JUSTICE V.K. JAIN, PRESIDING MEMBER

        Space Overseas Private Ltd., appellant in First Appeal No. 189 of 2009, received an order from M/s. T. Singh Brothers, Kuala Lumpur for supply of 18,872 Kgs. of cotton knitted fabric against a Letter of Credit issued by a May Bank, of Kuala Lumpur for an amount of US $ 65,515.95 on the advice of Canara Bank.  The goods ordered by M/s. T. Singh Brothers were to be delivered in Rangoon, Myanmar.  The exporter/complainant Space Overseas Pvt. Ltd. handed over the goods to Thai International Airways Ltd., appellant in First Appeal No. 384 of 2009 for being delivered at Rangoon.  The goods were consigned by the exporter to Malayan Banking Berhad and not to the purchaser.  Four airways bills were issued to the complainant-Space Overseas Pvt. Ltd. in respect of the aforesaid goods.  According to the complainant, the goods were to be delivered by Thai International Airways Ltd. only on presentation of the original documents by the buyer. The buyer could have obtained those documents from the collecting bank after deposting the price of the goods with it.   The grievance of the complainant is that contrary to the instructions issued to it and the contract between the parties, the carrier, Thai International Airways Ltd., released the goods to the purchaser though it was required only to intimate the purchaser of the arrival of goods in Rangoon.  In fact, when enquired about the consignment, the carrier vide its letter dated 24.12.1998 informed that the goods had been delivered to the consignee.  However, later, vide letter dated 07.04.1999, the carrier claimed that according to the rules of the Airport Authority at Yangon International Airport, the cargo had to be unloaded from the aircraft and handed over to the Myanmar Customs Warehouse and accordingly, they had delivered goods to the custom authorities and handed over the airway bills to the consignee or his agent.  It was further stated in the said letter that carrier had notified M/s. 7-star Co. Ltd., who acts on behalf of the buyer M/s. T. Singh Brothers to obtain those airway bills with other necessary documents for their own custom clearing process at the custom headquarter.

2.     Claiming deficiency on the service provided by the carrier, a complaint was filed before the State Commission, Delhi claiming a sum of US $ 20,036.92 (equivalent to Rs.9,50,752/- at the exchange rate of Rs.47.45 per dollar as on 08.11.2000),
Rs.1,52,120.00 towards interest @ 8% per annum on the aforesaid amount and Rs.9,00,000/- as compensation for the mental agony and suffering. 

3.     The complaint was resisted by the carrier; inter alia  on the ground that the goods were required to be delivered at Rangoon as per rules and regulations prevailing there and the documents relating to the goods were corrected delivered to the notified party, M/s. 7-star company Pvt. Ltd. 

4.     Vide impugned order dated 27.01.2009, the State Commission held that the carrier had been negligent by not taking due care and had caused financial losses to the complainant.  The State Commission however, awarded only a sum of Rs. 50,000/- as compensation to the complainant, which included the costs of litigation.  Being aggrieved form the quantum of compensation awarded to it, the exporter-Space Overseas Pvt. Ltd. has filed the First Appeal No.189 of 2009.  Being aggrieved from the compensation awarded against it, the carrier has filed First Appeal No. 384 of 2009.

5.     A perusal of the Airway bills clearly shows that the complainant, Space Overseas Pvt. Ltd. was the consignor of the goods; whereas M/s. Malayan Banking, Berhad was the consignee.  M/s. T. Singh Brothers was the party to which the arrival of goods was to be notified; whereas 7-star Co. Ltd. was the agent of the T. Singh Brothers.

        Though the case of the complainant is that the goods in question were delivered to the buyer M/s. T. Singh Brothers, the documents produced by the carrier-Thai International Airways Ltd., clearly show that the goods were delivered by the carrier to the local customs authorities at Rangoon as per the rules and regulations applicable in the said place.  The letter dated 15.02.2002, written by the Deputy Director, Customs Department, Myanmar to Mr. J.P. Singh, Cargo Sales Manager of Thai International Airways Ltd. would show that as per the Customs General Import/Export Procedures prevalent at Rangoon after landing of flights, the airlines were to submit the air cargo manifest to the customs and cargo were to be moved to the custom warehouse, where the officials would check the cargo against the manifest and keep storing the cargo.  After the importer or his legitimate agent furnished the relevant documents to the customs and finished the customs clearance procedures, the officer in charge of the customs warehouse would issue the delivery orders.  Therefore, no fault can be found with the carrier delivering the goods to the customs authorities at Rangoon.  As per the General Conditions of contract between the complainant and Thai Airways International Ltd., the carrier was required to comply with all government regulations of any country to, from, through or over which the goods might be carried, including those relating to the packing, carriage or delivery of the goods.  Therefore, the carrier, in my view was fully justified in delivering the goods of the customs authorities at Rangoon. 

Had the carrier stopped delivering the goods to the custom authority at Rangoon, it would not have been guilty of any deficiency in providing services to the complainant, but admittedly, the carrier delivered the documents i.e. airways bills to M/s. 7-Star company Ltd., which was the agent of the purchaser M/s. T. Singh Brothers and not of the consignee Malayan Banking Berhad.  Had T. Singh Brothers been the consignee, the carrier would have been justified in delivering the airway bills to them or their agent since they were obliged to deliver the goods to the consignee, but T. Singh Brother not being the consignee, M/s. 7-star Co. Ltd. cannot be said to be agent of the consignee.  Therefore, the carrier, Thai Airways International Ltd. is guilty of deficiency in providing services by handing over the airway bills to M/s. 7-star Co. Ltd.  As noted earlier, as per rules applicable in Rangoon, the goods would have been delivered by custom authorities at Rangoon only on production of the documents such as airway bills.  Had the carrier not delivered the airway bills to M/s. 7-Star Co. Ltd., the purchaser would never have been able to take delivery of the goods from the custom authorities, without first making payment to the Bank to which the documents were sent by the complainant through its banker.  The delivery of airway bills to M/s. 7-star Co. Ltd., can by no means be considered as delivery to the consignee.

6.     It was contended by the learned counsel for the carrier that as per the rules and procedures applicable in Rangoon, the importer had necessarily to be the consignee in the airway bills. If that was so, the carrier should not have accepted the airway bills showing Malayan Banking Berhad as consignee.  Having accepted the goods for being delivered at Rangoon, on the strength of the airway bills showing Malayan Banking Berhad to be the consignee, the carrier cannot escape its liability towards the complainant.  Had the carrier informed the complainant at any point of time that it would be handing over the airway bills to the agent of the purchaser despite the purchaser not being the consignee of the goods, the complainant in exercise of its right under Clause 12 of Schedule 2 of the Carriage by Air Act, 1972 could have withdrawn the cargo at any time before it had reached Rangoon.  Alternatively, the carrier could have informed the complainant that it was impossible for it to transport the goods to Rangoon without the purchaser being shown as the consignee in the airway bills.  In that case, the complainant would not have handed over the goods to the said carrier since the contract between the complainant and the purchaser envisaged delivery of goods only on payment to the banker of the complainant.

7.     It was next contended by the learned counsel for the carrier that in view of the Regulation 30 contained in Schedule II of the Carriage by Air Act, 1972, the claim was time barred and the right of the complainant to damages stood extinguished since the complaint was not filed within two years reckoned from the date of arrival at the destination.  The contention was repelled by the learned counsel for the complainant, who submitted that the Regulation 30 would not apply to the present case and in any case, the date of the arrival of the goods was intimated to the complainant for the first time on 24.12.1998 and computed from that date, the complaint was within the limitation prescribed in Regulation 30 contained in Schedule II.

8.     Regulation 30 in Schedule II of the Carriage by Air Act, 1972 reads as under:

        “30 (1)      The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

        (2)    The method of calculating the period of limitation shall be determined by the law of the Court seized of the case”.

It would be seen from the bare perusal of the aforesaid Regulation that its application is not confined to human being and it is equally applicable to the goods carried by a carrier.  Therefore, it is necessary for a person seeking damages from a carrier to initiate inaction in accordance with law within two years from the date on which the goods arrive at their destination unless this is a case where the aircraft did not arrive at all or the carriage was stopped before it arrived at the destination.  A perusal of the documents filed by the carrier would show that out of four consignments one arrived in August, 1998 and other one arrived in September, 1998.  Having been filed more than two years after arrival of the aforesaid two consignments, the complaint, to the extent it pertains to those two consignments, is barred by limitation prescribed in Regulation 30 and the right of the complainant to seek damages in respect of those consignments stands extinguished.  However, the claim in respect of the remaining two consignments is within limitation, the complaint having been filed within two years of the arrival of the goods at Rangoon.

9.     It was lastly contended by the learned counsel for the carrier that in view of the terms and conditions on which the goods were carried, the liability of carrier cannot exceed 250 Francs (US $ 20) per Kg. of the goods.  Considering the weight of the goods covered by the two consignments, claim in respect of which is within limitation and does not stand extinguished, if computed @ US $ 20 per Kg. (equivalent to Rs.9,490/- at the exchange rate at 47.45 per dollar as on 08.11.2000), the claim amount would be more than the amount of Rs.9,50,752/- sought by the complainant.  Therefore, the principal amount claimed by the complainant cannot be said to be exaggerated. The complainant having been deprived of the aforesaid amount, it is also entitled to be compensated in the form of interest.  The complainant has claimed interest @ 8% per annum, which by no means can be said to be unreasonable.

10.   Though, the State Commission has awarded only a sum of Rs.50,000/- to the complainant, the impugned order does not disclose as to why the State Commission despite returning of finding that there was a deficiency on the part of the carrier in providing services and that it had caused financial loss to the complainant by not taking due care, chose to award compensation of only Rs.50,000/- as against the amount claimed by the complainant.  I see no justification for not awarding the principal amount of Rs. 9,50,752/- along with interest amount of Rs.1,52,120/- as on 08.11.2000.

11.   For the reasons stated herein above, FA/384/2009 filed by the Thai Airways International Ltd. is hereby dismissed, whereas FA/189/2009 filed by Space Overseas Pvt. Ltd. is allowed to the extent that the carrier Thai Airways International Ltd. is directed to pay a sum of Rs.9,50,752/- towards the principal sum and Rs.1,52,120/- as interest upto 08.11.2000, to the complainant.  The respondent carrier shall also pay pendente lite and future interest @ 8% per annum on the principal amount of Rs.9,50,752/- if the payment is made within two weeks from today.  It shall however, pay pendente lite and future interest @ 12% per annum in case the entire amount in terms of this order is not paid within two weeks from today.

        Both the appeals stand disposed of accordingly.