negligence on the part of the opposite party Airlines or its handling Agent. The point is found against the opposite party.

POINT No. 2 : There is no dispute about the value of the consignments. The consignment covered by Exh. B4 dated 19.3.91 airway bill is of the value of US $ 4,732 equivalent to Rs. 1,49,058.00 at the present exchange rate of Rs. 31.50. The value of the consignment covered by Exh. B5 airway bill dated 12.4.91 is US $ 985.70 equivalent to Rs. 31,049.55 at the exchange rate of Rs. 31.50. The opposite party is bound to refund the said amounts with interest thereon at 18% PA. from the date of the delivery of each of the two consignments.

IN the result, we order as follows: (1) The opposite party shall pay to the complainant a sum of Rs. 1,49,058.00 covered by Exh. B4 airway bill with interest thereon at 18% P.A.. from 19.3.91 till payment. (2) The opposite party shall pay to the complainant the sum of Rs. 31,049.55 covered by Exh. B5 airway bill with interest thereon at 18% P.A. from 12.4.91 till payment. (3) the opposite party shall also pay costs of Rs 3,000/- to the complainant.

Complaint allowed with costs.