S.C. CHIBBAR vs Air India Corporation

BRIEFLY the facts are that the complainant is working in Ministry of External Affairs, Govt. of India, New Delhi. In 1982 he had been posted in Indian Embassy at Bagdad. After serving at Bagdad for more than 3, years, he was transferred to India (New Delhi). He booked his personal effects/goods by Air India, Bagdad for transportation to New Delhi on 29th October,1985, vide Air Bill Nos. 098-44117102 and 098-44117135. It is alleged that the goods were scheduled to be flown by Air India Flight, from Bagdad on 4.11.85. The goods were not flown by the respondent within the stipulated period and eventually the goods reached Delhi through Iraqi Airways on 13.3.86.

ON opening the goods, it is alleged that some goods were found to be completely damaged. It was provided in the terms of the contract that the Warsaw Convention was applicable for determining the liability of the carrier in respect of loss, damage or delay to cargo. According to that consignor is entitled to 250 French Gold Franks per Kg. viz. 20 U.S. $ per kg. It was further provided in the Contract that in case of loss, damage or delay of a part of the consignment, the weight was to be taken into account in determination the carriers'' liability. Therefore, it is pleaded, the complainant is entitled to claim damage/compensation for delayed delivery of the goods @ 20 dollars per kg. The total amount of damages comes to $10,300 equivalent to Rs. 1,78,200/-. It is further averred that the complainant incurred expenses for pursuing his claim and suffered mental agony and harassment on account of delayed delivery of the goods and on that count he is entitled to Rs. 10,000/- as damages. He has claimed interest on the amount claimed @ 18% per annum from 19.3.1986 till the date of payment of the claim to him. Consequently, he has filed a complaint, for recovery of Rs. 1,88,200/- with interest @ 18% per annum from 19.3.86 till the date of payment. The complaint has been contested by the defendant. A preliminary objection has been taken by it that the claim is barred by limitation under the Carriage by Air Act, l972 (hereinafter referred to as the Air Act) and Limitation Act. On merits the respondent denied its liability. The complaint was presented on May 29,1990 before the Commission. On 7.8.90, it was ordered by the Commission that a preliminary objection has been taken that the complaint was barred by time and that question would be considered in the first instance.

We have heard the complainant''s representative and learned Counsel for the respondent on the question of limitation. The learned Counsel for the respondent has argued that under Rule 29 of the 1st schedule and Rule 30 of the Second Schedule of the carriage of the Air Act, the right to claim damages is extinguished, if no action is taken by a complainant within two years reckoned from the date of arrival at the destination or from the date on which the Aircraft ought to have arrived. He submits that the claim has not been filed by the complainant even within two years of the date when his claim was rejected by the defendant. In support of his contention he has referred to letters dated 28.4.86 (Page 156) and dated 19.4.88 (page 87) both by the defendant to the complainant. He submits that the present claim has been filed in May, 1990 i.e. 4 years after the aforesaid letters and was thus clearly barred by limitation.

THE complainant''s representative on the other hand has argued that no period of limitation is prescribed to file complaints before the Commission, as it has been constituted for the benefits of the consumer. He further submits that the Limitation Act is not applicable to the complaints under the Act. In support of his contention he made reference to Town Municipal Council Athani v. THE Presiding Officer Labour Court, Hubli and Others, 1969 (I) Supreme Court Cases 873. R.D. Sita Devi v. C, Anna Rao and Others, AIR 1970 Andhra Pradesh 43, and I.S. Nirn v. Hindustan Steel Lid. Bhilai, AIR 1980 Madhya Pradesh, 106. We have duly considered the arguments. The fact of the case are not disputed. The complainant submitted his claim to the defendant but the defendant vide letter dated 28.4.86 informed him that he did not have a valid claim against Air India. Again vide letter dated 19.4.88, the defendant informed him that it could not entertain his claim. If the cause of action is considered to be from the date of rejection of the defendant''s claim. The complaint is filed afier more than four years from the date of first letter.

SECTION-3 of the Air Act provides that the rules contained in first schedule, being the provisions of the Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the air-craft performing the carriage. SECTION 4 in similar terms makes the provisions of the 2nd Schedule, which contains amended convention, applicable. Rule 29 of the first Schedule and Rule 30 of the Second Schedule relates to the period of limitation. Both the rules are couched in the same language. It is provided in the said two rules that the right to damages would 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 aforesaid rules it is evident that a complainant can claim damages from an Air Carrier within two years from the date of arrival of the goods at the destination or from the date on which the Aircraft should have arrived. In the present case admittedly the goods reached Delhi on 13.3.86 whereas the claim was filed in May, 1990. If the period of two years is reckoned from that date the limitation for filing the claim expired in March ''88. As already mentioned the defendant refused to pay the damages in April ''86, even if time is reckoned from that period, the claim is still barred by limitation. The complainant''s representative faced with this situation sought to urge that the said two rules were not applicable to the case. We regret our inability to accept the same. Section 3 of the Consumer Protection act Provides that the provision of the Act would be in addition to and not in derogation of the provisions of any other law for the time being enforce. A bare reading of the section clearly shows that the provisions of the other Acts are applicable to the complaints unless those provisions are repugnant to the provision of the Act. No provision in the Consumer Protection Act has been brought to our notice which shows that rules 29 and 30 of First and Second Schedules of the Air Act are repugnant to the Act. Consequently we are of the view that Rules 29 & 30 are applicable to the present case.

AS we have held, that the complaint is barred under Rules 29 & 30 of First and Second Schedules respectively of the Air Act, therefore, it is not necessary to go into the question, whether the provisions of the Limitation Act are applicable to complaints under the Act or not. In Town Municipal Council Athani''s case (Supra) referred to by Agent of the complainant the question was whether under Article 137 of the Limitation Act, 1963 was applicable to the proceedings under Section 33-C(2) of the Industrial Disputes Act, 1947. The R.D.K. Sita Devi''s case deals with the question whether Article 181 of the Limitation Act, 1908 is applicable to proceedings under Madras Estates Abolition and Convertion into Ryotwari Act. In L.S. Nair''s case, the question was whether the provisions of Article 52-55 were applicable to proceedings under Public Premises (Eviction of Unauthorised Occupant) Act. All the above said cases deal with the question, whether the provisions of the limitation Act are applicable to those cases, which were under different enactments. It is not necessary to deal with these cases as that question has been left open in this case. We, however, express our displeasure in observing that Town Municipal Council Athani''s case has since been over ruled in the Kerala State Electricity Board, Trivandrum v. J.P. Kunhaliumma, AIR 1977 SC 282 and it was expected of the Agent of the complainant not to cite an over ruled judgment. Therefore, the complainant can not derive any benefit from the aforesaid case.

FOR the aforesaid reasons, we dismiss the complaint as barred by Limitation with costs. Costs Rs. 500.00. Complaint dismissed with costs.