9911796707
TMI Blog2023 (11) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... freight charges for ensuring early delivery, hence, the delay in delivery of consignment has necessarily inflicted damage to the appellant which is liable to be satisfied by the respondent No.1 as provided under Section 19 and 13(3) of the Carriage by Air Act 1972. Section 186 of the Contract Act, 1872 provides that authority of an agent may be expressed or implied. Similarly, Section 188 of the Contract Act, 1872 prescribes that an agent, having an authority to do an act, has authority to do every lawful thing which is necessary in order to do such act - In the case at hand, in the absence of a plea by the respondent No.1, that the respondent no. 2 was not its agent or that he had no authority to give schedule of delivery of consignment, the onus has not been discharged. Therefore, the respondent No.1 is bound by the promise held by its agent, respondent No.2, that the goods shall be delivered within one week and when the time schedule expired and the goods were, in fact, delivered after one and a half month, there was negligent delay in delivery of consignment. The grievance of the appellant in this appeal is mainly on account of the NCDRC not allowing the entire claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the appellant and a revised delivery schedule was given on 05.08.1996, which mentioned the date of delivery on 06.08.1996. However, the consignment did not reach at the destination even as per the revised delivery schedule. 4. On non-receiving the goods, the consignee expressed its anguish by sending a letter dated 23.08.1996 and informed the complainant that the goods are not received in toto, and respondent no. 1 was unable to tell where the remaining cartons are. 5. It is also on record that 69 cartons were lying with Lufthansa. The respondent no. 1, by its letter dated 30.08.1996 addressed to respondent no. 2, accepted the short delivery. On 07.09.1996, the appellant/complainant made a modest claim against the respondents for refund of full freight. In response to the said claim, respondent no. 2 confirmed having short delivered 104 cartons out of 288 cartons but did not state whether the other cartons had arrived at the destination. The appellant served the legal notice dated 04.08.1997 on the respondents, which evoked no response. 6. Ultimately, the appellant/complainant lodged a complaint before the NCDRC with the prayer that respondent no. 1 be directed to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as well as the respondents at length and perused the material placed on record meticulously. 14. Initially, the NCDRC passed a final order on 21.05.2003 holding that there has been a short delivery of 104 pieces equal to 1822 Kgs. Therefore, in view of Rule 22 of Carriage by Air Act, multiplying this weight by US $ 20 per Kg., the amount payable work out to US $ 36440 which becomes payable by the respondent to the complainant for the loss of goods. This amount was directed to be paid by the respondent along with interest @ 9% from 01.10.1996. In so far as the issue concerning delay in delivering the consignment, the NCDRC found that in the absence of any communication emanating from the respondent No.1-Kuwait Airways promising to deliver the goods by any particular date, the plea raised by the complainant regarding delay in delivering the goods is not sustainable. 15. Challenging the above order dated 21.05.2003 of the NCDRC, the complainant preferred Civil Appeal bearing C.A.No. 8211 of 2003 which was allowed by this Court on 15.03.2011. This Court observed that the issue concerning delay in delivery of goods has been decided by NCDRC without appreciating the material and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... booking, the complainant was informed about the tentative date of arrival of goods at Memphis by 31.07.1996 and thereafter a revised schedule was also given to the complainant. Once the agent has issued a time schedule for delivery of consignment, it cannot be said that there is no material indicating that there was no agreement for delivery of the consignment in time. respondent no.1 Kuwait Airways has never taken the stand in any of the communication arising from its office that the respondent No.2 is not its agents or that there was no agreement or promise by its agent that the consignment will be delivered in 07 days. The NCDRC has rightly noted that the appellant has paid air freight which is ten times more than the sea freight only to ensure that the consignment reaches its destination within a week because sea cargo would have taken 25 to 30 days for delivery and the appellant has paid such huge freight charges for ensuring early delivery, hence, the delay in delivery of consignment has necessarily inflicted damage to the appellant which is liable to be satisfied by the respondent No.1 as provided under Section 19 and 13(3) of the Carriage by Air Act 1972. 21. The provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the scope of the agent's authority. 20. There is no gainsaying that onus to show that the act done by an agent was within the scope of his authority or ostensible authority held or exercised by him is on the person claiming against the principal. This, of course, can be shown by practice as well as by a written instrument. Thus, the question for consideration is whether on the evidence obtaining in the instant case, can it be said that Respondent 3 had an express or implied authority to act on behalf of Respondent 1 as their agent? If Respondent 3 had such an authority, then obviously Respondent 1 was bound by the commitment Respondent 3 had made to the appellant. 23. In the case at hand, in the absence of a plea by the respondent No.1, that the respondent no. 2 was not its agent or that he had no authority to give schedule of delivery of consignment, the onus has not been discharged. Therefore, the respondent No.1 is bound by the promise held by its agent - respondent No.2, that the goods shall be delivered within one week and when the time schedule expired and the goods were, in fact, delivered after one and a half month, there was negligent delay in delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
