TAHA LEATHER PRODUCTS vs AIR INDIA CARGO OFFICE, MADRAS

THIS is an appeal against the order of the 10th July, 1992 passed by the State Commission of Tamil Nadu in Original Petition No. 109/92 before it. The facts of the case are that the appellant-complainant booked a consignment of 12 cartons of leather garments for shipment to a consignee in New York by Air India Cargo. On its arrival in New York on 21st November, 1989 the consignment was found short; there were only six cartons out of 12. Only after two months viz on the 27th January, 1990 the respondent-Opposite Party Air India informed the appellant consignor regarding the factum of non-clearance of the consignment by the consginee. Subsequently on the 3rd of March, 1990 the respondent-Air India informed the consignor of the loss of 6 cartons. As the consignee did not take delivery of the goods because it was short, the appellant complainants made arrangements with another prospective buyer to take the remaining 6 cartons and instructed the carrier respondent-Air India to forward the same to Atlanta in U.S.A. and agreed to pay the required charges. However, nothing was known of this consignment and its transportation to Atlanta till the State Commission pronounced its order

THE appellant-complainant claimed U.S. $19,200 (Rs. 4,95,744/-) as the value of the consignment plus Rs. 14,058/- freight charges and Rs. 75,000/ - by way of loss of export benefits and interest on the above amounts. The State Commission considered the claim of the appellant-complainant in the light of Rule 30(1) of Schedule II of the Carriage by Air Act, 1972 which reads as under: "The right to damages shall be extinguished if an action is not brought within 2 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 carriage stopped".

Keeping in view the provisions of the above Rule, the State Commission held that the right of the complainant to sue for damages in respect of 6 lost cartons had ceased to exist since the action was brought (March 1992) only after the expiry of more than two years after 21st November, 1989 when the consignment arrived in New York. However, as regards the remaining 6 cartons, which were available at the Air-port, New York and for which instructions were given by the consignor for delivery to a party at Atlanta, the Commission held that Rule 30(1) of Schedule II cited above had no application. The State Commission further held that the claim was well in time and it was sustainable against the carrier. Consequently, it awarded a sum of Rs. 88350/- with interest at the rate of 12% p.a. from 22nd November, 1989 to the appellant-complainant and also Rs. 2,000/- as costs.

THE appellant-complainant has challenged the order of the State Commission on the ground that limitation of the claim in respect of 6 cartons lost began only on 22nd November, 1991 when the respondent carrier admitted its liability and categorically assured the appellant-complainant that efforts were being to trace the missing cartons. According to the appellant-complainant, the complaint was filed in March, 1992 and hence the same was within the limitation period prescribed under the Carriage by Air Act.

IT also submitted that the State Commission had erroneously under-valued the 6 remaining cartons. Rule 30(1) of the Schedule II of the Carriage by Air Act, 1972, as reproduced above, is unambiguous. After expiry of 2 years reckoned from the date of arrival of the goods at destination or from the date on which the carriage (by air) stopped, the right to damages is extinguished. In this case, the goods arrived in New York on the 21st November, 1989. That is also the date on which the carriage of the consignment by Air came to a stop. Consequently, the entire claim not only for the lost cartons but also for the 6 cartons which were available for delivery but were not delivered is extinguished.

THE expiry of the limitation period does not extinguish as such a right or a claim, it only denies the enforcement of that right or claim through the Courts of law. Since the legislature in its wisdom has decided to extinguish the right to institute an action for recovery of damages against an air carrier on the expiry of 2 years after the arrival of goods at the destination, the claim of the appellant against Air India should fail. There is, therefore, no merit in this appeal filed by the complainant.

NO appeal has been filed by Air India and hence there is no need for us to consider the question whether the partial relief granted to the complainant was justified in law. We accordingly dismiss this appeal but make no order as to costs.