Tamil Nadu

South Chennai

CC/117/2014

Amudhapriya - Complainant(s)

Versus

AIR INDIA LTD., - Opp.Party(s)

C.P.Sivamohan

13 Oct 2015

ORDER

                                                                        

                                                                             Date of Complaint  : 02.12.2002

                                                                                     Date of Order      : 13.10.2015

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT :    THIRU. B. RAMALINGAM, M.A.M.L.,                         :   PRESIDENT                     

                      TMT.K. AMALA, M.A. L.L.B.,                                        :    MEMBER I

                   DR.T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

                                                                  

C.C.No. 117 / 2014

THIS  TUESDAY  THE 13^TH  DAY OF OCTOBER   2015

 

Amudhapriya,

Proprietrix,

M/s. C.P.K. Leathers,

18, Cuddapah Rangaiah Street,

Periamet,

Cehnnai – 3.                                                                   .. Complainant.

 

                                                          - Vs-

1.  Air India, Rep. by its Manager, Cargo Export, 19, Rukmani Lakshmipathy Salai, Egmore, Chennai – 8.   2. FLYWAYS’, Air Cargo IATA Shipping, Clearing & Flowarding & Customs House Agents, 19, Perianna Maistry Street, Periamet, Chennai – 3.   3. S.S. Velan & Co., Shipping Clearing & Forwarding Agent, 10/2, 2nd Floor, Shaik Ali Subedar Street, Peiramet, Chennai -3.                                           ..Opposite parties.		.. Opposite party.

 

For the complainant                           :   M/s. C.A. Sharmila & another      

For the opposite party- 1           :   M/s. O.R.Santhanakrishnan

For the opposite party-2            :   M/s.N.Alagu Narayanan   

For the opposite party-3             :  Exparte.

 

           Complaint under section 12 of the Consumer Protection Act, 1986 for a direction to the opposite parties   to pay a sum of Rs.13,73,367/- together with  cost of the complaint  to the  complainant.

ORDER

THIRU. B. RAMALINGAM, PRESIDENT  

1.    The Case of the complainant is briefly as follows:

     The complainant engaged the services of the 3^rd opposite party for transportation of goods to be dispatched to Allicante, Spain.  The 3^rd opposite party in turn engaged the services of the 2^nd opposite party vide Air way bill, dated 17.11.1999.   The complainant was assured by the 3^rd opposite party that the goods would reach the destination not later than 22.11.1999, as per flight details furnished by the 3^rd opposite party which were gathered and intimated by the 2^nd opposite party to the 3^rd opposite party.   The same was later confirmed to the complainant by the said 3^rd opposite party by their Memo dated 23.11.1999.  The complainant after having had assurance from the 3^rd opposite party on behalf of the 1^st and 2^nd opposite parties, accepted for dispatching the goods through the 1^st opposite party, only with a view to see to that, that the goods reach the destination by 22.11.1999 the complainant had spent Rs.1,48,650/- being the Air freight.  That is the reason why, the complainant preferred flight to ship, notwithstanding the huge additional financial burden towards freight charges.  

2.     To the complainant’s shock and anguish, the goods did not reach the destination on 22.11.1999 as per the flight schedule and the goods reached the destination behind schedule i.e. on 7.12.1999 only. After an inordinate delay of 15 days form 22.11.1999.     On account of the inordinate delay the complainant’s buyer rejected the goods, as earlier they had placed orders with the complainant only on the sole ground that the buyer required the goods very urgently and therefore the goods were dispatched by flight and not by ship thereby not waiting any time and at the cost of incurring additional transport charges.    However the 1^st and 2^nd opposite parties did not take steps to see to that, that the goods did reach in time as per the flight schedule in spite of the complainant’s enquiry repeatedly almost every day since 22.11.1999.   As such the purchaser / consignee has refused to take delivery of the said consignment which caused the complainant to find out another purchaser and to sale the goods for the lower price.    On account of break in the business the complainant has lost the business to the tune of Rs.2 corers. Accordingly the complainant issued a lawyer’s notice dated 26.4.2000 to tall the opposite parties calling upon the opposite parties.    All the opposite parties received the said notice.  The 2^nd opposite party sent a reply dated 9.5.2000 denying its liability but however passed on the same to the 1^st opposite party.  The 1^st opposite party though received the notice has neither responded to the notice nor made payment as claimed.       As such the act of the opposite parties  are amounts to deficiency in service which caused mental agony and damages to the complainant.    Hence the complaint. 

3.       Written version of   1^st opposite party  is  as follows:-

It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.     The complainant booked a consignment of Finished Leather Full Chrome Goat Off – White upper Leather of  44 pieces weighting gross weight of 1672 kgs for being uplifted from Chennai to Paris by Air and from Paris to Alicante (Spain) by first available mode of transport.   The 1^st opposite party craves to refer to the terms and conditions printed on the face of the Airway bill, which reads as follows:  

SUBJECT TO THE CONDITONS OF CONTRACT ONT EH REVERSE HEREOF.  ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTURCTIONS ARE GIVEN HEREON BY THE SHIPPER.  AND SHIPEER AGREES THAT THE SHIPMENT MAY BE CARRIED VIA INTERMEDIATE STOPPING PLACES WHICH THE CARRIER DEEMS APPROPRIATE”.

As per the above said terms and conditions the 1^st opposite party has transported the said Cargo the said consignment was transported by flight as well as by truck through board and was reached the destination on 17.12.1999 was properly transported and was responsibly arrived to the destination according to Cargo Airway truck rules.  

4.     The 1^st opposite party also relied upon the Rule 2.10.3 of the Air Cargo tariff Rules book published by IATA relating to shipments in course of carriage, as a supplement information to the condition of contract for Air Carriage.   The same reads as follows:

        “Unless specifically agreed otherwise and so indicated in the Air way bill or shipment record, carrier undertakes to carry the cargo with reasonable dispatch but assumes no obligation to carry the cargo by any specified aircraft or over any particular route or routes, or to made connections at any point according to any particular schedule.   Times shown in carrier’s time tables or elsewhere are approximate and not guaranteed and form no part of the contract of carriage.  No time is fixed for the commencement or completion of carriage or delivery of cargo”.   

As per the above said rules referred for the Air Cargo Tariff Rules  and other terms and conditions the contention of the opposite party-1 that the said good were properly handed and transported from Chennai to the final destination i.e. Atticante at Spain on 17.11.1999.  There has been no deficiency in service on the part of the opposite party and prays to dismiss the complaint. 

 5.     Written version of   2^nd  opposite party  is  as follows:-

        It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   This compliant is not maintainable in law and is liable to be dismissed.   The second opposite party is merely a clearing and forwarding agent who inter-alia collects and entrusts the consignment to first opposite party.  The actual transportation of the consignment is done solely by the first opposite party.  The actual transportation of the consignment is done solely by the first opposite party and the second opposite party has no decisive domain or control over the same.    The second opposite party states that third opposite party has no authority to give any assurance on its behalf.  Assuming without admitting that third opposite party had given some assurance the same cannot bind second opposite party.   The transportation of complainant’s consignment is governed by the “conditions of contract”  wherein no such understanding to the effect that the good will be reached to the destination before 22.11.1999 had been given.   The complainant has no claim against the thirty opposite party, who is aid to have given according to the complainant is said to have given assurance will clearly show the malafide intention of the complaint.  There has been no deficiency in service on the part of the opposite party and prays to dismiss the complaint.     

6.       Even after receipt of the notice, the  3^rd opposite party  did not appear before this Forum and did not file any written version on their behalf.   Hence the  3^rd opposite party was set exparte on 15.3.2011.

7.   Complainant has filed his Proof affidavit and  Ex.A1 to Ex.A18 were marked on the side of the complainant.   1^st and 2^nd  Opposite parties have filed their  proof affidavit and Ex.B1 to Ex.B12 were marked on the side of the 1^st and 2^nd opposite parties. 

8.      The points that arise for consideration are as follows:-

1. Whether there is any deficiency in service on the part of the opposite parties ?

 

2. To what relief the complainant is entitled to?

 

9.      POINTS 1 & 2 :

Perused the complaint  filed by the complainant, written version filed by the 1^st & 2^nd opposite parties, proof affidavit filed by the complainant and the 1^st and 2^nd opposite parties and  Ex.A1 to Ex.A18  marked on the side of the complainant and  Ex.B1 to Ex.B12 marked on the side of the 1^st and 2^nd opposite parties and considered both side arguments.

 

10.    There is no dispute that the complainant is the manufacturer and exporter of finished leathers Cargo.   The complainant by engaging 3^rd opposite party booking agent and in turn the 3^rd opposite party engaging 2^nd opposite party and entrusted the finished leathers goods as Cargo to export through 1^st opposite party on 17.11.2009 to the consigner mentioned in the Air way bill dated 17.11.2009 to deliver the same at Allicante in Spain on 22.11.1999.  The said Cargo was reached the destination mentioned in Cargo bill Ex.A1 only on 7.12.1999.  Since the said consigner mentioned in the Airway bill was refused to take delivery, the same was delivered to another purchaser arranged by the complainant subsequently for the lower price.  

11.    According to the complainant the only on the sole ground buyer required the goods very urgently  the goods were dispatched by flight and not by ship with the expectation that the goods will reach  destination on 22.11.1999.  But the 1^st opposite party by the carrier the said goods instead of being transported by flight were moved by a truck to its final destination.    As such the said goods reached the destination on 7.12.1999  with 15 days delay.  As such the purchaser / consignee has refused to take delivery of the said consignment which caused the complainant to find out another purchaser and to sale the goods for the lower price.  However the 1^st and 2^nd opposite party who are the carrier and booking agent, have denied the said above allegation made by the complainant stating that they have not given any assurance or not agreed any condition to reach the said Cargo at the final destination on 22.11.1999 as alleged by the complainant.   Even the complainant has stated that the said assurance was given by 3^rd opposite party that the goods would reach destination not later than 22.11.199 as per flight details furnished by 3^rd opposite party which were gathered and intimated by the 2^nd opposite party to the 3^rd opposite party.  Though the same was confirmed by the complainant in memo  Ex.A3 dated 23.11.1999, the assurance said to have been given to the 3^rd opposite party to the complainant would not bind in the opposite parties 1 & 2.  As such the 1^st opposite party is not party to the assurance / agreement between the complainant and the 3^rd opposite party is acceptable.   The Ex.A3 said to have been Memo of flight schedule regarding also not contain any signature of the 1^st opposite party / 2^nd opposite party.   Since the opposite parties 1 & 2 are not party  to the said Memo of flight schedule filed by the complainant  it will not bind the opposite parties 1 & 2 is also acceptable.

12.    Further the 1^st opposite party has denied the allegation made by the complainant that the 1^st opposite party instead of transporting the said Cargo through flight at the final destination i.e. from Spain to Allicante, the said Cargo moved by Truck which have caused inordinate delay is not acceptable, since as per the terms and conditions printed on the face of the airway bill which reads as follows:

     “SUBJECT TO THE CONDITONS OF CONTRACT ONT EH REVERSE HEREOF.  ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTURCTIONS ARE GIVEN HEREON BY THE SHIPPER.  AND SHIPEER AGREES THAT THE SHIPMENT MAY BE CARRIED VIA INTERMEDIATE STOPPI8NG PLACES WHICH THE CARRIER DEEMS APPROPRIATE”.

As per the above said terms and conditions the 1^st opposite party has transported the said Cargo the said consignment was transported by flight as well as by truck and was reached the destination on 17.12.1999 was properly transported and was responsibly arrived to the destination according to Cargo Airway truck rules.  

13.    The 1^st opposite party also relied upon the Rule 2.10.3 of the Air Cargo tariff Rules book published by IATA relating to shipments in course of carriage, as a supplement information to the condition of contract for Air Carriage.   The same reads as follows:

“Unless specifically agreed otherwise and so indicated in the Air way bill or shipment record, carrier undertakes to carry the cargo with reasonable dispatch but assumes no obligation to carry the cargo by any specified aircraft or over any particular route or routes, or to made connections at any point according to any particular schedule.   Times shown in carrier’s time tables or elsewhere are approximate and not guaranteed and form no part of the contract of carriage.  No time is fixed for the commencement or completion of carriage or delivery of cargo”.

As per the above said rules referred for the Air Cargo Tariff Rules  and other terms and conditions the contention of the opposite party-1 that the said good were properly handed and transported from Chennai to the final destination i.e. Atticante at Spain on 17.11.1999 is acceptable.   Hence, the assurance alleged to have been given by the 2^nd opposite party through 3^rd opposite party is not acceptable and the same is not proved by the complainant by production of necessary supporting document.

14.    Though the complainant has averred in his complaint that his purchaser who is the consigner mentioned in Ex.A1 Airway bill while giving orders insisted for urgent delivery of the said consignment within specific date, no such document ruling such facts by the complainant was also produced in this proceedings. 

15.    However as contented by the opposite parties 1 & 2 that the complainant was intimated regarding non taking delivery of the goods  which was reached at final destination on 17.12.1999 by  Cargo Irregularity Report dated 17.12.1999 and reminder of the same dated 31.12.1999 though the complainant  has also replied for the same to the opposite parties by letter dated 31.1.2000 & 14.2.2000 and arranged for another consignor / purchaser to take delivery but not stated anything about the delay in reaching the Cargo at the final destination are also acceptable, on perusing Ex.A5 to Ex.A10.  Therefore as contented by the opposite parties 1 to 2 as per the terms and conditions of airway bill and Air Cargo Tariff Rules the time taken for transporting the said Cargo of the complainant mentioned Cargo from Chennai to Allicante from 17.11.1999 to 17.12.1999 is reasonable and also acceptable.  Contrary to this the allegation made by the complainant against the opposite parties 1 & 2 that the transporting the cargo from Spain to Allicante by truck not accordance to the terms and conditions and time taken for reaching the said Cargo to the final destination is also inordinate delay are not acceptable.   Further the complainant has also not proved the allegation that 1^st and 2^nd opposite party have given assurance for the said Cargo to be reached in the final destination on 22.11.1999.  Therefore we are of the considered view that the complainant has miserably failed to prove the deficiency of service attributed against the opposite parties, as such the complainant is not entitled for any relief sought for against the opposite parties 1 & 2 and the complaint is liable to be dismissed.   Considering the facts and circumstances of the case, the parties have to bear their own cost of litigation and accordingly the points 1 & 2 are decided.  

        In the result, the complaint is dismissed.  No cost.

Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us on this the 13^th     day of October   2015.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents :

Ex.A1- 17.11.1999  - Copy of invoice raised in favour of the 1^st consignee.

Ex.A2- 17.11.1999         - Copy of Air way bill issued by the 1^st opposite party.

Ex.A3- 23.11.1999         - Copy of Flight details furnished by the 3^rd opposite party.

Ex.A4- 14.12.1999         - Copy of letter of confirmation by the 2^nd opposite party.

Ex.A5- 17.12.1999         - Copy  of Cargo irregularity report issued by 1st opposite  

                              party.

 

Ex.A6- 29.12.1999         - Copy of letter from the 3^rd opposite party to the

                              complainant.

 

Ex.A7- 31.12.1999  - Copy of Cargo irregularity report issued by the 1^st opposite

                              party.

 

Ex.A8- 14.2.2000  - Copy of invoice raised infavour of the new purchaser.

Ex.A9- 14.2.2000  - Copy  of letter from the foreign agent to the complainant.

Ex.A10-14.2.2000 - Copy of letter from the foreign agent to the complainant.

Ex.A11- 7.3.2000  - Copy of letter from Indian bank to the bank of

                              2^nd consignee at Alicante.

 

Ex.A12- 27.3.2000         - Copy of letter from 2^nd consignee to the complainant.

Ex.A13- 7.4.2000   - Copy of letter from Sunshine Trading Co., to the

                              complainant.

 

Ex.A14- 25.4.2000         - Copy of letter from Foreign agent to the complainant.

Ex.A15- 26.4.2000 – Copy of legal notice.

Ex.A16- 9.5.2000   - Copy of reply from the 2^nd opposite party.

Ex.A17- 10.7.2000         - Copy of letter from the Postal dept. to the complainant

                              regarding proof of service of notice on the 1^st OP.

 

Ex.A18- 14.11.2002 – Order passed by National Commission in OP.No.400/02.

 

Opposite parties’ side  documents: -  

Ex.B1-  14.2.2000  - Copy of letter from the complainant to the 1^st OP.

Ex.B2-         -       - Copy of conditions of contract.

Ex.B3- 27.10.1999  - Copy of letter from 3^rd opposite party to 2^nd op

Ex.B4- 17.11.1999  - Copy of letter from 3^rd opposite party to

                               2^nd opposite party.

 

Ex.B5- 13.12.1999  - Copy of letter from complainant to 1^st opposite party.

Ex.B6- 14.12.1999  - Copy of Declaration letter given by 2^nd opposite party.

Ex.B7- 17.12.1999  - Copy of Cargo irregularity  report.

Ex.B8- 31.12.1999  - Copy of Cargo irregularity report.

Ex.B9- 31.1.2000    - Copy of letter from complainant to 1^st opposite party.

Ex.B10- 14.2.2000  - Copy of letter from complainant to 2^nd opposite party.

Ex.B11- 26.4.2000  - Copy of legal notice.

 

Ex.B12- 9.5.2000  - Copy of reply notice.        

 

MEMBER-I                        MEMBER-II                             PRESIDENT.