For M/s Singapore Airlines Ltd. :Mr. M. Wadhwani, Advocate
For M/s Dart Global Logistics Pvt. Ltd. :Mr. Ashim Vachher, Advocate
with Mr. S.M. Hashmi, Advocate
For Complainant (Beauty House) :Mr. Alok Mahajan, Advocate
with Mr. Rajesh Arya, Advocate
O R D E R
(Pronounced on 7th day of July, 2014)
D.K. JAIN, J. PRESIDENT
In the absence of any opposition, delay in filing of appeals is condoned. The applications stand disposed of.
2. These two Appeals arise out of a common order, dated 11.03.2008, passed by the Delhi State Consumer Disputes Redressal Commission (for short “the State Commission”) in Complaint Case No. C-202/1999. F.A No. 317 of 2009 has been filed by Dart Global Logistics Pvt. Ltd. (for short “DGL”), an IATA appointed Cargo Agent, and F.A No. 258 of 2008 is by Singapore Airlines Ltd. (for short “SIA”), a carrier; impleaded in the complaint as Opposite Parties No. 1 and 2, respectively.
3. The material facts giving rise to these Appeals are that the Complainant, a partnership firm, is engaged in the business of manufacturing and export of garments. They received an order for export of garments to one Salco Manufacturing Company Pvt. Ltd., Australia (for short “Salco”). One Main Express Australia Pvt. Ltd. (for short “Main Express”) was the nominated shipping agent of Salco in Australia. In execution of the said order, the Complainant handed over two consignments of 206 packages valued at US $29,550/- to DGL, as local booking agent of Main Express. Two invoices both dated 25.01.1999 showing them as the Consignor and National Australia Bank as the Consignee were issued by the Complainant. DGL issued House Airway Bill (HAWB), dated 30.01.1999, for shipment of the consignments from New Delhi to Melbourne. The HAWB on record indicates that the Complainant is shown as the Consignor;
the box meant to mention the name of the Consignee is corrected and records the particulars of the Consignee as “To Order Of” and Salco as the notified party. The details of Letter of Credit obtained by the Complainant are also noted in the said HAWB. DGL handed over the consignments to SIA for carriage to Melbourne. However, in the Airway Bill (AWB) dated 30.01.1999, issued by SIA, DGL is shown as the shipper; Main Express as the Consignee and DGL as the issuing carrier’s Agent. In accounting information Box, besides HAWB number, Complainant is shown as the shipper and Salco as the Consignee. Freight was prepaid. The HAWB and other allied documents seem to have been forwarded by the Complainant to the National Australia Bank. SAI airlifted the consignments to Melbourne. The Complainant claims to have learnt that though till March 1999, the original documents were still held by the National Australia Bank, the consignments had been delivered to Main Express on 26.04.1999. For delivering the consignments without production of the original documents, the Complainant lodged protest with DGL vide letter dated 31.03.1999. Relevant portion of the letter reads as follows:
“ We have every reason to believe that you, against all ethics of business and contrary to the instruction on the Airway Bill, have conspired with the notified party and have delivered the goods without obtaining Bank release order.
Under these circumstances we have no option left but to file a claim with you for the total value of the shipment. Therefore please treat this letter as a notice for the claim of US $ 29500, which is the value of shipment, plus the interest amount from the date when you released the shipment to the date when our claim is settled. "
4. Vide letter dated 01.04.1999, while refuting the claim of the Complainant, DGL advised them to take up the matter with Salco. Relevant part of the letter reads as under:-
“ Please note that we would like to inform you that the intention of our company is never to jeopardise the image and relationship with shipper. You must have noticed we have initially consigned our HAWB // DI 08833 dtd. 30th Jan 99 to consignee “M/s National Australia Bank” as per your instructions faxed to us on the 29th Jan.’99 But we were informed from your office on 1st Feb’ 99 through the faxed instructions that the consignee should be changed to “to order of”.
I would like to inform that if you mention notify as: consignee “M/s Salco” and consign the HAWB to the “to order of” then there is no bank involved.
In any case we do not feel that consignee “M/s Salco” will not remit your invoice amount of US$ 29500.00. Could you please communicate with them directly and advise us the response from their end.”
5. On 26.04.1999, the Complainant issued a legal notice to Salco, asking them to immediately make payment of US $29,550/- being the invoice value of the goods, failing which, threat of legal action for recovery of the said amount with interest @ 15% p.a. and damages was conveyed. Having failed to receive any response from Salco, on 05.05.1999, the Complainant issued a legal notice to DGL to pay the said amount along with interest @ 2% per month from the time the payments were due, and compensation of `1 lakh for harassment, etc. Denying any liability to pay the said amount, DGL reiterated that the consignments having been booked as per Complainant’s instructions, there was no default on their part. Being dissatisfied, the Complainant filed the complaint against DGL and SIA, praying for directions to both of them to pay the following amounts:-
i) US $ 29,550/-, the invoice value (INR 12,70, 650/-);
ii) US $ 1,530/- as interest @ 18% per annum from 16th February, 1999 to 31st March, 1999 (INR 65,790/-);
iii) A sum of `1,00,000/- as compensation for mental torture, harassment and inconvenience, and expenses caused to the Complainant by the Opposite Party.
6. The complaint was contested by DGL as well as by SIA. In their evidence by way of affidavits, DGL stated that initially as per the invoices, in the HAWB, the Complainant was shown as the shipper and National Australia Bank Ltd. as the consignee but subsequently on instructions from the Complainant, HAWB was corrected to record notation “To Order Of” in the consignee column. Salco was shown as the notified party. According to DGL, the said correction was necessitated because of change in mode of shipment of consignment by sea (as per letter of credit) to, by Air. But necessary amendment was not carried out in the Letter of Credit by Salco and, thus, the Complainant did not adhere to the terms of Letter of Credit. They took upon themselves the responsibility to deliver the goods to Salco, on terms, which were not incorporated in the Letter of Credit and, therefore, DGL could not be held liable for delivering the goods to the nominated agent of Salco i.e. Main Express, who were named as the Consignee in AWB.
7. In their written version, SIA raised preliminary objection to the maintainability of the complaint against them on the ground that in so far as SIA is concerned, as per the AWB the Complainant was neither a Consignor nor Consignee in respect of the consignments and, therefore, had no locus standi to file the complaint against them. On merits, it was stated that production of original AWB or Shipper’s copy was not a mandatory requirement for delivery of a consignment. On arrival of the cargo at the place of destination, a consignee is entitled to and the carrier is bound to hand over to him the AWB and the cargo, on payment of the charges due. Since in the present case, freight charges were pre-paid, SIA rightly delivered the cargo to the consignee named in the AWB.
8. After considering the pleadings of the parties and the documents on record, the State Commission has observed that admittedly the AWB issued by SIA was not in conformity with the HAWB issued by DGL, inasmuch as, in the HAWB the Complainant had been shown as the Consignor, whereas in the AWB, DGL was shown as the Consignor. Similarly, in the consignee column where initially National Australia Bank was mentioned as the Consignee, it was subsequently corrected as “To Order Of”, which meant that it was to the order of the Consignor; instead of showing Main Express as the Consignor, SIA showed Main Express as the Consignee and delivered the consignments to them; Main Express had nothing to do with the consignments and as the Complainant had contract only with Salco, SIA was not authorized to deliver the consignments to the final buyer (Salco) without payment to the bank and retiring the documents held by them. The State Commission has concluded that since SIA did not perform its duty as per AWB, which was “To Order Of”, meaning thereby that the consignments were to be delivered only as per the Consignor’s instructions, DGL and SIA were deficient in rendering service to the Complainant and were, therefore, jointly and severally liable to pay to the Complainant, the value of the consignments, amounting to US $29,550/-, equivalent to Indian Rupee at the rate as on 31.01.1999 along with a lumpsum compensation of `1,00,000/- for the mental agony, harassment and other sufferings by the Complainant. Hence the present Appeals.
9. Having heard Ld. Counsel for the parties at some length and scrutinized the material on record, I am of the opinion that the appeals deserve to be allowed.
10. At this juncture, it would be apposite to refer to the affidavit filed by one Mr. H.B. Singh, on behalf of the Complainant, by way of evidence. The paragraphs, relevant for adjudication on the point at issue, read as under:
“ I say that at the instance of M/s. Main Express Australia Pty. Ltd., the Opposite party No. 1 approached us for shipment of the aforesaid consignments through its agency and offered its service for transportation of the consignment to Melbourne, Australia. I explained to them full details about our order from M/s Salco. The Opposite Party No.1 assured us of its most efficient and prompt services in the matter of carriage of goods shipped through them.
I say that our firm accordingly entrusted to the Opposite Party No. 1 the carriage of the aforesaid consignments and the Opposite Party issued its House Air Way Bill (HAWB) DI No. 008833 dated 30th January, 1999, for the carriage of the goods ex-New Delhi to Melbourne (Australia) in which Beauty House (Regd) was shown as Consignor and M/s National Australia Bank was shown as the Consignee. The particulars of the Letter of Credit were mentioned in the said HAWB. Since the Letter of Credit required the consignment to be made out “to the order of the shipper blank endorsed”, we were advised that to conform to the stipulations of the LC we had to amend the consignee column in the HAWB. Accordingly, as advised, we requested Opposite Party No.1 to amend the consignee column in the HAWB and show it as “to the order of”. I was told by Opposite Party No.1 that the notation “to the order of” was as per the trade practice and connoted “to the order of the shipper”. Our intention to amend the consignee column of HAWB clearly was not to mention the name of M/s. Salco as the consignee in the HAWB and to retain the right to nominate the person to whom the consignment was to be delivered. We were assured by the Opposite Party No.1 that the amendment made in the HAWB secured what we intended. The said HAWB clearly referred to the Letter of Credit and M/s Salco were shown only as Notified (sic) Party. A copy of the HAWB is annexed hereto and marked as Exhibit C-5.
I say that we sent the said HAWB endorsed in blank with the invoices and other relevant documents, as required under the Letter of Credit to the National Australia Bank to be released to Salco against payment of the invoice value of the consignments. The consignments could be delivered to the buyer only against the release of the original documents from the bank, as per the terms of the said HAWB issued by Opposite Party No.1. We were assured by the Opposite Party No.1 that the said procedure would be followed.” (Emphasis supplied)
11. On a bare reading of the above-extracted paragraphs, it is evident that the HAWB was amended to change the name of the Consignee from National Australia Bank to “To Order Of” at the request of the Complainant. Although it is pleaded that the said amendment was as per the advice received and they were told by DGL that the notation “To Order Of” was as per the trade practice and connoted “to the order of the shipper”, it was never their intention to mention Salco as the consignee in the HAWB as they wanted to retain the right to nominate the person to whom the consignment was to be delivered, but nothing has been brought on record to show that on receiving the HAWB, with the said amendment, the Complainant gave any further instructions to either DGL or SIA. Besides, being an exporter it is difficult to believe that the Complainant was so naive that it did not understand the implications of the said notation. As a matter of fact, with the said novation, the National Bank of Australia was ousted from its position of being the Consignee of the subject goods. On their own showing, the Complainant did not check the AWB, prepared as per Rule 6 of the Second Schedule to the Carriage by Air Act, 1972. I am convinced that a bare averment of ‘good faith’ on DGL is not sufficient to discharge onus which lay on the Complainant to prove that there was deficiency in service on the part of DGL or SIA in delivering the consignments to Main House, the notified shipping agent of Salco in Australia and named as Consignee in the AWB. Rule 13(1) of the said Second Schedule clearly stipulates that on arrival of the cargo at the place of destination, a consignee is entitled to require the carrier to hand over to him the airway bill and to deliver the cargo to him, subject to his paying the charges due and on complying with the conditions of carriage set out in the airway bill. As noted above, in the present case, the freight was prepaid and there were no other instructions to the carrier.
12. In the result, both the Appeals are allowed and the impugned order is set aside. The parties are left to bear their own costs. It will be open to the Appellants to withdraw the amounts, if any, deposited by them in the State Commission with accrued interest. However, the statutory deposit of `35,000/- by each of the Appellants shall be transferred to the Consumer Welfare Fund, along with accrued interest.