D-Link

SidhantSidhant Moderator
edited September 2009 in Computer
M/s. D-Link (India) Ltd.

Plot No. L-5,

Verna Electronic City,

Verna Goa. …………………….Complainants



V



MSAS Global Logistic (India) Pvt. Ltd.,

Plot No.77,

Verna Industrial Estate,

Verna – Goa. .......………...…..Opposite Party-1



Station Manager,

Indian Airlines,

Dempo House, Panaji Goa. .........………...…..Opposite Party-2



1. The Complainant states on instructions of one of their customers namely M/s. Duplex Trade and Manufacturers, Colombo, the Complainants despatched a consignment of 720 pieces of Networking Products for Computers such as Ethernet Cards, Hubs etc. against Invoice No.Ex-12 dated 14/7/2000.



2. The above consignment was delivered/ loaded by the freight forwarders of the Complainants namely MSAS Bule Skies vide Air Way Bill No.GO1 02 000 065 dated 19.07.2000 on the Indian Airlines under Air Way Bill Nos. 058 – 38260795 dated 19.07.2000. The said consignment landed at Bombay on 24.07.2000. It was trans-shipped from Bombay to Colombo on 27.07.2000 by Madras – Colombo Flight No.IC 573. The said consignment was delivered to the consignee on 2.8.2000.


3. The Complainant states on delivery it was found that 100 pieces of DF538TX Ethernet Cards were found to be missing. On having been valued, it was found that the value of the missing consignment was Rs.61,610/- including the expenses incurred towards freight charges, custom clearances charge, Central Warehousing Corporation charges etc.


4. The Complainant submits that the pilferage in the consignment took place when the same was in transit and when it was in control and possession of the Opposite Party No.2. Hence both the Opposite Parties are liable to explain the pilferage in consignment.


5. The Complainant submits that it is a consumer service rendered by the Opposite Parties, hence and the consequent loss suffered by the Complainant is a deficiency in service as contemplated under the Consumer Protection Act, 1986 and hence the Opposite Party No.2 is liable to pay to the Complainant an amount of Rs.61,610/- and towards the mental torture as well as towards inconvenience and harassment a sum of Rs. 50,000/-.


6. The Complainant therefore prays for the following:



(a) To direct the Opposite Party No.2 to pay a compensation of Rs.61,610/- towards the financial loss caused to them on account of the pilferage.


(b) To direct the Opposite Party to pay to the Complainant a compensation of Rs.50,000/- towards mental torture as well as towards inconvenience and harassment caused to the Complainants on account of deficiency in services.


(c) Award costs towards present complaint in favour of the Complainant.


(d)Grant any other further relief in the facts and circumstances.


Opposite Party filed Written Version in its defence as under:


1. The Opposite Party No.1 filed its written version denying the loss of computer products despatched. It is the case in defence of the Opposite Party No.1 that the consignment was delivered to the consignee/ complainant on 2/8/2000. The value of missing consignment being of 61,610/- is also denied. The pilferage in the consignment is denied.



2. The Opposite Party (2) filed its written statement. The Opposite Party No.(2) has also denied the pilferage as the Complainant had not specifically declared the items and their number and further stated that liability of Opposite Party (2) for missing cargo is limited only upto sum of US dollars 20/- per kilo. Further it is stated that the warehouse of Opposite Party No.2 at Mumbai Airport is guarded by Security staff of Indian Airlines and there are no chances of pilferage at Mumbai. In terms of established procedure of retaping and repacking without customs permission is impermissible or prohibited. It is stated that broken parcels are not accepted by Indian Airlines. Hence they have denied the liability. They have prayed for dismissal of the complaint on the above referred grounds.


Findings and Observations:-


This Complaint is regarding missing of 100 pieces of DF538TX Ethernet cards consignment which was lost in transit transhipped from Bombay to Colombo on 27/07/2000 by Madras Colombo Flight No. IC 573. The Complainant states that the consignment was delivered to the Consignee on 2/8/2000 i.e. after 5 days but with missing of 100 pieces. Hence the Complainant is entitled for claim from Opposite Party No.2 i.e. Indian Airlines for loss suffered on account of pilferage. The total claim is of Rs.61,610/- towards the financial loss of pilferage and Rs.50,000/- for harassment and mental torture etc. The Opposite Party No.-2 in its written version states that the Complainant had not specifically declared the items and their numbers and their liability towards the missing cargo is limited upto a sum of Rs.US dollars 20/- per kilo as per provisions of Carriage by Air Act, 1972 enacted under Warsaw Convention dated 12/10/1929. Hence they are not liable for the claim raised by Complainant.

Hence Complainant is not entitled for any damages towards pilferage or compensation towards mental torture, harassment etc. We have gone through the Affidavits and evidence filed by all the parties. It is further contention of the Opposite Parties that consignment was a `no declared value’ and any damages has to be assessed on the basis of weight loss. Indirectly the Opposite Party has admitted the loss of missing articles. The defence taken on the point of non-insuring the consignment does not hold good. The Complainant has based his case by producing the ship bills indicating the value of consignments. We find that the Complainant has produced enough documents for us to come to the conclusion as under:



We feel that the deficiency in service by the Carrier of goods can be subject matter of complaint under Consumer Protection Act and the Carrier is liable to pay the compensation towards the damage of goods entrusted to it. The reliefs required to be granted against the above Complaint are against Opposite Party (2) and there is no deficiency against Opposite Party No.(1). Similarly there is no cause of action or prayer to be granted against Opposite Party (1).

ORDER



(a) That the consignment dated 24/7/2000 was found in pilfered condition having missing 100 pieces of cards with other items worth Rs.61,610/-. Hence the Opposite Party -2 should take over his liability to make good the loss.



(b) As far as compensation of Rs.50,000/- is concerned the Complainant has failed to prove his case of quantifying the compensation and we feel that maximum sum of Rs.5,000/- can be awarded towards cost of the proceedings.



(c) The Complainant shall also be entitled for interest @ 12% on Rs.61,610/- form Opposite Party-2 from the date of receipt of consignment and till payment.
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