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. 265/2002 Filed on 26.06.2002

Dated : 30.11.2010

Complainant:

Chaithanya Eye Hospital & Research Institute represented by its Managing Partner, Dr. K.G.R Nair, Kesavadasapuram, Thiruvananthapuram.

(By adv. K. Jayachandran)

Opposite parties:

1. Air India represented by its Managing Director, Air India Building, Nariman Point, Bombay.

    

2. The Regional Manager, Air India Office, Vellayambalam, Thiruvananthapuram.

(By adv. F. Eugine Fernandez)

This O.P having been heard on 31.08.2010, the Forum on 30.11.2010 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The allegations in the complaint are as follows: Complainant is a reputed hospital and Research Institute in the branch of Ophthalmology, maintaining a high status in Kerala. For the use of treatment, the complainant had placed an order with Carl Zeiss Germany for supply of Opthalmic equipments and the said company sent the equipments as per Airway Bill No. 098FRA7910-2310, a consignment consisting of four boxes. As per the terms and conditions agreed to by the seller company and Air India, the original date of shipment from Germany to Bombay was by air India 145/10 of 10.02.2002 and from Bombay to Thiruvananthapuram by Air India 945/13 of 13.02.2002. But actually the shipment was lifted only on 16.02.2002 which arrived at Thiruvananthapuram on 20.02.2002 only. But quite unfortunate to note that on the very next day i.e; on 21.02.2002, the Air India through its officers has informed that out of the four boxes in the said consignment only three boxes have reached Thiruvananthapuram and the main box is missing and its whereabouts is not known. Consequently the complainant was in contact with the opposite party namely Air India and the matter was being persuaded on the firm belief that the missing box was off loaded at some other port. Though the complainant has made frantic efforts to find out the missing box, the opposite parties were not able to locate and thereupon the complainant sent two letters requesting the opposite party to take immediate steps to locate the missing box. However it was only on 09.03.2002 the Air India has informed that the missing box has been traced and located in Bombay and on the next day further informed that the missing box has reached Thiruvananthapuram on 10.03.2002. Thereafter the complainant was able to take delivery of all boxes(entire consignment) only on 11.03.2002 without prejudice to his right to claim for damages sustained by the complainant on account of the delay in delivering the goods on different grounds. Complainant has sustained huge loss on account of the delay that has crept in, in delivering the consignment correctly and promptly according to the terms agreed upon by the Air India, on different heads namely by way of customs duty that was imposed with effect from 28^th February 2002 consequent to the introduction of New Finance Bill which the complainant was constrained to pay which comes to Rs. 2,11,189/-. It is pertinent to note that if the goods were delivered before 28.02.2002 the complainant would have got exemption from customs duty as the items are exempted under list 107 of the Customs Act. So also on account of the delay occurred in reaching the full consignment, the complainant was forced to pay a demurrage of Rs. 2,184/- which was solely due to the latches on the part of Air India in handling the consignment in the most irresponsible way while transporting the same to Thiruvananthapuram. The goods in question were imparted on LC at sight. Normally if the goods are cleared within 10 days of dispatch no penal interest need be paid to the Bank. But due to the delay in receiving the full quantity of goods(4 boxes) the payment to the Bank was delayed and consequent on that, the complainant was forced to pay penal interest amount of Rs. 31,543/- to the Bank. Thus on account of the defect, negligence and deficiency in service that was rendered by the opposite party, the complainant has sustained damage to the extent of Rs. 4,84,916/- which the opposite parties are liable to compensate in law and on terms agreed to in the contract concerning the transit in question especially when the complainant was able to take delivery on 11.03.2002 for the reason that the piece meal delivery is of no use as far as the complainant concern is concerned. Hence this complaint.

Opposite parties have filed their joint version contending as follows: The complaint is not maintainable. That no delay was occasioned in delivering the goods as alleged therein. In fact these opposite parties had undertaken to complete the carriage (i.e; delivery of the consignment) with reasonable despatch viz, within a reasonable time. On arrival at Trivandrum Airport, one of the four pieces of the consignment was not received and the same was sent by flight No. IC 167 of 11 March 2002 operated by Indian Airlines from Bombay to Trivandrum. The aforesaid one piece of consignment could not be delivered along with the other three pieces due to space constraints, that there was no agreement/contract/undertaking made by these opposite parties with the complainant that the goods shall be handed over within a specified time and the consignment was agreed to be carried on a subject to load basis. Moreover no time was fixed for the commencement or 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. Hence these opposite parties or its employees had not committed any wilful latches, negligence or wilful misconduct to the complainant in delivering the consignment mentioned supra. Rule 2.10.2 of Conditions of Contract clearly states that no carrier shall be under obligation to incur any expense or to make any advance in connection with the forwarding and reforwarding of the cargo except against prepayment by the shipper. Times shown in carrier's time tables or eleswhere are approximate and not guaranteed and form no part of the contract of carriage. No time is fixed for the commencement or completion of carriage or delivery of cargo. Carrier is not responsible for errors or omissions either in time tables or other representation of schedules. Carrier is authorized to carry the consignment without notice wholly or partly by means of surface transportation or to arrange such carriage. Rule 2.10.3 of the aforesaid conditions provides that no regulations/laws to the contrary are applicable in the event any flight is pursuant to 2.10.3.3 cancelled, diverted, postponed, delayed or advanced or is terminated at a place other than the place of destination or in the event the carriage of any shipment is so cancelled, diverted, postponed, delayed or advanced or is terminated, carrier shall be liable for gross negligence and wilful misconduct. In the event the carriage of the shipment or any part thereof is terminated, delivery thereof by carrier to any transfer agent for transfer or delivery or the placing of such shipment in storage shall be deemed complete delivery under contract of carriage and carrier shall be without any further liability. Moreover the applicant was fully aware of the proposed hike in customs duty before the hike was imposed as he was properly informed of the same by them. Hence it is crystal clear that these opposite parties are in no way liable to compensate the complainant. These opposite parties had not committed any latches in handling the consignment. The complainant had not sustained any loss in professional income due to any act of these opposite parties. These opposite parties had not committed any defect, negligence or deficiency in service to the applicant as alleged therein and hence they are not liable to pay any amount as compensation to the complainant.

Complainant has filed affidavit and has been examined as PW1, marked Exts. P1 to P22. Opposite parties had no evidence.

The issues for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?

2. Whether the complainant is entitled for any of the reliefs claimed in the complaint?

    

Points (i) & (ii):- As per Ext. P16 Airway bill issued by Air India Ltd, it is evident that a consignment containing 4 pieces have been sent to the consignee/complainant by M/s Carl Zeiss Jena GMBH. As per Ext. P1 it is seen executed on 05.02.2002 and the accounting information reads as “TOP URGENT! MUST GO AS BOOKED!”. According to the complainant, as per the terms and conditions agreed to by the seller company and Air India, the original date of shipment from Germany to Bombay was by Air India 145/10 of 10.02.2002 and from Bombay to Thiruvananthapuram by Air India 945/13 of 13.02.2002, but the shipment was lifted only on 16.02.2002 and arrived at Thiruvananthapuram on 20.02.2002 only and out of the 4 boxes only 3 had reached Thiruvananthapuram. But after frantic efforts by the complainant to find out the missing box, the opposite party was able to trace out the missing box only on 09.03.2002. The complainant has further pleaded that if the goods were delivered before 28.02.2002, the complainant would have got exemption from customs duty as the items are exempted under list 107 of the Customs Act.

The opposite parties contend that no delay was occasioned in delivering the goods as alleged and no time is fixed for the commencement or completion of carriage or delivery of cargo. That one piece of consignment could not be delivered along with the other pieces due to space constraints and unless otherwise agreed and subject to applicable laws, regulations and orders, carrier is authorized to determine the priority of carriage as between shipments and as between cargo and mail or passengers, carrier may likewise decide to remove any articles from a shipment at any time or place whatsoever and to proceed with the flight without them. That if as a result of determining such priority cargo is not carried or carriage thereof is postponed or delayed or if any articles are removed from a shipment, carrier will not be liable to shipper or consignee or to any other party for any consequence thereof. The opposite parties have further contended that as per Rule 2.10.2 of conditions of contract, no carrier shall be under obligation to incur any expense or to make any advance in connection with the forwarding and reforwarding of the cargo except against prepayment by the shipper.

In this context, the very pertinent point to be noted is that no such conditions are seen printed on the reverse side of the Airway bill. Furthermore opposite parties have not produced any records and they had no evidence at all. As per conditions 8.1 of Ext. P16 the carrier undertakes to complete the carriage hereunder with reasonable dispatch. The learned counsel for the opposite parties, while cross examining the complainant, PW1, had put a question that 'ഇപ്രകാരം delivery undertake ചെയ്യുന്നത് Carl Zeiss India-യുടെ request അനുസരിച്ച് Carl Zeiss Germany-യാണ്. അപ്പോള്‍ ഈ സാധനം എത്തിക്കേണ്ട പൂര്‍ണ്ണ ബാദ്ധ്യത ആര്‍ക്കാണ്(Q) Directly Carl Zeiss India (A)... താങ്കളുടെ complaint-ലോ affidavit-ലോ Carl Zeiss India-യെക്കുറിച്ചോ ഈ consignment book ചെയ്ത Germany-യിലെ കക്ഷിയെക്കുറിച്ചോ ഒന്നും തന്നെ പറഞ്ഞിട്ടില്ല എന്ന് പറയുന്നു(Q)എനിക്ക് equipment കിട്ടിയെന്ന് notification airway bill-ന്‍റെ copy വന്നു. എടുക്കാന്‍ പോയപ്പോള്‍ out of 4 boxes ഒരു box is missing. എനിക്ക് അയച്ചില്ലെങ്കില്‍ മാത്രമല്ലേ അവരെ കക്ഷി ചേര്‍ക്കേണ്ടതുള്ളൂ (A). In this case as per Exts. P2 & P3, the Air India has informed the complainant that their consignment has arrived at Thiruvananthapuram and has demanded Rs. 150/- each towards freight charges and as per Exts. P14 & P15, the Air cargo Terminal has received demurrage charges from the complainant. Hence it is in evidence that the opposite parties have received consideration from the complainant also.

Though no specific period has been mentioned for the delivery of the consignment, it has been recorded in Ext. P16 that “TOP URGENT, MUST GO AS BOOKED”. It is an admitted fact that the consignment had reached Thiruvananthapuram only on 20.02.2002 and 10.03.2002. The opposite parties have contended that the consignments could not be sent due to space constraints. Here the opposite parties have further contended that no period has been prescribed for delivery. If that being so, when there is an endorsement as to Top urgent as referred above, the consignment should have been delivered within a reasonable period. The delivery after about 24 days certainly cannot be termed as reasonable. Being a potential user of the service for consideration of the opposite parties, there is deficiency in service on the part of the opposite parties in not delivering the consignment in time.

In our view there is no justifiable reason for withholding the consignment and for the delay of one month in delivering the consignment immediately within reasonable period. The complainant is entitled to recover compensation for delayed delivery as the opposite parties have failed in their manner of performance which is required to be maintained as undertaken to be performed. While coming to the conclusion that delay in delivery beyond the reasonable period is deficiency in service, the loss caused to the complainant on account of such delay has to be looked into. The complainant has deposed that this equipment was the first equipment to be launched in Thiruvananthapuram and if it had arrived this would have been an added advantage. The complainant has pleaded that on account of the delay he had sustained a loss of Rs. 10,000/- per day. Taking into account the scope of the instruments which were brought down in the daily professional use of the complainant hospital and as such the complainant has sustained a loss in professional income to the tune of Rs. 2,40,000/- for a delay of 24 days for which the consignment was held up with Air India. As per Ext. P6, the complainant has produced evidence for the estimation of income derived from the 2 imported equipments for 24 days based on average income for the period from 27.03.2002 to 26.04.2002. The above said is supported with cash/credit receipts which were produced as agreed by the complainant while deposing as PW1 during cross examination. As per the said receipts P22 series and P23 series, the amount comes to Rs. 91,250/-. The complainant has thus established the loss suffered by him towards professional income.

Another aspect to be considered is the pleading of the complainant that he was constrained to pay Rs. 2,11,189/- towards customs duty that was imposed with effect from 28.02.2002 consequent to the introduction of new Finance Bill which according to the complainant would have got exempted if the goods were delivered before 28.02.2002 as the items were exempted under list 107 of the Customs Act. Here since delay has been established beyond doubt in as much as no convincing reasons are placed before us for the delay in delivering the consignment, and as the opposite parties have failed to justify their delay, and if such delay has caused the complainant to remit an amount of Rs. 2,11,189/- as evident from Ext. P4, towards customs duty which he would not have been constrained to pay if consignments were delivered in time, we find it reasonable, just and proper to direct the opposite parties to refund the said amount as the complainant had to pay the same solely due to the negligence, deficiency in service and callous attitude of the opposite parties.

As per Ext. P14 & P15 the complainant has made a payment of Rs. 105/- and Rs. 2,079/- respectively towards demurrage charges. But as per Ext. P2 point No. 2 reads as “please note that no demmurrage charges will be levied by the KSIE warehouse for 7 days from the date of arrival. We will not be responsible for accrual of demurrage, for any reason whatsoever”. Besides this in Ext. P16 clause 9: it has been stated that subject to the conditions herein, the carrier shall be liable for the goods during the period they are in its charge or the charge of its agent”. The Rules being so, the opposite parties have collected charges for 21 days as per Ext. P15 and for 3 days as per Ext. P14 which is against the printed conditions in Ext. P2 wherein 7 days are not seen excluded. As far as Ext. P14 is concerned, complainant is not liable to pay any amount towards demurrage since the same has been collected within 7 days. In the above circumstance we find that the complainant is entitled for refund of Rs. 1,105/- towards demurrage charges (Rs. 1000/- + Rs. 105/-).

In the light of the above discussions, the complaint is allowed. The complainant is found entitled for refund of Rs. 1,105/- towards demurrage charges, Rs. 91,250/- towards loss of professional income, refund of Rs. 2,11,189/- paid towards customs duty and for an amount of Rs. 20,000/- towards costs and compensation from the opposite parties.

In the result, the complaint is allowed. The opposite parties shall pay an amount of Rs. 3,23,544/- to the complainant within a period of one month from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of order.

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 30^th day of November 2010.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

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O.P No. 265/2002

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Dr. K.G.R Nair

II COMPLAINANT'S DOCUMENTS :

P1 - Airway bill dated 05.02.2002 issued by Air India.

P2 - Copy of Cargo Arrival Notice dated 21.02.2002

P3 - Notice dated 10.03.2002.

P4 - Customs Duty receipt dated 11.03.2002

P5 - Receipt of the payment.

P6 - Statement dated 27.01.2004.

P7 - Copy of lawyer's notice dated 22.03.2002.

P8 - Copy of letter dated 07.03.2002 from complainant.

P9 - Copy of letter dated 11.03.2002 from complainant.

P10 - Copy of e-mail dated 02.03.2002.

P11 - Copy of advocate notice dated 07.05.2002.

P12 - Copy of letter.

P13 - Report of Joint Survey on the missing box.

P14 - Cash receipt dated 07.03.2002

P15 - Cash receipt dated 07.03.2002

P16 - Staple documents above perforation.

P17 - Copy of letter dated 04.03.2002.

P18 - Copy of letter dated 26.02.2002 from complainant.

P19 - Effective rates of duty for goods of various chapters/headings.

P20 - Deed of partnership

P21 - Deed of partnership

P22 - Cash receipts.

P23 - Cash receipts.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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