The complainants say both carriers had a back-to-back arrangement for transporting cargo by air, and that the complainants had obtained orders from a Japanese Firm M/s. First Research Company Ltd. for Psyllium Husk (Isabgol). The complainants sent two consignments by air to Tokyo. Air India, sent these consignments, which were received at Tokyo airport. The consignee was the Sumitomo Bank Ltd. and cargo could be released to the purchaser only on production of the documents after it makes payment to the Bank. The complainants alleged that without proper instructions Japan Airlines released the Cargo to First Research Co. Ltd. without receiving the payment. Thus, in short, alleging deficiency in service this complaint has been filed holding both the airlines jointly and severally responsible. Compensation was awarded.
Dhillon Exports Pvt. Ltd. And Anr. vs Air India And Japan Airlines on 22/11/2002 ORDER D.P. Wadhwa, J. (President) 1. This complaint under Section 21 of the Consumer Protection Act, 1986 was filed on 22.9.1995 claiming Rs. 55,38,850/- being the loss suffered by the complainants. A sum of Rs. 10.00 lakhs is further claimed by way of compensation on account of mental harassment and agony which the complainants had to undergo. Yet again a sum of Rs. 10.00 lakhs is claimed on account of opposite parties indulging in unethical trade practices. 2. There are two opposite parties. Both are international air carriers Complainants say both these carriers had back to back arrangement for transporting the cargo by air. Complainants say that they had obtained orders from a Japanese Firm M/s. First Research Company Ltd. for Psyllium Husk (Isabgol). The value of the order was US $ 88,300 and the order was received on 26.9.94. On 10.10.94 complainants sent two consignments of 850 bottles of Psyllium Husk by air to Tokyo. Air India, it appears, sent these consignments on 13/16-10-94 and 20.10.94 which was received at Tokyo airport. 3. Allegations in the complaint further show that the consignee was the Sumitomo Bank Ltd. A/c First Research Co. Ltd. and cargo could be released to the purchaser only on production of the documents after it makes payment to the Bank. Complainants then alleged that without proper instructions Japan Airlines released the Cargo on 24.10.94 to First Research Co. Ltd. without receiving the payment. A representative of the complainants even found part of the cargo in the premises of the purchaser when he visited there. Thus, in short, alleging deficiency in service this complaint has been filed holding both the airlines jointly and severally responsible. Particulars of the claim of US $ 1,63,726.00 equivalent to Rs. 55,38,850/- (this is as per the amount calculated as on 31.8.95) as given in the complaint are given below: 4. For one thing there is nothing on the record to show that there was any back to back arrangement of the two different air carriers i.e. the Air India and Japan Airlines. Cargo was air lifted to Tokyo only by Air India which had arrangement with the Japan Airlines as handling agent. A copy of the handling agreement between the Air India and Japan Airlines had been brought on record. However, that will not affect the case of the complainants as Japan Airlines would be agent of Air India and Air India being principal would be liable for any deficiency in service as alleged by the complainants. 5. The cargo arrived at Tokyo and it could not have been delivered to the First Research Co. Ltd. by the Japan Airlines without documents getting released from the Sumitomo Bank Ltd. who were shown as the consignee in the airway bill. It is contended by the complainants that on 21.10.94 First Research Company Ltd. requested the complainants to change the name of the consignee from Somitomo Bank Ltd. to their own name to enable them to take delivery of the consignment from the Japan Airlines. Thee being no instructions from the complainants, Japan Airlines, it appears, delivered the consignment on 24.10.94 to the First Research Company Ltd. Japan Airlines says that the cargo was released to First Research Company Ltd. Japan Airlines says that the cargo was released to First Research Company Ltd. on their asking and to save demurrage. Since there was nothing being head about the delivery of the consignment to the First Research Company Ltd. nor payments received there were two visits by the representative of the complainants to Tokyo. First visit was on 23.10.94 which was for the purpose of receiving payments from the First Research Company Ltd. and to avoid demurrage as the consignment was lying at the airport for over a week pending payment. Complainants are silent as to what was the result of this visit. However, the second visit was on 24.3.95 when the representative of the complainants found the very consignment lying in the office of the Japan Airlines. It was made known to him that the consignment had already been released on 24.10.94. When the complainants protested it appears that steps were taken by Japan Airlines to retrieve the consignment from First Research Company Ltd. and it is stated that on paying 1.00 million Yen to that Company consignment was retrieved by Japan Airlines. It is stated that out of 850 bottles which had been exported 830 were retrieved by the Japan Airlines. 6. In the affidavit of Japan Airlines it is stated that when the complainants protested to Japan Airlines for having delivered the consignments without payment a representative of the Japan Airlines contacted the purchaser and after paying 1.00 million Yen (equivalent to US $ 8,333.00) it was able to retrieve the 830 bottles out of 850 bottles and complainants were duly informed of the same and Japan Airlines sought alternative disposal instructions. Complainants requested the Japan Airlines to hold on to the consignment as complainants were looking for another buyer in Japan. Since to instructions were received an application was filed by Japan Airlines in this Commission on 7.5.96 seeking direction for disposal of the consignment. But this Commission following the decision of the Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartic Das – (1994) 4 SCC 225 observed that National commission had no jurisdiction to grant interim relief and in its affidavit Japan Airlines had also stated that under Schedule-II of Carriage by Air Act it has no responsibility as such and rather it is entitled to claim back the amount paid by it to the purchaser in Japan for retrieving the consignments. In this affidavit Japan Airlines has rather staked counter claim for refund of the amount of US $ 3,48,638 which, as stated above, it had paid to the purchaser to retrieve the consignment and the demurrage. 7. We have seen the application earlier filed by the Japan Airlines before this Commission. Along with this application there is a letter sent by registered post by Japan Airlines to the complainants seeking instructions for disposal of the consignments. Admittedly no instructions had ever been given. Complainants had contended that it had given no instructions to Japan Airlines to retrieve the consignment from the First Research Company Ltd. and that it did not ask the Japan Airlines to hold on the consignment or wait for instruction for alternate disposal. It is contended that consignment was ‘purchased back’ by Japan Airlines at their own responsibility and that complainants were under no obligation to find any alternate buyer. This part of the version of the complainants we are unable to accept. Japan Airlines made amends for its default in handing over the cargo contrary to the instructions of the complainants and without receiving any payment. Under a mistaken belief in order to avoid demurrage Japan Airlines released the consignment. However, that is its own responsibility and nothing has been shown that it could so release the consignments under any law. But when there was a protest from the complainants it made attempts to retrieve the consignment and was successful to do so in spite of its own paying 1.00 million Yen to the First Research Company Ltd. Thereafter, it is the fault of the complainants is not giving proper instructions to the Japan Airlines and Air India and taking no steps for its disposal. Application of the Japan Airlines in this Commission which we have referred to above fortifies the stand of the Japan Airlines. 8. Thus we find that even though Japan Airlines was initially deficient in service in releasing the consignment contrary to the instructions of the complainants yet it took all the steps to retrieve the consignment and it waited for instructions of the complainants which they failed to give. For that either Air India or Japan Airlines cannot be held responsible. But then for being deficient in service in releasing the consignment without receiving payment thus putting the complainants to unnecessary expense of visits of the Tokyo and for the mental tension and harassment suffered it had to be compensated. Moreover complainants are also entitled to interest on the value of the consignment from 1.11.94 to 25.3.95 (i.e. about the time consignments were released and then retrieved). There is no evidence on record brought by the complainants to show as to what expense they incurred on the visits to Tokyo by their representative and how they are claiming interest @ 24% per annum. Taking the rate of interest at 18% per annum and the period of about 4 months and the expenses incurred on visits to Tokyo we are of the view that a sum of Rs. 2.00 lakhs will meet the ends of justice. At the stage subsequent to 25.3.95 the complainants are the ones who are wholly responsible for their loss of the consignments. 9. Japan Airlines had claimed US $ 4,36,638 towards demurrage for holding on the consignment awaiting instruction of the complainants. It had, therefore, made a claim of US $ 3,48,638.00 (demurrage US $ 4,36,638(-) US $ 88,000 being the price of the consignment). The claim for demurrage though arises out of the same transaction, we, however, would not like to go into the question of award of any demurrage and expenses in these proceedings as claimed by Japan Airlines. In these circumstances we would also not go into the question if any compensation is to be awarded in favour of the complainants for loss of consignment and therefore would relegate the parties to seek their remedy elsewhere when claim and counter claim arising out of the same transaction can be stored out. We would, therefore, allow this complaint only to the extent of award of damages of Rs. 2.00 lakhs on account of deficiency in service as aforesaid against the opposite parties. However, this order will not come in the way of the complainants or any of the two Airlines in any proceedings initiated or pending in the Civil Court or otherwise. Section 14 of the Limitation Act will be applicable if any exclusion of time is sought and this is in view of the judgment of the Supreme Court in the case of Laxmi Engineering Works v. PSG Industrial Institute -(1995) 3 SCC 583.
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