2007 (1) CPR 127 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
S.N. Kapoor, Presiding Member and B.K. Taimni, Member
Southern Petrochemical Industries
& Anr.—Appellants
versus
British Airways World Cargo—Respondent
First Appeal No. 491 of 1997
Decided on 7-11-2006

EDITORIAL NOTE:
[The typographical order/judgment supplied suffers from various errors and omissions]
IMPORTANT POINT
Although complainant No. 1 would be entitled to claim loss caused due to deficiency in service but in the absence of pleading and proof on the part of the carrier, it could not be said that the complaint was maintainable.

Headnote:(i)Consumer Protection Act, 1986—Sections 2(1)(d)(ii) and Section 12—Definition of consumer and manner to file complaint—Foreign consignment—Sent through British Airways—Consignee shown a Bank—Bank could endorse after receiving payment from Southern Petrochemical Industries—Southern Petrochemical Industries filing complaint—State Commission holding Southern Petrochemical Industries is not a consumer whether correct? (No).

       Held: There is no dispute that the Complainant No. 1 is a beneficiary after the documents were delivered to them. We need not say that the T.P. Bank of India, Guindy Branch in ordinary course of business was only supposed to ensure payment of the consignment being the named consignee. It is not the case that the documents could not be transferred. Once the documents have been transferred the interest in the consignment is to transfer and since the interest in the consignment stood transferred in favour of the Appellant No. 1, in ordinary course, Appellant No. 1 becomes entitled to take delivery of the consignment. This is ordinary way of conducting business in such kinds of transactions. The way it has been interpreted has taken out the spirit from the contents. It is against the holistic and harmonious construction of the document. It may further be mentioned that the beneficial provision under the Consumer Protection Act are for the benefit of the consumer and while interpreting such a provision a consumer friendly as well as equitable and solution oriented interpretation is essential. The interpretation of the provision by the State Commission was certainly not in tune with interpretation of beneficial legislation. The State Commission applied the rule of strict interpretation applicable to criminal laws and not liberal interpretation of welfare legislation like Consumer Protection Act, which would serve the object of the Act. (Para 19)

       Held Further: Accordingly, we find it difficult to sustain the findings given by the Ld. State Commission Issue No. 1 and Issue No. 2. (Para 20)

       (ii) Consumer Protection Act, 1986—Sections 12 and 19—Air consignment—Consignment insured—Consignment damaged—Insurance Company setting the claim of the consignee—Obtaining letter of subrogation and special power of attorney—In fact it was a deed of assignment—Consignee and Insurance Company filing complaints against carrier—Whether consignee had any locus now to bring and maintain the present complaint? (No) (Insurance Law—Difference between subrogation and assignment).

       Held: As aforesaid, clause of letter of subrogation and Special Power of Attorney indicate dated 16.8.1994 (at P.74 filed by Counsel for the appellant) that the appellant No. 1 has assigned transfer and abandoned all the rights title interest in the insured goods and proceeds thereof in favour of the second appellant and the second appellant has acquired all rights to recover the compensation for the loss. In view of the assignments of all the rights of the appellant No. 1 in favour of the appellant No. 2, the appellant No. 1. retained no right to recover compensation for the loss of the consignment. Since he has assigned all the rights, the complainant No. 1 did not have any interest in the disputed matter and therefore could not say that the complaint was maintainable. (Para 24

       Held Also: In the case of Shivani Road Lines v. Sundaram Textiles Ltd. reported as AIR 2001 SC 2630 squarely covered the point in issue. Accordingly, we accept the submissions of Sh. M. Wadhwani that the present letter or subrogation and Special Power of Attorney is assignment of all rights. Consequently, appellant No. 1, SPCL does not have any locus now to bring and maintain the present complaint against British Airways. (Para 25)

       (iii) Consumer Protection Act, 1986—Sections 12 and 19—Carriage by Air Act, 1972—Section 27—Complaint against British Airways World Cargo—Consignment received in damaged condition—No notice as required under Section 27(2) given—Whether complaint was maintainable in Consumer Fora? (No)—Result—Complaint as well as appeal dismissed—Liberty given to approach any other Forum as advised.

       Held: Since it is evident that it was found on 25.6.1994 that the cartons were empty, it was essential for the appellant No. 1 to complain about the loss of within 7 days from 25.6.1994 i.e. by 2.7.1994. Since it is not claimed that any such notice under Section 27(2) was given, no action would lie against the carrier, same in the case of fraud. As such, in absence of pleading and proof of fraud on the part of the carrier, it could not be said that the complaint was maintainable. (Para 28)

       Held Finally: With the above observations, the appeal as well as the complaint, both are dismissed. However, the appellants shall have the liberty to seek remedy before any appropriate forum, if so advised, and the appellant may also take advantage of the observations made in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, 1995(3) SCC 583, about the time spent before Consumer Fora.(Para 29)

       (iv) Contract Act, 1872—Section 73 second part and Section 192—Consumer Protection Act, 1986—Sections 2(1)(d) and 12—Air consignment—Tempered and damaged during transit by employees of Airways—Certified damaged delivery given—Whether consignee can claim loss caused due to deficiency in service? (Yes, under 2nd Para of Section 73 or under Section 192 of Contract Act).

       Held: The tampered consignment would have been delivered only after the bank made endorsement in favour of the appellant No. 1. As the carrier had undertaken to deliver it to the consignee the said Bank but since the consignment was to be delivered ultimately to the complainant and the documents were released for taking possession of the articles, we have no inhibition in holding that the Appellant being the beneficiary of the consignment is a consumer. (Para 9)

       Held Also: It would indicate that while it was on the British Airlines plane, or in transit, the consignment was damaged and its contents were taken out by the employees of the British Airways. If this was the condition before delivery to M/s. Express Freight Pvt. Ltd., Chennai, and the respondent could not absolve themselves by just camouflaging and side tracking the real issue despite submissions made in this regard. (Para 14)

       Held Thereafter: The shipment was sent by Siemens, Germany through M/s World Freight GMBH from Frankfurt. World Freight GMBH were just authorised to appoint a sub-Agent like British Airways. A sub-Agent could be a liable under Section 192 of the Indian Contract Act if any fraud or wilful wrong was committed by the sub-Agent. Since all the contents were taken out as per certificate issued by Indian Airport Authority as well as found by the surveyor, it is evident that the loss of contents was caused by wilful wrong on the part of the employees of the sub-Agent, British Airways, the sub-Agent could not run away by just taking pleas that they were not liable. (Para 15)

       Held Further: One of the obligations of British Airways was to carry consolidated shipment as well as part thereof in safe and sound conditions. Since the consignment was sent by M/s. Siemens, Germany for the purpose accounting information to Bank of India, Guindy Branch, goods as per attached manifest and they could not have been cleared without considering the individual packages by the customs, and, as such, the British Airways was supposed to note its contents and values of the consignments and the fact that was insured. In these circumstances, it would be evident that obligation resembling those created by contract had been incurred respondent to carry the consolidated consignment as well as the individual consignment contained therein in safe and sound condition to deliver it to the consignee so long the shipment is in its custody. In such a case not only the intermediate consignee but also the ultimate consignee had suffered injury due to failure of the British Airways to perform its obligation of carrying the shipment in safe and sound condition to the Airport for delivery. The complainant No. 1 would be entitled to claim loss caused due to deficiency in service. (Para 17)

       Held Consequently: For the aforesaid reasons, it could not be said that the appellant No. 1 would not be a consumer being beneficiary of the consignment. It is accepted by the countries governed by Anglo section and common law that the contract could be written as well as implied. Accordingly, we hold that there was at least implied contract and in view of the second part of Section 73, the British Airways were liable or in the alternative since there will willful 192 of the Indian Contract Act. (Para 18)

       Result: Both Appeal as well as complaint dismissed accordingly.