ANUPAM DASGUPTA This appeal is directed against the order dated 20.07.2006 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, he State Commission. 2. The appellant was the complainant before the State Commission and the respondents were the opposite parties (OPs) and are referred to hereafter by their status before the State Commission. The complainant filed the complaint with the allegation that it had entrusted its cargo of 13 packages containing various handicrafts and similar items to OP 3 on 10.02.1995, which was its handling and forwarding agent. The cargo was to be shipped by air to Durban, South Africa for display at the Indo-Durban Expo 5 scheduled to be held there during 23.02- 02.03.1995. The complainant was one of the delegates from India to that Expo. OP 3, in turn, booked the cargo for shipment with OP 1 and issued the airway bill dated 14.02.1995, with M/s Danzas Sa Transport Pvt. Ltd. as the consignee because the latter was the official freight forwarder and customs clearing agent for the Expo. The declared value of the cargo for the purpose of customs was US $1700. The complainant paid the freight of Rs.42,840/- for the shipment by air from Mumbai. According to the complainant, both OPs 1 and 3 were informed that the cargo consisted of exhibits to be displayed and sold at the Durban Expo which was scheduled to open on 23.02.1995 and, therefore, the cargo must reach Durban by 19.02.1995 for customs clearance and display in time. However, the cargo did not reach Durban on 19.02.1995, whereupon the complainant informed OP 3 that if the cargo did not leave Mumbai by 21.02.1995, there would be no point to send it at all as it would be too late for the exhibition. OP 3 in turn, informed the complainant that due to heavy load problem, 3400 kg of cargo items (all exhibits for the Expo) had to be off-loaded by Air India at Mumbai and that the complainant consignment had been rescheduled for loading on flight no. AI 213 of 22.02.1995 for Durban. Even then the consignment did not reach Durban on 23.02.1995 and the complainant could not display anything at the Expo except the few articles which the company representatives had been able to carry with them as personal baggage. By fax dated 23.02.1995, the complainant again notified OP 3 that the cargo had not arrived at Durban and advised that the cargo be sent back from Mumbai to Delhi at the cost of the airlines (OP 1). By fax dated 25.02.1995, OP 3 reconfirmed to the complainant that OP 1 had assured to return the cargo as it had still not moved from Mumbai and it was futile to send it to Durban at that belated stage. The cargo was finally returned to the complainant on 10.05.1995. This led the complaint being filed claiming compensation of Rs.19 lakh on various counts. 3. In the written version before the State Commission, OPs 1 and 2 denied the allegations and stated that they had no knowledge of the Expo at Durban which was scheduled to be opened on 23.02.1995 or that the consignment of the complainant had to reach Durban by 19.02.1995. The consignment was booked by OP 3 with OP 1 and 2 on 14.02.1995 and it was accepted for shipment from Mumbai to Durban subject to cargo flight schedule and availability of space in the flight of the OP 1. OP 3 had also not advised that the consignment had to be shipped within any specified time or that it had to be delivered at Durban by a particular date. OPs 1 and 2 did not give any assurance to the complainant that the consignment would reach Durban on 19.02.1995 to be in time for the Expo. As per the contract of shipment the consignment had been duly forwarded from Delhi to Mumbai where it was kept for air freighting to Durban. OPs 1 and 2 further contended that there was no delay considering the normal time required for such transportation and the consignment would have reached Durban at most within 12 days. 4. OP 3 stated in its defence that its duty was limited to entrusting the consignment to OP 1 after getting it customs cleared in Delhi. The consignment was received at New Delhi from the complainant on 14.02.1995 and after clearance through customs it was handed over to the air carrier (OP 1) on the same date resulting in the issue of airway bill dated 14.02.1995 for Rs.42,840/-. As regarding further movement of the shipment, OP 3 was not answerable and OPs 1 and 2 were liable to explain. However, at the time of filing the instructions for the airway bill dated 14.02.1995, the complainant did not mention that the consignment was meant for the Expo to be held in Durban from 23.02.1995 or that the consignment had to reach Durban by any specific date, as alleged in the complaint. OP 3 further contended that had it been declared by the complainant that the consignment was meant for the Durban Expo, the complainant was required to have filed the SR Waiver Form to be issued by the Reserve Bank of India (he RBI and if the goods were meant for display at the alleged exhibition the customs authorities in Delhi would not have cleared the cargo in the absence of the above-mentioned documents. OP 3 further contended that the complainant had acknowledged in its fax dated 20.02.1995 that the delay in transportation of the consignment was on the part of OP 1. This was clear from the sentence Due to this delay, my whole programme/tour business has to be disturbed and you must ask Airlines to bear all the losses. 5. On the other hand, the complainant produced copies of the judgment dated 20.11.2001 of the Senior Civil Judge, Delhi in suit no. 437 of 1996 as well as that of the order dated 07.04.2003 of the Additional District Judge, Delhi in appeal against the aforesaid order of the Senior Civil Judge. This suit was filed by OP 3 against the complainant/appellant and OP 1. The trial court found that there was enough documentary evidence on record to show that OP 3 (the plaintiff) was aware that the consignment of complainant (defendant 1) was to be used in an exhibition on a particular date and that defendant 1 had given the schedule of the respective flights to the plaintiff so that the consignment could reach Durban in time. However, despite this information being given to the plaintiff, it had failed to mention the specific time schedule on the airway bill which was drawn up by the plaintiff on behalf of defendant 1. In appeal by OP 3 against this judgment, the Additional District Judge, Delhi confirmed the trial court order. 6. After considering the pleadings, evidence and documents brought on record by the parties the State Commission passed the following order: 0. Taking overall view of the matter we allow the complaint only to the extent that OP 1 and 2 alone shall compensate the complainant to the tune of Rs.25,000/- which shall include cost of litigation also. Complainant is not entitled for the actual loss, as the consignment in question has already been delivered back to the complainant. OP 3 is not guilty for deficiency as it was not informed by the complainant as to the stipulated date by which consignment was to be delivered. 21. Complaint is disposed of in aforesaid terms. 7. We have heard Mr. Mohit Madan, learned counsel for the complainant/appellant and Mr. Vikas, Advocate for Ms. Ruchi Kohli, learned counsel for OPs/respondents 1 & 2. No one was, however, was present on behalf of the OP/respondent 3. 8. The Registry has reported a delay of 21 days in filing this appeal. However, it is seen that the order of the State Commission, though dated 20.07.2006, was dispatched on 22.08.2006. The memorandum of appeal states that this order was actually received by the appellant on 12.09.2006. There is no reason to disbelieve this contention, acceptance of which would mean that there is no delay in filing this appeal. 9. The principal argument of the learned counsel for the complainant/appellant is that the State Commission has failed to appreciate the full facts of the case and completely misread the findings in the orders of the Senior Civil Judge and Additional Sessions Judge, Delhi in the suit filed by none other than OP 3 itself, in which OP 1 was very much a party. As a result, the award of the State Commission is erroneous, not only in terms of exonerating OP 3 of deficiency in service but also the quantum of compensation. Learned counsel for OPs 1 & 2 has of course supported the order of the State Commission. 10. (i) On careful consideration of the pleadings, evidence and documents on record and the submissions of the learned counsel for the parties, we are inclined to agree with the learned counsel for the complainant/appellant regarding the inconsistencies in the impugned order. For example, in paragraph 14 of the impugned order of the State Commission observed as under: t this stage the decision of the Civil Court inter se the parties which was upheld by the appellate court that the complainant had duly intimated OP 3 that the goods were meant for exhibition and should reach the destination by 19.02.1995 is relevant However, paragraph 16 of the impugned order starts as: et us assume that any such instructions either by complainant to OP 3 and in return by OP 2 to OP 1, were given. Now the question arises whether OP 1 and OP 2 can be held guilty for deficiency in service in not delivering the assignment within reasonable period [Emphasis supplied] Thus, there is obvious inconsistency between the two sets of observations of the State Commission. (ii) More important, paragraph 19 of the impugned order clearly demonstrates complete confusion of facts. This paragraph reads as under: n the instant case consignment was booked on 14.02.1995 whereas intimation for not sending it to OP 3 by the complainant was given on 23.02.1995. Accordingly the goods sent from Delhi to Mumbai to OP 3 and OP 3 delivered the goods to OP 1 and 2 at Mumbai. In our view the inordinately long time taken by OP 1 and 2 in not delivering the consignment within a reasonable period of one week we hold OP 1 and 2 guilty for deficiency in service in spite of the fact that there was no clear instructions given in writing by complainant to OP 3 as well as OP 3 to OP 1 and 2 that unless the consignment reaches before 19.02.1995 it will be of no utility (iii) The State Commission findings are also contradictory to the findings of facts of the Senior Civil Judge, Delhi as well as of the Additional District Judge, Delhi (though the State Commission had taken cognisance of these judgments in paragraph 14 of its impugned order in the following words, t this stage the decision of the Civil Court inter se the parties which was upheld by the appellate court that the complainant had duly intimated OP 3 that the goods were meant for exhibition and should reach the destination by 19.02.1995 is relevant). In fact, in his appellate order, the Additional District Judge, Delhi reproduced the FAX messages sent by the Manager of OP 3 to the Cargo Sales Manager of OP 1, which are self-explanatory: To: Mrs. H. Rana/Cargo Sales Manager Air India/New Delhi Fm: Rakesh Dham/Manager/Blue Skies Pvt. Ltd., New Delhi Sub: Withdrawal of export shipment forwarded from Delhi but held up at Bombay. Ref: AWB No. 098-6444.1554 dated 14.02.1995 13 packages Ex. Delhi to Durban Shipper: Anchit Exports, New Delhi Replies to our fax and that of shipper to you sent on February 23rd are still awaited. Since shipment did not move from Bombay after being forwarded on 16.02.1995 from Delhi it may be noted that it will be futile to attempt now at this belated stage to forward a shipment that is no more needed at destination as it was consigned for exhibition purpose only. The fact is that Air India did not stick to the initial schedule or later schedule for forwarding it by the deadline date of 22.02.1995. So shipper had no other option but to recall the shipment back to Delhi. Kindly take necessary action immediately and advise us the details per return. Please be advised that we had reiterated this urgent request of shipper for recall of shipment on phone to your Mr. Pawan Kumar this afternoon. Regards rom: Rakesh Dham To: Mrs. H. Rana, Cargo Sales Manager, Air India No. of Pages: one Date: February 23, 1995 TOP URGENT Re: Delay in forwarding export shipment. Ref: AWB No. 098-6444.1554 dated 14.02.1995/ 13 packages Ex. Delhi to Durban. Shipper: Anchit Exports, New Delhi Commodity: Handicrafts meant for exhibition purpose. After handing over of shipment on 14.02.1995 following flight details were advised:- Delhi/Bombay AI 184/ 16.02.1995 Bombay/ Durban AI 217/ 19.02.1995 Accordingly we informed shipper stationed at Durban to attend Fair. While we were reposing with confidence that shipment has left as per initial schedule, we were shocked to receive FAX from shipper on 20.02.1995 informing that shipment is held up at Bombay. On our approaching your Cargo Sales Office we were informed that due to pay load shipment was off-loaded in Bombay but re-booked by Flight AI 213/22.02.1995 but after conveying same to shipper we were astounded to receive another FAX stating that shipment failed to arrive at destination by AI 213/ 22.02.1995. Copy of this was forthwith relayed to you for immediate reply but we regret that same is still awaited. The delay evidently is due to lack of planning of the forwarding schedule from Bombay. To wriggle out of an unenviable situation and convince shipper, one of our most valued and old clients, the following has become indispensable. 1. Why we were not informed about off-loading shipment. 2. Despite re-assurance of your sales staff why shipment did not leave even on AI 213/22.02.1995. Kindly treat matter most urgent and reply per return. Regards Sd/- Rakesh Dham These fax messages would establish beyond doubt that the complainant/appellant had given OP 3 a specific time frame for the delivery of the consignment at Durban and had also informed OP 3 the reason/need why the consignment had to reach Durban in time for the Expo which was to start on 23.02.1995. Hence, for the respondents/OPs to claim that they were totally unaware of the purpose of sending the consignment to Durban or that the Expo was to commence on 23.02.1995 would be nothing better than complete untruths. If, despite these clear instructions of the complainant/appellant, OP 3 failed to incorporate them in the airway bill pertaining to the consignment, it was sheer negligence and deficiency in service on its part. Likewise, OPs 1 and 2 cannot at all disclaim that they did not know what the consignment was meant for or why the complainant/appellant wanted the consignment to reach Durban on 19.02.1995. After committing to OP 3 that the consignment would be airlifted from Mumbai by flight AI 213 and reach Durban on 23.02.1995 they failed to honour the commitment. Thus, the State Commission conclusion that there was no deficiency in service on the part of OP 3 is completely erroneous and inconsistent with its own observation/finding in the impugned order - negligence and deficiency in service on the part of each of the OPs/respondents is, in fact, writ large. 11. As regards the quantum of compensation to be awarded to the appellant, there is no reason to disbelieve the contention that the complainant/appellant had incurred considerable expenditure on travel and stay in Durban without being able to effectively participate in the Expo. Though the consignment was returned to the complainant/appellant, it was after considerable delay. Hence, while no compensation need be awarded on account of loss of cargo or loss of future business, it cannot be overlooked that the complainant suffered loss in 1995 and would be compensated now, i.e., after 16 long years. Hence, the amount of compensation needs to be suitably enhanced. 12. The appeal is thus partly allowed and the order of the State Commission relating to the finding of no deficiency in service on the part of respondent 3 and the amount of compensation is set aside. The compensation payable to the appellant is enhanced to Rs.1.5 lakh, out of which respondent 1 shall pay Rs. 1.0 lakh and respondent 3 shall pay the balance sum of Rs. 50,000/-. In addition, the appellant shall be entitled to cost of Rs.15,000/-, Rs.10,000/- being payable by respondent 1 and Rs.5,000/- by respondent 3. These payments shall be made within six weeks from the date of this order, failing which the entire amount of Rs. 1.65 lakh shall carry interest @ 12% per annum from the date of this order till payment.