Date of filing : 28/04/2017
Order No. 9 dt. 29/01/2018
The case of the complainant in brief is that the complainant is a private limited company deals with the business of exporting 100% natural silk fabrics to the concerned purchasers of foreign countries. The complainant sent 100% natural silk fabrics to USA by way of export being invoice no. PSA/297 dated 28.03.2014. As per air way bill Bank of America was the consignee and Nippon Express Pvt Ltd was the carrier agent. The complainant paid the necessary charges. As per the terms of the agreement Air India was required to obtain no objection certificate from the consignee i.e. Bank of America. The o.p. without obtaining and verifying other related documents delivered the consignment to in favour of the buyer namely Butterfly Fabrics which caused breach of obligation on the part of Air India without accepting no objection certificate from the consignee bank. On the basis of the said fact the complainant filed this case alleging that there was deficiency in service on the part of the Air India Ltd. Accordingly the complainant filed this case praying for direction upon the o.p. for payment of compensation of Rs.7,98,625/- together with interest and compensation of Rs.5,00,000/- along with litigation cost of Rs.1,50,000/-.
O.p. contested the case by filing w/v and denied all the material allegations of the complaint. It was stated that a carriage agreement dated 31.03.2014 was entered into between the complainant as the shipper and the o.p as the carrier for the purpose of carriage of goods from Kolkata to USA. As per said agreement, the o.p was liable to carry 184.7 Kgs of cargo @ Rs.140/-per Kg plus taxes the amount of Rs.37,830/-. Both the parties to the said agreement bound by the terms and conditions of the said agreement and both the parties are also bound by Article 16 which deals with “Liability for damage” as well as Article 17 which deals with “limits of compensation”. The consignor is entitled to damages and/or compensation if any damage is suffered to the cargo in this case the complainant has not made any claim at any point of time. There was no contract between the seller and the buyer and as such the o.p. was not aware of the commercial terms and/or mode of operation of payment of consideration. Accordingly the carrier cannot be held liable for any damage if at all sustained by the complainant as such the o.p. is not liable for any deficiency in service. On the basis of the facts and circumstances stated above the o.p. is prayed for dismissal of the case.
On the basis of the pleadings of the respective parties following points are to be decided :-
- Whether the complainant booked the article for delivery in USA?
- Whether the o.p. without obtaining NOC delivered the goods to consignee?
- Whether such act caused financial loss to the complainant?
- Whether there was any deficiency in service on the part of the o.p.?
- Whether the complainant will be entitled to get any relief as prayed for?
Decision with reasons :-
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. Lawyer for the complainant argued that the complainant is a private limited company deals with the business of exporting 100% natural silk fabrics to the concerned purchasers of foreign countries. The complainant sent 100% natural silk fabrics to USA by way of export being invoice no. PSA/297 dated 28.03.2014. As per air way bill Bank of America was the consignee and Nippon Express Pvt Ltd was the carrier agent. The complainant paid the necessary charges. As per the terms of the agreement Air India was required to obtain no objection certificate from the consignee i.e. Bank of America. The o.p. without obtaining and verifying other related documents delivered the consignment to in favour of the buyer namely Butterfly Fabrics which caused breach of obligation on the part of Air India without accepting no objection certificate from the consignee bank. On the basis of the said fact the complainant filed this case alleging that there was deficiency in service on the part of the Air India Ltd. Accordingly the complainant filed this case praying for direction upon the o.p. for payment of compensation of Rs.7,98,625/- together with interest and compensation of Rs.5,00,000/- along with litigation cost of Rs.1,50,000/-.
Ld. Lawyer for the o.p.s argued that a carriage agreement dated 31.03.2014 was entered into between the complainant as the shipper and the o.p as the carrier for the purpose of carriage of goods from Kolkata to USA. As per said agreement, the o.p was liable to carry 184.7 Kgs of cargo @ Rs.140/-per Kg plus taxes the amount of Rs.37,830/-. Both the parties to the said agreement bound by the terms and conditions of the said agreement and both the parties are also bound by Article 16 which deals with “Liability for damage” as well as Article 17 which deals with “limits of compensation”. The consignor is entitled to damages and/or compensation if any damage is suffered to the cargo in this case the complainant has not made any claim at any point of time. There was no contract between the seller and the buyer and as such the o.p. was not aware of the commercial terms and/or mode of operation of payment of consideration. Accordingly the carrier cannot be held liable for any damage if at all sustained by the complainant as such the o.p. is not liable for any deficiency in service. On the basis of the facts and circumstances stated above the o.p. is prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant booked the article for sending to M/s Butterfly Fabrics in New York and as per rules no objection certificate was required to be obtained from the consignee i.e Bank of America. It is found from the materials on record that due to bonafide mistake, the procedure was not followed and the consignment duly reached its destination Air Port and by a bonafide mistake cargo delivery agent M/s Swissport wrongly delivered the consignment to M/s Butterfly Fabrics NY who was the actual beneficiary of the shipment, without taking a NOC from the Bank of America. The o.p. claimed that the beneficiary of the shipment M/s Butterfly have already made payment of USD 7,000 ( Seven thousand dollars) for the said consignment in the account of the complainant i.e. PSA Silk Pvt Ltd. The remaining payment will be made shortly. The complainant has not made PSA Silk Pvt Ltd as a party to this case to ascertain the fact that no payment was made to the complainant in respect of the claim made by the complainant against the o.p. The allegation made by the complainant relates to the loss sustained by the complainant could not be ascertained since the complainant has not made the consignee as a party to this case as well as the complainant did not disclose the amount received by them from the said PSA Silk Pvt Ltd. It appears from the record that the complainant has not made any claim regarding the damage sustained by the goods during the period of sending the consignment from Kolkata to New York by o.p. The judgement cited by the Ld lawyer for the complainant are not applicable in this case. since the services of the o.p. was availed of by the complainant we hold that the case is quite maintainable as per Consumer Protection Act, 1986. On considering the materials on record and the evidence as adduced by both the parties we hold that the o.p. as per the service requisitioned by the complainant was provided but the facts and circumstances do not inspire any confidence to us by holding that there was any deficiency in service on the part of the o.p. and the complainant will not be entitled to get any relief as prayed for.
Thus all the points are disposed of accordingly.
Hence, it is ordered,
that the CC no.154/2017 is dismissed on contest without cost against the o.p.
Supply certified copy of this order to the parties free of cost.
