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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.M. Malik, Presiding Member and Vinay Kumar, Member
M/s Rajasthan Art Emporium —Complainant
versus
Kuwait Airways & Anr. Opp. Parties
Original Petition No. 229 of 1997
Decided on 1.10.2012
Counsel for the Parties:
For the Complainant :Mr. M. Malhotra, Advocate with Ms. Madhurima Tatia, Advocate.
For the Opp. Party No. 1 :Mr. Dinesh Sabharwal, Advocate with Ms. Preeti Mechan, Advocate.
For the Opp. Party No.2:Mr. Avijeet Bhujabal, Advocate.
Headnote:(i) Consumer Protection Act, 1986—Sections 2(1)(g), 2(1)(o) and 21—Export—Short delivery of consignment by Airlines—Shipments did not reach destination even as per revised flight schedule—Buyer was the largest customer of complainant—Complainant had suffered a huge loss due to this transaction—Facts and circumstances clearly establish negligence, inaction and passivity on part of opposite party—Question of willful default does not arise—Goods which already reached their, became useless in absence of their counter parts which were delayed or due to short delivery or were lost— Complainant has already received compensation of 1822 kg.—It would not be proper to pay it double compensation for same goods—Complainant will be entitled to have US $ 500740 or Rs.20,000,00/- whichever is lesser amount, alongwith 9% p.a. interest litigation charges and compensation of Rs.5 Lakhs. (Paras 12, 17, 20, 21, 25 and 26)
(ii) Carriage by Air Act 1972—Section 19—Air cargo—It has to be presumed that when goods are sent by Air the fact that time is essence of contract automatically becomes a part of contract—Complainant has paid Air freight Rs.24.48 lakh equivalent to US $ 70000 whereas sea fraught for the cargo cannot be more than the US $ 7200—Complainant paid 10 times so that there should be timely delivery of goods. (Para 22)
Result: Complaint allowed.
J.M. Malik, Presiding Member—M/s Rajasthan Art Emporium filed this complaint before this Commission in September, 1997 against Kuwait Airways and Daga Air Agents. This Commission decided the complaint on 21.5.2003. The complaint was partly allowed. Aggrieved by that order, the complainant approached Hon’ble Supreme Court. The Hon’ble Supreme Court vide its order dated 15.3.2011, was pleased to hold as follows:
“We are not persuaded to agree with the submission. Further, the National Commission did not commit any error in granting the amount of US$ 36440 towards the short delivery. The relief so granted by the National Commission is based on appreciation of the material available on record. Be that as it may, the respondent did not prefer any separate appeal challenging the correctness of the order of the National Commission in awarding the said amount towards the short delivery but preferred cross objections which in our considered opinion, are not maintainable.
For the aforesaid reasons, this appeal is allowed setting aside the finding recorded by the National Commission so far as it concerns the issue relating as to whether there was any delay in delivering the consignment. The matter, is accordingly, remitted for fresh consideration by the National Commission.
We make it clear that we have not expressed any opinion, whatsoever, on the question as to whether there was any delay at all in delivering the consignment as the same is required to be gone into by the National Commission.”
2. It is not out of place to mention here that after the receipt of the order from the Hon’ble Supreme Court, it was reported by the Registry that file is not available/traceable. Thereafter, the file was reconstructed with the help and assistance of both the counsel. For that, we are grateful to them in getting the file prepared. It is also noticed that, whenever, the Hon’ble Supreme Court calls the record, in few cases, the file is not traced out after its remand. The registry is directed to be careful and keep tabs on the file till its final disposal.
3. The case of the complainant is as follows. The complainant is exporter of all kinds of handicrafts articles with several countries including USA. The complainant had received an order from M/s Williams Sonoma Inc. USA for supply of handicraft goods. Those were to be sent on urgent basis. The opposite parties above said assured the complainant that the goods will be delivered within seven days. The complainant tendered three shipments to the opposite party No. 1 through opposite party No. 2. The complainant was informed that three consignments as detailed in the complaint were to be delivered on 29.7.1996, 31.7.1996 and 31.7.1996.
4. However, the said consignments did not reach the destination at Memphis (USA). On enquiry, the opposite party No. 1 gave a revised delivery schedule which mentioned the date of delivery on 6.8.1996, 31.7.1996/3.8.1996 and 6.8.1996 in respect of all the three consignments. However, the said goods did not reach the destination as per the revised delivery schedule also. The buyer also informed the complainant that the goods had not reached them and displayed their annoyance. They also warned the complainant that their future relationship was in jeopardy. M/s Williams Sonoma Inc. is complainant’s one of the largest overseas buyer. The opposite parties 1 and 2 were approached time and again but those efforts did not ring the bell.
5. On 19.8.1996, the above said buyer expressed its anguish vide letter dated 23.8.1996 and informed the complainant as follows.
“Further more, Kuwait Airways can’t even tell us where the remaining cartons are. Apparently, Lufthansa is responsible for the forwarding of Kuwait’s freight. Once goods arrive in Chicago, Lufthansa arranges for their on forwarding to Memphis through Alliance. Alliance delivers the goods to their CFS-LTD. Ltd. is a bonded warehouse in Memphis and the freight is held there until it clears Customs.”
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