1. Aggrieved by order of State Consumer Commission, UT of Delhi in Complaint Case No.83 of 1994, the Complainant, Pasco Enterprises had filed this appeal. The appellant/Complainant was in the business of export of carpets. The complaint related to export of a consignment of 71 carpets to a consignee in Hamburg, Germany. The cargo reached Hamburg, but the consignee did not take delivery. Eventually, the goods were disposed of in auction resulting in loss to the Complainant. He, therefore, filed the consumer complaint to recover Rs. 7.19 lakhs towards the value of the consignments and Rs.3.45 lakhs towards damages and other expenses. 2. The case of the Complainant before the State Commission was that over three months after the shipments of goods through the respondent Air France, the Complainant learnt in April,1993 that the consignment was still lying in the store of Air France at Hamburg Air Port. The Complainant requested the respondent to keep the consignment in their stores until some arrangement is made for the same. Towards this, an advance of storage charge was paid to the respondent on 2.4.1993. The respondents were also informed that one of the partners of the Complainant’s firm was on his way to Germany to arrange lifting of the goods. It is alleged that due to the negligence of the respondents the goods were allowed to be auctioned, in spite of payment for storage being made in advance. 3. The allegations were denied by the respondents, stating that: “As the shipment of the petitioner was not picked up by the consignee, a fact which was well within the knowledge of the petitioner and as the same shipment remained in the German Custom warehouse ad the German Custom impounded the same as the consignment was not picked up by the consignee.” 4. It is further claimed by the respondents that the Complainant was informed about it on 12.2.1993 and 19.2.1993. Thereupon, they were informed by the Complainant that the consignee will take delivery latest by 15.4.1993. When no delivery was taken, the Complainant was informed on 5.6.1993. The goods on reaching the destination, were in the Customs warehouse, which is exclusively controlled by the local government. The Airlines have no role to play. However, on the request of the Complainant, they were advised to send alternative disposal instructions together with total storage charges till 25.3.1993. It was categorically stated in the response of the appellant/Air France before the State Commission that:- “Under the rules & regulations, after waiting for a reasonable period and after 90 days from the date of arrival at the destination, the shipment is regarded as abandoned. Two reminders were already given to the complainant first on 12th February and the second on 19th February, 1993. The shipment was still lying undelivered. When the shipment is on collect basis, the air freight charges and all other charges due to the carrier, if any, are debited to the accounts of the consignor. In this case, no such alternative instructions also came and the Hamburg Customs Authorities impounded and sold the goods as the consignee had not taken the delivery till the end of May1993. The petitioner was duly informed on 5th June, 1993 by telegram.” 5. The State Commission did not accept this explanation of the complainant and concluded that— “Let us assume for the sake of arguments that the stand taken by the OP is correct. Still the fact remains that the goods reached Hamburg on 6ht January 1993 and the amount of Rs 85,000 was paid by the complainant till 15th April 1993. So the demurrage even if we calculate from 6th January 1993 to 15th April 1993 i.e. 100 days comes to be Rs 34,000 @ 44 DM per day. This demurrage charges till 25th March 1993 comes to DM 3432 but up to 15th April 1993 the complainant had paid DM 4400 equivalent to Rs 85,000……………….The circumstance of accepting Rs 85,000 towards advance storage charges up to 2nd April 1993 itself shows that the goods were under the control of the OP and had these goods not been in their control they would have informed the complainant on the 6th January itself that the goods have reached Hamburg and as per Rule 12 the OP was required to either return the consignment or seek instructions.” 6. The State Commission observed that as there was no communication between the parties from January 1993 till April 1993, the Op should either have returned the consignment to the complainant or sought further instructions from the latter. For this, the Commission directed the OP to pay the complainant compensation of Rs. 5 lakhs. 7. We have perused record of the case and heard the counsels for two parties. The counsel for the appellant Air France stress that their obligation under the contract was for delivery of goods from the consigners at Srinagar, India to the consignee at Hamburg, Germany, their obligation was fulfilled when the goods reached Hamburg on 6.1.1993. He argued that the entire problem has arisen from the solitary fact that the consignee, Commerz Bank, Hamburg failed to lift the consignment. The appellant is in no way responsible for the failure of the consignee to take the delivery. He also drew our attention to the provision in Rules 17-20 of the Carriage by Air Act which limits the responsibility of the carrier only to delay, damage or loss of goods. 8. Learned counsel for the respondent/complainant referred to the payment of Rs 85,000 to the appellant on 2.4.1993 which, as per the receipt issued by the appellant, was “on account of advance towards storage charge” and argued that having received this payment, the appellant was responsible for the custody of the consignment. 9. From the details above and the records of this case, we find that the entire case of the complainant before the State Commission was based on the payment of Rs 85,000 to the OP/Air France on 2.4.1993. But this payment is full three months after the dispatch of the consignment from India. No evidence was produced by the complainant/respondent to show that such an agreement was a part of the contract between the parties. Had there been such an understanding between the parties, this advance should logically have been paid in December 1992 and not in April 1993. The only piece of evidence, relied upon by the State Commission, is the receipt issued by the appellant for Rs 85,000. It was accepted as ‘advance towards storage charge’, which is explained by the appellant as payment to the German Customs authorities for the delay in lifting the consignment. In this background, we hold that the State Commission has erred in assuming the existence of such an agreement. 10. The State Commission has also held the appellant responsible for not seeking instructions from the respondent from January till April 1993. This too is substantially contrary to the records. The appellant had placed on record two communications sent by it to the respondent in this behalf on 12.2.1993 and 19.2.1993. These were not challenged by the respondent/complainant before the State Commission. Logically, had there been no such communication between the parties, there would have been no basis for the respondent to pay Rs. 85,000/- to the appellant. 11. From the examination above, we conclude that the findings and conclusions of the State Commission are not supported by the records and evidence before it. The impugned order is therefore set aside and the appeal of M/s. Air France in FA No.264/2006 is allowed. Parties shall bear their own costs. | 
