Point of Law: Limits of liability specified in rule 22 shall not apply, if it is proved that damage resulted from an act or omission of carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.

Judgment :-

(Prayer: First Appeal has been filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree 16.08.2017 passed in O.S.No.11101 of 2010 by the XIX Additional Judge, City Civil Court, Chennai.)

T. Raja, J.

1. The defendants in the suit are the appellants and the plaintiff in the suit is the respondent. The defendants/appellants have filed this appeal challenging the impugned judgment and decree passed by the learned trial Court directing to recover a sum of Rs.17,30,925/- from them with future interest at 9% per annum from the date of plaint till the date of realization with costs.

2. For the sake of convenience, the parties will be referred to as arrayed in the original suit.

3. Mrs.Chitra Sampath, learned Senior counsel for the defendants/appellants, submitted that the plaintiff/respondent herein has been in the business of manufacturing Human Hair Remi Single Drawn and exporting the same to foreign countries for the past 25 years. The plaintiff company entrusted the shipment to the first defendant on 24.06.2009 and the said shipment was intended for M/s.Cabelo Natural Importacao E Exportacao, LDA, Travessa Engracia, Fragoso Predio No.22 3 Andar, Ingombota, Luanda, Angola. The shipment was delivered to the destination described in the Airway Bill by the first defendant/DHL and therefore, there was no negligence in handling the cargo by their agents or staff. Even if it is proved that any liability could be fastened on the defendant, the same is subject to the provisions of the Carriage by Air Act, 1972 (in short “the Act”) and the plaintiff is bound by the terms and conditions mentioned in the Airway Bill. Moreover, the plaintiff has not impleaded the consignee, namely, plaintiff's customer/Cabelo Natural Importacao E Exportacao, in Ingombota, Luanda, Angola, and DHL, Angola, therefore, the suit itself suffers from non-joinder of necessary parties. Although this issue was taken up, it remained unanswered by the learned trial Court.

4. Arguing further, learned Senior counsel contended that the transaction between the consignor/plaintiff and the DHL/defendants is bound by the requirements of the Carriage by Air Act, 1972, as applicable for international carriage, read with Schedule II as per Section 4 of the Act, which contains the Rules as per Hague Protocol, which was an amendment to the Warsaw Convention. When the defendant is the carrier and the plaintiff is the consignor and both of them being signatory to the Hague protocol, they are bound by Schedule II as mentioned in Part 2 of the Annexure to the Act. When India adopted the Warsaw Convention, Hague Protocol and Montreal Convention fully, as per Rule 5 of Schedule II, every carrier has a right to require consignor to accept the Airway Bill. As per Rule 11 of Schedule II, the Airway Bill is prima facie evidence of conclusion of contract. Therefore, the Airway Bill has been signed and filed by the plaintiff and hence, they are bound by the contract. Whileso, any reliance on the Carriers Act, 1865, by the learned trial Court to determine the liability is inapplicable and erroneous, hence, the same is liable to be interfered with by this Court. Learned trial Court in paragraph No.8 of the judgment held that the Airway Bill is not a contract and by disregarding Rules 5 and 11 of Schedule II, learned trial Court has wrongly placed reliance on Section 9 of Carriers Act, 1865, that has no application to the suit transaction. When the Airway Bill is valid and binding document/agreement on both parties, the plaintiff company cannot wriggle out of its responsibilities. Placing reliance on the Airway Bill and taking support of the judgment in the case of Bharathi Knitting Vs. DHL Worldwide Express Courier Division of Airfreight Limited [AIR 1996 SC 2508] holding that Airway Bill is a binding contract between the carrier and the consignor and therefore, the parties are bound to the limitation of liability mentioned in the terms and conditions of t