2004 (1) TMI 716 - Commission - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of the National Commission.
2. Deficiency in service by the Opposite Parties.
3. Limitation period for filing the complaint.
4. Liability of Opposite Party No. 2 as the agent of Opposite Party No. 1.
5. Payment received by the complainant from the notified party.

Issue-wise Detailed Analysis:

A. Jurisdiction of the National Commission:

The primary contention was whether the National Commission had jurisdiction to entertain the complaint. According to Rules 29 and 33 of the Second Schedule to the Carriage by Air Act, 1972, an action for damages must be brought in the territory of one of the High Contracting Parties, either where the carrier is ordinarily resident, has its principal place of business, has an establishment by which the contract has been made, or at the place of destination. The contract for carriage was made in Bombay, and the claim exceeded Rs. 20 lakhs, which necessitated filing the complaint before the National Commission. The Commission concluded that the complaint was properly filed before it, as the Consumer Protection Act, 1986, required complaints exceeding Rs. 20 lakhs to be filed before the National Commission.

B. Deficiency in Service by the Opposite Parties:

The complainant argued that the cargo airline (Opposite Party No. 1) failed to follow the instructions in the air waybill and delivered the goods to the notifying party without obtaining bank release from the consignee bank. The air waybill indicated that the consignee was "BB SAE MADRID, SPAIN" with a specific L.C. number, implying a letter of credit by a bank. Despite this, the goods were delivered to the notifying party. The Commission found that the carrier had a duty to verify the consignee's address and deliver the goods through the bank. The failure to do so constituted a deficiency in service. The Commission also noted that the carrier did not attempt to contact the shipper for the bank's address if it was incomplete, which further demonstrated negligence.

C. Limitation Period for Filing the Complaint:

Opposite Party No. 1 contended that the complaint was barred by limitation as it was not filed within 120 days as per Clause 12 of the air waybill. However, the Commission held that Clause 12 only required the person entitled to delivery to make a complaint to the carrier within 120 days in case of non-delivery. The right to damages would be extinguished if an action was not brought within two years, as per Rule 30 of the Second Schedule. The complaint was filed within this period, making it timely.

D. Liability of Opposite Party No. 2 as the Agent of Opposite Party No. 1:

Opposite Party No. 1 argued that any fault in the preparation of the air waybill by Opposite Party No. 2, who was the agent of the shipper, absolved them of liability. The Commission rejected this argument, stating that Opposite Party No. 2 was also the agent of Opposite Party No. 1. Any mistake by the agent of Opposite Party No. 1 could not absolve it of liability. The Commission found that there was a total deficiency in service by Opposite Party No. 1 in handing over goods to the truckers without air waybills.

E. Payment Received by the Complainant from the Notified Party:

Lastly, Opposite Party No. 1 contended that the complainant had received payment from the notified party. The Commission found no evidence on record to establish that the complainant had received the said amount from the notified party.

Conclusion:

The complaint was allowed, and Opposite Party No. 1 was directed to pay a sum equivalent to US $71,615.75 with 5% interest from the date of the complaint till realization, along with costs of Rs. 1 lakh.