2010 Supreme(SC) 325

2010 (3) Supreme 65
SUPREME COURT OF INDIA
D.K. Jain and T.S. Thakur, JJ.
M/s Dilawari Exporters — Appellant
versus
M/s Alitalia Cargo & Ors. — Respondents
Civil Appeal No.8699 of 2002
Decided on : 16-04-2010

IMPORTANT POINTS
1. Authority of an agent may be expressed or implied. An authority is said to be express when it is given by words spoken or written, and an authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing,which may be accounted circumstances of the case.
2. Onus to show that the act done by an agent was within scope of his authority or ostensible authority held or exercised by him is on the person claiming against the principal

Headnote:Consumer Protection Act, 1986- Section 23- Appellant engaged in the business of export of readymade garments and handicrafts handed over the consignment of certain articles to respondent No.3 - M/s Fourways Movers (P) Ltd. for onward dispatch to New York, for which a House Air Waybill was prepared by respondent No.3.- Since the consignment did not reach New York by stipulated date, importer, cancelled order and claimed damages from the appellant. –Complaint Alleging deficiency in service on the part of respondent No.1-Order passed by National Commission dismissing appellant’s complaint alleging deficiency in service on the part of M/s Alitalia Cargo,respondent No.1, on the ground that there was no privity of contract between appellant and respondent No.1-Appeal against order passed by National Commission- Evidence on record that respondent No.3 had an express authority to receive the cargo for and on behalf of respondent No.1- This was manifest from the Master Air Waybill issued and signed by respondent No.3 on Air Waybill printed by respondent No.1-But for said authority, respondent No.3 could not use the Air Waybill proforma printed by respondent No.1- Though it was true that in said Air Waybill name of the Shipper had been mentioned as that of respondent No.3 but the said Air Waybill had also been signed by respondent No.3 as the agent of carter - respondent No.1-The other relevant particulars like,the name of the consignee, the number of the House Air Waybill etc. tallied with the House Air Waybill issued by respondent No.3 to the appellant clearly showing the name of consignor as that of appellant- Said documents, showed that respondent No.3 was, in fact,acting in dual capacity - one as a Shipper on behalf of appellant and the other as an agent of respondent No.1- That being so, respondent No.1 was bound by the acts of their agent, respondent No.3, with all its results-While holding that there was no privity of contract between appellant and respondent No.1 this vital aspect of matter escaped the attention of Commission thus, vitiating its order- Impugned order of National Commission set aside – Matter remitted back to Commission for fresh adjudication of the claim preferred by the appellant on merits-Appeal allowed. (Paras 13, 14)

       Facts of the Case :

       Appellant engaged in the business of export of readymade garments and handicrafts handed over the consignment of certain articles to respondent No.3 - M/s Fourways Movers (P) Ltd. for onward dispatch to New York, for which a House Air Waybill was prepared by respondent No.3.herein in the instant case. Since the consignment did not reach New York by stipulated date, importer, cancelled order and claimed damages from the appellant. A Complaint Alleging deficiency in service on the part of respondent No.1 was filed by appellant. Order was passed by National Commission dismissing appellant’s complaint alleging deficiency in service on the part of M/s Alitalia Cargo,respondent No.1, on the ground that there was no privity of contract between appellant and respondent No.1.

       2.Present appeal has been filed against said order of National Commission.

       Findings of the Court :

       Evidence on record showed that respondent No.3 had an express authority to receive the cargo for and on behalf of respondent No.1. This was manifest from the Master Air Waybill issued and signed by respondent No.3 on Air Waybill printed by respondent No.1.But for said authority, respondent No.3 could not use the Air Waybill proforma printed by respondent No.1. Though it was true that in said Air Waybill name of the Shipper had been mentioned as that of respondent No.3 but the said Air Waybill had also been signed by respondent No.3 as the agent of carter - respondent No.1.The other relevant particulars like,the name of the consignee, the number of the House Air Waybill etc. tallied with the House Air Waybill issued by respondent No.3 to the appellant clearly showing the name of consignor as that of appellant. Said documents, showed that respondent No.3 was, in fact,acting in dual capacity - one as a Shipper on behalf of appellant and the other as an agent of respondent No.1. That being so, respondent No.1 was bound by the acts of their agent, respondent No.3, with all its results. While holding that there was no privity of contract between appellant and respondent No.1 this vital aspect of matter escaped the attention of Commission thus, vitiating its order. Impugned order of National Commission was set aside. Matter was remitted back to Commission for fresh adjudication of the claim preferred by the appellant on merits. Appeal was allowed.