TMI Blog2004 (1) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... ansport Association) agent and acts on behalf of the 1st Opposite Party carrier in the matter of cargo shipments in accepting the goods for carriage. The Complainant entrusted three consignments to the Opposite Parties on 25.8.1992 for carrying it to Madrid and in this case the claim relates to two consignments. 3. In the air-way bill in the column for Consignee , it is mentioned as follows: BB SAE MADRID, SPAIN NOTIFY LIWE ESPANOLA S.A. APARTADO, 741, MORCIA, SPAIN. L.C. No. C, 1036-92-00276 . In the next box of the air-way bill, under the heading Issuing Carrier's Agent name and City, the name of the second Opposite Party is mentioned. Air port of destination, MADRID. 4. It is also submitted that the Complainant got the order for export of garments to M/s. Liwe Espanola S.A., Morcia, Spain and for ensuring the prompt payment, the goods were to be delivered as per the letter of credit and, therefore, consignment was in the name of the Bank. Despite this, the goods were not delivered to the consignee Bank. 5. It is pointed out that under the heading, handling information, there is a clear instruction please inform consignee immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the consignee's column the word 'bank' is also not mentioned. It is, therefore, submitted that damages, if any, suffered by the Complainant were due to his/his agent's negligence, and therefore, the Opposite Party No. 1 is not liable. It is also pointed out that the Complainant for the first time stated by their letter dated 191th March, 1994 that 'BB SAE, Madrid, Spain', is Barclays Bank and that they were not aware of their address. Finally it is contended that there is no negligence on the part of the of the Opposite Party No. 1, and, therefore, the complaint be dismissed with costs. Submissions: 8. At the time hearing of this complaint, learned Counsel Mr. Vinoo Bhagat, appearing for the Opposite Party No. 1, raised a preliminary contention that the shipment of cargo by air was from Bombay to Madrid, Spain, and in view of Rules 29 and 33 of Second Schedule to the Carriage by Air Act, 1972, the National Commission would have no jurisdiction to entertain this complaint as the contract has been made at Bombay. Therefore, complaint could be filed at Bombay or at Madrid or at the principal place of business of the Opposite Party No. 1. A Findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the contract was entered into at Bombay, for getting the relief under the Consumer Protection Act, 1986, the consumer is required to approach the National Commission. He could not have filed complaint at Bombay for a claim exceeding ₹ 20 lakhs. Therefore, the complaint in the present case is required to be filed only before the National Commission. And, therefore the complaint is properly filed before the National Commission. However, the learned Counsel, Mr. Bhagat, for the Opposite Party No. 1 submitted that the words of Rule 29, namely, the Court having jurisdiction where the carrier has an establishment by which the contract has been made cannot be changed to read as where the cause of action only or in part arises or at any place where the carrier can be sued under Indian Law. It is his submission that the Rules are based on a treaty which cannot be altered or amended by the Court. It is submitted that the Act, as a special treaty law, will override and prevail over the provisions of all other National Laws that are contrary to or at variance with those of the Act. He submitted that it is the duty of the Court to interpret and apply by giving it primacy over domest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith and decide the claim of the Complainant. Therefore, there is no substance in this preliminary contention raised by the learned Counsel for the Opposite Party No. 1. B. Effect of Rules on the delivery of consignment not to the consignee: 16. Learned Counsel Mr. Bhagat for the Opposite Party No. 1, thereafter, referred to Rules 6, 10 and 16 of the Second Schedule of the Carriage Act and submitted that the consignor is liable for the consequences of any defect or irregularity in the airway bill, and, therefore, Opposite Party No. was not liable to pay any damages because in the airway bill complete address of the Bank was not mentioned. As the complete address of the Bank was not mentioned, goods were delivered to the notified party. Further, Opposite Party No. 1 is not responsible in case of any dispute between the notified party and the Complainant. In our view, this submission cannot be accepted because, admittedly in the column of consignee the following words were written: BB SAE MADRID, SPAIN NOTIFY M/S. LIWE ESPANOLA S.A. L.C. No. C, 1036-92-00276 17. L.C. number is specifically mentioned which would mean that there is a letter of credit by a Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the consignor and is to be delivered to the carrier with the cargo. Under Sub-clause (3) of Rule 6 the carrier is also required to sign prior to the loading of the cargo on the aircraft. Therefore, if the address of the bank was incomplete, it was also the duty of the carrier to verify the same. The learned Counsel for the Opposite Party No. 1 relied upon Rule 10 and submitted that consignor is responsible for the correctness of the particulars and statements relating to the cargo which is inserted in the air waybill and he is responsible to indemnify the carrier against all damages suffered by him by reason of irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor in the airway bill. Admittedly, in the present case, there is no question of any damage suffered by the carrier. That Rule would have no bearing in the present case. Similarly, Rule 16 would have no bearing, because airway bill contained all documents to meet the formalities of customs, octroi or police before the cargo can be delivered to the consignee. 20. On the contrary, under Rule 13 Clause (2) it is the duty of the carrier to give notice to the consigne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, this aspect is apparent from the correspondence which the Opposite Party No. 1 had with the truckers to whom the goods were handed over. 25. For the delivery of the goods, it has been pointed out by the Complainant as under: (1) Opposite Party No. 1 airlifted the consignment upto Amsterdam and thereafter trucked the goods by road from Amsterdam to Madrid, though there is no indication of this in the air waybill but Opposite Party relies upon Clause 8 of the conditions of contract. (2) Opposite Party No. 1 on their own had entrusted the job of trucking the cargo, to one cargo agency, Vas Sweiten, who in turn entrusted the work to Neddloyld Roaque, who actually trucked the goods from Amsterdam to Madrid, by road. (3) The truckers, Neddloyold Roaque without informing the consignee and without even bothering to know that it is a Bank shipment delivered the goods directly to the notifying party, without obtaining the Bank release and thus the Complainant is put to loss in the value of the consignment in question. (4) The trucker voluntarily delivered the consignment to Notifying party without asking for Bank Release. In support of this contention reliance is placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Invoice accepted/paid by you. - After - 1- year we were informed by you that it was a bank-shipment. That was the first info about a bank-shipment. For A.M. reasons you have to accept that we cannot be responsible for this claim. Only due relationship with you, we assist you in solving this matter. For the reason we are in contact with the offloading-agent in Madrid to see what we can arrange for you. We will keep you inform. Best Regards. FRITS BEUCKENS . The Complainant also strengthened his allegation of deficiency in service on the part of the Opposite Party by relying the on the following document: Translation Van Swieten Fax dated 0755 11:01 13.7.93. Ref: 27802208-0800-/0774-0785 AMS - Madrid/Bank shipment. We refer to your telex dated July 7th and have taken up this matter with N.R.C. (Neddlloyd Road Cargo) Madrid. They reject any responsibility since, as they state, they absolutely did not know it consisted of bank shipments. They did not have instructions, Air Waybills or something like that confirming this. At that time the shipment has been loaded and was trucked directly to Madrid. - Although we asked for AWB's we, onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach within 120 days. And, therefore, this complaint is required to be rejected. For that purpose he relies upon Clauses 8 and 12 of the Air Waybill, which are as under: 8. (a) Carrier undertakes to complete the carriage hereunder with reasonable dispatch. Carrier may substitute alternate carriers or aircraft and may without notice and with due regard to the interests of the shipper substitute other means of transportation. Carrier is authorised to select the routing or to change or deviate from the routing shown on the face hereof. 12. (a) The person entitled to delivery must make a complaint to the carrier in writing in the case. (i) - (iii) ..... (iv) of non-delivery of the goods within 120 days from the date of the issue of the Air Waybill . In our view, this submission cannot be accepted. Firstly, Clause (12) only provides that the persons entitled to delivery must make a complaint to the carrier in writing, in case of non-delivery of the goods within 120 days from the date of issue of air waybill. There is no question of delivery of goods to the shipper/Complainant. Further, it cannot control the period of limitation provided under 'the Act'. Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's address was required to be properly written by Opposite Party No. 2. In our view, this contention does not deserve any merit. In view of the discussion made above, there was total deficiency on the part of the Opposite Party No. 1 in handing over goods to the truckers without air waybills. The Learned Counsel Mr. Bhagat further submitted that LC was drawn in favour of Gokuldas Exports and that there was nothing on the face of the LC showing that it has been transferred to any other party. This contention also cannot help the Opposite Party No. 1, because it is for the consignor to decide from whom he should receive the consideration of the goods exported. Further, even if there is dispute between Gokuldas Exports and the notified party, it would not mean that Opposite Party No. 1 can directly deliver the goods to the notified party without clearance through the bank. E. Lastly, it was contended that the Complainant has received the payment from the notified Party. In our view, there is nothing on record to establish that Complainant has received the said amount from the notified party. 27. In the result, the Complainant is allowed. Opposite Party No. 1 is dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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