PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Complainant to impeach the Final Order/judgement dated 29.01.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, Ld. District Forum) in Consumer Complaint No. 154/2017 whereby the complaint lodged by the Appellant under Section 12 of the Act was dismissed on contest without any order as to costs.

          The Appellant herein being Complainant lodged the complaint before the Ld. District Forum stating that  being a private limited company deals with the business of exporting 100% natural silk fabrics to the concerned purchasers of different countries on 28.03.2014 they sent 100% natural silk fabrics to USA by way of export being Invoice No.PSA/297.  As per Air Way Bill, the Bank of America was the consignee and Nippon Express Pvt. Ltd. was the carrier agent.  As per the terms of the agreement, Air India was required to obtain ‘no objection’ certificate from the consignee i.e. Bank of America.  However, the OP (Air India) without obtaining and verifying other related documents delivered the consignment in favour of buyer namely Butterfly Fabrics which caused breach of obligations on the part of Air India without accepting no objection certificate from the consignee Bank.  Therefore, on the allegation of deficiency in services on the part of Air India, the appellant approached the Ld. District Forum with prayer for several reliefs, viz. (a) a direction upon OP/respondent to pay the amount in terms of US $ 12420.20 which amounts to Rs.7,98,625/- INR together with interest @18% p.a. from 28.03.2014; (b) to pay compensation of Rs.5,00,000/-; (c) to pay Rs.1,50,000/- as litigation cost.

          The Respondent/Opposite Party by filing a written version denied all the materials allegations contending inter alia that the complainant  has received the payment for the consignment from the buyer and has not incurred any loss whatsoever and as such the complaint should be dismissed.

          On perusal of the record and the documents filed by the parties, the Ld. District Forum by the impugned order dismissed the complaint with an observation that the facts and circumstances do not inspire the confidence by holding that there was deficiency in services on the part of opposite party and thereby dismissed the complaint.  Being aggrieved and dissatisfied with the said order, the complainant has come up in this Commission with the present appeal.

          Mr. Bratindra Narayan Roy, Ld. Advocate for the Appellant has assailed the impugned order by submitting that in consequence breach of obligation on the part of Air India, inspite of delivery of goods/consignment to the buyer without accepting ‘no objection’ certificate from the consignee Bank regarding payment of value of goods so supplied, the appellant did not receive any consideration in respect of the consignment from the consignee and has to suffer huge financial loss.  Inviting our attention to a letter given by the Advocates and Solicitors of Air India dated 13.07.2015, he has submitted that the respondent has admitted that due to bonafide mistake as per rule NOC was required to be obtained from the consignee i.e. Bank of America but it has not been followed.  Ld. Advocate for the appellant has also drawn our attention to one e-mail dated 12.08.2015 where it has been informed by one Manager-C (Cargo S & M), Kolkata where it has been mentioned that it has been decided by the competent authorities to pay the remaining amount of US $ 5420.28 in equivalent INR from Kolkata and as such the Ld. District Forum has proceeded wrongly by dismissing the complaint without granting the relief as mentioned in the prayer clause of the petition of complaint.

          Per contra, Mr. Abhik Chakraborty, Ld. Advocate for the Respondent has contended that the goods have been delivered without suffering any delay and/or damages to the rightful buyer as recorded in the concerned Air Way Bill No.098-80022386 and therefore, the carrier (Air India) cannot be held liable if the buyer refuses to make payment for the goods to the seller, despite due receipt to the same.

          We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.

          At the outset, it would be pertinent to record that a carrier’s liability is limited to the contract of carriage entered into between the parties and is governed by the provisions of the Indian Carriage by Air Act.  The general conditions of Carriage for passengers and baggage indicate that Rule 17.1 (d) provides –

          “(d) The liability for destruction, loss, damage or delay with respect to cargo is limited by Montreal Convention, 1999.  Such liability is limited to 17 SDR per kilogram of cargo”.

          Undisputedly, on 31.03.2014 a Carriage Agreement was entered into between the appellant as the shipper and the respondent as the carrier for the purpose of carriage of goods from Kolkata to New York.  As per the agreement, the respondent was liable to carry 184.7 Kgs. of cargo @ Rs.140/- per Kg. amounting to prepaid freight of Rs.25,900/- + taxes amount to a total of Rs.37,830/-.  As a matter of fact, the appellant has admitted that the goods have been delivered without any damages and/or delay to the buyer namely Butterfly Fabrics Inc and therefore, the very purpose of delivering the goods/materials being properly made without any apparent negligence.

          The Appellant has failed to produce any document whatsoever that the consignee Butterfly Fabrics Inc did not make payment against delivery of goods.  In fact, the appellant has failed to show any correspondences to that effect.  The respondent Air India had only liability to deliver the goods without any delay to the consignee in a safe condition.  There is no allegation whatsoever that the articles could not reach in destination in time or that there was any loss or damage in respect to the said consignment.

          The only stand taken by the Appellant that prior to sending articles to the consignee, the respondent before delivery of goods did not obtain ‘no objection’ certificate from the consignee i.e. Bank of America.  The respondent has admitted the bonafide mistake on the part of them but it does not necessarily mean that there was any deficiency in rendering services.

          The Ld. District Forum has rightly observed – “The allegation made by the complainant relates to loss sustained by the complainant could not be asceretained 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 consignee.  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 OP”.

          We are in agreement with the above observations made by the Ld. District Forum and the Ld. District Forum could have dismissed the complaint simply on the ground that the complainant has not produced all the relevant documents for ascertaining the actual state of affairs.  At the cost of repetition, we are constrained to record that the appellant should have placed all the documents in between them and the consignee in order to ascertain whether the consignee has paid the value of the goods or not and if not, the actual amount payable by them due to non-obtaining of ‘no objection’ from the Bank of America.  Since the appellant has not produced all the cards before the Ld. District Forum, the Ld. District Forum should have dismissed the complaint simply on the ground of withheld of vital document in order to gain advantage on the other side.  In AIR 1994 SC 853 [S.P. Chengalvaraya Naidu (dead) by LRs – Vs. – Jagannath (dead) by LRs & Ors.] where the Hon’ble Supreme Court in Paragraph-8 has observed –

     “...... a litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation.  If he withholds a vital document in order to gain advantage on the other side, then he would be guilty playing fraud on the Court as well as on the opposite party”.

     After giving due consideration to the submission made by the Ld. Advocates appearing for the parties and on going through the materials on record, though we are not agree with the reason of the Ld. District Forum in dismissal of the complaint, yet we concur the view of Ld. District Forum in dismissing the complaint on the ground that there was no negligence or deficiency of services on the part of respondent in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act since the appellant has failed to show by submitting the documents that they have yet to received the amount from the consignee in respect of delivery of goods through the respondent.

       In view of the above, the appeal is dismissed on contest. However, there will be no order as to costs.

       The impugned final order/judgement is hereby affirmed.

          The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.