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2010 Supreme(Mad) 940
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. DURAISWAMY
Burlington Air Express India (P) Ltd., now changed as BAX Global India Ltd.& now known as Schenker India Pvt Ltd.
Versus
M.R.F. Limited & Others
Second Appeal No.521 of 2003
Decided On : 03-03-2010
For the Appellant:Ravikumar Paul, for M/s. Paul & Paul, Advocates.
For the Respondents:R1 to R3, S. Manohar, Advocate.
The central legal point established in the judgment is that the liability of the carrier under the Carriage by Air Act is only applicable when the goods were entrusted to them.
Headnote:
Carriage by Air Act - Liability of Carrier - Rule 30(3) of the first schedule and Rule 31 of the second schedule - The court analyzed the provisions of the Carriage by Air Act, 1972, specifically Rule 30(3) and Rule 31, and discussed the liability of the carrier in cases where the consignment was not entrusted to the appellant. The court highlighted the applicability of the rules to international carriage performed by aircraft and emphasized that the carrier's liability is only applicable when the goods were entrusted to them. The court also considered relevant judgments to support its interpretation of the legal provisions.
Fact of the Case:
The plaintiffs filed a suit against the defendants for non-delivery of a consignment of spare parts entrusted for air transport. The trial court dismissed the suit, but the lower appellate court reversed the judgment. The second defendant appealed against the lower appellate court's decision.
Finding of the Court:
The court found that the consignment was not entrusted to the appellant, and therefore, they were not liable to pay the amount to the plaintiffs. The court analyzed the provisions of the Carriage by Air Act, specifically Rule 30(3) and Rule 31, and concluded that the appellant's liability is only applicable when the goods were entrusted to them.
Issues: The main issue was whether the appellant was liable to pay the amount to the plaintiffs despite the consignment not being entrusted to them.
Ratio Decidendi: The court's decision was based on the interpretation of the provisions of the Carriage by Air Act and the applicability of the rules to international carriage performed by aircraft. The court emphasized that the carrier's liability is only applicable when the goods were entrusted to them.
Final Decision: The court allowed the second appeal, set aside the judgment and decree of the lower appellate court, and restored the judgment and decree of the trial court in favor of the appellant.
The above Second Appeal arises against the judgment and decree made in A.S.No.85 of 2001 on the file of IV Additional City Civil Court, Chennai, reversing the Judgment and Decree made in O.S.No.7996 of 1997 on the file of XIII Asst. City Civil Court, Chennai.
2. Thesecond defendant is the appellant in the above second appeal. Plaintiffs 1 and 2 are the respondents 1 and 2 and the first defendant is the third respondent in the above second appeal.
3. The plaintiffs filed the suit in O.S.No.7996 of 1997 on the file of XIII Asst. Judge, City Civil Court, Chennai, to direct the defendants jointly and severally liable to pay a sum of Rs.1,04,471/-together with the interest thereon at 24% per annum.
4. The brief case of the plaintiffs are as follows:-
.(i) According to the plaintiffs, the first defendant carrying on a business in India, through its Indian Unit (subsidiary), the second defendant. On or about 12.07.1995, M/s.Sunag Corporation (Europe) Ltd., England, entrusted the defendants in their capacity as air carriers a consignment of spare parts for BINKS automatic spray Gun to be transported by air from London to Chennai. The first defendant is the importer-consignee of the above consignment. The defendants accepted the consignment for safe carriage. The consignment did not reach the destination station and in the ordinary course of enquiry, the defendants sent a fax message stating that the consignment was sent by Flight No.KH 003/ETA on 18.07.1995. In spite of repeated enquires from the first plaintiff, the defendants did not deliver the consignment.
.(ii) On the other hand, the defendants admitted that the consignment was missing while the same was in their custody. The value of the non delivered consignment is Rs.1,04,471/-. The second plaintiff had insured the consignment against loss or damage and had on settlement of payment, to the first plaintiff, had been subrogated to the rights and remedies of the first plaintiff. In spite of repeated demands, the defendants failed and neglected to pay the sum of Rs.1,04,471/-. The loss to the plaintiffs was solely due to the gross negligence, misconduct, gross dereliction of duty of air carriers. Therefore, the plaintiffs filed the suit.
5. The brief case of the second defendant is as follows:
(i) According to the second defendant, they are only an IATA agent and not a carrier and as such there is no question of the plaintiffs intending to carry the cargo from London to Chennai through them. The House Air Way Bill has been issued by the first defendant and not by the second defendant. The suit is not maintainable and is also barred by limitation, as per the provisions of the Carriage by Air Act, 1972.
.(ii) The alleged transaction between the plaintiffs and the first defendant are not to the knowledge of the second defendant. The second defendant also denied that the first defendant is functioning through the Indian Unit. The second defendant also denied that they are subsidiary of the first defendant. Since the second defendant is a private limited company and a separate legal entity with no connection whatsoever with the first defendant, the allegation that the consignment had been loaded in the Aircraft on or about 30.08.1995 is not to the knowledge of the second defendant. In case of non-delivery of the consignment, a compliant has to be made at the latest within 14 days from the date of the knowledge, as per Section 26 of the Carriage by Air Act. Therefore, the defendants prayed for dismissal of the suit.
6. Beforethe trial court, on the side the plaintiff, PW-1 was examined and 14 documents, Exs.A-1 to A-14 were marked and on the side of the defendants, DW-1 was examined and Ex.B-1 was marked.
7. The trial court, after taking into consideration the oral and documentary evidences of both sides, dismissed the suit.
8. Aggrieved over the judgment and decree of the trial court, the plaintiffs preferred an appeal in A.S.No.85 of 2001 on the file of the IV Ad
