BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 157/2004 Filed on 07.04.2004

Dated : 28.02.2011

Complainant:

Noorjahan, D/o Osseela Beevi, Ananda Vilasom, Sastham Nagar, Koyikkal, Kilikolloor P.O, Kollam.

(By adv. M. Abdul Barri)

Opposite parties :

1. Assistant Commissioner of Customs, Air Cargo Complex, Sanghumugham, Thiruvananthapuram-8.

    

   (By adv. G.S. Prakash)

    

2. Aruna Sambhunadhan, Cargo Manager, Air India, Sanghumugham, Thiruvananthapuram.

    

   (By adv. S. Reghukumar)

    

3. The General Manager, K.S.I.E, Thiruvananthapuram.

(By adv. K. Sudarsana Kumar)

This O.P having been heard on 15.01.2011, the Forum on 28.02.2011 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant had sent cargo through Indian Airlines weighing 190 kg worth Rs. 80,000/- on 30.09.2002, that on 27.02.2003 she came to Kollam and on 04.03.2003 she approached the opposite parties (Trivandrum Cargo) to take delivery of the cargo, that she was informed by the opposite party that the cargo was not landed at Thiruvananthapuram and directed the complainant to make enquiry after 1½ months, that accordingly on 22.04.2003 complainant approached the air cargo terminal, Thiruvananthapuram to take delivery of the cargo, that at that time she was informed by the opposite party that the cargo was lost. She was further informed that if the cargo is traced out the same will be informed to her. It is submitted by the complainant that the loss of cargo was due to negligence and deficiency in service on the part of the opposite parties. Hence this complaint to direct opposite parties to pay Rs. 80,000/- on account of loss of cargo along with Rs. 55,000/- towards compensation.

1^st opposite party filed version contending that complainant had sent cargo through Air India consisting of 6 packages weighing 190 kg vide airway bill No. 09877846602 dated 30.09.2002, that the entire area of the cargo complex is notified under the Customs Act for the purpose of unloading imported goods and loading of export goods including unaccompanied baggages of the passengers, that M/s Kerala State Industrial Enterprises Limited, Thiruvananthapuram is appointed as the custodian of goods at Air cargo complex, Thiruvananthapuram under Customs Act. Therefore, on arrival of the cargo the concerned Airlines deposits the same with the custodian and informs the passengers about the arrival of their baggage. Thereafter when the passengers comes for clearance, the concerned Airline will issue a delivery order. The passenger in turn contacts the custodian for release of the baggage to the Customs Department for clearance after making necessary payment of warehouse charges if any to the custodian. It is averred in the version that complainant had approached the custodian for release of her baggage on 10.12.2002 and when they informed her to pay the warehouse charges amounting to Rs. 5,938/- for the period from 20.10.2002 to 10.12.2002, she declined to pay the same, that the allegation that the cargo was not landed at Thiruvananthapuram is not true as Air India had issued a delivery order No. 18997 dated 10.12.2002 intimating that the cargo was landed on 19.10.2002 to the passenger for release of the goods from the custodian. Further allegation that on 04.03.2003 she had visited air cargo complex and contacted the 1^st opposite party and 1^st opposite party informed her that cargo had not arrived and asked her to enquire about the arrival or cargo after 1½ months is absolutely false. As per the office records on 04.03.2003 no baggage declaration is seen filed by her as alleged. Therefore the misplacement of the complainant's cargo and other allegations levelled by her are of no bonafides. There is no cause of action for filing this complaint against the 1^st opposite party. Hence 1^st opposite party prayed for dismissal of the complaint.

2^nd opposite party entered appearance and filed version contending interalia that on 10.12.2002 complainant had approached the 2^nd opposite party and the opposite party issued delivery order No. 18997 and directed the complainant to take delivery from the Customs counter after complying with the statutory requirements including remittance of tax and duty. Thereafter complainant never approached the 2^nd opposite party for any purpose. 2^nd opposite party conducted an enquiry after receipt of notice from this Forum, that it was revealed in the enquiry that after getting the delivery order from Air India complainant had contacted the KSIE counter. The consignment arrived at KSIE on 19.10.2002 and the officials of the KSIE requested the complainant to remit Rs. 5,500/- towards demurrage charges. Complainant had not paid that charge. Thereafter complainant has not contacted the KSIE or Air India, that as the complainant did not turn up to receive the consignment, the KSIE handed over the same to the Customs Department on 27.02.2003 for disposal/confiscation. It is reliably learnt that the Customs Department had auctioned the consignment as per rules and regulations over which the 2^nd opposite party has no control. There is no deficiency in service on the part of the 2^nd opposite party. Hence 2^nd opposite party prayed for dismissal of the complaint.

3^rd opposite party entered appearance and filed version contending interalia that on arrival of the cargo, the cargo arrival notice will be sent concerned airlines to the consignee. The consignee is expected to obtain the delivery order and has to file a baggage declaration form duly filled in with the customs authorities. The declaration should be accompanied by the delivery order and consignee copy of the airway bill. Before filing the baggage declaration the consignee also has to pay warehouse charges to KSIE at its air cargo complex. The charges are levied as per the approved tariff in force from time to time. When complainant approached the 3^rd opposite party counter, 3^rd opposite party prepared the computer bill 18628 dated 10.12.2002. But the consignee did not pay the amount of demurrage of Rs. 5,938/-. Therefore the bills cancelled. Complainant is not entitled for any relief or compensation as prayed for against 3^rd opposite party. Hence 3^rd opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

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

2. Whether the complainant is entitled to compensation and costs?

In support of the complaint, complainant has filed affidavit in lieu of chief examination and has marked Exts. P1 to P4. In rebuttal opposite parties have filed affidavits and have marked Exts. D1 to D14. Complainant has been cross examined by opposite parties. DW1 & DW2 have been cross examined by the complainant. DW3 has not been cross examined by the complainant.

Points (i) & (ii):- There is no point in dispute that on 30.09.2002 complainant had sent cargo through Air India vide airway bill No. 09877846602. Ext. P1 is the original airway bill. A perusal of Ext. P1 would reveal that the consignment was entrusted on 30.09.2002 by the complainant. The consignment consisted of 6 pieces weighing 190 kg. It has been the case of the complainant that she had approached the cargo complex at Thiruvananthapuram on 04.03.2003 to take delivery of the cargo, that on enquiry it was informed by opposite party that the cargo was not landed at Thiruvananthapuram and she was asked to make enquiry after 1½ months. It has also been the case of the complainant that again she approached the air cargo complex on 22.04.2003 and she was informed by the opposite party that the consignment was misplaced and she will be informed the same after proper verification. Ext. P2 is the gate pass issued by KSIE. A perusal of Ext. P2 gate pass reveals 2 dates- 04.03.2003 and 22.04.2003, but both dates are seen struck off. Ext. P3 is the copy of the baggage declaration issued by office of the Assistant Commissioner of Customs. Ext. P4 is the ticket and baggage check. Complainant has been cross examined by opposite parties. In her cross examination she denied the suggestion that she has not made a special declaration nor remitted the charge. She has further deposed that there is no material to show that consignment contains articles worth Rs. 80,000/-. She has further deposed that she did not get the notice dated 10.12.2002 sent by 2^nd opposite party nor did she get the delivery order from the opposite party. It is admitted in cross examination that upto 27.02.2003 complainant was in gulf. She has further deposed she could the produce the documents showing her arrival at Thiruvananthapuram. She denied the suggestion that it was due to non-payment of tax or charges the cargo was sold out under auction. In her cross examination by 3^rd opposite party she has deposed that she was not aware whether demurrage was prepared by the opposite party on 10.12.2002. In her cross examination by 1^st opposite party she has agreed to submit the passport before this Forum. Complainant's stance is that on 10.12.2002 she was in abroad. She has admitted that she has not remitted the warehouse charge to 3^rd opposite party. It has been the stance of the 1^st opposite party that as per records complainant has approached the custodian for release of her baggage on 10.12.2002 and when they informed her to pay the warehouse charges amounting to Rs. 5,938/- for the period from 20.10.2002 to 10.12.2002 she declined to pay the same. According to 1^st opposite party the cargo was landed at Thiruvananthapuram in time and delivery order was issued to the passenger for release of the goods from the custodian. It is further submitted by 1^st opposite party that the allegation of the complainant that on 04.03.2003 she had visited the air cargo complex and contacted the 1^st opposite party and 1^st opposite party informed her that cargo had not arrived and asked her to enquire about the arrival of cargo after 1½ months is not correct. It is further argued by the 1^st opposite party that no baggage declaration filed by the complainant on 04.03.2003 for customs clearance of her baggage. It is further submitted by the 1^st opposite party that complainant has never approached the 1^st opposite party for clearance of her cargo as alleged in the complaint. 1^st opposite party has filed affidavit to substantiate the version. 1^st opposite party has not been cross examined by the complainant. It is the stance of the 1^st opposite party that since no person claimed the ownership of the goods in question the 1^st opposite party confiscating the goods absolutely to Government as unclaimed baggage under Sec. III (D) of Customs Act vide order in O.S No. 50/U.B/03 dated 27.02.2003 the total value of the said goods was Rs. 16,025/-. As per Sec. 126 of the Customs Act, on confiscation the property vests in Central Government. It is further stated by opposite party that against the said order complainant had not preferred any appeal, thereby the confiscated goods were disposed of by the Customs Disposal unit, Thiruvananthapuram. The total value received for the disposal of the goods is Rs. 11,845/-, the said amount absolutely vested to the Central Government under Sec. 126 of the Customs Act. Ext. D1 is the copy of the postage register with effect from 31.08.2002 of Air India Cargo. On perusal of the said Ext. D1 register complainant's name is mentioned in the Serial No. 12273 on 21.10.2002. Ext. D2 is the copy of the delivery order dated 10.12.2002 issued by Air India. As per the delivery order the collector of customs, Thiruvananthapuram was directed to deliver to Mrs. Noorjahan Osseela Beevi the baggages vide airway bill No. 77846602. Ext. D3 is the copy of the cash receipt dated 10.12.2002 which is seen cancelled. A perusal of Ext. D3 shows the arrival date as 20.10.2002. It is seen written in Ext. D3 that party has not remitted the amount. Ext. D4 is the copy of the gate pass dated 10/12 issued to the complainant. Ext. D5 is the copy of the details of UB at Tact (more than 45 days old as on 05.02.2003). Ext. D5(a) is the letter addressed to Deputy Commissioner of Customs, Thiruvananthapuram Air Cargo Terminal by the Deputy General Manager, Kerala State Industrial Enterprises Ltd. stating that the latter has enclosed the list of import cargo (UB) which are lying in go-down for more than 45 days as on 05.02.2003. Ext. D6 is the notice dated 10.02.2003 issued by Deputy Commissioner of Customs to put up in the notice board in regard to the disposal of unclaimed goods. As per Ext. D6 notice “the undermentioned goods as per the details furnished have not been cleared till date Hence it is proposed to dispose off the same in accordance with the provisions of Sec. 48 of Customs Act after 22^nd February 2003 if nobody turns up to clear the same within the said period”. Ext. D7 is the list of unclaimed cargo (UB) handed over to customs on 27.02.2003 as per the request by the customs. In Ext. D7 & D6 consignment of the complainant are seen included, thereby it is presumed that complainant has not cleared the cargo on or before 27.02.2003. Ext. D8 is the authorization letter issued by KSIE authorizing Mr. M. Sreekumar to give evidence on behalf of 3^rd opposite party. Ext. D9 is the authorization letter issued by Deputy Commissioner of Customs authorizing Mr. S. Sreekumar to appear before this Forum in connection with O.P. No. 157/2004 for adducing evidence. Ext. D10 is the list of import cargo uncleared for 15.01.2003 to 31.01.2003. Ext. D11 is the letter issued by Deputy General Manager, KSIE. Ext. D12 is the notice issued by Deputy Commissioner of Customs. Ext. D13 is the inventory of the goods under detention, seizure passengers' baggage. It is seen mentioned unclaimed baggage. As per Ext. D13 the value of goods for ITC action is Rs. 16,025/-. As per Ext. D14 the disposal particulars of 74 items in the O.S. No. 50/UB/2003 dated 27.02.2003, the total value comes to Rs. 11,845/-. It is to be noted that on arrival at destination the consignee has right to demand possession on production of the way bill and payment of outstanding charges if any. If the carrier admits that the consignment has been lost or if the goods are not delivered within a week the consignee can enforce his rights. It is further to be noted that it is the duty of the carrier to inform the consignee and give him reasonable time (one week) for clearance. Thereafter goods are at the owner's risk where nobody came to receive the goods. The carrier was held to be under no duty to dispose them off otherwise. The consignor was not allowed to sue him for his deficiency. In this case it is to be noted that by Ext. D2 it is seen that delivery order executed by Air India. Herein there is no case that the consignment was lost. Consignment already landed at Thiruvananthapuram airport. Complainant did not remit the charges claimed by the opposite parties. The case of the 1^st opposite party is that complainant had approached the custodian for release of her baggage on 10.12.2002 and when then informed her to pay the warehouse charges for the period from 20.10.2002 to 10.12.2002 she declined to pay the same. The allegation that cargo has not landed at Thiruvananthapuram is not true. Delivery order already issued on 10.12.2002. The cargo was landed on 19.10.2002. By Ext. D4 it is seen that a gate pass was issued to the complainant on 10.12.2002. But complainant's case is that on 10.12.2002 she was abroad and she did not approach the opposite party for release of the consignment. She did not furnish the passport to show that aspect, though she had agreed to submit before this Forum in her cross examination. It is the say of the opposite party that it is the duty of the airlines to give the delivery order to the owner of goods and on production of the delivery order the custodian presents the goods for examination, assessment and collection of duty payable. No person claimed the ownership of the goods in question. Goods were confiscated by the opposite parties absolutely to the Government as unclaimed baggage under Customs Act and as per Sec. 126 of the Customs Act on confiscation the property vests in Central Government. Opposite party has furnished sufficient material to prove that aspect. It is contended by 1^st opposite party that complainant had not preferred any appeal against the order (Ext. D5) and the confiscated goods were disposed off by the Customs Disposal Unit. In view of the documents furnished by opposite parties it would appear that opposite parties had acted as per provisions of the Customs Act and whatever be the value received after disposal of the said goods, the same will be vested to the Central Government under Sec. 126 of the Customs Act. In view of the above we do not find any deficiency on the part of the opposite parties and complainant has not furnished sufficient material to attribute any deficiency on the part of opposite parties. In view of the above, we find the complaint has not merits, which deserves to be dismissed.

In the result, the complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 28^th day of February 2011.

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

Sd/-

S.K. SREELA : MEMBER

jb

O.P. No. 157/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Noorjahan

II COMPLAINANT'S DOCUMENTS :

P1 - Original Airway Bill

P2 - Gate pass issued by KSIE.

P3 - Copy of the baggage declaration issued by office of the

Assistant Commissioner of Customs.

P4 - Ticket and baggage check.

III OPPOSITE PARTY'S WITNESS :

DW1 - Aruna Anbunathan

DW2 - M. Sreekumar

DW3 - S. Sreekumar

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of the postage register of Air India Cargo

D2 - Copy of the delivery order dated 10.12.2002 issued by Air India.

D3 - Copy of the cash receipt dated 10.12.2002

D4 - Copy of the gate pass issued to the complainant.

D5 - Copy of the details of UB at Tact.

D6 - Notice dated 10.02.2003 issued by Deputy Commissioner of Customs.

D7 - List of unclaimed cargo handed over to customs on 27.02.2003

D8 - Authorization letter issued by KSIE dated 22.05.2006.

D9 - Authorization letter issued by Deputy Commissioner of Customs.

D10 - Copy of the list of import cargo uncleared for 15.01.2003 to 31.01.2003

D11 - Copy of the letter issued by Deputy General Manager, KSIE dated 07.02.2003.

D12 - Copy of the notice issued by Deputy Commissioner of Customs.

D13 - Copy of the Inventory of the goods dated 27.02.2003

D14 - Copy of the disposal particulars of 74 items in the O.S No. 50/ UB/2003 dated 27.02.2003.

Sd/-

PRESIDENT