JUDGEMENT AGAINST AIR CARRIER, KUWAIT AIRWAYS
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 308 OF 2006
(From the order dated 31.01.2006 in Complaint Case no. 17/O/2001 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)
National Travel Services
5 Chitrakoot Building
230A, A.J.C. Bose Road
Kolkata – 700 020
M/s Gaurang Films
Proprietor GMB Films (P) Ltd.
23 Ganesh Chandra Avenue
Kolkata – 700 013
HON’BLE MR. JUSTICE R. C. JAIN
HON’BLE MR. ANUPAM DASGUPTA
For the Appellant Mr. Shaiwal Srivastava, Advocate
For the Respondent Mr. Sudheer Pandey, Advocate
Pronounced on 29th November, 2011
O R D E R
This appeal is directed against the order dated 31.01.2006 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the
State Commission’) in consumer complaint no. 17 of 2001. By this order, the State Commission held that the opposite party (OP) [General Sales Agent –
GSA – of the guilty of deficiency in service for non-delivery of a Television (TV) film cassette to the designated consignee in Belgrade and gave the
“The appeal is allowed in part on contest. The OP would pay the following amount to the complainant, on finding aforesaid, within 30 days from the date
of receipt of a certified copy of this order: –
(i) Rupee value equivalent to US $ 240 (US Dollar two hundred forty only).
(ii) Rs.50,000/- in compensation for financial loss and loss of reputation, prestige and standing in a foreign land.
(iii) Further compensation of Rs.25,000/- towards mental agony, distress, harassment and suffering.
Interest@ 12% per annum would be payable from the date of order if the aforesaid amount is not paid within the period specified above. There will be no
separate order on cost.”
Aggrieved by this, the opposite party has come up with this appeal.
2. The facts of the case are that the above-mentioned cargo/consignment (TV film cassette) was handed over to the OP through the complainant’s shipping
agent on 05.11.1998. The consignment did not reach the consignee in Belgrade. After prolonged correspondence, the OP informed the
complainant/respondent only on 21.06.1999 that the consignment had gone missing from the Paris airport and that further time would be needed for
investigation and settlement of the consignor’s claim. After further wait, the complainant sent an Advocate’s letter to the OP on 20.08.1999. Finally,
a reply dated 13.09.1999 was received from the Advocate of the OP denying any liability on the part of the OP to meet the claim but requesting the
complainant to await the decision of Air France which was involved in carrying the consignment from Paris to Belgrade. Finally, on not getting any
response, the respondent/complainant filed a complaint before the State Commission on 07.02.2001, with the result already noticed above.
3. We have heard Mr. Shaiwal Srivastava for the appellant and Mr. Sudheer Pandey for the respondent/complainant and considered their oral as well as
written submissions, evidence and documents brought on record.
4. Learned Counsel for the appellant has argued principally on the ground that the liability of the air carrier (or, that of the appellant as the
representative of the air carrier) was limited in accordance with the relevant provisions of the Carriage by Air Act, 1972 (hereafter, ‘the CA Act’).
Inasmuch as the respondent/complainant did not declare any value of the consignment at the time of its booking, the maximum amount payable to the
latter in accordance with the provisions of Rule 22 (2) of the Rules framed under the Carriage by Air Act was US $ 240 or its equivalent in rupees.
Learned counsel further stated that the appellant was all through ready to comply with this part of the directions of the State Commission’s impugned
order but not the remaining directions relating to compensation of Rs.25,000/- towards mental agony, harassment, etc., and Rs.50,000/- towards loss of
business and reputation. In respect of loss of business and reputation, the learned counsel has further argued that the respondent/complainant did not
produce any documentary evidence in respect of this claim that as a result of this consignment not reaching its designated consignee it had suffered
any loss of business.
5. On other hand, learned counsel for the respondent/complainant has argued that the appeal is liable to be dismissed on the ground of delay of 55 days
for which the appellant failed to show any sufficient cause. In addition, according to him the person filing the appeal is not a person duly authorised
because no Board resolution, authority letter, power of attorney etc., has been filed in support of the authority of the person signing the appeal
memorandum. Likewise, the counsel arguing the case for the appellant also has no authority to represent and prosecute the case as the power of attorney
(Vakalatnama) signed on behalf of the appellant is not signed by a person authorised in that behalf by the appellant and supported by Board resolution,
etc. Finally, the provisions of the CA Act do not apply to the case in hand because deficiency in service was caused by the appellant, which is the
agent of the air carrier.
6. As regards delay of 55 days in filing the appeal, the appellant has submitted an application for condonation of delay. The grounds cited in
explaining the delay are reproduced below:
“2. It is submitted that the applicant is a General Sales Agent (GSA) of an International Airlines namely Kuwait Airways having its head office in the
State of Kuwait.
3. The intimation of the impugned order took some additional time in reaching the head office of the Kuwait Airways in Kuwait. The head office of
Kuwait Airways had deliberated upon the future course of action in the present matter and sought appropriate legal opinion.
4. That, the applicant meanwhile took full efforts to file the appeal within the prescribed period of 30 days limitation; however, due to circumstances
beyond its control involved in seeking office approvals a delay had occurred in filing the appeal.”
7. Perusal of the grounds shows that they cannot be held to be sufficient in explaining the delay. However, some allowance has to be made for the fact
that the appellant is required, as the GSA of the Air Carrier, to obtain the latter’s necessary concurrence, etc., and that the Head Office of the Air
Carrier is located at Kuwait. In the interest of equity and justice, we are, therefore, inclined to condone this delay subject to payment of cost of
Rs.20,000/-, half of which shall be deposited with the Consumer Legal Aid Account of this Commission and the balance be paid to the
respondent/complainant within four weeks from the date of this order.
8. As regards the substantive question of compensation/damage for the loss of the registered cargo, it is clear from the pleadings that the consignment
was lost in transit at Paris from where it was expected to be carried to Belgrade by Air France and not by Kuwait Airways. It is not the case of the
respondent/complainant that at the time of booking of the cargo, it declared its nature and value and paid the appropriate additional charges in
accordance with Rule 22 of the Rules framed under the CA. Act. In view of this, the liability of the Air Carrier (or its GSA) cannot exceed the limit
laid down in Rule 22 (2) of the said Rules. This being the legal position governing the liability of the Air Carrier the compensation that could be
awarded under the provisions of section 14 of the Consumer Protection Act, 1986 cannot exceed the prescribed amount which is US $ (20×12) = US $ 240.
As rightly pointed out by the learned counsel for the appellant, this is the settled law on this issue which was also upheld by this Commission in its
judgment in the case of The Manager, Air India Ltd. and Anr. v India Everbright Shipping and Trading Co. [II (2001) CPJ 32 (NC)].
9. As regards the other objections/submissions of the learned counsel for the respondent suffice it to say that they are entirely technical in nature
and do not at all help the respondent in establishing its claim for compensation to the extent mentioned in the complaint.
10. As a result, the appeal is partly allowed and the order of the State Commission is modified without disturbing the finding of deficiency in service
on the part of the Air Carrier and its GSA. The appellant/opposite party is thus directed to pay to the complainant/respondent the rupee equivalent US
$ 240 with interest @ 9% per annum thereon from 01.12.1998 till the date of payment. In addition, as already directed, the appellant shall pay
Rs.10,000/- by way of cost to the respondent/complainant within the same period and it shall also deposit Rs.10,000/- by way of cost with the Consumer
Legal Aid Account of this Commission. The appeal is disposed of in the foregoing terms.