Beechins Creation Pvt Ltd vs T M A International

THIS complaint has been filed by Beechins Creation Pvt. Ltd. alleging deficiency in service on the part of the opposite party, Trans Mediterranean Airways (TMA).

UNDISPUTED facts of the case are that on 1st June, 1995, 420 cartons containing about 2 1,000 pieces of cotton knitted t -shirts were exported to Brussels, using the services of the opposite party airlines, for which a consideration of Rs. 2,84,405/ - was paid as air -freight charges and airway bill was prepared in this regard. It is the case of the complainant that normally the consignment should have reached the destination within 48 hours or within reasonable time but it could reach the destination only in September, 1995. Since the consignment did not reach the consignee, a telefax message was sent by the importer to the opposite party airlines, which is reproduced below: ''TELEFAX MESSAGE JPL/CG/95280 DU 22.6.1995 FROM: J.P. LECLAIRE TO: T.M.A. BETRUTH ATTN. IMPORT SERVICE REF. AWB NO. 270 2231 1671 BOM/BRU 420 CARTONS - 4825 KG We inform you herewith that we have heard anything about this goods at this day. However, it would have reached us since a long time ago ! This situation puts us in a very bad financial and commercial position. Indeed, cause of the very long delay in delivery, but customer has cancelled his order! We value our prejudice as follows: 5,000 pcs x BEF 65 = 325.000 BEF 3,000 pcs x BEF 74 = 222.000 BEF 14,000 pcs x BEF 76 = 1064.00 BEF Penalties for delay 1.611.000 BEFTx50% = 805.500 BEF Total 2,416.500 BEF We therefore ask you to please make the payment of this amount in our favour in order to solve this problem. In default of your position reaction, we will be obliged to take legal advice against your company which responsibility is totally involved in this matter.''

IT is the case of the complainant that what the complainant has been receiving from the opposite party is only assurances starting from l2th, June, 1995 onwards that the Airline is unable to move anything from Beirut to Brussels (the destination) on account of strike of airportgrounds staff, which went from middle of June 1995 to rniddle of September, 1995. Thus, this unnecessary delay is deficiency in service on the part of the opposite party. Since the matter was not getting settled and there was no satisfactory reply forthcoming from the OP, this complaint was filed seeking the following reliefs: Sl. Particulars Amount No. 1 Reimbursement of Consignees claim amounting Bfr 24,16,500.00 @ 1 Bfr INR Rs. 11587 (As per Annexure - E Debit note of Consignee Rs. 28,00,000.00 2. Prepaid Airfreight Charges to M/s. TMA (Annexure - A Copy of AWB) Rs. 2,84,405.00 3. Belgium country is Quota country and Exports to Belgium requires payment of Quota charges upfront at Rs. 1150 per pc (21000 pcs @ 11.50) Rs. 2,41,500.00 4. Loss of interest to be quantified from date of AWB i.e. 1.6.1995 @ 21% pa Rs. 9, 91,210. 00 5. Total loss of Rs. 43,17,115.00 plus interest @ 21% on all the heads under which compensation is granted till the date of payment.

WRITTEN versions were filed by the opposite party both to the original complaint as also to the amended complaint. In short their case is that under Rule 27 of the Second Schedule of Carriage by Air Act, the complainant has no locus standi to file a complaint as the goods .have since been handed over to the consignee in accordance, with the Airway Bill and there is no protest or complaint from the consignee. He also relies upon Rule 20 of the Second Schedule of the Carriage by Air Act, which reads as follows: ''The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.''

Rejoinder was filed by the complainant. Evidence by way of affidavits were filed by both the parties.

WE heard the learned Counsel for the parties at length and perused the material on record.

LEARNED Counsel for the opposite party drew our attention towards the two preliminary issues raised in their written version - first relates to applicability of Rule 29 of the Carriage by Air Act and second relates to applicability of Rule 27(ii) of the Second Schedule, i.e., filing a complaint within 21 days from which the luggage or goods have been placed at his disposal. After some discussion learned Counsel for the opposite party was candid enough to admit that he will not press for the applicability of Rule 29 in the instant case since this Commission had taken a contrary view and matter is now pending before the Honble Supreme Court. As far as the applicability of Section 27(2) is concerned, we find that this relates to be taken with the matter ''.............. in the case of damage..........'' This was not a case of damage and we will not like to read Section 27(2) as reproduced by the opposite party in its written version, in isolation. Be that as it may, this Commission had occasioned to deal with the similar question in the case of M/s. Universal Exports v. M/s. Trans Mediterranean Airlines and Anr., O.P. No. 164 of 1994, decided on 15.1.2004. wherein it was held that the time -limit prescribed in the Consumer Protection Act shall be applicable in the facts and circumstances of the case. Learned Counsel for the complainant tried to build up his case on two pleas one, that by their letter dated 12.6.1995, 27.6.1995, 28.6.1995 as well as 14.9.1995, the delay in delivery of the consignment is admitted which speaks volume about the deficiency on the part of the opposite party to deliver the goods within a reasonable time. The second leg of the argument is that there was no effort on the part of the opposite party to have the strike called off to enable the goods to reach in time. As per the learned Counsel for the complainant, the payment of the said consignment has not been received and as per tele -fax dated 22.6.1995, reproduced earlier, the consignee claims Rs. 28 lakhs, to which the complainant has assured the consignee that whatever money is received, as an outcome of this case, it shall be given to them. The complainant is also claiming money on the ground of refund of freight charges as well as the price paid by him for purchasing the ''export quota'' from someone as also the interest @ 21% on the consignment.

ON the other hand the learned Counsel for the opposite party states that it is admitted position that the consignment has been delivered, after some delay albeit to the consignee without any demur. In view of the provision of Rule 27(i) of the Second Schedule of the Carriage by Air Act, Airlines cannot be held liable, especially, in view of Rule 20 of the Second Schedule of the Carriage by Air Act.

DEALING with the second leg of the argument of the learned Counsel for the complainant, i.e., that OP should have taken steps to have the strike called off, we find it somewhat difficult to accept that the Opposite Party should have had the strike called off. We could be sure that as a business enterprise, it would have been in their interest to see the strike called off in order to enable them to operate the services and make money. It would be presumptuous on our part to deduce that they would not have made such an effort. It was the ground staff which had gone on strike. If it was, the Airport Authority Staff, the opposite party, which is an Airline, would have had no control over them. We are further supported in this view of ours by the judgment of the Honble Supreme Court in the case of Consumer Unit & Trust Society, Jaipur v. Chairman and Managing Director, Bank of Baroda, Calcutta, I (1995) CPJ 1 (SC)=1995 (2) SCC 150, in which it was held: '' ...........However, even though the depositors were deprived of the service of the Bank due to strike, the deficiency did not arise due to one of the reasons mentioned in Clause (g). The shortcoming in the service by the Bank did not arise due to failure on the part of the bank in performing its duty or discharging its obligations as required by law. Since the depositors were prevented to avail of the services of the Bank not because of any deficiency on the part of the bank but due to strike resorted to by the employees who almost physically prevented the Bank from functioning, the failure of the bank to render service could not be held to give rise to claim for recovery of any amount under the Act ......''

Dealing with the main plea taken before us by the learned Counsel of the complainant, we are constrained to observe that the learned Counsel for the complainant was unable to satisfy us as to what were the terms of the contract and how did the goods reach in the hand of the consignee without receiving the payment? According to him, he is not aware of these arrangements. There could be more than one possibility - one, that it could be on L.C. basis or release of document against payment basis or very unlikely but theoretically possible that the complainant was to receive the payment after receiving the consignment. If it was the former case, and the documents were to be get released from the bank, then the respondent cannot be held liable for delivering, the goods without proper authority as it is not the case of the complainant that OP released goods without authority. If it was the case that complainant was to receive the payment from the consignee on receipt of goods and he has not received the payment, then also no claim can be fastened against the opposite party. There is not a scrape of document from the consignee, staking claim for delayed delivery or non -acceptance. As per material on record, one can safely presume that the consignment was received by the consignee without any demur. Complainant heavily relies upon the document - a FAX - which has been reproduced earlier in toto. A perusal of that will show that this tele fax is addressed to the opposite party and not to the complainant, and more importantly this is dated 22.6.1995 much before the consignment was delivered to him. There is not an iota of evidence that any demand has been raised by the consignee for delayed delivery of consignment, subsequent to delivery, hence, in view of the provision of Section 27(i) (supra), we are unable to sustain this leg of the argument of the complainant.

DELAY in delivery in normal circumstances, even when time was not the essence of contract, could have been said to be deficiency on the part of opposite party. But, two points go in favour of the OP - one, that situation causing delay was beyond his control for which he is supported by judgment of Honble Supreme Court (supra) and secondly, alleged deficiency has not resulted in any loss/damage to the complainant. There is no evidence/proof in support of this. The importer merrily received the goods and did whatever to it. There is no complaint from the importer of any damage caused by delayed delivery or claiming any amount from the complainant on account of any deficiency/delay, leaving us with no option, but to deduce that at best it could be a case of no payment, even of this, we are not sure. Be that as it may - non -payment by importer to exporter does not become a consumer dispute within the meaning of Consumer Protection Act.

IN view of above, we see no merit in this Complaint and we find complainant has completely failed to prove any deficiency in service on the part of the opposite party. Petition dismissed.