SHOBHA GLOBAL vs AIR INDIA

THIS complaint under Sections 21 and 22 of the Consumer Protection Act, 1986 has arisen on these facts:

285 KGS. of different types of polyster printed Sarees, cotton printed Sarees and handloom Sarees, silk Sarees, Duppattas etc. were packed in 12 cartons by the Complainant to be transported to the Complainants'' consignee at Mauritius, M/s. Aryana Collections Ltd. The goods were handed over to customs house agent, Opposite Party No. 3 for clearance and for arranging onward transportation to the consignee at Mauritius. The FOB-value of the consignment containing 12 packages with a gross weight of 285 KGS. was US $ 10,659.58. Copies of the Exchange Control Declaration, invoice and shipping bill dated 31st August, 1992 are annexed with the complaint and are marked ''A'' collectively. The consignment, after clearance, was entrusted by the Opposite Party No. 3 to the Opposite Party No.1 and also paid the necessary freight. The 1st Opposite Party issued Air Waybill No. 096-6025-7164 dated 5.9.1992, copy marked as Annex. ''B''. The consignment was entrusted to the 1st Opposite Parry at its cargo complex against challan/gate pass No. 369791 dated 5th September, 1992, copy Annexure ''C''. The consignment was to be lifted to Mauritius by Air India/Air Mauritius Flight No. AI/MK/745 on 9.9.1992. There is no dispute on these facts. It is alleged in the complaint that due to the gross negligence and deficiency in service, the 1st Opposite Party did not properly handle the goods entrusted to it and 8 out. of 12 packages were found missing on 7.9.1992 and were not traced by the 1st Opposite Party and the 3rd opposite, Party as a result of which substantial number of fabrics which had to be exported by the Complainant to Mauritius to enable it to participate in the trade fair could not be exported resulting in substantial loss of reputation and prejudice and also losses arising out of the non-participation in the Exhibition apart from various other losses such as payment of charges for the space at the exhibition, rental charges paid at Mauritius, boarding and lodging expenses incurred by the Complainant. The Complainant has claimed in para 18 under different heads a sum of Rs. 40,45,146 together with interest at the rate of 18 per cent per, annum on account of gross negligence and deficiency service by the Opposite Parties.

The 1st Opposite Party in its written reply has admitted that the said consignment of 12 packages was brought to the cargo complex at 19.00 hrs 5.9.93 by the 3rd Opposite Party and said Air Way bill was issued by the 1st Opposite Party. It is also admitted that on the next date when the 1st Opposite Party''s staff went to the cargo complex, it was found that 8 of the 12 packages were missing. Thereafter, in spite of making all efforts of even filing of police report, five missing packages could not be found. It is pleaded that the 1st Opposite Party was acting as ground-handling agent of the 2nd Opposite Party and, therefore, the responsibility for any loss or damage that occurs during the course of such exigency would be that of the principal i.e. the 2nd Opposite Party in terms of the joint venture agreement entered into between the 1st Opposite Party and the 2nd Opposite Party.

THE 2nd Opposite Party in its version on affidavit asserts that no action for damages lies against it as 8 missing packages of the comsignment were never handed over to the 2nd Opposite Party and there is thus no negligence or deficiency in service on their part. The 3rd Opposite Party in its reply affidavit asserts that upon entrustment of the entire consignment of 12 cartons to the 1st Opposite Party, all responsibility of 3rd Opposite Party in relation to the said consignment ceased and came to an end. It is pleaded that since the 3rd Opposite Party duly and properly fulfilled its obligation without any breach or default or deficiency, whatsoever, no question arises for the Complainant being entitled to make any claim against the 3rd Opposite Party.

IT is clear from the Air Waybill No. 098-6025-7164 dated 5.9.1992 issued by the 1st Opposite Party that the consignment comprised of 12 cartons Nos. 292-303 with gross weight of 285 kgs. The consignment was to be carried to Mauritius by Air Mauritius flight/MK/745 on 9.9.1992. The nature and quality of the goods is also recorded in the Air Waybill as "polyester P/L Sarees, P/L cotton printed Sarees, hand loom cotton Sarees, silk Sarees handloom, silk Sarees P/LP/Lartsilk Sarees P/L Duppattas". The name of the agent is describbed as Lemuir Air Express, Bombay" i.e.the 3rd Opposite Party. IT is an accepted position that entire consign ment of 12 cartons was duly entrusted by the 3rd Opposite Party to the 1st Opposite Party. In our view, the engagement of the 3rd Opposite Party came to an end upon customs clearance and entrustment of the consignment to Opposite Party No. 1 for carriage by air to Mauritius. There is no negligence or deficiency in service on the part of the 3rd Opposite Party. It is admitted by the 1st Opposite Party that 8 out of 12 packages were found missing on 6.9.1992 and were not found later. We are unable to accept the submission that the cargo complex in which the consignment was stored and from which it was lost is owned by the International Airport Authority of India and the 1st Opposite Party is merely an agent of the International Airport Authority of India for the purpose of handling cargo in the said complex and thus cannot be made liable for the loss or damage, if any. The 12 cartons were entrusted to the 1st Opposite Party and not to the International Airport Authority of India. The 1st Opposite Party was bound to exercise reasonable care and caution to protect the consignment till it was loaded and handed over to the 2nd Opposite Party for carriage to Mauritius. The 1st Opposite Party knew the nature of the cargo as it was disclosed at the time of booking and the nature and quantity of the goods is specifically mentioned in the said Air Waybill. The 1st Opposite Party was fully aware of the sensitive nature of the cargo. A copy of the letter dated 8th September, 1992 addressed to the 3rd Opposite Party filed along with the reply by the 1st Opposite Party accepts that at the time of acceptance the cartons were counted and found all intact. It is stated, ''however, in view of the nature of the consign ment, he had requested your staff (3rd Opposite Party) to keep the consignment in front of our security in cargo complex.". Once the consignment is entrusted by the 3rd Opposite Party to the 1st Opposite Party, the responsibility of the 3rd Opposite Party ceases. The 1st Opposite Party had not only failed to exercise reasonable care and caution as was expected from it after being aware of the nature of the consignment but had been grossly negligent in protecting the consignment while in its custody. The part of consignment was lost due to the negligence of the 1st Opposite Party. There is clear deficiency in service on the part of the 1st Opposite Party resulting in loss to the Complainant. That takes us to the question of quantum. The Complainant has claimed the value of the lost 8 packages as Rs. 2,83,980/- The complainant in his complaint gives the F.O.B. value of the consignment of 12 containers having gross weight of 285 kgs. as 10,659.58 US Dollars. The copies of the Exchange Control Declaration, invoice and shipping bill dated 31st August, 1992 have been annexed as Annexure ''A''. These documents show that the sum of Rs. 2,83,980/- as representing the value of the entire consignment of 12 cartons and not 8 cartons. Thus the value of the loss of packages should be 2/3 of Rs. 2,83,930/- i.e. equal to Rs. 1,89,286.66. Similarly, the flight charges incurred from Coimbatore to Bombay for the 8 lost packages of the consignment would be 2/3rd of Rs. 3,166/- i.e. equal to Rs. 2,110.66. This is the actual loss in respect of the 8 lost cartons caused to the Complainant.

THE Complainant alleged that he lost a business of Rs. 1.5 crores on which he expected a profit of 20 per cent, thus suffered a loss of profit of Rs. 30,00,000/-. THE Opposite Parties have denied that the Complainant have suffered any loss or damage of the nature and the extent alleged. No material has been filed by the Complainant on the record to support this claim for loss of profit. THE claim had to be substantiated by sufficient, cogent and convincing evidence and the compensation thus could then only be assessed on the basis of well accepted legal principles whether the loss was a direct result of the negligence or whether it was too remote. In the absence of proof, no compensation can be awarded to the Complainant for alleged expected loss of profit. Similar is the position on record in respect of alleged rental charges paid at Mauritius, boarding and lodging expenses of representatives at Bombay, boarding and lodging expenses in Delhi for arrangement, and expenses to visit South African countries, Mauritius. If these expenses were incurred, then the Complainant must have obtained receipts and vouchers, but chose not to place them on record or to adduce any proof in support of the same. Thus, the expenditure claimed cannot be awarded.

THE trade fair was to be held between 17th to 23rd September, 1992. THE consignment of four packages of the Complainant was carried to Mauritiuson 18th September, 1992 under Air Waybill No. 098-6020-4105. As a result of gross negligence committed by the 1st Opposite Party, the 8 consignments were lost, thus could not be carried to Mauritius and the other 4 packages reached late. THE Complainant is thus right in his submission that it could not effectively participate in the trade fair and thereby suffered not only loss of reputation at the trade fair at Mauritius, but also in the international market besides mental agony. THE quantum for the mental pain, agony and loss of repudiation is always a guess work, however, dependent on the facts and circumstances prevalent in each case. After considering all relevant material and the facts and circumstances of the case we consider that a sum of Rs. 3 lakhs would be fair. We award Rs. 3 lakhs as compensation to the complainant against the 1st Opposite Party. Before parting we may notice the sub-mission made by the learned Counsel for the 1st Opposite Party that there is an agreement between the 1st Opposite Party and the 2nd Opposite Party under the terms of which the 2nd Opposite Party is to indemnify the 1st Opposite Party, inter alia, against any claims in respect of damage or loss to cargo. It will be open to the 1st Opposite Party to pursue its claim.

The complaint is partly allowed. The Complainant is granted actual damage of Rs. 1,89,286.66 plus Rs. 2,110.66 in all Rs. 1,91,397/- (rounded) besides compensation of Rs. 3 lakhs for the mental agony. The 1st Opposite Party is burdened with costs of Rs. 10,000/- to be paid within a period of one month from today, failing which it will carry interest @ 18% p.m. from the date of this order. The Opposite Parties No. 2 and No. 3 shall bear their own costs. Petition partly allowed.