SAWHNEY EXPORT vs PAKISTAN INTERNATIONAL AIRLINES

BRIEFLY the facts are that the complainant is carrying on the business of exporting silver jewellery studded with precious and semi-precious stones. M/s. Gay Teck v. Hediyelik Esya of Istambul placed an order dated 15.2.88 for silver jewellery prepared, packed in a tin case and delivered it to the respondent at New Delhi for delivery to the consignee at Istambul (Turkey). The price of the jewellery was Rs. 48,337-48. The consignee could not take delivery of the goods at Turkey and they requested to send them to Frankfurt. The complainant informed the respondent that the consignment would be transferred to Frankfurt, vide letter dated 23.8.88. M/s. T.I.E. Textile Handlesges sister concern of the consignee were intimated by the respondent on 30.11.88 that the shipment was not traceable. In January''89 the goods reached Frankfurt. As the goods reached late the consignee did not take delivery thereof and the order was cancelled by them.

IT is alleged that due to deficiency in service by opposite party the complainant has suffered a loss of US Dollars 3659.15 and demurrage US Dollar 154.00. They have further pleaded that the respondents were liable to pay interest @ 18% p.a. with quarterly rests on that amount from 1.9.88 till 31.10.91 which comes to US Dollars 2,173.50. Consequently they filed the present complaint for recovery of the said amounts. The respondents contested the complaint and inter-alia pleaded that it is not within limitation. It is, therefore, to be seen whether the complaint is within limitation.

The Counsel for the respondent has vehemently argued that the Carriage By Air Act, 1972 (hereinafter referred to as the ''Air Act'') deals with the carriage of goods by air and matters connected therewith. Rule 29 of the First Schedule provides a period of two years for filing the claim for damages against the carrier. In the present case a period of two years is to be reckoned from the date of the arrival of the consignment at the destination. He submits that the consignment arrived at Frankfurt in January''89 and the present complaint was filed on 12.11.91. Thus the complaint is barred by limitation a period of more than two years had expired at the time of filing of the complaint. To support his contention he placed reliance on American Export, Isbrandtsen Lines Inc. and Another v. Joe Lonar and Another AIR 1972 Supreme Court 1405 and M/s. Maharani of India v. British Airways Corporation (suit No. 165 of 80) decided on 9.4.87 by the Delhi High Court.

THE complainant has argued that the present case is governed by Article 11 of the Limitation Act and not by Rule 29 of Schedule 1 of the Air Act. In support of his contention he has placed reliance on Branch Manager, Economic Transport Organisation and Others v. M/s. Synco Textiles Pvt Ltd. & Others I (1992) CPJ 154, (National Commission) and Old Village Industries v. British Airways, 1991 Rajdhani Law Reporter 443. We have considered the arguments of the learned Counsel for the parties. In order to determine the matter it will be proper to notice Rules 19 and 29 of 1st Schedule of the Act, which are as follows: "19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods. XXX XXX XXX 29. The right of damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped".

FROM a reading of the Rules it is evident that if a case for damages on the basis of consignment having being delayed in carriage, is not filed within, two years from the date of arrival of the consignment at the destination, the, right to damages stands extinguished. Similar matter was dealt with by Mr. Justice Goswami in Maharani India s case (Supra). It was observed by the learned Judge, after taking into consideration Rule 29 that the limitation for suit commerced from 19.12.77, when, the air-craft left India and latest on 21.12.1977 when it had to arrive at the destination. The suit for damages from that date was barred by time as having been filed beyond a period of two years. The Supreme Court dealt with similar case in American Export Isbrandtsen Lines Inc. case (supra). In that case some of the goods had not been delivered to the. consignee and some of the goods had been damaged. The ship arrived at Cochin on 1.9.67 and left the port on 7.9.67. The delivery of the goods was given to the plaintiff on 9.5.68. The suit was filed on 24.5.69. Between 9.5.69 and 23.5.69 the Court was closed for summer vacation. The question for consideration was whether the suit was barred by limitation. Sub-para (3) of Para 6 of Article III in schedule to the Indian Carriage of Goods by Sea Act provides that the ship shall be discharged from all liability in respect of loss or damage unless a suit is brought within one year after the delivery of the goods or the date when the goods shall have been delivered. The question arose whether the suit was with in limitation. The learned Trial Court came to the conclusion that it was barred by limitation. The High Court in revision set-aside the decision of the Trial Court and held that suit was within limitation. The Supreme Court allowed the appeal, set-aside the judgment of the High Court and restored that of the Trial Court. While interpreting Sub-para (3) of para 6 of Article 3, the Court observed as follows: "7. FROM the. passages quoted above, it is clear that this Court had come to the conclusion that if by the time ship leaves the port, the goods shipped or any part thereof had not been delivered, it will be a case of non-delivery of the goods on the date when the goods should have been delivered. In that decision this Court has taken the view that the last date for filing the suit for "loss or damage" is one. Quite clearly, the claim in respect of short delivery is clearly barred by time. If we are to accept the contention of the. plaintiff that his claim in respect of the damage caused to the goods delivered to him arose only on the date when the goods were delivered to him, then it means that the. plaintiff had two causes of action under Clause (3) of Paragraph 6, one relating to the loss and another relating to damage. FROM the. language of the clause in question it is not possible, to accept that contention. As observed by this Court in the decision referred to above the time when the ship leaves the. port should be taken as the time when the delivery should have been made. Any delivery which has not been made by that date comes with in the. mischief of Clause (3) of Paragraph 6".

After taking into consideration the, facts of the case, and the. provisions of law, we are of the opinion that the complaint is barred by limitation. The. authorities on which reliance has been placed by the complainant are not applicable, to the present case. In Old Village Industries case (Supra) the defendant intimated the. plaintiff vide his letter dated 16.6.63 that as no instruction had been received for alternate disposal of the consignment, the same had been given to a charitable organisation on 13.5.82. In the aforesaid circumstances, it was held that Rule-29 of Schedule-1 of the Carriage By Air Act, 1972 read with Rule 18 would not be applicable. In the present case the facts are distinguishable and Rule 18 is not applicable to the present case. Therefore, the above ratio is not applicable to it. M/s. Simco Textile''s case (Supra) was under the Carriers Act, 1865. The provision of Carriers Act and those of the Air Act are different. In our view the observations of the National Commission in that case are not applicable to the present case.

THE. complainant also made reference to M/s. Vij Sales Corporation v. Lufthansa, German Airlines ILR to (1981) II Delhi 749. THE facts of that case are also distinguishable. In our view the observations in that case are. of no assistance to the complainant.

AFTER taking into consideration all the facts and circumstances of the case, we. are of the view that the. present claim is barred by limitation. Consequently, we dismiss the. same with no order as to costs. Complaint dismissed.