SHANTEE ENTERPRISES vs HERMES TRAVEL And CARGO PVT. LTD.

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

THE Complainant is a proprietary concern of which Mr. S. Selvaraj is the Proprietor. It is a sister concern of M/s. Rajesh Associates (M) Pvt. Ltd. THEy are exporters of leather garments and goods. M/s. V.V.M. & S. Co., Inc., Hillside Avenue, New York placed an order with the complainant for the supply of leather garments of the value of 33000 US $ to be delivered to M/s. Karlex, Warszawa in Poland. A letter of credit was also issued in favour of the complainant by Standard Chartered Bank, New York. THE first opposite party is IATA travel agent having its head office at Bombay. THE second opposite party is its branch at Madras. THE complainant delivered the consignment to the second opposite party for transshipment. It is alleged by the complainant that the second opposite party committed fraud by delivering the consignment directly to the buyer at Poland by scoring out the name of the consignee as Standard Chartered Bank, New York and entering the name of M/s. Karlex Warszawa as the consignee. Subsequently, the second opposite party fraudulently induced the complainant to send a letter for amending the name of the consignee. THE complainant came to know only thereafter that the consignment had already been delivered to the Warszawa buyer who has taken delivery without paying the price and negotiating the documents through the Standard Chartered Bank of New York. THE complainant has thus lost the value of the goods. THEre was deficiency of service and negligence on the part of the opposite parties and hence this claim for a sum of Rs. 9,90,000/- being the value of the consignment, freight charges and Rs. 1,00,000/- towards damages for mental agony and pain. The first opposite party filed a counter adopting the counter statement of the second opposite party.

The second opposite party in its detailed counter contended that as per the contract between the parties, the Courts in Bombay alone will have jurisdiction and this Commission cannot entertain this complaint. It is further contended that the duty of the cargo agent entered agreement for the delivery of the consignment to the Airlines and the remedy of the complainant is against the carrier. The second opposite party delivered the consignment to Air India which is the first carrier to be transported the goods to Singapore from where it is to be airlifted by Japan Airlines to Warszawa. The Airway bill bearing No. 131 8114 9283 dt. 25-7-91 was executed wherein the consignee''s name was indicated as the Standard Chartered Bank of New York. The freight charge of Rs. 51,539/- was not paid by the complainant. After repeated demands, the complainant issued a cheque bearing No. 146-7612 dated 20-2-92 on United Bank of India, Mount Road, Madras. But subsequently it issued instructions to the bank to stop payment. Thereafter the complainant issued a cheque on 26-2-92 for Rs. 21,539/- leaving a balance of Rs. 30,000/-. The opposite parties issued a legal notice on 1-9- 92 to the complainant demanding the balance. In reply thereto, the complainant sent a notice alleging that the opposite parties committed breach of trust by sending the Airway Bill and related documents directly to the consignee in Poland instead of to the Standard Chartered Bank, New York. But this allegation was denied by the opposite parties in their replication on 6-11-92.Ac- cording to the opposite parties, subsequent to the execution of the Airway Bill dated 25-7-91 the complainant has directly instructed the Japan Airways to amend the name of the consignee in the Airway Bill and to deliver the consignment to M/s. Karlex, Warszawa. It is denied that the opposite parties fraudulently altered the name of the consignee in the Airway Bill or fraudulently induced the complainant to issue a letter for amending the name of the consignee. The consignment reached Poland on 16-8-91 and until 25-9-92 when the Counsel for the complainant sent a reply to the legal notice issued by the opposite parties there was no allegation of any wrong delivery. There is also no reason why the opposite parties should intervene to amend the Airway Bill. The opposite parties also denied that there was any loss or damage to the complainant.

EXHS. Al to A21 and Bl to B8 are marked by consent. Mr. S. Selvaraj, the Proprietor of the complainant concern has filed a proof affidavit. Mr. K. Sivakumar, Manager of the second opposite party has also filed a proof affidavit. The points that arise for determination are : (1) Whether the complaint is maintainable ? (2) Whether there has been any deficiency of service or negligence on the part of the opposite parties ? (3) To what relief if any, is the complainant entitled ?

POINT No. 1 : The complainant has delivered a consignment of leather garments to the second opposite party cargo agent for transport to Warszawa. The complaint is filed alleging deficiency of service against the opposite parties. It is contended by the opposite parties that as per the con tract entered into between the complainant and the second opposite party, it is the Court at Bombay which has jurisdiction to entertain the claim. This contention cannot be accepted. Under the Consumer Protection Act, any claim can be filed in any Forum constituted under the Act, within whose" jurisdiction, the cause of action arose wholly, or in part. As the consignment has been delivered to the second opposite party at Madras, part of the cause of action has arisen in Madras and the complaint is maintainable before this Commission. The point is found against the opposite parties. Point No. 2 : The complainant has delivered one consignment of leather garments to the second opposite party for transport to Warszawa. The second opposite party has processed the consignment through the customs and delivered it to Air India as the first carrier to transport it to Singapore from where it has to be airlifted by Japan Airlines to Warszawa. Exh. A20 is the original Airway Bill dated 25-7-91 which shows the consignee''s name as Standard Chartered Bank, New York and Exh. B2 is a copy thereof in which the name of the consignee has been scored out and M/s. Karlex Warszawa is shown as the consignee. It is the case of the complainant that the second opposite party surreptitiously scored out the name of Standard Chartered Bank of New York, as the consignee and substituted the name of the Warszawa buyer M/s. Karlex and the goods were delivered to the Poland buyer who has taken delivery without paying the price and negotiating the documents through the Standard Chartered Bank of New York and consequently the value of the consignment is lost to the complainant. It is the further case of the complainant that subsequent to the delivery of the consignment to M/s. Karlex, Warszawa the second opposite party fraudulently induced the complainant to send Exh. B8 letter (dateless) asking for the amendment of the consignee''s name as Karlex Warszawa instead of Standard Chartered Bank, New York. The case of the opposite parties on the other hand is that they had nothing to do with the amendment of the consignee''s name and it is the complainant who has directly written to Japan Airlines for amendment of the consignee''s name and only subsequently the amendment has been effected and an amended Airway bill has also been given to the complainant. It is further contended by the opposite party that this consignment has been received at Warszawa in a totally damaged condition and the Warszawa buyer has refused to take delivery and the remedy of the complainant is only against the Airlines. We shall first consider whether the consignment has been delivered to the foreign buyer M/s. Karlex Warszawa Poland. Exh. B7 is the letter dated 26-9-91 from the complainant to the Sales Manager-CARGO, Japan Airlines, Mount Road, Madras, copy of which has been marked to the second opposite party. The letter reads as follows : "We have been informed by Overseas Buyer that the above airway bill consignment totally damaged, which was told to them by a "lot" Cargo representative. The examination of the damaged cases should a complete valueless ness of goods. Now they are refusing to take the delivery. In view of the above you are requested the take up the matter and do the needful."

This letter discloses two facts : (1) The consignment has been received in Warszawa in a damaged condition and the Overseas Buyer M/s. Karlex Warszawa has refused to take delivery and (2) The complainant was well aware of the facts that the consignee was the Overseas Buyer M/s. Karlex who has refused to take delivery because of the damaged condition of the consignment. It is pertinent to point out that neither in the complaint nor in the affidavit filed in support of the complaint by the proprietor Selvaraj, there is any mention about the damaged condition of the consignment or the refusal of Warszawa buyer to take delivery of the consignment. These facts have been deliberately suppressed by the complainant and they have come to light only from the documents filed by the opposite party. In as much as the consignment has been received at Warszawa from the Japan Airlines in a damaged condition, the right of the complainant is to proceed against the Japan Airlines and not against the opposite party. The learned Counsel for the complainant is unable to explain as to what became of the consignment and what action has been taken against the Japanese Airlines. The opposite parties cannot be held liable for the damages suffered by the consignment and the consequent refusal of the Warszawa buyer to take delivery of the same.

WE shall now consider the allegation of the complainant that the Airway Bill was surreptitiously tampered with by the opposite parties by substituting the name of the Warszawa buyer M/s. Karlex as the consignee in the place of Standard Chartered Bank, New York and that the second opposite party played a fraud on the complainant and got a letter under Exh. B8 for change of the consignee''s name after actually delivering the goods to the foreign buyer M/s. Karlex Warszawa. According to the opposite parties, the complainant has on its own accord written to the Japan Airlines, for changing the name of the consignee and the goods have not been delivered as they had been received in a damaged condition at Warszawa. The case of the complainant, as we shall presently show, has no substance. In the first place, as is seen from Exh. B7 letter of the complainant to the Japan Airlines the consignment has been received at Warszawa in a totally damaged condition and the Warszawa buyer has refused to take delivery. There is therefore no question of the second opposite party fraudulently getting a letter from the complainant under Exh. B8 after the scaled delivery of the consignment to Warszawa buyer. Secondly there is absolutely no reason or motive for the second opposite party to change the name of the consignee in the Airway Bill, for it gains nothing thereby. Thirdly the learned Counsel for the complainants stated at the bar that the second opposite party has been written a letter to the complainant requesting the complainant to give Exh. B8 letter for changing the name of the consignee in the Airway bill. When this Commission asked him to produce that letter the learned Counsel searched his records and found that there was no such letter. He has not been able to produce any such letter till now and it is clear therefore that the scaled letter said to have been written by the second opposite party to the complainant requesting the complainant to give permission for amending the Airway Bill is a myth. Lastly there is another circumstances which totally falsifies the complainant''s case. The Airway bill shows that the freight charge is Rs. 51,539/- prepaid. The complainant has not paid the amount. It is the second opposite party who has paid the freight charge. After repeated requests, the complainant has sent a cheque to the opposite parties for a sum of Rs. 51,539/- dated 20-2-92 ( evidently post-dated) drawn on the United Bank of India, Mount Road, Madras. On 19-2-92 the complainant has written to the bank countermanding the cheque under Exh. A2. Subsequently the complainant has sent a cheque for Rs. 21,539/- on 26-2-92 leaving the balance of Rs. 30,000/-. On 1-9-92, the first opposite party has issued Exh. B4 notice through lawyer to the complainant claiming the balance of freight charge of Rs. 30,000/- and threatening criminal action under the Negotiable Instruments Act. The complainant has sent a reply under Exh. B5 dated 25-9-92 in which for the first time he has alleged that the opposite party No. 2 has committed breach of trust by sending the Airway bill and other supporting documents direct to the buyer in Poland, which allegation has been denied by the first opposite party in its replication dated 6-11-92 under Exh. B6. It is significant that in Exh. B5 reply notice sent by the complainant, there is no whisper that the second opposite party stealthily changed the name of the consignee in the Airway bill or that the second opposite party after delivering of the consignment to the Warszawa buyer fraudulently obtained Exh. B8 letter from the complainant for change of name. It is only for the first time in the complaint filed beforethis Commission on 20-9-93 this allegation had been made which is clearly an after thought. In order to mulct the opposite party of deficiency, this allegation has been trotted out in the complaint. WE have therefore little hesitation in rejecting the claim of the complainant that the second opposite party had fraudulently scored out the name of the consignee as Standard Chartered Bank, New York and substituted the name of Karlex Warszawa as the consignee or that the second opposite party played a fraud on the complainant and obtained Exh. B8 letter for change of the consignee''s name. WE hold that the complainant has on its own accord written Exh. B8 letter to Japanese Airlines for amending the consignee''s name in the Airway Bill and it is on the basis of this letter, the consignee name in the Airway Bill has been amended (vide Exh. B2) and a fresh consignment note has also been issued to the complainant under Exh. A7. WE are therefore unable to find any default, deficiency or negligence on the part of the opposite parties. The claim against them is totally untenable.

POINT No. 3 : In view of our finding on point No. 2 the complainant is not entitled to any relief. In the result, the complaint fails and is dismissed with costs of Rs. 3,000/-. Complaint dismissed with costs. ___________