TMI Blog2011 (9) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... he complaint, till its realization, and imposed costs of ₹ 1 lakh for deficiency of service. 2) The appellant before us is an International Cargo carrier, with its principal place of business at Beirut, Lebanon. Respondent No.1 is a garment exporter and respondent No.2 is an accredited International Air Transport Association agent. By this appeal, we are called upon to examine and reconcile the area of operation of the C P Act on the one hand, and the Carriage by Air Act, 1972 [hereinafter referred to as the CA Act ] along with the Warsaw Convention of 1929 [hereinafter referred to as the Warsaw Convention ] on the other. The appellant, respondent No. 1 and respondent No. 2, hereinafter, for the sake of brevity, referred to as appellant carrier , the consignor and agent respectively. 3) The core issues that arise for our consideration and decision in this appeal are: 1. Whether the National Commission under the CP Act has the jurisdiction to entertain and decide a complaint filed by the consignor claiming compensation for deficiency of service by the carrier, in view of the provisions of the CA Act and the Warsaw Convention. Or whether domestic laws can be added ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, after considering the entire evidence on record, has come to the conclusion that the services rendered by the appellant-carrier was deficient and thereby, it was liable to pay compensation equivalent to US $71,615.75 with 5% interest from the date of the Complaint till its realization, and imposed costs of ₹ 1 lakh. It is the correctness or otherwise of this order, which is called in question in this appeal. 6) Since this is the first appeal under Section 23 of the CP Act, we are required to consider both the questions of facts as well as questions of law. Impugned Order of the National Commission 7) The appellant-carrier before the National Commission, by way of preliminary objection, had raised jurisdiction of the National Commission in entertaining the complaint filed by the complainant. It was the contention of the appellant-carrier that in view of Rule 29 and Rule 33 of the Second Schedule to the CA Act, the National Commission in Delhi has no jurisdiction to entertain and decide the complaint. It was contended that only the Courts at the four places mentioned in the said provision have jurisdiction to adjudicate the complaint and, therefore, no other courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in support of its claim. 10) The National Commission, in the impugned order, has concluded that the agent was not only the agent of the consignor, but also of the agent of the appellant-carrier, and hence any mistake committed by the agent would make the principal (appellant-carrier) liable for such damages. Further, it is held by the National Commission that the appellant-carrier was duty bound to have contacted the consignor in case it was not able to locate the address of the consignee or in the event, the consignee refused to accept the consignment. It is held that it is not open to the appellant-carrier to have delivered the consignment to the notified party without informing the consignor. On the point of limitation, the National Commission has observed that by virtue of Rule 30 of the Second Schedule, a suit could be brought within two years, and hence Rule 12 is not applicable in the facts of the case. In the light of the above findings, the National Commission has held that the services provided by the appellant-carrier were deficient and ordered payment of the compensation to the consignor. 11) Shri. Vinoo Bhagat, learned counsel, appears for the appellant-carrier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Second Schedule to the CA Act was applicable, the jurisdiction of the National Commission is not ousted in any manner whatsoever. He further submits that the word Court is not used in the strict sense of the term, thereby it cannot be said that a quasi-judicial Tribunal is excluded. He submits that the Warsaw Convention was reproduced in two languages (being English and French), and that the term Court seems to be used in a sense to indicate a body that resolves disputes and cannot be restricted to the meaning accorded by our judicial system. Shri. Gupta further submits that the Warsaw Convention does not contemplate the situation of alternate Tribunals replacing Courts of Law. He relies on Rule 29(2) of the Second Schedule to the CA Act and submits that the procedural law of the country, in which the suit is filed, is what is applicable, and in India, the CP Act was the legislation that lays down the remedy and procedure for the deficiency of service. He would further state that the CP Act was brought into force to expedite the justice delivery system for matters relating to deficiency of service, and the CP Act not only prescribes territorial jurisdiction, but also the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he place of destination, whether or not there be a break in the carriage or transshipment, are situated either within the territories of two High Contracting Parties, or within the territories of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to the Convention. The Convention provides that when an accident occurring during international carriage by air causes damage to a passenger, or a shipper or cargo, there is a presumption of liability of the carrier. The carrier, however, is not liable if he proves that he or his agent had taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures. The Convention balances the imposition of a presumption of liability on the carrier by limiting his liability for each passenger to 1,25,000 gold francs. There is no limitation of liability if the damage is caused by the willful misconduct of the carrier, or by such default, on his part as, in accordance with the law of the Court ceased of the case, is equivalent to willful misconduct. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in Warsaw Convention have already been applied to non-international carriages subject to certain exceptions, adaptations and modifications. It is now proposed to take power to apply the rules contained in the Warsaw Convention as amended by the Hague Protocol also to non-international carriages subject to exceptions, adoptions and modifications. 8. The Bill seeks to give effect to the above objectives. 17) The preamble to The Carriage by AIR Act, 1972 reads as follows: An Act to give effect to the Convention for the unification of certain rules of international carriage by air signed at Warsaw on the 12th day of October, 1929 and to the said Convention as amended by the Hague Protocol on the 28th day of September, 1955 and to make provision for applying the rules contained in the said Convention in its original form and in the amended form (subject to the exceptions, adaptations and modifications) to non-international carriage by air and for matters connected therewith. 18) The CA Act was enacted to give effect to the convention for unification of rules relating to international carriage by air signed at Warsaw as amended at Hague in 1995 and the Montreal Conven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of the Schedule. Chapter II deals with the documents of carriage, viz. passenger ticket (Part I), baggage check (Part II), airway bill (Part III). Chapter III enumerates the provisions regarding the liability of the carrier with regard to the acts which the carrier will be held liable for, the jurisdiction of the Court at which the carrier can be sued, the limit of the liability, limitation for bringing a suit, etc. Chapter IV and Chapter V deal with provisions relating to combined carriage and general provisions respectively. Part III of Chapter II of the Second Schedule is relevant for the purpose, of the case. Therefore, omitting what is not necessary, relevant rules are extracted as : 5. (1) Every carrier of cargo has the right to require the consignor to make out and hand over to him a document called as "air waybill"; every consignor has the right to require the carrier to accept this document. (2) The absence, irregularity or loss of this document does not affect the existence or the validity of the contract of carnage which shall, subject to the provisions of rule 9, be nonetheless governed by these rules. 6. (1) The air waybill shall be made out by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the consignor ceases at the moment when that of the consignee begins in accordance with rule 13. Nevertheless, if the consignee declines to accept the waybill or the cargo, or if he cannot be communicated with, the consignor resumes his right of disposition. 13. ... 14. The consignor and the consignee can respectively enforce all the rights given to them by rules 12 and 13, each in his own name, whether he is acting in his sown interest or in the interest of another, provided that he carries out the obligations imposed by the contract. 15. (1) Rules 12, 13 and 14 do not affect either the relations of the consignor or the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee. (2) The provisions of rules 12, 13 and 14 can only be varied by express provision in the air waybill. (3) Nothing in these rules prevents the issue of a negotiable air waybill. 16. (1) The consignor must furnish such information and attach to the air waybill such documents as are necessary to meet the formalities of customs, octroi or police before the cargo can be delivered to the consignee. The consignor is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 33. Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the carriage of cargo arbitration clauses are allowed, subject to these rules, if the arbitration is to take place within one of the jurisdictions referred to in sub-rule (1) of rule 29. 22) The CP Act aims to protect the interests of the consumers and provide for speedy resolutions of their disputes with regard to defective goods or deficiency of service. The Statement of Objects and Reasons of the CP Act are as under: The Consumer Protection Bill, 1986 seeks to provide for better protection of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. It is to be noted that at the relevant time, the pecuniary jurisdiction was twenty lakh rupees for the National Commission. Jurisdiction of the National Commission 24) It was rightly argued by learned counsel Sri Vinoo Bhagat that the primary question that arises for our consideration in this appeal is whether the CA Act and the three international conventions in it constitute all the law governing liabilities of international air carriers arising out of international carriage of passengers and goods by air or whether domestic law can be added or substituted for the provisions of the conventions. In a nutshell, the submission of the learned counsel for the appellant-carrier is that conventions, viz. Warsaw Convention, as amended at Hague in 1955 and the Montreal Convention of 1999 exclusively govern carrier liabilities and, therefore, a remedy under domestic law cannot be invoked. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er law for the time being in force and not in derogation thereof as is evident from Section 3 thereof. 28) In the case of Secy., Thirumurugan Coop. Agricultural Credit Society v. Ma. Lalitha, (2004) 1 SCC 305, this Court took the view: 12. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar. 29) This Court, in the case of Kishore Lal v. Chairman, Employees State Insurance Corpn. (2007) 4 SCC 579, took the view: 7. The definition of consumer in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services, bought or hired, for consideration. Such consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowered to give relief of a specified nature and in an appropriate way, to award compensation 31). This Court in the case of Patel Roadways Limited v. Birla Yamaha Ltd., (2000) 4 SCC 91, has considered this question and has laid down that the Disputes Redressal Agency provided for in the Act will have the jurisdiction to entertain complaints in which the claim for loss or damage of goods entrusted to a carrier for transportation is in dispute. 32). In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other Statute. It does not extinguish the remedies under another Statute but provides an additional or alternative remedy. In the instant case, at the relevant point of time, the value of the subject matter was more than ₹ 20 lakhs, by which the National Commission is conferred jurisdiction for any cause of action that arises under the Act. Further, we are not inclined to agree with the argument of Shri. Bhagat that exercising of jurisdiction was in contravention of International Law, as the Warsaw Convention and the Hague Protocol have been incorporated into the domestic law by the passage of the CA Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, the Parliament though these incorrect acts, further narrowed a party s ability to successfully plead foreign sovereign immunity. In the modern era, where there is close interconnection between different countries as far as trade, commerce and business are concerned, the principle of sovereign immunity can no longer be absolute in the way that it much earlier was. Countries who participated in trade, commerce and business with different countries ought to be subjected to normal rules of the market. State owned entities would be able to operate with impunity, the rule of law would be degraded and international trade, commerce and business will come to a grinding halt. Therefore, we have no hesitation in coming to the conclusion that the appellant cannot claim sovereign immunity. National Commission is a Court ? 34) Shri. Bhagat has cited several decisions of this Court in which this Court has taken the view that Consumer Forums are not Courts but are quasi-judicial bodies or authorities or agencies, in furtherance of his contention that only a Court in Mumbai has the jurisdiction to try a suit against the appellant-carrier and that the National Commission is not a Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls. But all tribunals are not courts. (ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a judicial member and a technical member who is an expert in the field to which the tribunal relates. Some highly specialized fact-finding tribunals may have only technical members, but they are rare and are exceptions. (iii) While courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and the Evidence Act, requiring an elaborate procedure in decision making, tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of the Evidence Act. 35) In the case of Bharat Bank Ltd. v. Employees, 1950 SCR 459, this Court took the view that to be a court, the person or persons who constitute it, must be entrusted with judicial functions, that is, of deciding litigated questions according to law. This Court further observed that before a person or persons can be said to constitute a court, it must be held that they derive their powers from the State and are exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n., Vol. 10, paras 701 and 702), this is observed: 701. Meaning of court . Originally the term court meant, among other things, the Sovereign's palace. It has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either directly or indirectly from the Sovereign. All tribunals, however, are not courts, in the sense in which the term is here employed. Courts are tribunals which exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction. Thus, arbitrators, committees of clubs and the like, although they may be tribunals exercising judicial functions, are not courts in this sense of that term. On the other hand, a tribunal may be a court in the strict sense of the term even though the chief part of its duties is not judicial. Parliament is a court. Its duties are mainly deliberative and legislative; the judicial duties are only part of its functions. A coroner's court is a true court although its essential function is investigation. 702. What is a court in law. The question is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts he was given the same powers as were given to the ordinary civil courts of the land by the Code of Civil Procedure, including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and to exercise the inherent jurisdiction of courts mentioned in Section 151. In adjudicating a dispute under Section 48 of the Bihar Act, the Registrar was held to be to all intents and purposes a court discharging the same functions and duties in the same manner as a court of law is expected to do . 38) The aforesaid observation has been strongly relied upon by Shri. Jaideep Gupta in reply to the contention of Shri. Bhagat that the National Commission was not a Court, and therefore, lacked jurisdiction to decide the complaint filed by the opposite party. In P. Sarathy v. State Bank of India, 2000 (5) SCC 355, this Court took the view that the term Court in Section 14 of the Limitation Act, 1963, meant any authority or tribunal having the trappings of a court. It may also be relevant to notice that a Constitution Bench of this Court in the case of Kihoto Hollohon v. Zachillhu, (1992) Supp ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court for its execution. The High Court, therefore was not correct to hold that in each and every case the order passed by the District Forum/State Commission/National Commission are required to be sent to the civil courts for execution thereof. 58. Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. A parliamentary statute indisputably can create a tribunal and might say that non-compliance with its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery. 42) The use of the word Court in Rule 29 of the Second Schedule of the CA Act has been borrowed from the Warsaw Convention. We are of the view that the word Court has not been used in the strict sense in the Convention as has come to be in our procedural law. The word Court has been employed to mean a body that adjudicates a dispute arisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s upon the consignor and there is no obligation on the part of the carrier or shipper to ensure that the address is correct. The carrier, Shri. Bhagat would submit, is only responsible to ensure the contents of the consignment and not the addressee. He would further submit that it would not be practical for the carrier to check the authenticity of the address in the consignee box for each and every consignment and that they would only check if there is an address or not. 45) The learned counsel, Shri. Bhagat would also contend that the consigner did not invoke the rights under the Warsaw Convention for the non-arrival of goods in a timely manner and as a result, was disentitled to later complaining about the lost consignment. He would then refer to Clause 12 of the airway bill and state that if the notice was not given by the consignor within a period of 120 days, then the claim would get extinguished. He would further contend that neither the consignee nor the consignor invoked their rights under Article 13(3) and Article 14 at any time. This fact sufficiently proves, according to the learned counsel, that the claim made is not genuine. 46) Before the National Commission, appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ositive response, they made written correspondence in the year 1993. 50) All the witnesses, who had filed their affidavit by way of examination-in-chief, have been cross examined by the contesting parties. 51) The learned counsel Sri Vinoo Bhagat would contend that in the airway bill, the consignor had indicated the name of the consignee as M/s. LIWE ESPANOLA in the consignee box and, therefore, the consignor could not have expected the carrier to have delivered the consignment to BBSAE, Madrid, Spain. The airway bill is one of the documents produced along with the Memorandum of civil appeal. A perusal of the same would show that the agent of the consignor in the consignee s box specifically mentions the name of the consignee as BBSAE, Madrid and immediately thereafter, the name of M/s LIWE ESPANOLA is mentioned. It has come in the evidence of the consignor and his agent that BBSAE, Madrid is Barclays Bank, Madrid and SAE is a Spanish abbreviation for incorporation like limited . Therefore, the consignee is only Barclays Bank, Madrid. It is the stand of the appellant-carrier that BBSAE, Madrid is not the consignee and further, it was the responsibility of the consignor and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrier against all damages suffered by him or to any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor. Rule 16 provides that the consignor should furnish all the information and attach it to the airway bill to meet the requirements of law enforcing agencies. In the present case, as we have already noticed that the consignor had furnished all the relevant information in the airway bill which would satisfy the requirements of both Rule 6 and 16 of the rules and, therefore, the consignor cannot be accused of not furnishing the correct particulars and information in the airway bill which is handed over to the appellant-carrier with the cargo. In our view, the appellant-carrier cannot absolve its responsibilities by contending that it would be practically impossible to verify the correctness of all the airway bills which are furnished with the cargo. The appellant s contention that the name and address of the consignee was inadequate is difficult to accept. There is evidence on record to show that documents supporting the letter of credit was sent by the consignors usin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(2) specifically provides that questions of procedure shall be governed by the law of the Court seized of the case. In addition, Rule 30 of the second Schedule leaves no doubt that the right to damages shall be extinguished only if the action is not brought within two years as provided therein. It reads thus: 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. The Complainant entrusted the goods to the carrier on 25th August, 1992 and the goods reached Madrid on 3rd September, 1992. Admittedly, the complaint is filed within a period of 2 years. Further, Rule 33 which is quoted above, upon which heavy reliance was placed by the learned Counsel Mr. Bhagat for Opposite Party No.1, in contending that this Commission would have no jurisdiction to decide the matter, specifically provides that any clause contained in the contract entered into before the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
