Rakesh Vaid vs Air India Himalaya House

BRIEFLY the facts are that the complainant entrusted to the O.P. a consignment of 47 bags containing readymade garments for shipment to Porlamar (Venezuela) on 15 -11 -91. He paid the freight and other charges amounting to Rs. 98,060/ - in advance. The value of the garments, it is alleged, was 21,462 US Dollars equivalent to Rs. 5,52,647/ -.

IT is further pleaded that the goods did not reach the destination within a period of three months, which was due to negligence and deficiency in service of the O.P. Consequently, he suffered a loss of Rs.9,28,077/ - as detailed below: - i) For value of goods US $ 21462 Rs. 5,52,647.00 ii) Freight paid by thecomplainant to theopposite party Rs. 98,060.00 iii) 7% loss of DBK (to be refunded) Rs. 38,685.00 iv) Loss of premium on entitlement @ 7% Rs. 38,685.00 v) Damages claimed by the foreign buyer due to non -delivery of the garments Rs. 2,00,000.00 Rs. 9,28,077.00 He has filed a complaint for recovery of the said amount against the O.P.

The O.P. contested the claim and interalia pleaded that the space on Venezuela International Airlines (Viasa) between Frankfurt to Porlamas was confirmed in advance from them (Viasa) and the goods were sent from Delhi to Frankfurt after making the said confirmation. The goods reached Frankfurt but the shipment could not be air -lifted from there to Porlamas as the Viasa pilots were on strike. The shipment was, therefore, sent on Lufthansa from Frankfurt to Caracas, from where it was to be sent to Porlamas.

IT is further pleaded that the complainant requested the O.P. vide letter dated 22 -192 to change the consignees name, as the original consignee had refused to accept the consignment. The O.P. wrote a letter dated 281 -92 requesting the complainant to forward no objection certificate from the Bank and demand draft of Rs.100/ - to enable them to take further action. It is alleged that the complainant did not forward the documents as requested by them. The Caracas CustomAuthorities detained the consignment at Caracas as commerical invoice was not attached to the Airway Bill of shipment. It is pleaded that they ultimately auctioned the goods since there was no response from the consignee even after 37 days of the arrival of the consignment.

THE first question that arises for determination is, whether there was any negligence on the part of the O.P. on account of which complainant suffered loss. It is not disputed that the goods reached Caracas, the capital of Venezuela. There the CustomAuthorities pointed out that the goods were not accompanied by certain documents. They requested for the documents, which were not supplied to them and conesquently they auctioned the goods. It is, therefore, to be seen on account of whose negligence the documents were not supplied. In ordinary course the carrier should inform the consignor before booking the goods, which of the documents should accompany the goods as the consignor is generally a lay man and does not know the rules, regulations and practices for booking the goods on the international flights the carrier is an expert in this line. Therefore, they are duty bound to inform them about the formalities. If inspite of being informed the consignor fails to supply the documents, it is advisable that the carrier should not book the goods. If at the insistence of the consignor, he does so, the carrier will not be responsible for the loss suffered by him. The learned Counsel for the O.P., faced with this situation, relied upon Rule 16 Chapter II of Schedule I of the Carriage by Air Act, wherein it is provided that the consignor must attach to the air consignment note such documents as are necessary to meet the formalities of customs, octroi or police before the goods can be delivered to the consignee. The consignor is liable to the carrier any damage occasioned by the absence, in -sufficiency or irregularities of any such documents, unless the damage is due to the fault of the carrier or his agents.

FROM a reading of the rule it is evident that if the damage has been caused to the goods due to the fault of the carrier or his agents, the consignor is entitled to get the damages from the carrier. In the present case, in our view, the damage has been caused to the goods due to the fault of the carrier. The Custom -Authorities at Caracas requested the complainant to provide commercial invoices as they were not found with the airway bill. It was the duty of the carrier to have informed the complainant that they should supply the commercial invoice to the Custom -Authorities at Caracas. However, it has not been proved by the opposite party that the complainant had been informed about it by them. The goods were auctioned after a period of 37 days of the arrival of the consignment. There was sufficient time at the disposal of the O.P., to have infomed the complainant to supply the documents but they failed to do so. It is, thus clear that the goods were auctioned due to the fault of the O.P.

THE matter may be examined from another angle. It has already been observed above, that the carrier while loading the goods should see that the relevant documents are handed over by the consignor to them, as they, being the experts, know which documents are required to accompany the airway bill. In case the consignor does not supply the documents inspite of having been informed and the carrier dispatches the goods at the insistence of the consignor they, in view of Rule 16, may be absolved of their liability. It has not been shown in the present case that the carrier asked the consignor to give the commercial invoice of the goods and inspite of that, they failed to do so. The consignor has sworn in an affidavit dated 6 -7 -92 that complete documents were submitted by them to the carrier for shipment of the goods. It has also been stated in the affidavit that they were never informed by O.P. which documents were not attached with the airway bill. It has further been said therein that they were not even informed that the goods were detained by Custom -Authorities. Being the carrier it was their bounden duty to inform the complain ant about the aforesaid matters. Therefore, O.P. cannot derive any benefit from Rule 16. The second question that arises for determination is as to how much amount the complainant is entitled to get from the O.P. The complainant has produced the invoice of the goods, sent with the goods. The total price of the goods in the invoice is 21462 US Dollars. The amount of freight paid by the complainant to the O.P. is Rs. 98,060.00. This amount has not been denied by the O.P.

THE learned Counsel for the O.P. has strenuously argued that the. complainant is not entitled to get more than Rs. 300/ - per kilogram according to Regulation 5(d) of the Regulations framed under Air Corporation Act, 1971. We are of the considered opinion that the said regulation is not applicable, as the goods were not lost during carriage of goods by the O.P. On the other hand, these were auctioned due to the negligence of the opposite party as detailed above. Consequently we are of the view that the complainant is entitled to reover oth the amounts of 21462 US Dollars and Rs. 98,060.00 from the O.P.

THE complainant has claimed 7% loss of DBK. The amount claimed on this account is Rs. 38,685/ -. They have also claimed loss of premium on entitlement @ 7%. The amount claimed on this account also comes to Rs. 38,685/ -. No proof of entitlement of these amounts has been given by the complainant. Consequently we reject his claim regarding these two amounts. The complainant has also claimed damages of Rs. 2 lacs for the reason that the foreign buyer has claimed damages from them due to non -delivery of the garments. They have not lead any evidence to prove this loss. In the circumstances we dis -allow this amount.

AT this stage Mr. Digpal, Advocate for the complainant appeared and requested us to hear his arguments and review the order already dictated. On our refusal to do so on the ground that the matter had been heard at a considerable length and the order had already been dictated and pronounced in the court room, he started shouting, which we never expected from an Advocate of his standing. It is the duty of all the Advocates to maintain dignity in the Court, which we regret to observe, was not maintained by Mr. Digpal. It is relevant to observe that he did not even ask the complainant to be present in the Court room in his absence. The lawyers are expected to maintain proper decorum in the Court, which enhances not only the dignity of the Commission, but theirs too.

FOR the aforesaid reasons we accept the complaint and direct the O.P. to pay 21462 US Dollars at the rate prevalent at the time of booking the goods and Rs. 98,060.00. As the complainant and his Counsel did not appear in time, therefore, we make no order as to costs. The O.P. should pay the amount within a period of three months from the date of the order failing which action shall be taken against them u/Sec. 27 of the Consumer Protection Act. Complaint allowed.