PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This appeal has been filed by the appellant against the order dated 5.9.2013 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Complt. No. 02/2002 – M/s. Dentsply India Pvt. Ltd. Vs. M/s. Malaysian Airlines by which, complaint was partly allowed. 2. Brief facts of the case are that Complainant/respondent had engaged the services of the OP/Appellant for airlifting of the consignment from Los Angeles to India. On 12.11.1999, OP handed a single consignment under Airway Bill No. MAWB No. 23280408646, to be air lifted from Los Angeles in USA to New Delhi in India. The said consignment contained 3 M.T. of Celite 427 A in six pallets wherein each pallet contained 22 bags, the weight of each bag being approximately 22.72 kgs. It was informed to the office of OP that the consignment should reach India latest by 15.12.1999. The Complainant handed the said consignment of six pallets to the OP in a single lot. However, when the consignment arrived, the complainant noticed that the said consignment had been opened and tempered with and had been converted into two lots. Only a part of consignment arrived in India on 15.12.1999. The entire consignment was expected to arrive and handed over to the complainant by 15.12.1999 in one single lot. Instead of 132 bags, only 110 bags had arrived on 15.12.1999, which were received by the complainant in damaged condition. The complainant paid full duty towards the custom charges of the said consignment. The complainant duly informed the OP herein of the aforesaid fact of short shipment of the consignment and also that the consignment was handed over to the complainant in a damaged condition. The second lot of consignment landed at New Delhi on 06.01.2000. On 10.01.2000, the complainant lodged a complaint with the office of the OP at Delhi, which was duly received and acknowledged by them on 12.01.2000. Complainant had suffered loss on account of the negligence on the part of the OP in handling the consignment. The complainant had further failed in their commitments to deliver the said consignment to the dealers and hence had to face the consequences arising out of delay in receipt of the consignment as well as loss of reputation, the damage caused to the consignment had also resulted in monetary loss to the complainant. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. 3. OP resisted complaint and submitted that originally the consignment comprised six skids (complainant had erroneously described skid as Pallets. Each skid contained twenty two packets. The complainant has erroneously described these packets as Bags. Each packet weighed about 22.7 kg. Skid is a type of container which has hard base and top, usually made of wood, but its sides are of polythene sheets. One skid contained 22 packets. The shipper, had itself opened two skids of its own volition, packed 24 packets in Pallet No. AKC 6042 BA and remaining 4 skids and 20 packets in the other Pallet No. PAG 53524 BA. Malaysian Airlines System (MAS for short) does not fly direct from Los Angles to Delhi. There is a change of aircraft at Kuala Lampur. The consignment was loaded on flight MH 93 of 13.12.1999 Ex Los Angles to Kuala Lampur. The consignment was planned to be carried Ex Kuala Lampur to Delhi by MH 190 of 15.12.1999. during the relevant period, flight MH 190 Ex Kuala Lampur to Delhi used to fly only twice a week i.e. on Sundays and Wednesdays. Since the specifications of the container AKC 6042 BA did not permit its loading on Aircraft Airbus 330, the aircraft used on MH 190, it had to be repacked into container No. AKE 3983 MH. At the time of actual loading of the consignment on the flight MH 190 of 15.12.1999, while container AKE 3983 MH got loaded, container PAG 53521 BA could not find space on the aircraft due to load constraints. Load carrying capacity of an aircraft is dependent upon a very large number of factors; two of which are weather conditions enroute (wind speed and direction and atmospheric pressure) and load balancing of the aircraft. The said container could be loaded on MH 190 dated 26.12.1999. The container AKE 3983 MH containing twenty four packets arrived at Delhi on 15.12.1999. These twenty four packets were deposited with AAI U/S 45 Custom Act vide segregation report bearing No. IGM 1426/99. Container PAG 53521 BA containing 4 skids and 20 packets arrived at Delhi by MH 190 dated 26.12.1999. these were also handed over to AAI vide segregation report baring IGM No. 14660/99 dated 26.12.1999. This part of the consignment was also delivered to the complainant on 06.01.2000 vide delivery order No. 2164. It is the requirement of Customs Act that all the incoming consignments are checked and verified by AAI AWB wise. As such all containers are opened by AAI to connect the contents thereof with the relevant AWBS and the conditions thereof with the relevant AWBS and the conditions thereof are duly recorded. Segregation report IGM 14660/99 EX MAS/5, only two packets were recorded as damaged. Since that total numbers of packets (132) and total weight of consignment delivered to the complainant was correct as per AWB, which fact is admitted by the complainant, and damage suffered by two packets was exterior, otherwise, there was no damage to the goods at all. While the customs authorities had not re-valued the consignment, it had remained in the custody, control and supervision of AAI from the time of entrustment to it till delivery thereof to the complainant. MAS has not neglected its duty to take care of the consignment. The consignment was delivered in full and without damage. OP denied that the consignment was opened and tempered with enroute and repacked into two lots as stated by the complainant. On 15.12.1999, only 24 packets out of 132 packets had arrived at Delhi, the remaining 108 packets (4 skids and twenty packets) had arrived at Delhi on 26.12.1999. it is denied 110 packets were received on 15.12.1999 and in damaged condition. The complainant had paid duty on whole of the consignment as stated by it; if the consignment had been damaged, the complainant would have demanded revaluation of the consignment and paid duty accordingly. The fact that the complainant had not got the consignment revalued leads to only one inference and that is that the goods were not damaged. The complainant had taken delivery of the consignment on 06.01.2000. MAS had received a notice from the counsel for the complainant. The consignment was delivered in full and without damage to the complaint. In order to enable the complainant (consignee) to clear the goods through customs, the AWB was got corrected with the consent of the shipper to read 48 pieces as against 2 pieces shown therein. The figure of 48 was arrived so as to conform it with segregation reports. Denying any deficiency on their part, prayed for dismissal of complaint. 4. Complainant filed rejoinder and denied allegations made in the written statement. Learned State Commission after hearing both the parties allowed complaint partly and directed OP to pay Rs. 75,000/- towards loss incurred on account of damage and delay and Rs.1,00,000/- for harassment, mental agony etc. against which, this appeal has been filed. 5. Heard learned Counsel for the parties finally at admission stage and perused record. 6. Learned Counsel for appellant submitted that inspite of no proof of requisite notice as per Act and inspite of no proof of damage to the articles and loss due to delay in delivery of goods, learned State Commission has committed error in allowing complaint partly; hence, appeal be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for respondent submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed. 7. Learned Counsel for appellant submitted that as per Clause 27 of 2nd Schedule of Carriage by Air Act, complainant was required to give notice to the OP within prescribed period and as complainant failed to deliver letter, learned State Commission committed error in allowing complaint. Learned Counsel for respondent submitted that requisite letter was given on 10.01.2000, i.e., within 7 days of receipt of remaining lot of consignment which bears stamp of OP. Perusal of written statement reveals that OP asked for producing original copy of the stamped letter, but it is not clear from the impugned order whether original copy was produced before State Commission or not, but learned State Commission has observed in para 23 of the order that complainant has placed on record notice dated 10.1.2000. In such circumstances, it can be presumed that complainant placed requisite documents before State Commission and learned State Commission rightly observed that due notice was given by complainant to OP as per rules and I do not find any infirmity in the impugned order to this extent. 8. Learned Counsel for the appellant submitted that as per delivery notes, there was neither any shortage nor there was any damage to the goods. Complainant has not claimed any amount towards shortage of the consignment, but has claimed only Rs. 26547/- towards damage caused to the goods. It is true that in delivery notes, it has not been mentioned that goods were damaged but when OP itself has admitted in its written statement that as per segregation report IGM14660/99, two packets were recorded as damaged, it can very well be inferred that at least some packets were damaged. It is true that complainant has not placed adequate evidence to prove how much damage was caused and how much loss was caused due to damage to the packets, but as complainant has claimed only Rs.26,547/- towards damage caused to the goods, I deem it appropriate to upheld order to this extent. 9. Complainant also claimed loss on account of delay in receipt of consignment to the tune of Rs.79,793/-. It is not disputed that there was delay in delivery of second consignment. Learned Counsel for appellant submitted that complainant could have taken at least delivery of first consignment just after its receipt and as he himself failed to take delivery in time. OP cannot be burdened for any liability. On the other hand, learned Counsel for the respondent rightly argued that as he submitted consignment in only one parcel and as OP suo moto converted into two packets, complainant could not have taken delivery of first lot and in such circumstances, it becomes clear that OP was responsible for causing delay in delivery of consignment. 10. Learned Counsel for appellant submitted that complainant has not adduced any evidence to prove damage by pleading what was the price on the due date of delivery and what was the price on the actual date of delivery and without that compensation could not have been granted. I agree to some extent with the submission of learned Counsel for the appellant and I deem it appropriate to reduce compensation to Rs.50,000/- against Rs. 75,000/- allowed by learned State Commission towards damage caused to the goods as well delay in delivery of consignment. 11. Learned Counsel for the appellant further submitted that no reasons have been given for allowing compensation of Rs.1,00,000/- towards harassment, mental agony, etc. Learned State Commission in the impugned order after referring judgment of Hon’ble Apex Court in Ghaziabad Development Authority Vs. Balbir Singh – (2004) 7 CLD 861 (SC) allowed compensation of Rs. 1,00,000/- without giving any reason for awarding huge compensation when only Rs. 75,000/- were allowed for damages and delay in consignment. In such circumstances, it would be appropriate to reduce aforesaid amount of Rs.1,00,000/- to Rs.50,000/- to meet the ends of justice, as admittedly there was delay in delivery of consignment. 12. Consequently, appeal filed by appellant is partly allowed and impugned order dated 5.9.2013 passed by the learned State Commission in Complt. No. 02/2002 – M/s. Dentsply India Pvt. Ltd. Vs. M/s. Malaysian Airlines is modified and compensation towards damages and delay is reduced from Rs.75,000/- to Rs.50,000/- and compensation for harassment and mental agony is reduced from Rs.1,00,000/- to Rs.50,000/- and respondent will be entitled to receive total Rs.1,00,000/- instead of Rs.1,75,000/-. In case appellant fails to make payment within 30 days, respondent will be entitled to receive interest @ 12% p.a. on aforesaid amount from the date of order till realization. |
