Delhi

New Delhi

CC/539/2007

Ashish Rugs - Complainant(s)

Versus

M/S. Air India Ltd. - Opp.Party(s)

28 Nov 2018

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

                                     (DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

        NEW DELHI-110001

 

 

Case No.C.C./539/2007`                                                         Dated:

In the matter of:

M/s Ashish Rugs,

International, Chauri Road,

Bazar Sardar Khan, Bhadohi,

District Sant Ravi Das Nagar,

221401,through its Proprietor,

Smt. Phool Wati Devi

…… Complainant

 

 

Versus

1.            Air India Ltd.

Through Chairman & Managing Director,

Registered Office 3^rd floor, tower-III

Jeevan Bharti 124, Connaught Circus,

New Delhi-110001.

 

2.             Air India,

Through Manager, Cargo Sales,

ASD Building, M.R. Complex,

Indira Gandhi International Airport,

Terminal-2, New Delhi-110010.

 

3.          Natwest Bank,

27, High Road,

Chadw-II Health, Romford

Exxes, RM6 6QD, UK.

 

 

4.          Bank of India

Station Road

                  Bhadohi-221401

Dist. Sant Ravi Das Nagar

                                                                                                                               ……. Opposite party

             

  NIPUR CHANDNA - MEMBER

ORDER

This matter was remanded back by Hon’ble State Commission vide order date 27/07/2018 in F.A. No. 04/2015 setting aside the final order dated 25/04/2014 passed by the predecessor Bench of this Forum. It was directed that this Forum decide this claim afresh after giving opportunity of hearing to both the parties within 3 months of the receipt of the order. Initially the complaint was filed in 2007 against Air India OP1 &2 and thereafter two OPs were arrayed after the order dated 11/09/2009 of the Forum and the OPs were noticed.

 In brief, complainant booked a consignment of 5 rolls knitted silk and woollen carpet bearing no. 2985 to 2689 covered under the invoice no. 881 dated 12/03/2006 for effecting the carriage by air with further instruction to deliver the consignment to the consignee i.e. Natwest Bank.27, High Road, ChadweII, Health, Romford, Essex, RM6 6QD, UK and to deliver documents against payment/ acceptance under bank/LC. It is stated that apart from general rules and stipulations, the complainant clearly instructed that in no case the consignment was to be delivered to the notified party without obtaining the original documents from him. and M/S Bax Global India Pvt. Ltd. Bhadohi received the said consignment on behalf of respondent and issued an Air ways bill dated 13/03/2006. The total invoice amount of consignment was 25487.94/- US$.   The documents of the consignment were presented  by the bankers of the complainant to forward all relevant documents  including Airway Bill with instructions  to the drawee’s bank i.e. Natwest Bank  (op-3) to deliver the documents against payment.  The agent M/S Bax Global India Pvt. Ltd. informed the complainant through & marl attaching therewith copy of delivered order dated 24/03/2006  issued by the OP-3 which reads as below:-

“Ref: Airway bill # 098-84643252 Handmade wool and silk carpet, 5 packages 230 Kgs. Flight number All 11/20 March 2006.

Please release the above goods to the order of Woven Art Gallery Ltd. or their agent.”

Upon information for OP-3, the complainant asked for the propriety of the delivery without obtaining the original Air Bill, but no satisfactory reply was received from Air India/OP. On enquiry by the banker of the complainant about issuance of the letter dated 24/03/2006 for release of the consignment to the consignee, the OP-3 categorically denied to have issued such letter.  On pursuing the matter with the OP1&2 and also Air India office at London as per OP’s letter dated 29/05/2006 and M/s Menzies World Cargo, handling agent on behalf of Air India vide letter dated 30/05/2006, but no reply was received.  M/s Menzies World Cargo, however, sent an e-mail dated 05/07/2006 and communicated that the maximum amount of US  $ 5390.00 (APPROX) would be payable as against the invoice amount of us $ 25,487.94 and also referred to the Montreal Convention 1999 in which the limits of liability of carrier  & their agents were contained.  It is alleged that the consignment has been released without following the instructions of the complainant and there is gross deficiency in service on the part of Air India.  Following prayer is made:-

“Therefore most respectfully prayed that this Hon’ble Court may kindly be pleased to pass the order/directions, directing the respondents to pay the said sum of Rs. 14,88,941/- (Rupees  Fourteen Lacs Eighty Eight Thousands Nine Hundred Forty One Only) to the complainant without delay in the interest of justice. It is also preyed that interest @18% from the date of filing of the complaint, till the date of actual payment may also be passed in favour of the complainant and against the respondents.”

OP-1 &2 filed written statement/version and resisted the complaint. The OP-3- Natwest Bank was proceeded ex-parte on 19/04/2010 after notice but no written statement was filed. It is stated on behalf of the replying OP’s that the complaint is liable to be dismissed on merits as well as on technical grounds. It is stated that the case involved alleged acts of conspiracy fraud and cheating which is a subject matter of investigation by London Police. Disputed question of fact involved in the case requiring trial and detailed examination of evidence cannot be adjudicated in summary proceeding by this Forum. The cause of action emanates from commercial transaction and is beyond the scope of Consumer Protection Act. Further the complainant is a proprietor ship firm and engaged in commercial activities and therefore, it does not fall within a definition of Consumer. It is however stated that Menzies  Aviation, who are the handling agents of OP-1&2 at Heathrow Air port in London are responsible for handling the release of the said good upon documents required for release.  As genuine booking documents were provided to said handling agent which was later allegedly found forged. Therefore, the grievance of the complainant lies against the person who forged the documents and as such this Forum cannot decide such issue and can be adjudicated by competent civil court.  It is also stated that the instructions given by the complainant for releasing the documents against payment were not related to it. Further, the complainant has failed to implead M/s Bax Global India Pvt. Ltd. which is a necessary party. The delivery of the consignment to M/s Woven Art Gallery Ltd. on the basis of alleged forged letter is denied. Denying all allegations OP1 &2 prayed for dismissal of the complaint made.

 It is also stated that the cause of action arose in London and therefore this Forum does not have the jurisdiction to adjudicate this case. The complainant has filed replication and denied the text of the version filed by OP and reiterated the gist and text of the complaint. It has been asserted therein that the OP failed to deliver the consignment to the consignee and such act for the agent, the OP-1 &2 are liable. Both the parties have filed their respective evidence by way of affidavit. Both the parties were heard on the issues involved in the case.

The Ld. Counsel for the complainant has mainly rested his arguments on the observations and view expressed by the predecessor bench in final orders dated 24/05/2014 which was set aside by the Hon’ble State Commission on 27/07/2018. Further it was argued that neither the consignment was delivered to the consignee nor the value of the consignment refunded to the complainant and as such OP-1 & OP-2 are liable. Per contra, the OP argued on the same lines as mentioned in the written statement, as also briefly mentioned herein above.

We have considered the material placed before us and the arguments of the parties with relevant provisions of law. 

After going through the arguments of the parties it is clear that the consignment was booked from Bhadohi, UP, to London through M/s Bax Global India Pvt. Ltd. who was not impleaded as party. The OPs raised the issue of jurisdiction of this Forum stating that no cause of action allegedly  accrued in  favour of complaint in the territorial jurisdiction of this Forum, however, the Forum found one letter dated 29/05/2006 issued by the OP’s from its Barakhamba Road office, in which the complainant was advised to take up the matter with Air India, London for settlement of payment as the alleged fraud/ cheating has taken place at London. This letter does not confer any territorial jurisdiction, in view of  Sonic Surgical v/s National Insurance Co. Ltd., Civil Appeal no. 1560/2004 decided on 20/10/2009 ( Supreme Court) as such,  no cause of action arose within the territorial jurisdiction of this Forum in the present case.

The OP has also raised the issue that the transaction involved in question was commercial in nature and as such that complainant  was not a Consumer. This argument is not tenable as the complainant has availed  the services of OP 1 & 2 for delivery of its consignment against the consideration.

It is stated by the OP that its  agent delivered the consignment on the basis of letter dated 24/03/2006 issued by OP-3, but OP-3 denied the same and stated that no such letter was issued by it in its reply to the letter of the complainant. It is admitted by parties that the FIR/Complaint  regarding the delivery of the consignment was lodged with London Police which was based upon conspiracy fraud/cheating and the same is being investigated and no final verdict in this respect has been informed to this Forum by complainant or by the OPs.

It is not the case of the complainant that the goods was stolen, destroyed or perished on account of deficiency of OP-1 &2, rather, consignment was released to Woven Art Gallery Ltd. on the basis of forged documents as alleged by OP-3.

Perusal of the complaint shows that the case involves the complicated question of facts  on various issues such as  i) Whether the consignment was delivered to Woven Art Gallery Ltd. on false and fabricated document.  ii)  The present complaint involves the complicate question of fraud and cheating.     

     Admittedly, the Consumer Forum deals with the complaint in a summary proceeding and where cases involve a great deal of evidence, the same cannot be adjudicated upon by the Forum & for which the party has to approach the civil court where elaborate procedure including recording of evidence cross-examination is followed.

     In case titled Punjab Lloyd Ltd. Vs Corporate Risks India Pvt. Ltd. (2009) 2 SCC 301, it was held that the complicated question of law should be decided by the regular court. It further held that the decisive test in not the complicated nature of question of fact and law arising for decision. In another case titled LIC & Ors. Vs Surinder Kaur & Ors. Civil Appeal No.5334 or 2006 (Arising or of SLP (c) No.17866 of 2005) decided by Hon’ble Supreme Court of India on 01.12.2006, it has been held that complex question of facts cannot be decided by the consumer forum under the Consumer Protection Act and such arises can be subject matter of regular Civil Court.

     In view of the above discussion, this Forum feels that the complainant should approach the Civil Court for redressal of his grievance as per law because so many issues involved in the present case particularly fraud which cannot be adjudicated by this Forum in a summary procedure, hence the present complaint is dismissed with liberty to the complainant to approach the Civil Court as per law.

A copy of this order each be sent to both parties free of cost by post.  Orders be also sent to www.confonet.nic.in. File be consigned to record room.

Pronounced in open Forum on 28/11/2018.

 

(ARUN KUMAR ARYA)

PRESIDENT

 

 

                                                                               (NIPUR CHANDNA)                                                                                                                                                                                MEMBER