Per – Hon’ble Mr. P. N. Kashalkar, Presiding Judicial Member
Heard Adv. Sanjit Shenoy on behalf of the Applicants/Complainants, Adv. Esther Joshua instructed by Little & Company on behalf of the Non-Applicant/Opponent No.1 and Adv. Bhavik Manek instructed by Wadia Ghandy & Company on behalf of the Non-Applicant/Opponent No.2 on the application for condonation of delay.
[2] The Applicants/Complainants have filed this Miscellaneous Application No.423 of 2010 seeking condonation of delay in filing Consumer Complaint No.128 of 2010. It is the case of the Applicants/Complainants that the Applicant/Complainant No.1, namely – Cipla Ltd., had imported certain goods from Switzerland. Cargo was valued at CHF (Confederation Helvetica Francs) 227,327. Consignment was entrusted to the custody of the Non-Applicant/Opponent No.1, namely – Cathay Pacific Airways Ltd., by M/s. HAPPA AG for carriage and safe delivery from Zurich, Switzerland to Mumbai. Said cargo was accepted by the Non-Applicant/Opponent No.1, namely – Cathay Pacific Airways Ltd., under Airway Bill No.160-27296625 dated 19/6/2008. Cargo arrived at Mumbai on board Flights Nos.CX12 and CX058 dated 24/6/2008. However, said cargo arrived in a damaged condition. So, the Applicant/Complainant No.1 lodged a complaint with the Applicant/Complainant No.2, namely – Bajaj Allianz General Insurance Company Ltd. The Applicant/Complainant No.2 appointed a surveyor to visit the airport managed by the Non-Applicant/Opponent No.2, namely – Mumbai International Airport Pvt. Ltd., at Sahar Air Cargo Complex. Surveyor submitted a survey report on 1/8/2008. The Applicant/Complainant No.1 lodged a mandatory monetary claim with the Non-Applicant/Opponent No.1, namely – Cathay Pacific Airways Ltd. within a period of 14 days from 27/6/2008. A claim was also lodged against the Non-Applicant/Opponent No.2 by hand-delivery. However, the claim was not paid by either of the Applicants/Opponents. The Applicant/Complainant No.1, therefore, approached the Applicant/Complainant No.2 since the imported goods in transit were covered under an insurance policy issued by the Applicant/Complainant No.2. The Applicant/Complainant No.2 settled the claim of the Applicant/Complainant No.1 for an amount of `75,00,000/- after the Applicant/Complainant No.1 executed a Discharge Voucher and gave letter of subrogation and power-of-attorney in favour of the Applicant/Complainant No.2 to seek remedial compensation for the loss of the consignment of imported goods and thereafter since after legal notice the claim was not paid by the Non-Applicants/Opponents Nos.1 and 2 the Applicants/Complainants have filed a Consumer Complaint No.128 of 2010. The consumer complaint is filed by the Applicant/Complainant No.1, namely – Cipla Ltd., who had imported the machinery from Switzerland and also by Applicant/Complainant No.2, namely – Bajaj Allianz General Insurance Company Ltd., under subrogatory rights. Applicants/Complainants are claiming to recover an amount of `75,00,000/- from the Non-Applicants/Opponents Nos.1 and 2. For this, this complaint has been filed. In the cause of action clause which is contained in paragraph (09) of the complaint, the Applicants/Complainants pleaded that cause of action of the complaint has been continuing one as at no point of time have the Non-Applicants/Opponents declined their liability as is evident from foregoing paragraphs and so, no part of the cause of action is barred by limitation. However, it is further pleaded by the Applicants/Complainants that they are also filing a application for condonation of delay in case the Non-Applicants/Opponents raise the plea of limitation in order to vitiate the complaint proceeding and in the interest of principles of natural justice, equity and good conscience, the same may be allowed. These are the pleadings found in paragraph (09) of the complaint. Likewise let us see the application for condonation of delay. In the application for condonation of delay in paragraph (03) thereof, both the Applicants/Complainants have pleaded that the cause of action of the complaint has been a continuing one as at no point of time have the Non-Applicants/Opponents declined their liability as evident from the pleadings in the complaint and so, no part of the cause of action is barred by limitation. Further, the Applicants/Complainants have reproduced what has been mentioned in paragraph (09) of the complaint.
[3] It is this sort of prayer which we are required to address while deciding the miscellaneous application for condonation of delay filed by the Applicants/Complainants.
[4] It would be pertinent to note that any claim under Carriage by Air Act, 1972 has to be filed against an airline company to whom goods were entrusted for carriage from one country to another in a specific period of limitation as prescribed. It is of two years from the day goods should have been delivered at the airport of destination. Relevant Rule-30 under Schedule-2 appended to Carriage by Air Act, 1972 reads as follows:-
“30. (1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
(2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.”
[5] So in view of Rule-30(1), cited supra, it is clear that right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. The goods in question in the instant case were entrusted to the Non-Applicant/Opponent No.1 at Zurich, Switzerland on 19/6/2008 and the goods arrived at Mumbai on 24/6/2008 in a damaged condition and the notice of the same was given to the Non-Applicants/Opponents Nos.1 and 2 also to the Applicant/Complainant No.2 Insurance Company on 27/6/2008. Spot Survey was done by the surveyor on 27/6/2008. So, a consumer complaint ought to have been filed on or before 25/6/2010. However, present complaint came to be filed on 11/8/2010. But, it is the contention of the Applicants/Complainants that no part of cause of action is barred by limitation and they are moving a miscellaneous application seeking condonation of delay just to prevent the Non-Applicants/Opponents from taking up a defence that the claim of the Applicants/Complainants is barred by limitation. In the application for condonation of delay, in paragraph (03) thereof, the Applicants/Complainants simply mentioned that the reasonable delay, if any of 30 days may be condoned by this Commission. However, what we are finding is that there is a delay of 46 days in filing this consumer complaint. However, when it is a specific case of the Applicants/Complainants in the complaint as well as in application for condonation of delay that no part of cause of action is barred by limitation, on the basis of such pleadings and such fundamental approach taken by the Applicants/Complainants in the complaint as well as in the miscellaneous application seeking condonation of delay, we cannot allow the application for condonation of delay and condone the reasonable delay of 30 days though delay according to our calculations is of 46 days.
[6] Complainants have to file a complaint within prescribed period of limitation as laid down in the statute. If, according to the Complainants, the complaint is barred by limitation and there is a delay in filing complaint since it is filed beyond the prescribed period of limitation then the Complainants have to positively come with a case while filing a complaint that there is a specific delay of say, 30 days or 40 days and they are seeking condonation of delay by filing an application in that behalf. But, when we are finding in the pleadings in the complaint as well as in the application for condonation of delay that according to the Applicants/Complainants, no part of cause of action is barred by limitation, there is no question of allowing this miscellaneous application for condonation of delay because it is a clear-cut assertion of the Applicants/Complainants in the original complaint as well as in application for condonation of delay that no part of cause of action is barred by limitation.
[7] It is pertinent to note that the Non-Applicant/Opponent No.1 who is the main contesting party has not filed a reply to the application for condonation of delay while the Non-Applicant/Opponent No.2, namely – Mumbai International Airport Pvt. Ltd., against whom both the Applicants/Complainants have no claim, has filed a reply opposing the delay condonation application. We are disposing of this application primarily on the pleadings and evidence of the Applicants/Complainants themselves and on going through the same we are finding that this miscellaneous application cannot be allowed. Thus, we are of the view that this application seeking condonation of delay as filed by the Applicants/Complainants will have to be rejected on their own showing and on their own pleadings and on their own evidence. As such, we pass the following order:-
ORDER
Miscellaneous Application No.423 of 2010 seeking condonation of delay in filing Consumer Complaint No.128 of 2010 hereby stands rejected. Consequently, complaint does not survive for consideration.
No order as to costs.
Pronounced on 25th June, 2012
