TRUEVISION COMMUNICATIONS (P) LTD. vs JET AIRWAYS (P) LTD.

THE complainant M/s. Truevision Communications Pvt. Ltd., sent a consignment of 20 machines of Videonics MX-1 Digital Video Mixes through the opposite party Jet Airways Pvt. Ltd., from Madras to be delivered to the consignee M/s. Rajan Electronics, New Delhi. THE consignment was sent on "DACC/AWB" which means that the delivery of cargo is only against the consignee copy. In other words, the buyer has to pay Rs. 8,00,000/- towards the cost of machines to the shipper and in turn the shipper will send the original DACC/AWB to the buyer to enable him to clear the cargo from Airlines. THE complainant has advised the opposite party in the consignment note that in case the buyer refuses to clear the cargo the "cargo be re-booked back to us." Since for a month the complainant has not received any money from the buyer, he made enquiries and came to know to his shock that the cargo had been cleared without original DACC/AWB which was still in the hands of the complainant. This means the opposite party had delivered the cargo without original DACC/AWB as stated in the Airway Bill executed by the opposite party. However, the opposite party assured the complainant that the consignment would not have been delivered to the consignee without obtaining original DACC/AWB. Subsequently, the opposite party did not give any definite answer regarding the position of the cargo but they began to give some evasive answers. THE complainant wrote a letter on 8.8.1995 on re- book the consignment but the opposite party has not sent any reply. Subsequent letters to the opposite party by the complainant on 18.8.1995 also did not meet with any answer from them. On 21.8.1995 when the Managing Director of the complainant contacted the opposite party through telephone, the opposite party admitted that their Delhi Office has delivered the cargo without DACC/AWB by oversight. Even legal notice sent by the complainant which had been acknowledged by the opposite party on 4.9.1995 also was in vain. Because of the attitude of the opposite party the complainant could not do their regular business. THEy have also incurred loss of reputation and credibility. THE complainant has sustained heavy monetary loss. On these allegations, the complainant has prayed for an award directing the opposite party to pay to them the value of the cargo being Rs. 8,00,000/- and other sums claimed under different heads.

THE opposite party contends that since the consignee approached the Delhi Office of the opposite party it had no option but to give delivery as per rules and practice. If the complainant wanted the goods to be delivered against payment the documents should have routed through its Bankers. It is clear that the consignee and the complainant have colluded together and have taken the opposite party for a ride by claiming the value of the cargo and other damages. THE complainant should have filed a criminal case against the consignee or a civil suit against him for recovery of the money and not a complaint in the Consumer Commission. THE opposite party denies that the value of the cargo is Rs. 8,00,000/- and puts the complainant to strict proof of the same. THE complainant is not entitled to any of the amounts claimed. The points that arise for consideration are: (1) Whether there was deficiency in service on the part of me opposite party as alleged by the complainant? (2) What relief if any can be granted to the complainant.

Point No. 1 : It is not disputed that the cargo was sent through the opposite party Jet Airways Pvt. Ltd., to be delivered to the consignee at Delhi. It is the definite case of the complainant that the consignment shall be delivered to the consignee only against DACC/AWB which means that only on production of the consignee copy of the airway bill the goods shall be delivered. It is clearly written in the airway bill "DACC" (it was admitted before us that DACC means delivery against consignee copy). It is manifest therefore as per the agreement between the parties the opposite party shall deliver the goods to the consignee only on its production of the consignee''s copy of the airway bill. It is not in dispute that consignee copy has not been produced to the opposite party by the consignee and according to the complainant the consignee copy is still with it. The opposite party in its written version merely states that "since the consignee approached the Delhi Office of the opposite party it had no option but to give delivery as per rules and practice". If is apparent therefore that the opposite party has delivered the cargo to the consignee against the condition in the airway bill that the delivery shall be made only when the consignee copy of the airway bill is produced by the buyer. Clearly there was deficiency in service on the part of the opposite party.

POINT No. 2: The case of the complainant is that the consignment of the value of Rs. 8,00,000/- and it is clearly mentioned so in the complaint. This has not been specifically denied in the written version. It is merely stated that the opposite party does not admit the value of the consignment mentioned and the complainant is put to strict proof of it. The complainant has filed the Invoice dated 13.5.1995 which gives the description of the goods, quantity, unit rate and the value. The total value of the goods is mentioned as Rs. 8,00,000/-. In the airway bill the name of the machine and the number of the machines had been described which is quite in accordance with the description given in the Invoice. In these circumstances, we do not find any worthwhile reason to disbelieve the value given by the complainant. Therefore the opposite party is liable to pay a sum of Rs. 8,00,000/- as the value of the goods. However, it was argued by the opposite party that since the value of the goods has not been declared by the complainant, as per Clause 5(c) of the Airway Bill their liability is restricted to Rs. 300/- per kilogram, of the goods. The said Clause 5(c) reads as follows: "The charges for carriage having been based upon the value declared by the shipper, liability shall in no event exceed the shipper''s declared value for carriage stated on the face of the way bill, and in the absence of such declaration by shipper the liability of the carrier shall not exceed Rs. 300/- (Rupees three hundred only) per kilogram of goods destroyed, lost or damaged, and all charges shall be subject to proof of value".

This shows that this clause is applicable to goods destroyed or lost or damaged. But in our case there is no question of the goods having been destroyed, lost or damaged but the goods have been delivered to the consignee without production of the consignee copy of the airway bill as per the terms of the agreement. Therefore the opposite party cannot take shelter under the said Clause 5(c) of the airway bill. In the circumstances of the case, in our view they shall pay interest @ 18% p.a. from the date of delivery to the opposite party i.e., from 8.5.1995 (date of airway bill) till the date of realisation. The complainant being a company no question of mental pain arises and therefore no amount can be granted under that head. There is no proof of any loss of business. The complainant is not entitled to any amount under any of the other heads under which claim is made.

IN the result, there will be an award for a sum of Rs. 8,00,000/- with interest thereon @ 18% p.a. from 8.5.1995 till the date of realisation. The opposite party shall also pay a sum of Rs. 2,000/- as cost of the complaint. These amounts shall be paid within 2 months from today. Complaint allowed with costs.