National consumer disputes redressalcommission new delhi



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O R D E R 


JUSTICE V.K. JAIN, PRESIDING MEMBER 

        Space Overseas Private Ltd., appellant in First Appeal No. 189 of 2009, received an order from M/s. T. Singh Brothers, Kuala Lumpur for supply of 18,872 Kgs. of cotton knitted fabric against a Letter of Credit issued by a May Bank, of Kuala Lumpur for an amount of US $ 65,515.95 on the advice of Canara Bank.  The goods ordered by M/s. T. Singh Brothers were to be delivered in Rangoon, Myanmar.  The exporter/complainant Space Overseas Pvt. Ltd. handed over the goods to Thai International Airways Ltd., appellant in First Appeal No. 384 of 2009 for being delivered at Rangoon.  The goods were consigned by the exporter to Malayan Banking Berhad and not to the purchaser.  Four airways bills were issued to the complainant-Space Overseas Pvt. Ltd. in respect of the aforesaid goods.  According to the complainant, the goods were to be delivered by Thai International Airways Ltd. only on presentation of the original documents by the buyer. The buyer could have obtained those documents from the collecting bank after deposting the price of the goods with it.   The grievance of the complainant is that contrary to the instructions issued to it and the contract between the parties, the carrier, Thai International Airways Ltd., released the goods to the purchaser though it was required only to intimate the purchaser of the arrival of goods in Rangoon.  In fact, when enquired about the consignment, the carrier vide its letter dated 24.12.1998 informed that the goods had been delivered to the consignee.  However, later, vide letter dated 07.04.1999, the carrier claimed that according to the rules of the Airport Authority at Yangon International Airport, the cargo had to be unloaded from the aircraft and handed over to the Myanmar Customs Warehouse and accordingly, they had delivered goods to the custom authorities and handed over the airway bills to the consignee or his agent.  It was further stated in the said letter that carrier had notified M/s. 7-star Co. Ltd., who acts on behalf of the buyer M/s. T. Singh Brothers to obtain those airway bills with other necessary documents for their own custom clearing process at the custom headquarter.

2.     Claiming deficiency on the service provided by the carrier, a complaint was filed before the State Commission, Delhi claiming a sum of US $ 20,036.92 (equivalent to Rs.9,50,752/- at the exchange rate of Rs.47.45 per dollar as on 08.11.2000), 
Rs.1,52,120.00 towards interest @ 8% per annum on the aforesaid amount and Rs.9,00,000/- as compensation for the mental agony and suffering. 

3.     The complaint was resisted by the carrier; inter alia  on the ground that the goods were required to be delivered at Rangoon as per rules and regulations prevailing there and the documents relating to the goods were corrected delivered to the notified party, M/s. 7-star company Pvt. Ltd. 

4.     Vide impugned order dated 27.01.2009, the State Commission held that the carrier had been negligent by not taking due care and had caused financial losses to the complainant.  The State Commission however, awarded only a sum of Rs. 50,000/- as compensation to the complainant, which included the costs of litigation.  Being aggrieved form the quantum of compensation awarded to it, the exporter-Space Overseas Pvt. Ltd. has filed the First Appeal No.189 of 2009.  Being aggrieved from the compensation awarded against it, the carrier has filed First Appeal No. 384 of 2009.

5.     A perusal of the Airway bills clearly shows that the complainant, Space Overseas Pvt. Ltd. was the consignor of the goods; whereas M/s. Malayan Banking, Berhad was the consignee.  M/s. T. Singh Brothers was the party to which the arrival of goods was to be notified; whereas 7-star Co. Ltd. was the agent of the T. Singh Brothers.

        Though the case of the complainant is that the goods in question were delivered to the buyer M/s. T. Singh Brothers, the documents produced by the carrier-Thai International Airways Ltd., clearly show that the goods were delivered by the carrier to the local customs authorities at Rangoon as per the rules and regulations applicable in the said place.  The letter dated 15.02.2002, written by the Deputy Director, Customs Department, Myanmar to Mr. J.P. Singh, Cargo Sales Manager of Thai International Airways Ltd. would show that as per the Customs General Import/Export Procedures prevalent at Rangoon after landing of flights, the airlines were to submit the air cargo manifest to the customs and cargo were to be moved to the custom warehouse, where the officials would check the cargo against the manifest and keep storing the cargo.  After the importer or his legitimate agent furnished the relevant documents to the customs and finished the customs clearance procedures, the officer in charge of the customs warehouse would issue the delivery orders.  Therefore, no fault can be found with the carrier delivering the goods to the customs authorities at Rangoon.  As per the General Conditions of contract between the complainant and Thai Airways International Ltd., the carrier was required to comply with all government regulations of any country to, from, through or over which the goods might be carried, including those relating to the packing, carriage or delivery of the goods.  Therefore, the carrier, in my view was fully justified in delivering the goods of the customs authorities at Rangoon. 

Had the carrier stopped delivering the goods to the custom authority at Rangoon, it would not have been guilty of any deficiency in providing services to the complainant, but admittedly, the carrier delivered the documents i.e. airways bills to M/s. 7-Star company Ltd., which was the agent of the purchaser M/s. T. Singh Brothers and not of the consignee Malayan Banking Berhad.  Had T. Singh Brothers been the consignee, the carrier would have been justified in delivering the airway bills to them or their agent since they were obliged to deliver the goods to the consignee, but T. Singh Brother not being the consignee, M/s. 7-star Co. Ltd. cannot be said to be agent of the consignee.  Therefore, the carrier, Thai Airways International Ltd. is guilty of deficiency in providing services by handing over the airway bills to M/s. 7-star Co. Ltd.  As noted earlier, as per rules applicable in Rangoon, the goods would have been delivered by custom authorities at Rangoon only on production of the documents such as airway bills.  Had the carrier not delivered the airway bills to M/s. 7-Star Co. Ltd., the purchaser would never have been able to take delivery of the goods from the custom authorities, without first making payment to the Bank to which the documents were sent by the complainant through its banker.  The delivery of airway bills to M/s. 7-star Co. Ltd., can by no means be considered as delivery to the consignee.

6.     It was contended by the learned counsel for the carrier that as per the rules and procedures applicable in Rangoon, the importer had necessarily to be the consignee in the airway bills. If that was so, the carrier should not have accepted the airway bills showing Malayan Banking Berhad as consignee.  Having accepted the goods for being delivered at Rangoon, on the strength of the airway bills showing Malayan Banking Berhad to be the consignee, the carrier cannot escape its liability towards the complainant.  Had the carrier informed the complainant at any point of time that it would be handing over the airway bills to the agent of the purchaser despite the purchaser not being the consignee of the goods, the complainant in exercise of its right under Clause 12 of Schedule 2 of the Carriage by Air Act, 1972 could have withdrawn the cargo at any time before it had reached Rangoon.  Alternatively, the carrier could have informed the complainant that it was impossible for it to transport the goods to Rangoon without the purchaser being shown as the consignee in the airway bills.  In that case, the complainant would not have handed over the goods to the said carrier since the contract between the complainant and the purchaser envisaged delivery of goods only on payment to the banker of the complainant.

7.     It was next contended by the learned counsel for the carrier that in view of the Regulation 30 contained in Schedule II of the Carriage by Air Act, 1972, the claim was time barred and the right of the complainant to damages stood extinguished since the complaint was not filed within two years reckoned from the date of arrival at the destination.  The contention was repelled by the learned counsel for the complainant, who submitted that the Regulation 30 would not apply to the present case and in any case, the date of the arrival of the goods was intimated to the complainant for the first time on 24.12.1998 and computed from that date, the complaint was within the limitation prescribed in Regulation 30 contained in Schedule II.

8.     Regulation 30 in Schedule II of the Carriage by Air Act, 1972 reads as under:

        “30 (1)      The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

        (2)    The method of calculating the period of limitation shall be determined by the law of the Court seized of the case”.

It would be seen from the bare perusal of the aforesaid Regulation that its application is not confined to human being and it is equally applicable to the goods carried by a carrier.  Therefore, it is necessary for a person seeking damages from a carrier to initiate inaction in accordance with law within two years from the date on which the goods arrive at their destination unless this is a case where the aircraft did not arrive at all or the carriage was stopped before it arrived at the destination.  A perusal of the documents filed by the carrier would show that out of four consignments one arrived in August, 1998 and other one arrived in September, 1998.  Having been filed more than two years after arrival of the aforesaid two consignments, the complaint, to the extent it pertains to those two consignments, is barred by limitation prescribed in Regulation 30 and the right of the complainant to seek damages in respect of those consignments stands extinguished. However, the claim in respect of the remaining two consignments is within limitation, the complaint having been filed within two years of the arrival of the goods at Rangoon.

9.     It was lastly contended by the learned counsel for the carrier that in view of the terms and conditions on which the goods were carried, the liability of carrier cannot exceed 250 Francs (US $ 20) per Kg. of the goods.  Considering the weight of the goods covered by the two consignments, claim in respect of which is within limitation and does not stand extinguished, if computed @ US $ 20 per Kg. (equivalent to Rs.9,490/- at the exchange rate at 47.45 per dollar as on 08.11.2000), the claim amount would be more than the amount of Rs.9,50,752/- sought by the complainant.  Therefore, the principal amount claimed by the complainant cannot be said to be exaggerated. The complainant having been deprived of the aforesaid amount, it is also entitled to be compensated in the form of interest.  The complainant has claimed interest @ 8% per annum, which by no means can be said to be unreasonable.

10.   Though, the State Commission has awarded only a sum of Rs.50,000/- to the complainant, the impugned order does not disclose as to why the State Commission despite returning of finding that there was a deficiency on the part of the carrier in providing services and that it had caused financial loss to the complainant by not taking due care, chose to award compensation of only Rs.50,000/- as against the amount claimed by the complainant.  I see no justification for not awarding the principal amount of Rs. 9,50,752/- along with interest amount of Rs.1,52,120/- as on 08.11.2000.

11.   For the reasons stated herein above, FA/384/2009 filed by the Thai Airways International Ltd. is hereby dismissed, whereas FA/189/2009 filed by Space Overseas Pvt. Ltd. is allowed to the extent that the carrier Thai Airways International Ltd. is directed to pay a sum of Rs.9,50,752/- towards the principal sum and Rs.1,52,120/- as interest upto 08.11.2000, to the complainant.  The respondent carrier shall also pay pendente lite and future interest @ 8% per annum on the principal amount of Rs.9,50,752/- if the payment is made within two weeks from today.  It shall however, pay pendente lite and future interest @ 12% per annum in case the entire amount in terms of this order is not paid within two weeks from today.

        Both the appeals stand disposed of accordingly.

 


..……………Sd/-………………

(V.K. JAIN J.) PRESIDING MEMBER

 SB/6


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

ORIGINAL PETITION NO.309  OF  2002

Smt. Neeti Saluja W/o Sh. Mukesh Saluja R/oGH-4/247, Paschim Vihar, New Delhi-110063

...Complainant

Versus


1.    Dr. (Mrs.) K. Batra, Batra Nursing Home, A-6/13, Paschim Vihar, New Delhi-110063 

2.    Dr. Jaswant Batra, Batra Nursing Home A-6/13, Paschim Vihar, New Delhi-110063 

3.    Anesthetist attached to Batra Nursing Home A-6/13, Paschim Vihar, New Delhi-110063 

4.    Mr. Tulsi, Batra Nursing Home A-6/13, Paschim Vihar, New Delhi-110063

...Opposite Parties

BEFORE:

HON'BLE DR. S.M. KANTIKAR, PRESIDING MEMBER    

     For the Complainant             :   Mr. Ajit Wagh, Advocate

    For the Opposite Parties       :  Mr. Sagar Hajelay, Advocate

 

PRONOUNCED ON 4th JULY, 2014 



ORDER

PER DR. S.M. KANTIKAR, MEMBER

The Complaint: 

1.                Smt. Neeti Saluja, the Complainant, aged 25 years, an Executive in a Travel and Tourism Co. alleges that due to the negligence of Dr. Mrs. K. Batra the OP-1, she suffered various complications after her caesarian delivery. The Complainant got admitted in Batra Nursing Home for her first delivery, under treatment of Dr. Mrs. K. Batra (OP-1) on 15.11.2000. She was assured of safe and normal delivery. She developed labour pains on 19.11.2000; however, instead of normal delivery, the OPs performed the Caesarian Section (LSCS). It was also alleged that Mr. Tulsi, a Compounder/Technician had performed the operation under the guidance of OP-1 and the OP-1 herself has not operated upon the Complainant. The Complainant further stated that, not a single normal delivery took place in the said nursing home, but about 10-11 caesarian operations were performed on 15.11.2000. Due to such carelessness and negligence in performing LSCS, the Complainant suffered a large scar on her stomach, the suture material used was of inferior quality and there was improper suturing also. Due to this, she developed “Obstructed Umbilical Hernia”. After the delivery, the Complainant consulted OP-1, regularly for her abdominal pain, for which OP-1 assured that there was nothing to worry. Due to unbearable pain, she consulted Dr. R. K. Sippy, who diagnosed the patient with “Obstructed Umbilical Hernia” and opined that it was due to gap in the abdominal wall and the Complainant has to go for an emergency operation. Dr. Sippy advised the Complainant not to lift heavy weights and also not to conceive further .The affidavit of Dr. Sippy is placed as Annexure (H). Due to the scar on the stomach, the Complainant was unable to wear Saree. The Complainant issued a legal notice to the OPs and sought details of medical record, the list of the patients having normal and caesarian deliveries in the hospital. But, the OP did not produce. Hence, the complainant fled this complaint and prayed for compensation of Rs.22,02,650/-with interest @ 18% p.a. and Rs.50,000/- towards the costs.


Defense:

2.              In the defense, the OP admitted about the Caesar delivery of the patient/complainant. Further submitted that the patient/Complainant had some cardiac problems and a family history of diabetes. She was also treated in Sir Ganga Ram Hospital, between 27.03.2000 to 31.03.2000, for pain in abdomen and breathlessness. She was a known case of Hypothyroidism and was under treatment, since 1999. Thus, there was no question that OP assured the Complainant that she would be having a normal delivery. Despite this, the OP gave the best available medical care to her for delivering a healthy baby. The OP further stated that the Complainant was admitted on 15.11.2000, with signs of high Blood Pressure (BP), Intra Uterine Growth Retardation (IUGR) and Pre-eclamptic Toxemia (PET). Therefore, she was advised for caesarian delivery. The OPs also denied that anesthesia was given without any checkup and without any consent; but it was given by a qualified Anesthetist. The operation was performed by Dr. Mrs. K. Batra. The Pediatrician Dr. Jaswant Batra was also present for the purpose of examining the new born child. OP-1 further denied that the cesarean section performed by her was an unwanted, unauthorized or performed in a careless and negligent manner. It is further wrong and denied that poor quality suture material and improper suturing led to the development of obstructed umbilical hernia.


Arguments: 

3.              Heard the counsel for both the parties and perused the medical records. The Counsel for the OP vehemently argued that the Complainant was a known case of Hypo-thyroidism and was under treatment from August, 1999, with family history of diabetes. The Complainant and family members were satisfied by the treatment of OP. There is no link between LSCS performed on 19.11.2000 by the OPs and the operation for obstructed Umbilical Hernia performed by the other Dr.Sippy on 30.09.2001. Dr. Sippy who treated the Complainant for Umbilical Hernia, also, did not disclosed about  the cause of Umbilical Hernia was developed due to caesarian section. There is no expert evidence in this case. The counsel contended that the Complainant was satisfied with the care given by OP-1, she did not disclose about the sepsis in her stitches. Hence, the OP’s are not liable for medical negligence or any carelessness. Also, the complaint is not maintainable, because of delay in filling the present complaint. The Counsel for Complainant argued that there was negligence in conducting LSCS operation. The operation was performed with vertical incision and therefore the patient developed Umbilical Hernia, which was a medical negligence.



Reasons: 

4.                On perusal of medical records and referring the several surgical books, text and literature, on the subject of LSCS and Umbilical Hernia. On perusal of Annexure-1, Sir Ganga Ram Hospital’s discharge summary, dated 31.03.2001, it is noted that the patient was diagnosed as hypo-thyroidism with early pregnancy and was put on proper treatment. Also, the medical record from Batra Nursing Home clearly goes to show, that the said patient was overweight and she was regularly followed-up during pregnancy. She was given trial labour during delivery and on 19.11.2000, the OP has performed LSCS, as there was an indication of IUGR and thick Meconium. As per medical texts, the suturing for the Cesarean section is usually done on the lower abdomen, situated about 10 to 12 cms, below the navel. In case, if there is any improper suturing during LSCS, then, incisional hernia would develop at the site of cesarean section and not umbilical hernia. There is no reported case of Obstructed Umbilical Hernia, being caused due to cesarean section. The medical records show that the Complainant had High BP, IUGR, PET. The Complainant was admitted to the Nursing home for controlling the BP to ensure normal delivery. Dr. Rajinder Kumar Sippy’s affidavit only states about the serious medical condition of the patient, developed due to improper suturing, after cesarean section which, left a gap and developed Obstructed Umbilical Hernia in the patient. This submission is not supported by the facts of the case or by any medical history, hence, it has no evidentiary value.

5.                Thus, it is convinced that the OPs have conducted LSCS in good faith of the patient/complainant, there was a proper indication of LSCS, like the thick muconeum, IUGR and PET. LSCS was performed to save the life of the baby. There was no deviation from the medical practice followed by the OP; hence it is not a medical negligence. Similar view dovetails from several decisions of the Hon’ble Supreme Court and this Commission regarding medical negligence. In Jacob Mathew vs State of Punjab[(2005) 6 SSC 1] and in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651 the Hon’ble Apex Court had concluded that,

           “ a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.”

6.               Also, the Bolam’s case (Bolam Vs. Frien Hospital Management Committee (1957) 1 WLR 582 , discussed that,  a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view.  Therefore, in the case on hand, the OP-1 exercised reasonable care and skills, during patient follow–up during pregnancy and also during delivery by LSCS. The patient suffered obstructed Umbilical Hernia. It was not an Incisional Hernia due to any defective suturing of LSCS incision. Also, it is unacceptable without any cogent evidence about, the vague allegation of the complainant that, the compounder/assistant performed such major surgery of LSCS. The complainant failed to prove her case. Hence, this complaint is dismissed. Parties are directed to bear their own costs.

 

..…………………………



(S. M. KANTIKAR)

PRESIDING MEMBER

Mss/30


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI



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