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High Court Of Delhi
ANIL - Appellant
Versus
AIR INDIA LIMITED - Respondent
Suit 709 of 1976
Decided On : 07/18/1985
CARRIAGE BY AIR ACT, 1972 - SECTIONS 30, 13 - LIABILITY OF CARRIERS - JOINT AND SEVERAL - DELIVERY OF GOODS - TO BE MADE ONLY TO CONSIGNEE NAMED IN AIRWAY BILL - UNLESS OTHERWISE AGREED - NOTICE TO CONSIGNEE ON ARRIVAL OF GOODS - MANDATORY - DELIVERY OF GOODS TO PERSON OTHER THAN CONSIGNEE - UNAUTHORIZED - CARRIER LIABLE FOR LOSS.
Fact of the Case:
Plaintiff, an exporter, dispatched goods to New York through Air India, which entrusted the consignment to Trans World Airlines for carriage from Paris to New York. Trans World Airlines delivered the goods to the intended consignee, defendant No. 4, without obtaining payment. Plaintiff sued Air India, Trans World Airlines, and other parties involved for recovery of the value of the goods.
Finding of the Court:
1. Trans World Airlines was not liable to the plaintiff as there was no privity of contract between them. 2. Air India was liable to the plaintiff for the loss of goods as it had a contractual obligation to carry the goods to New York and could not pass on that liability to a third party. 3. The delivery of goods to defendant No. 4 without obtaining payment from the consignee, defendant No. 3, was unauthorized and negligent. 4. Defendant No. 4 was primarily responsible for the payment of the amount, and Air India had a remedy to recover the same from defendant No. 4.
Issues: 1. Whether Trans World Airlines was liable to the plaintiff. 2. Whether Air India was liable to the plaintiff for the loss of goods. 3. Whether the delivery of goods to defendant No. 4 without obtaining payment from the consignee was unauthorized and negligent. 4. Who was primarily responsible for the payment of the amount.
Ratio Decidendi: 1. The liability of different carriers with regard to the goods consigned remains joint and several under Section 30 of the Carriage by Air Act, 1972. 2. The consignee is entitled to require the carrier to hand over the airway bill and deliver the cargo on arrival at the place of destination and on payment of charges due under Rule 13 of the Second Schedule to the Carriage by Air Act, 1972. 3. Delivery of goods is to be made only to the consignee named in the airway bill unless otherwise agreed, and notice of the arrival of goods must be given to the consignee under Condition 9 of the airway bill.
Final Decision: The suit of the plaintiff for Rs. 1,47,820.21 was decreed with costs against defendant No. 4, with interest at 18% per annum from the date of the institution of the suit till realization. The suit against defendant No. 1 was also decreed for Rs. 1,36,500.00 with proportionate costs, with interest at 6% per annum from the date of the institution of the suit till realization.
( 1 ) THIS suit for the recovery of Rs. 1,47,820. 21 p. has been brought by Mrs. Anil Kapur, who claims that she is doing business of export of readymade garments, handicrafts etc. In the month of April, 1975, she received a number of orders for the export of garments from M/s. Roopali, a concern of New York (impleaded as defendent No. 4), through their agent Miss Gool Vakharia, defendant No. 5. The goods thereof valuing Rs. 1,30,604. 47 p. were despatched under 9 invoices on 25-7-1975 through the Air India, impleaded as defendant No. 1, for carriage to New York. An air waybill was issued on the booking of that consignment on behalf of the Air India by their agent S. S. Robinson, Janpath, New Delhi. The documents thereof were negotiated through Allahabad Bank to be got cleared on payment, basis. The Allahabad Bank, New Delhi in turn negotiated those documents through the Irwing Trust Co. , a bank of New York (impleaded as defendant No. 3 ). It has also been stated that defendant No. 4 who had initially agreed to open a letter of credit with regard to the value of the goods, did not, in fact, do so.
( 2 ) THE air waybill and the other documents, however, were never got cleared and released by defendant No. 4 from defendant No. 3 in New York, and were returned later through the Allahabad Bank to the plaintiff. What, however, transpired was that the Air India carried those goods to Paris and from there entrusted them to the Trans World Airlines, initially impleaded as defendant No. 2, for carriage to New York. The plaintiff later was informed by defendant No. 1 by their letter dated 29-8-1975 that the consignment was picked up by defendnt No. 4 on 8-8-1975 in New York, and no payment had been received. The plaintiff, therefore, protested and correspondence ensued. Ultimately both the Airlines disowned their liability, and hence this suit.
( 3 ) DEFENDANT No. 2, Trans World Airlines, contended in written statement that there was no cause of action against them as the privity of contract was between the plaintiff and the Air India only. This prevailed with H. L. Anand, J. , and, therefore, the suit qua this defendant was disrnsised.
( 4 ) NO written statement has been filed from the side of defendant No. 4, While defendant No. 5 simply pleadad that it did not act as agent of defendant No. 4, but only inspected the goods on their behalf to ensure that they were in terms of the orders placed. For this, she pleaded that she was paid commission towards the reimbursement of the expenses incurred. The liability for the suit amount was, therefore, contested.
( 5 ) DEFENDANT No. 3 on their part too denied that there was any privity of contract between them and the plaintiff. Rather it was stated that it was the Allahabad Bank which had forwarded the papers to them, and since none came to them in New York to get those papers cleared and released, they could not obtain any payment on their score. At the same time, it was contended that a duality was enacted by the plaintiff herself inasmuch as that she showed both this defendant as well as defendant No. 4 as the consignee and the invoices and other documents attached with the air waybill mentioned that the goods were meant for defendant No. 4. As such in case the Trans World Airlines delivered the goods to the defendant No. 4 without payment, this defendant did not come into the picture. The liability has, therefore, been disowned.
( 6 ) THE main defence has been set up by the defendant No. 1. It has not been disputed that the consignment was in fact booked by the plaintiff for carriage to New York at Delhi, and that from Paris the Air India handed over the consignment to the Trans World Airlines for carriage to New York. It has also not been disputed that the Trans World Airlines delivered the consignment to defendant No. 4 on 8-8-1975, and this was done without obtaining any payment from defendant No. 4. Similarly non- clearance of the documents which had been sent by the plain
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