Per Mrs. S. P. Lale, Hon’ble Member
The Complainant – M/s. Surendra Engineering Corporation; has filed this consumer complaint, as against the Opposite Party No.1 – M/s. International Cargo Carriers Pvt. Ltd.; and the Opposite Party No.2 – M/s. Airlift (India) Pvt. Ltd., alleging deficiency in service for non-delivery of the consignment to the consignee at Denmark, valued at 31150 US$.
[2] According to the Complainant, on 20/12/1997, the Complainant had dispatched six packages containing spare-parts from Mumbai to Copenhagen NV Denmark, valued at 31150 US$. The said consignment was booked through the Opposite Party No.2 with the Opposite Party No.1, who had in turn issued an airway bill dated 20/12/1997. Said consignment was to be collected by the consignee – M/s. Danish Overseas Procurement Agency Ltd., Denmark. However, according to the Complainant, said consignee refused to take delivery of the said consignment. The Complainant further submitted that during the period Jan-1998 to April-1998, the Complainant had regularly held discussions with the officials of the Opposite Parties and assured them that the Complainant would pay the storage charges and further informed the Opposite Parties that the Complainant was in process of arranging for an alternate buyer for the said consignment who would also take delivery of the consignment from the destination. The Complainant further stated that vide letters dated 20/4/1998 and 20/5/1998, the Opposite Party No.1, for the first time, informed the Complainant that the consignment would be treated as abandoned and thereafter would be subject to the laws prevailing at the destination of the consignment i.e. Denmark. The Complainant further stated that vide a fax message dated 21/5/1998, informed that they had yet to receive the airway bill from their bankers and would forward the same alongwith the name of the new consignee, no sooner they receive the said airway bill from their bankers. According to the Complainant, to their utter shock and surprise the Complainants were informed that the said consignment had been destroyed according to Danish law since the consignment had remained undelivered for a period of more than four months. Further, according to the Complainant, the Opposite Party No.1, without assigning any justifiable reason for their earlier statement and/or the reason for the destruction of the said consignment, arbitrarily demanded an amount of DKK 3382.25 from the Complainant. Thereafter, the Complainant vide a letter dtd.24/9/1998, addressed to the General Manager of the Opposite Party No.1, lodged a claim for the cost of shipment i.e. U.S. $31,150 alongwith 18% interest thereon. The Complainant stated that on the contrary, the Opposite Party No.1 had demanded storages charges for the said consignment but had on no occasion intimated the Complainant that the said consignment would be destroyed and it was only for the first time on 14/9/1998, the Complainant was informed regarding the same. Therefore, the Complainant alleged that the entire approach/attitude of the Opposite Parties smacks of malafide besides being deficiency in service on the part of the Opposite Parties as per Section-2(1)(g) of the Consumer Protection Act, 1986. Hence, this complaint before the State Commission and the Complainant has prayed for following relief:-
“
(a) To hold and declare the opposite parties guilty of deficiency in service as per provisions of the said act;
(b) To direct the opposite parties to reimburse the complainant an amount of 31150 U.S.$ = `13,28,548.00 alongwith 18% interest thereon from the date of destruction of the said consignment till payment of the same;
(c) To direct the opposite parties to pay an amount of `50,000/- each towards cost, compensation and mental agony suffered/incurred by the complainants;
(d) For such other and further reliefs as the nature and circumstances of this case may deem fit and proper.”
[3] The Complainant has filed affidavit alongwith documents in support of its claim.
[4] The Opposite Party No.1 filed its written version and contested the claim of the Complainant. The Opposite Party No.1 admitted that on 20/12/1997, the Complainant had dispatched a consignment, which was booked through the Opposite Party No.2 and the said consignment was to be delivered to M/s. Danish Overseas Procurement Agency Ltd., and the said consignee had refused to take delivery of the said consignment. It is further pleaded by the Opposite Party No.1 that the Complainant thereafter informed the Opposite Party No.1 that the Complainant would like to change the name of the consignee and undertook to furnish the necessary documentation alongwith the name of the new consignee. However, according to the Opposite Party No.1, the Complainant failed to do so within the time limit prescribed by Danish laws in regard to disposal of cargo in their country. Since the delivery of the consignment was not accepted by the consignee, named in the airway bill, the Opposite Party No.1 vide a notice dtd.8/1/1998, intimated the same to the Complainant. Therefore, the Opposite Party No.1 pleaded that there was no deficiency in service on its part.
[5] The Opposite Party No.2 also filed its separate written version of defence and pleaded that as per International Air Transport Association (IATA) Rules, the privity of contract of carriage is between the Complainant – M/s. Surendra Engineering; and the carrier – M/s. Kuwait Airways; accredited member of IATA and M/s. International Cargo Carriers Pvt. Ltd., being the general sales agent of Kuwait Airways. It is further contended that the Complainant has not approached this State Commission by not making necessary parties as the Opponent to the complaint viz. Kuwait Airways, whom the Complainant had rightly addressed a claim for destroyed cargo on 24/9/1998 and 7/10/1998. According to the Opposite Party No.2, the Complainant is totally responsible for the losses inasmuch as it is the Complainant who had chosen M/s. Danish Overseas Procurement Agency Ltd., who has refused to take the delivery of the consignment. The Opposite Party No.2, further pleaded that it is a private limited company, carrying on the business of Freight Forwarding and Customs Clearing and it is an approved International Air Transport Association (IATA) cargo booking agency. According to the Opposite Party No.2, once the consignment is loaded into the aircraft, the responsibility and the service expected of the Opposite Party No.2 comes to an end. Therefore, there is no negligence and deficiency in service on the part of the Opposite Party No.2. Since the consignment has reached the destination in a good condition, the Opposite Party No.2 cannot be held responsible for any deficiency in service and finally, the Opposite Party No.2 prayed for dismissal of the complaint.
[6] Heard Ms. Rashmi Manne – Learned Advocate; proxy for Mr. U. B. Wavikar – Learned Advocate for the Complainant; Mr. Ganesh Rao – Learned Advocate for the Opposite Party No.1; and Mr. T. Radhakrishnan – Learned Advocate for the Opposite Party No.2.
[7] It is an admitted fact that the Complainant had booked a consignment with the Opposite Party No.1, through the Opposite Party No.2, for its destination at Denmark. The Complainant has alleged that the Opposite Party No.1 abandoned and destroyed the consignment without intimating the Complainant.
[8] After reaching the said consignment at destination, the Opposite Party No.1 immediately sent a notice of failing to take delivery of the consignment, for the reason that the consignee refused to take delivery of the shipment and requested for further instructions, vide a notice dtd.8/1/1998 and also stated that the outstanding charges as on 7/1/1998 were to the tune of an amount of DKK 907.50 and DKK 182.00 per day towards storage. Below the said notice dated 8/1/1998, it is stated as follows:-
“Please note that shipments are subject to be auctioned or can be abandoned by the local authorities according to the Local Government Regulations existing at the place of destination in case shipments are not picked up by the Consignee within the time specified by their Laws. In such cases we shall not be able to do anything in the matter.”
[9] This clearly goes to show that the Complainant was aware of the situation that the goods could be disposed off as per the Local Government Regulations. The Opposite Party No.1 waited from 8/1/1998 and on 14/9/1998, informed the Complainant about abandoning of the shipment as per government regulations. Opponents have no control on the action of local government. Thus, there was no deficiency in service on the part of the Opposite Party No.1.
[10] The Opposite Party No.2 herein is a clearing agent and after getting clearance and ensuring that the consignment is loaded and once the consignment is loaded into an aircraft, the responsibility of the Opposite Party No.2 is over. It is not the case of the Complainant that the consignment had not reached its destination in a good condition. Once the consignment had reached its destination, the responsibility of the Opposite Parties Nos.1 & 2 comes to an end. The consignee – M/s. Danish Overseas Procurement Agencies; who has not been made a party to the present complaint proceeding, had refused to accept the delivery of the consignment, and therefore, the Complainant ought to have filed a complaint as against M/s. Danish Overseas Procurement Agency Ltd., Denmark; for not honouring their commitment and would have claimed damages against the same. If, the consignee refuses to accept the delivery of the consignment and the local authority acted as per law of their nation, how the Opposite Parties Nos.1 & 2 can be held deficient in discharging their services? Therefore, we hold that there was no deficiency in service on the part of the Opposite Parties Nos.1 & 2.
In the result, we proceed to pass the following order:-
ORDER
The complaint stands dismissed.
No order as to costs.
Pronounced on 6th May, 2011
kvs
