NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
Hon’ble Mr. Justice D.P. Wadhwa, President; Mr. Justice C.L. Chaudhry,
Mr. Justice J.K. Mehra, Mrs. Rajyalakshmi Rao
& Mr. B.K. Taimni, Members
BHARATHI KNITTING CO.—Complainant
versus
BRITISH AIRWAYS & ANR.—Opposite Parties
Original Petition No. 296 of 1994—Decided on 28.9.2001

Headnote:Consumer Protection Act, 1986-Section 2(1)(g) and 14-Misdelivery of consignment by Airways-Deficiency in service-Compensation claim-Consignment of 22,320 pieces of knitted ladies pullovers booked to be delivered to U.K. -Entrustment of goods to Opposite Party No. 1 by Airways Bill-Consignment was to be transported only on 24-12-1992 by British Airways-Lifting of cargo one day earlier contrary to Airways Bill-Complainant decided to change name of consignee on 23-12-1992-Complainants communication to Opposite Party No. 2, Agent of Airways to change name of consignee communicated on 23-12-1992-Whether complainant could change name of consignee after AWB had been prepared? -(Yes)-Delivery of consignment to wrong consignee without Bank release order-British Airways and not its Agents held liable for deficiency of service in delivery of consignment-Liability to pay amount of Rs. 19,58,448/- (value of goods) with interest @ 12% from 24-1-1993-Award of Rs. 10,000/- as costs.

       The actual delivery of the consignment took place on 24th February, 1993 at 12.25 hrs. because import licence was granted only on 28th January, 1993 and this is admitted in the reply of Opposite Party No. 1 vide telex from London on 24th February, 1993 at 18.04 hrs. IST (13.40 GMT). Whereas throughout Opposite Party No. 1 was pleading that the cargo was released after all the clearances were done on 23rd December, 1992 itself and that once documents are claimed by consignee under Rule 13(1) of Carriage by Air Act, 1972 nothing could be done. We refer to Rule 13(1) which is "Except in the circumstances set out in preceding rule the consignee is entitled on arrival of the cargo at the place of destination to require the carrier to hand over to him airway bill and to deliver the cargo to him on payment of the charges due and on complying with the conditions of carriage set out in the airway bill it is clear that the right of original consignee to take delivery", under Rule 13(1) is subject to the consignors rights under Rule 12(1) to change the consignee at any time before delivery. Rule 13(1) starts with a clause subject to Section 12, besides the delivery of consignment has taken place only on 24th December, 1992 at 12.10 GMT and Opposite Party No. 1 was aware of delivery proceedings and this information was not given to the Complainant in time to enable him to take legal action in London and he could have obtained injunction order from the court before the consignment left the premises of the warehouse and that is two months. Instead, Opposite Party No. 1 was misleading Complainant that the delivery was given on 23-12-1992 itself whereas clear 24 hrs. time was still there from appearance of the agent to the delivery of cargo on 24-12-1992 and of course it was not even cleared out of their premises till 24-2-1993. Under Rule 12 of Carriage by Air Act, complainant exercises his right to give instructions for change of delivery of the consignment.

       Consumer Protection Act, 1986-Sections 2(1)(g) and 14-Consignment of goods, misdelivery by Airways-Inordinate delay in finding out whereabouts of consignment-Information of consignment supplies two years after filing the complaint and four years after the incident took place-Deficiency on the part of British Airways in rendering service-Complainants suffering loss, as to be compensated-Airways directed to pay amount of goods with interest @ 12 per cent p.a.

       It is only in the year 1996, opposite party No. 1 brought out this affidavit for the first time wherein it is admitted that the goods were released from their cargo centre at 1225 hours on 24th December, 1992 which was not disclosed earlier to the complainant or opposite party No. 2 inspite of their persuits. Opposite party No. 1 brought out on record, the Warehouse Location Record, Delivery Receipt, Goods Release Note and Copy of AWB only in 1996 afer the complaint is filed while booking in the cargo delivery details and the same could have been given to opposite party No. 2 and the complainant in the year 1992 itself. Opposite party No. 1 has not endeavoured to get the affidavit of Viscount International who processed the documents and took the release of the cargo on 24.12.1992 at 12.25 hours from opposite party No.1. Opposite party No. 1 had the information of the change of the consignee on 23.12.1992 at 16.10 hours IST and also had 24 hours on hand to be able to let the complaint and opposite party No. 2 to know and under Rule12, they had to stop delivery of the consignment to Viscount International. Instead, they misguided opposite party No. 2 and the complainant that the goods were delivered on 23.12.1992 and disabled him further from taking action through Court.

       From the above discussion, it clearly spells out that there is a deficiency on the part of opposite party No.1 rendering the service and on that account, the complainant has suffered a loss for which he has to be compensated. The goods were delivered for carriage on 24th December, 1992 and the complainant was appraised of the fate of the consignment in 1996. This inordinate delay on two years itself constitute a clear case of deficiency of service on the party of the opposite party No.1.

       Carriage by Air Act, 1972-Rule 12(1), Schedule II-Contract of carriage with Airways-Change of name of consignee-Whether complainant can change name of consignee after AWB has been prepared-(Yes)-Complainant having exercised his right to give instructions for change of delivery of consignment-Misdelivery of consignment held deficiency in service-Sections 2(1)(g) and 14-Consumer Protection Act, 1986.

       The actual delivery of the consignment took place on 24th February, 1993 at 12.25 hrs. because import licence was granted only on 28th January, 1993 and this is admitted in the reply of opposite party No. 1 vide telex from London on 24th February, 1993 at 18.04 hrs. IST (13.40 GMT). Whereas throughout opposite party No. 1 was pleading that the cargo was released after all the clearances were done on 23rd December, 1992 itself and that once documents are claimed by consignee under Rule 13(1) f Carriage by Air Act, 1972 nothing could be done, We refer to Rulke 13(1) which is Except in the circumstances set out in preceding rule the consignee is entitled on arrival of the cargo at the place of destination to require the carrier to hand over to him the airway bill and to deliver the cargo to him on payment of the charges due and on complying with the conditions of carriage set out in the airway bill it is clear that the right of original consignee to take delivery, under Rule 13(1) is subject to the consignors rights under Rule 12(1) to change the consignee at any time before delivery. Rule 13(1) starts with a clause subject to Section 12, besides the delivery of consignment has taken place only on 24th December, 1992 at 12.10 GMT and opposite party No. 1 was aware of delivery proceedings and this information was not enable him to take legal action in London and he could have obtained injunction orders from the court before the consignment left the premises of the warehouse and that is two months. Instead, opposite party No 1 was misleading complainant that the delivery was given on 23.12.1992 itself whereas clear 24 hrs. time was still there from appearance of the agent of the delivery of cargo on 24.12.1992 and of course it was not even cleared out of their premises till 24.2.1993. Under Rule 12 of Carriage by Air Act, complainant exercises his right to give instructions for change of delivery of the consignment.