KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
FIRST APPEAL 410/2011
JUDGMENT DATED: 25.1.2012
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER
1. Air India,
Rep.by its Managing Director,
Air India Building, Nariman Point,
Bombay.
2. The Regional Manager,
Air India Office, Vellayambalam, : APPELLANTS
Thiruvananthpauram.
(By Adv.V.K.Mohankumar)
Vs.
Chaithanya Eye Hospital & Research Institute, : RESPONDENT
Rep.by its Managing Partner,
Dr.K.G.R.Nair, Kesavadasapuram,
Thiurvananthapuram.
(By Adv.K.Jayachandran)
JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
The appellants are the opposite parties/Air India in OP.265/02 in the file of CDRF, Thiruvananthpauram. The appellants are under orders to pay a sum of Rs.3,23,544/- with interest at 9%.
2. The case of the complainant/an eye hospital is that complainant had placed an order with Carl Zeiss Germany for supply of ophthalmic equipments. The above company consigned the above equipments in 4 boxes vide the airway bill forwarded. As per the terms of the bill the original date of shipment from Germany to Bombay by Air India 145/10 is dated 10.2.2002 and from Bombay to Thiruvananthapuram by Air India 945/13 is dated 13.2.02. But the shipment was lifted only on 16.2.02 which arrived at Thiruvananthapuram on 20.2.02 only. But out of 4 boxes only 3 had reached Thiruvananthpauram. The complainant contacted the opposite parties under the firm belief that the missing box was off loaded at some other port. Only on 9.3.02 the Air India has informed that the missing box has been traced and located in Bombay. The missing box reached Thiruvananthapuram only on 10.3.02. The complainant could take the delivery of all the boxes only on 11.3.02. On account of the delay in transportation the complainant had to pay as customs duty an amount of Rs.2,11,189/- which was imposed with effect from 28.2.02. Till then the above items were exempted under list 107 of the Customs Act. The complainant had also to pay demurrage charges of Rs.2184/-. The complainant had also to pay penal interest to the bank amounting to Rs.31,543/-. Altogether Rs.4,84,916/- is claimed as compensation.
3. On the other hand, the opposite parties have filed version contending that there was no delay as such as the opposite parties had undertaken to deliver the consignment with reasonable dispatch only ie, within a reasonable time. One piece of consignment could not be delivered along with the other 3 pieces due to space constraints. There was no undertaking that the goods shall be handed over within a specified time. The consignment was agreed to be carried on a subject to load basis. No time was fixed for the commencement or the completion of carriage or delivery of cargo. The consignment sought to be delivered to the complainant being an odd size piece was off loaded to be forwarded subject to space at a later date. There was no willful latches. The time shown in carrier’s time tables or elsewhere are approximate and not guaranteed and form no part of the contract of carriage. The carrier is authorized to carry the consignment without notice wholly or partly by means of surface transportation or to arrange such carriage. It is also contended that the complainant was fully aware of the proposed hike in customs duty before the hike was imposed. It is denied that the complainant has incurred any loss. The claim for compensation can not be sustained.
4. The evidence adduced consisted of the testimony of PW1; Ext.P1 to P22. The opposite parties did not adduce any evidence.
5. The Forum has allowed the amount remitted towards excess duty that is Rs.2,11,189/- and also a sum of Rs.91,250/- on the basis of the bills produced for the period from 27.3.02 to 26.4.02 with respect to the amounts charged from the patients for the use of the equipments ie for 24 days subsequent to the installation of the machinery. The delay was of 24 days with respect to the receipt of arrival of the missing box. The Forum has also allowed demurrage charges paid amounting toRs.1105/- to the Kerala State Industrial Enterprises Ltd. warehouse bill.
6. The weight of the equipments amounted to 273Kg. It is pointed out by the opposite parties/appellants that the complainant could have taken delivery of three boxes soon after 20.2.02 the date on which the articles were delivered at Thiruvananthapuram. The articles are to be carried from Germany to Mumbai and from Mumbai to Thiruvananthapuram. The demurrage charges etc could have been avoided if the articles were taken delivery immediately. Instead of that the complainant took delivery of all the boxes only on 11.3.02. As per Clause 8.1 of the Conditions of Contract printed on the reverse of Ext.P16 Airway bill. It is only mentioned that the carrier undertakes to complete the carriage with reasonable dispatch. It is also mentioned that the carrier may use the alternate carriers or aircraft and may without notice and with due regard to the interest of the shipper use other means of transportation. The alleged dates of transporting the cargo and the number of the aircraft is not mentioned in Ext.P16. The execution of the airway bill is dated 5.2.02 vide Ext.P16. In view of Clause 8.1 of the Conditions of Contract there is no specific date provided for delivery of the cargo. In view of the fact that it is intercontinental shipment arrival of 3 boxes on 20.2.02 cannot be said to be delayed. The complainant has also no such case.
7. It is pointed out that only on 4.3.02 vide Ext.P8 the complainant has made the payment of Rs.42,3,384/- which is a precondition for taking delivery of cargo. Evidently the above amount has been paid before the arrival of the missing box. The complainant has made the entire payment on 4.3.02. The above delay in making the payment is a factor that is in favour of the case of the opposite parties/appellants. Of course due to the non arrival of one box the formalities for taking delivery in the presence of the representatives of the airport, customs and the insurance company has been delayed to a certain extent and the reason for the same is the non delivery of one box. The claim for Rs.31,543/- for penal charges for 17 days to be paid at the bank cannot be imposed as such on the opposite parties as the amounts could have been paid earlier and also as the amounts has been paid even before the arrival of the delayed box.
8. We find that of the opposite parties cannot be made liable to be payment of customs duty as the same cannot be said to be an immediate and direct the consequence of non delivery in time. The opposite parties were not aware of such a consequence. The same has to be taken as a consequential or remote loss which cannot be foisted on the opposite parties. The same is the case with the alleged consequential loss with respect to the delay in installation and loss of money that charged on the patients. It cannot be presumed that on every day after installation the patients will be subjected to the tests using the above instrument. We find that the above is also a consequential and remote loss.
9. The amount directed to be paid towards demurrage charges is for 7 days although in Ext.P2 cargo arrival notice. It is mentioned that no demurrage charges will be levied at KSIE warehouse for 7 days from the date of arrival. KSIE warehouse is not a party to the present proceedings. The complainant ought to have taken up the matter before the KSIE warehouse authorities at the time. We find that the direction to pay demurrage charges collected by KSIE warehouse by the opposite parties cannot be sustained.
10. Of course there is delay of 20 days in the arrival of the 3rd box from the date of arrival of the other 3 boxes which was on 20.2.02. The above cannot be said to be reasonable vide Clause 8.1 of the Conditions of Contract. For the same the complainant is entitled for compensation. Overleaf Ext.P16 airway bill carrier’s limitation of liability vide the Warsaw convention is mentioned as 20 US $ per K.G. The weight of the delayed box is 75Kg as can be seen from Ext.P14 the warehouse delivery receipt. The complainant will be entitled for compensation on the basis the delay at the above rate ie 20 US $ for 75Kg ie 1500 us dollars. The value of the US $ is to be taken as on the date of delivery of the cargo .The complainant will also be entitled for interest at 12% from the date of complaint ie on 26.6.02. The complainant will also be entitled for Rs.10000/- towards costs. The order of the Forum is modified as above. The opposite party will make the payment within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 15% from 25.1.2012 the date of this order.
11. In the result the appeal is allowed in part as above.
Office will forward the LCR along with the copy of this order to the Forum.
JUSTICE K.R.UDAYABHANU : PRESIDENT
S.CHANDRAMOHAN NAIR : MEMBER
Ps
