Tamil Nadu

StateCommission

FA/71/2018

Federal Express Corporation - Complainant(s)

Versus

M/s. Metro Fabrice - Opp.Party(s)

M/s.Walia & Co

29 Nov 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI – 600 003.

                     BEFORE        Thiru.S.KARUPPIAH                           PRESIDING JUDL MEMBER

                                Thiru. R VENKATESAPERUMAL                                     MEMBER

 

F. A. No.138/2011 & FA.No.71/2018

 

(Against the Order dt.1.2.2010 made in C.C. No.251/2004  on the file of

D.C.D.R.C., Chennai(North)

 

DATED THE   29^TH DAY OF NOVEMBER 2022

 

F. A. No.138/2011

 

1.The Jet Airways (India) Ltd,

Rep.by its Managing Director,

S.M.Centre, Andheri East,

Mumbai – 400 099                             

 

2. The Jet Airways (India) Ltd,

Rep.by its Managing Director,

Thapper House,

43/44, Montieth Road,

Egmore, Chennai 600 008                   ..Appellant/s opposite parties 2 & 4

 

                                  Vs

 

1.M/s Metro Fabrics,

Rep.by its partners,

Vivekananda Nagar,

11^th Cross,

Sengunthapuram,

Beat No. 18 Karur 639 002                                            ..1^st Respondent /complainant

 

 2. Federal Express Corporation,

Rep.by its Managing Director,

2^nd Floor, New Import Warehouse,

Sahar Air Cargo Complex,

Mumbai – 400 099 

 

3. Mr.Sridhar, Manager,

Federal Express Corporation,

No. 182, plot No.2, Ashirwad  Towers II Floor,

Kodambakkam High Road,

Nungambakkam High Road,

Chennai 600 034                                                      ..Respondents 2 and 3/ops 1 and 3

 

 

M/s Balmer Lawrie & Co.Ltd,

Rep.by its Asst.Manager-Cargo,

502, Annasalai,

Teynampet,

Chennai 600 018                                            ..Respondent 4/opposite party 5

 

Counsel for the Appellant/s opposite parties 2 and 4       : M/s R.Gupta and Ravi

Counsel for the 1^st Respondent/complainant                   : M/s Paul & Paul

Counsel for the Respondents2 and 3/ops 1 and 3            : M/s R.Parthasarathy

Counsel  for the 4^th Respondent /5^th op                            : M/s V.SoundarRajan Associates

 

F. A. No.71/2018

 

1.Federal Express Corporation,

Represented by its Managing Director,

Unit 801, 8^th Floor, A-wing,

Chandivali Farm Road,

Near chandivali Studio,

Andheri E, Mumbai 400 072

Maharashtra, India

 

Having Local office at

R.R.Towers, IV Super-A,

16 A 17, TVK Industrial Estate,

Guindy, Chennai 600 032                              ..Appellant /1^st opposite party

 

                                  Vs

 

1.M/s Metro Fabrics,

Rep.by its partner,

Vivekananda Nagar,

11^th Cross,

Sengunthapuram,

Beat No. 18, Karur 639 002                                            ..1^st Respondent/ complainant

 

 2. Jet Airways (India) Ltd,

Rep.by its Managing Director,

S.M.Centre Andheri,

Kurla Road,

Andheri East

Mumbai – 400 059 

 

3. Jet Airways (India) Ltd,

Thapar House,

43/44. Montieth Road,

Egmore, Chennai 600 008                 ..Respondents 2 and 3/ opposite parties 2 &4

 

4. M/s Balmer Lawrie & Co.Ltd,

Rep.by its Asst Manager- Cargo,

502, Annasalai,

Teynampet,

Chennai 600 018                               ..Respondent 4/opposite party 5

 

Counsel for the Appellant/s opposite parties 1 &3   : M/s R.Parthasarathy

Counsel for the 1^st Respondent/complainant           : M/s Paul & Paul

Counsel for the Respdts 2 & 3/opposite parties 2 and 4  : M/s Gupta and Ravi

Counsel for the 4^th Respdt/op5                                        : M/s Soundarrajan

 

These appeals are coming before us for final hearing on 16.11.2022 and on hearing the arguments of both  and on perusing the material records, this Commission made the following:

 

COMMON ORDER

Thiru. R VENKATESAPERUMAL, MEMBER

1.       These  appeals has been filed by the  appellant/1^st op in FA 71/2018 and appellants/ opposite parties 2 and 4 herein in FA 138/2011 under section 15 read with section 15 of the Consumer Protection Act, 1986 against the order of the  District Commission, Chennai(North) made in C.C. No.251/2004, dated 1.2.2010 in allowing the complaint.

2.         For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes Redresssal Commission, Chennai(North).

3.       The factual background giving rise to the present appeal is as follows;-

            The complainant entrusted 4^th respondent herein a cargo forwarding agent 1 and 3 opposite parties to export table linen and yarn. 4^th Respondent informed the complainant that space was not available on other airlines and hence the shipment would be sent via M/s Jet Airways i.e  opposite parties 2 and 4  herein to Mumbai from where it would be connected to Fedex i.e opposite parties 1 and 3 flight for transportation to Tokyo. The complainant accordingly entered into a contract and understanding with 5^th opposite party under which arrangement the consideration was paid by the complainant to 5^th opposite party the cargo was to be delivered at Tokyo on 24.2.2000. Contra the complainant was informed that the said consignment was schedule to arrive at Mumbai only on 23.2.2000 and it would be sent to Tokyo on 24.2.2000 in the next connecting flight, but on 25.2.2000 an intimation was received from the  opposite parties 1 and 3 stating that the consignment was received in a damaged condition from the opposite parties 2 and 4 resulting in difficulty in loading the same for onward transmission to Tokyo. The complainant was forced to go to Mumbai to stay there and run pillar to post and after great difficulty only 135 cartons alone were sent to Tokyo. The remaining 220 cartons were damaged and could not be exported. The damage to the goods are caused while the same was in the custody of the opposite parties 2 and 4. Those 220 cartons were sent back to Chennai and asked the complainant to take away the consignment of 220 cartons from Chennai and they claimed demurrage from the complainant.  The complainant sent letters dated 23.3.2000 quantifying at Rs.23,99,614.50 inclusive of interest to the opposite parties. After receiving the said notice,  opposite parties 2 and 4  informed that the claim may be sent to opposite parties 1 and 3 for settlement, eventhough the appellants/opposite parties 2 and 4 is the 1^st carrier of the consignment.  since the consignment was not sent in time to the buyer he claimed for loss of 5,74,000 yen equilant to Rs.14,35,000/- because on the failure on the part of the opposite party, the complainant had to travel from Chennai to Mumbai and incurred expenses of Rs.29,88,200/-.

4.     The opposite parties 1 and 3 submitted that the complainant wanted to export table linen yarn and for that he approached 5^th opposite party, a cargo agent who informed the complainant that the shipment could be sent via Jet Airways i.e. appellants/opposite parties 2 and 4  to Mumbai from where it could be connected to the Fedex flight for transportation to Tokyo. The complainant accordingly entered into a contract with the opposite party 5. Hence there was no direct contract with the opposite parties 1 and 3 who came into picture only after the said consignment handed over to them at Mumbai. Due to the negligence of complainant by not using suitable packing material, the shipment got wet and got damaged in Chennai itself at the Airport due to rain while it was in the custody of opposite parties 2 and 4. As such, opposite parties 1 and 3 neither in possession nor had any role with regard to the damage cost to the consignment, as  the damage occurred in Chennai. The complainant was negligent in not packing the material to protect the shipment and not declaring the value of the consignment. Further the  opposite parties 1 and 3 submitted that the complainant did not seek any insurance cover for the shipment which any prudent exported would otherwise have taken. Since the goods were not damaged while in the custody of the opposite parties 1 and 3 they are not liable to pay any damage to the complainant. Further since the damage was caused while it was in the custody of the appellants/opposite parties 2 and 4 due to accidental rain water damaged the cloths. If at all any damage is to be paid it should be by the appellants/opposite parties 2 and 4. There is no privity of contract between the complainant and the opposite parties 1 and 3. Hence  opposite parties 1 and 3  prayed for dismissal of the complaint.

5.   Appellants/opposite parties 2 and 4 and submitted that the complaint is barred by limitation since the cause of action took place during February, 2000 and the complaint was filed only in February 2004. The consignment of cloths contained in 355 cortons was entrusted to the opposite parties 2 and 4 for carriage from Chennai to Mumbai issued by the 5^th opposite party and the same was handed over to the opposite parties 1 and 3. 135 cartons out of 355 cartons were airlifted on 23.2.2000 from Chennai to Mumbai. On the same day, unprecedental rain as much as 13.7 cm lash in the city of Chennai, due to which 220 cartons got wet, but however it was airlifted to Mumbai in the same condition. The opposite parties 1 and 3 on receiving the full shipment made the remark on the cargo about the wet condition of 220 cartons at Mumbai.      After the custom formalities, at the request of the opposite parties 1 and 3, the opposite parties 2 and 4 carried the consignment back to Chennai on 10.5.2000 and the same was intimated to the complainant on 11.5.2000, 22.5.2000, 30.5.2000 and 7.6.2000. The complainant was also periodically informed to take delivery of the consignment without any further delay to avoid further demurrage charges. But the complainant refused to take that goods stating that opposite parties 2 and 4 should give in writing that they will settled the loss towards the claim for waiver of demurrage and freight charges and also waive the freight amount from Mumbai to Chennai. As it was not acceptable to opposite parties 2 and 4 they arranged for a survey of the consignment by a licensed surveyor who filed a report on 18.11.2000 and the same also furnished to the complainant. Since the complainant refused to take back the consignment and wanted to waive of the demurrage charges of Rs.40 lakhs, the  opposite parties 2 and 4 requested Airport Authority of India to auction the cargo and a  notice to that effect was issued on 25.7.2001 to the complainant. The customs authority seized the 220 cartons on 25.8.2001 and a restart order was issued restraining the opposite parties 2 and 4 as well as the complainant from review in the consignment. Since the goods were damaged, due to act of god, there is  no deficiency in service of /opposite parties 2 and 4. Hence the appellants/opposite parties 2 and 4 prayed for dismissal of the complaint.

6.         Opposite party 5 submitted that they are only a forwarding agent and the complainant as to make the claim only with the carrier. Further the complainant by its letter dated 22.11.2000 confirmed that they are proceeding legally only against  opposite parties 1 and 3.  As such the claim ought to have been made only against the opposite parties 1 and 3. When it has been informed by the opposite parties 2 and 4 that M/s Oriental Insurance Company is the insurer as per the surveyor report, the insurance company should have been added as a party to the proceedings. Hence the complaint is barred for non-joinder of the necessary party. Since no specific claim made against appellants/opposite party 5,  prayed for dismissal of the complaint.

7.         In order to prove the case, on the side of the complainant along with proof affidavit  37  documents were filed, which were marked as Ex.A.1 to A.37 on the side of the complainant. Ex.B.1 to B.15 were marked on the side of the opposite parties.

8.      We have heard the submissions and perused the materials available on records and the order impugned.  There is no representation for opposite parties 2 and 4 i.e Jet Airways.  

9.    The complainant entrusted 5^th opposite party herein a cargo forwarding agent to export table linen and yarn. 5^th opposite party informed the complainant that space was not available on other airlines and hence the shipment would be sent via M/s Jet Airways   to Mumbai from where it would be connected to Fedex  flight for transportation to Tokyo. The complainant accordingly entered into a contract and understanding with 5^th opposite party underwhich arrangement the consideration was paid by the complainant to 5^th opposite party, the cargo was to be delivered at Tokyo on 24.2.2000. Contra the complainant was informed that the said consignment was schedule to arrive at Mumbai only on 23.2.2000 and it would be sent to Tokyo on 24.2.2000 in the next connecting flight, but on 25.2.2000 an intimation was received from the opposite parties 1 and 3 stating that the consignment was received in a damaged condition from the opposite parties 2 and 4 resulting in difficulty in loading the same for onward transmission to Tokyo. The complainant was forced to go to Mumbai to stay there and run pillar to post and after great difficulty only 135 cartons alone were sent to Tokyo. The remaining 220 cartons were damaged and could not be exported. The damage to the goods are caused while the same was in the custody of the opposite parties 1 and 3.  Those 220 cartons were sent back to Chennai and asked the complainant to take away the consignment of 220 cartons from Chennai and they claimed demurrage from the complainant.  The complainant sent letters dated 23.3.2000 quantifying at Rs.23,99,614.50  inclusive of interest to the opposite parties.1 and 3. After receiving the said notice, opposite parties 2 and 4 informed that the claim may be sent to  opposite parties 1 and 3 for settlement, eventhough the opposite parties 2 and 4 is the 1^st carrier of the consignment.  since the consignment was not sent in time to the buyer he claimed for loss of 5,74,000 yen equilant to Rs.14,35,000/- because on the failure on the part of the opposite party, the complainant had to travel from Chennai to Mumbai and incurred expenses of Rs.29,88,200/-. 

Now the point for consideration is whether the appeals are to be allowed or not?

10.       Before proceeding to decide and discuss the merits and facts of the case, we were informed that Jet Airways, one of the appellants herein already filed Corporate Insolvency Resolution Process. Document is filed in proof of the same. At present the appellants, Jet Airways is a non-existing and a non entitled. Even they lost their right to contest the appeal as such the appeal filed by the Jet Airways is liable to be dismissed.

11.       Apart from that there is no quarrel about the fact of damage caused to the complainant’s 220 cartons and the same become valueless. Admittedly the goods were handed over by the complainant to the 5^th opposite party who is an agent of opposite parties 1 and 3. While the goods were damaged when they were under responsibility of all the opposite parties during transit or before airlifting to Mumbai. When opposite parties shifting their deficiency against each other and concrete evidence placed exactly where the damage was happened, we cannot find fault with the District Consumer Commission’s finding that all the opposite parties are liable and all are deficient in their service.

12.       Moreover the District Commission rightly found that the complaint was filed on 27.2.2001 which is well within the limitation. Moreover the District Commission did not carried over by the allegations of the complainant and rightly held that there is no insurance coverage taken by the complainant and taking the consignment without insurance coverage is also another deficiency on the part of opposite parties and also rightly awarded only the actual loss as assessed by the surveyor. So there is no error in the award which warrants our interference as such both appeals are liable to be dismissed. Considering the factual matrix, we don’t want to impose cost.

Common order pronounced. In the result,

FA.No. 138/2011

            The appeal is dismissed and we confirm the order of the District Commission, Chennai (North), made in CC.No. 251/2004 dated 1.2.2010. There is no order as to cost in this appeal.

FA.No. 71/2018

            The appeal is dismissed and we confirm the order of the District Commission, Chennai (North), made in CC.No. 251/2004 dated 1.2.2010. There is no order as to cost in this appeal.

                     

 

R VENKATESAPERUMAL                                                            S.KARUPPIAH                

      MEMBER                                                                  PRESIDING JUDL MEMBER