NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

Original Petition No. 160 of 1994

M/s York Knitwears Ltd. & Anr. Complainant (s)

Civil Lines, Ludhiana – 141001

Mr Balraj Kumar

S/o Shri Hans Raj

Resident of House No.11

Rakh Bagh (Share Holder of

York knitwears Limited,Ludhiana

Versus

M/s Lufthansa German Airlines & Ors. Opposite Party (ies)

56, Janpath, New Delhi.

M/s Deutsche Lufthansa AG

Through its Branch office at

56 Janpath, New Delhi -110 001.

M/s Cargolux Airlines International, SA

Luxembourg Airport, Luxembourg

Through its Branch Office at

LG 13 Somdutt Chambers, Bhikaji Cama Place

New Delhi – 110 066

M/s Cargolux Airlines International S A

LG 13 Somdutt Chambers, Bhikaji Cama Place

New Delhi – 110 066.

M/s Sunrise Freight Forwarders (P) Ltd.,

15/11 (Basement), Old Rajinder Nagar

New Delhi – 110 060

M/s Sunrise Freight Forwarders (P) Ltd.,

205, IInd Floor Savitri Complex G T Road

Ludhiana, 141003

BEFORE: HON’BLE JUSTICE SHRI K S GUPTA, PRESIDING MEMBER

HON’BLE DR.P.D.SHENOY, MEMBER.

For the Complainant : Mr. Deepak Sibal, Advocate

For the Respondent : Mr. H L Tikku, Sr. Advocate

Ms Yashmeet Advocate for O P Nos. 1 to 4

Mr. Rajiv Talwar, Advocate for O P Nos.5 & 6

Dated : the May 2007.

ORDER

DR.P.D.SHENOY, MEMBER

Case of the complainant :

Complainant No.1 M/s York Knitwear Limited (hereinafter referred to as the company), Ludhiana, is a public limited company and complainant No 2 is the Managing Director thereof. Complainant company is one of the premier institutions at Ludhiana and is engaged in the manufacturing and exporting of knitwear for the past 10 years and claims to have a reputation and good will in India and also abroad for exporting knitwear to the tune of Rs.02.00 crores to Rs.13 crores during the decade 1985-86 to 1993-94, except during 1992-1993 due to disturbed political situation in Russia. The company had received orders for various kinds of knitwear from buyers in Moscow. Ordered goods were divided into various consignments and shipped and the following four consignments formed part thereof :

Invoice numbers	Weight in Kgs	Booked through	Invoice value USD	Date of Airway Bill	Date of consignment reaching Moscow
1014	1776	Cargolux	21,000	01.12.1993	27.0.1994
1015	1848	-do-	26,520	03.12.1993	05.01.1994 & 27.01.1994
1016	2031	-do-	23,880	08.12.1993	27.01.1994
1019	5820	Lufthansa	65,000	15.12.1993	05/10.01.1994
Total	11475		1,36,400

These consignments were booked through M/s Sunrise Freight Forwarders (P) Ltd, New Delhi (OP No.5) (hereinafter referred to as M/s Sunrise) and the company expected that the goods would be delivered at Moscow before Christmas. The opposite parties assured delivery of goods at Moscow within 4/5 days which is the normal time taken for such delivery by the Airlines. The company had sent these goods by Air as the same were to be in stock of the buyers for sale during the peak seasons of Christmas and New Year. The complainant company was shocked to receive a telephonic call from its buyers from Moscow on 26.12.1993 that none of the goods covered by the aforementioned four consignments sent to them had reached Moscow and the buyers were astonished by the irresponsibility shown by the company. Immediately the company wrote a letter to the General Manager, Lufthansa Air Cargo Division, Delhi on 27.12.1993 regretting that they had booked their goods with the opposite parties who had not lived upto their reputation as responsible carriers and requested that the goods be sent to Moscow before 31.12.1993. It was further mentioned in the letter that after 01.01.1994 the Russian Custom Duty structure was also changing to the detriment of the traders. The company also wrote to M/s Sunrise showing displeasure at the way the transportation of the goods had been handled. M/s Sunrise in turn wrote to the Cargo Manager, Lufthansa German Airlines, New Delhi in respect to one consignment booked by them and also to the Manager, Cargolux Airlines International with regard to the other three consignments booked by them. The agents also wrote a letter to the Cargo Manager (Exports) Lufthansa German Airlines, Frankfurt, Germany. Though the three consignments were booked with Cargolux and one with Lufthansa and all the four were ultimately dispatched from Delhi through Lufthansa Airlines (hereinafter referred to as Lufthansa).

On 11.01.1994, the company directly faxed their letter to Lufthansa Air Cargo Division, Frankfurt to know the fate of their consignment and further brought to the notice of the opposite parties that the consignment contained woolen seasonal goods which were perishable and consumable in nature and were likely to get damaged and they would also go out of season/ fashion due to the delay. They further brought to the notice of the opposite parties that in case the goods were not delivered the company’s credibility would be damaged and there would be heavy financial loss and heavy claims from its buyers. Another letter on similar lines was sent on 12.01.1994. Only on 20.01.1994 that Lufthansa gave the first meaningful response to the several frantic enquiries made by the Company confirming that the goods had been airlifted from Delhi but the same were still stuck in Frankfurt as no flight was being operated due to congestion in warehouses in Moscow. The four consignments finally reached Moscow on 27.01.1994 after several days of booking. i.e.

(i) (invoice No. 1014) 57 days (ii) (invoice No. 1015) – 55 days (iii) (invoice No. 1016) 51 days and (iv) (invoice No. 1019) 43 days.

The consignees refused to accept the goods as the bumper season of Christmas/ New Year was over. The goods are now dead stock for the company. The company then wrote a registered letter which is dated 07.03.1994, in which part claim for one consignment booked with Lufthansa was made. A registered copy of this letter was sent to Deutsche Lufthansa AG Germany, opposite party No.2 and M/s Sunrise.

On 23.03.1994 further letters were addressed to Cargolux Airlines International and also Lufthansa with copies to M/s Sun Rise. M/s Sunrise wrote to Lufthansa requesting that the claim of the company be considered in all earnestness. After a long wait, the Lufthansa sent a letter dated 23.03.1994 stating that the matter was being investigated and have also requested the company to address all future correspondence in the matter to the Office of Lufthansa and no correspondence with M/s Cargolux as the latter has not been involved in this transportation. The company informed the opposite parties that the buyers have refused to accept the delayed goods and also will not buy the goods from the company in future until and unless they were fully compensated. Through a registered letter the opposite parties were asked for a positive consideration of the claims lodged by the company. The company again wrote letters on 18.04.1994, 29.04.1994, highlighting the deficiency in service on the part of the opposite parties. Ultimately a letter was received by the complainant from the opposite parties mentioning that as the storage and transportation capacities were inadequate at Moscow the goods were kept at Frankfurt for over 40 days approximately. In spite of this gross deficiency due to inordinate delay, keeping the company in dark about the happenings at Frankfurt, the opposite party repudiated their liability towards any claims made by the company. Further correspondence by the company did not elicit any positive response from the opposite party. The complainant submitted that the only stand taken by the opposite parties is that due to congestion in Moscow, the opposite parties could not send the goods from Frankfurt to Moscow. This stand is wholly untenable as it was the duty of the opposite parties to have not confirmed the booking of the goods at Delhi as they were already aware of such a situation. The stand taken by the opposite parties is nothing but an after thought and is factually incorrect. In support of this contention the complainant has pointed out that in another case the goods were sent by the company through another airlines i.e. Aeroflot from Delhi to Moscow and the same were delivered at Moscow on the next day. The details of the same are given below :

Inv. No.	No. of Cartoons	AW Bill	No.		Date	Date of Lifting	Landing
1017	143	555	1832	3793	13.12.93	26.12.93	27.12.93
1018	136	555	1832	3804	13.12.93	26.12.93	27.12.93
1020	267	555	1832	8096	15.12.93	29.12.93	30.12.93

The above example shows that the other consignments through Aeroflot in fact reached the next day of the booking whereas the four consignments were still stuck at Frankfurt. The Lufthansa Airlines landed the consignments after a delay of 1 ½ of months. The details of which are given below :

Inv. No.	No. of Cartoons	AW Bill. No. & Date	Date of Lifting and Flt No. Delhi to Frankfurt	Flt No. and Date of Lifting Frankfurt to Moscow	Cartoons
1014	100	172, 1387 8826 , 01.12.93	LH 7423 16.12.93	LH 7412 27.01.94	100
1015	104	172, 1387, 8852 03.12.93	LH 7343 16.12.93	LH 7434 05.01.94	95
1016	114	172, 1387, 8863 08.12.93	LH 734 16.12.93	LH 7416 27.01.94	114
1019	267	220, 3237, 9141 15.12.93	LH 7219 21.12.93	LH 7343 05.01.94	31
				LH 7418 10.01.94	236
Total	585				576

The complainant further submitted that the agent had advised the company that they may send their goods through Lufthansa. The company was planning to send all the goods through Aeroflot. An assurance was given by the agent that they will deliver the consignments within four days with the tacit consent of Lufthansa Airlines and this has resulted in gross inefficiency in service on the part of the opposite party. Accordingly, the complainants made the following claims which were actually suffered by them :

1.	The goods having become dead stock under invoice Nos 1014,1015, 1016 & 1019 (Total USD 136400/-	INR 42,78,868.00
2.	Interest on value of consignments under invoice Nos.1014,1015,1016,1019 (Total USD 136400.00)* 17% p.a. from the date of booking of consignment till actual payment	Amount will depend on period
3.	Air Freight charged on per kg. vol.wt. basis of our consignments under inv.nos. 1014, 1015, 1016, 1019 (Total Vol. weight 11476 kgs @ Rs.88.10 p kg.	INR 10,11,036.00

4.	Custom Duty levied at Moscow on the four consignments @ 33.15% on knitwears on the value of consignments i.e. on USD 1364.00 @ 33.15 (USD 45216.60)	INR 14,18,445.00
5.	That the foreign buyers have lodged claims for the following amounts and have asked for 8% per month interest thereon from the date of lapse (after 4/5 days of booking to date of actual payment. Invoice No. Claim Amount USD 1014 10034.00 1015 22215.60 1016 22888.88 1019 48507.00 103645.48 (As per annexure ‘FF’) (5 page)	INR 32,51,359.00
6.	Losses suffered due to storage rent of un disposed goods which had to be retained in Moscow till the date of actual removal of goods from warehouse	Actual amount upto the date of removal of goods
	Other damages The company claims for
(a)	Loss of good will	INR 20,00,000.00
(b)	Loss of further orders refused to the company	INR 20,00,000.00
	Total Value claimed	INR 1,39,59,708.00
	Warehouse charges and interest @ 17% per annum till the date of actual payment.

Apart from the above damages, as a deterrent, Lufthansa be directed to credit Rs.10 lakhs to the National Consumer Welfare fund to be utilized for the welfare of the public.

Case of the opposite party No. 1 and 2 :

The opposite parties Lufthansa German Airlines and Duesche Lufthansa contended that the complainant had no cause of action or right as a consignor to file the present complaint. As the consignments were carried and have been delivered to the named consignees who had received the same without any protest or demur, in accordance with the provisions contained in the Carriage by Air Act, 1972, the right conferred on the consignor ceased, and that of the consignee began. The opposite parties 1 and 2 have fulfilled their contractual obligations having carried the shipment to Moscow, against all odds. There was no undertaking to deliver the consignment within 2-3 days. Complainant had not given any specially endorsed instruction to the effect that the consignment was required to be delivered in Moscow before Christmas. The complainants have filed the complaint to recover the money twice over, whereas the complainants have made a specific demand in their letter dated 07.03.1994 claiming a sum of Rs.3,45,202/- towards interest @ 17% per annum on the alleged value of the consignment annexed to the complaint. In the complaint the complainants have claimed the alleged full value of the goods amounting to Rs.42,78,868/-. The complaints have no locus standi to file this complaint. On the reverse of the Airway Bill, clause 12 states as follows :

“The person entitled to delivery must make a complaint to the carrier in writing in the case within 21 days of the date the goods are placed at his disposal.”

This means only the consignee is entitled to make the complaint. The Lufthansa, in order to avoid inconvenience to shippers had immediately informed all the cargo booking agents including M/s Sunrise that all cargo bound to Moscow would be delayed because of restrictions imposed by the authorities there for which they had no control.

Liability of the carrier for destruction or loss or of damage to cargo is limited under the provisions contained in the Carriage by Air Act, 1972. There is no allegation of loss or damage to the goods. Hence, the claim is not sustainable. The authorities at Moscow had given strict instructions that no consignments were to be brought as all the warehouses were filled to their capacity. The shipments carried by the opposite parties 1 & 2 were thus stranded at Frankfurt, Germany. The opposite parties 1 &2 had informed all the cargo agents of major customers in India of the difficult situation prevailing in Moscow but the complainant did not give any alternate disposal instructions or change in the destination while the goods were still lying in Frankfurt to their knowledge. The fact or otherwise that the complainant dispatched certain goods through another airlines as alleged and that they were delivered on the next date were not only irrelevant but also uncalled and highly misleading. In conclusion the opposite parties 1 & 2, decline the liability towards the claim of the complainant.

Case of the opposite parties 5-6 (M/s Sunrise Freight Forwarders (P) Ltd. :

M/s Sunrise, is a duly approved Cargo agent in India with International Air Transport Association (AITA). Clause 17 (a) and (b) of the Cargo Agency Agreement between AITA and M/s Sunrise is quoted below :

“The Lufthansa agrees to indemnify and hold harmless the agent, its officers and employees from liability for any injury, loss or damage arising in the course of transportation or other ancillary services provided by the Member pursuant to a sale made by the agent hereunder or arising from the failure of the member to provide such transportation or services, except to the extent that such injury, loss or damage is caused or contributed to by the agent, its officers or employees.”

Clause 17 (b) of the Cargo Agency Agreement reads as under :

“The agent agrees to indemnify and hold harmless the member, its officers and employees from liability for any loss, injury, or damage arising from any negligent act or omission of the agent, its officers or employees, in performing or in breach of this agreement, except to the extent that such injury, loss or damage is caused or contributed to by the member, its officers or employees.”

The said Air way bills were issued by M/s Sunrise as an Agent on behalf of the carrier/ airlines. The goods against the said Air Way bills were received on 16.12.1993, 08.12.1993, 01.12.1993 and 03.12.1993 respectively and the same were cleared by M/s Sunrise on the same date and handed over to the Airlines concerned. The Lufthansa Airlines lifted the goods on 21.12.1993, 16.12.1993, 16.12.1993 and 16.12.1993 respectively. As per the IATA Rules the responsibility of M/s Sunrise came to an end when the goods were handed over to the Airlines and thereafter, M/s Sunrise cannot be held responsible for any injury, loss or damages arising out of any alleged delay or any other cause on the part of the Carrier.

It is denied that M/s Sunrise assured the delivery of the goods at Moscow within 4-5 days. It is further denied that there was any default or negligence on the part of M/s Sunrise in the transportation and handling of the goods. At the request of the complainant M/s Sunrise followed up the matter from time to time with the Airlines/ Carrier as a gesture of good will and without prejudice to the fact that they were in no way responsible for the alleged delay in the transportation of the goods.

It is denied that M/s Sunrise had assured the complainant that they may send the goods through the opposite parties or that the complainant was planning to send all the goods through Aeroflot Russian Airlines and that M/s Sunrise advised them to divert 4 consignments through Cargolux Airlines International and Lufthansa German Airlines and assured that they would be expeditiously delivered and rather earlier than that by Aeroflot i.e. within a period of 4/5 days.

Submissions the learned Counsel for the complainant :

Mr. Deepak Sibal, Ld Counsel for the complainant submitted that M/s York Knitwear is a big export company. He also gave the details of the export figures. He stated that 1,47,000 kgs cargo was to be transported by Lufthansa Airlines which had an invoice of US Dollar 1,36,400/-. These goods were lifted from Delhi and reached Moscow with a delay of 43-57 days which is a clear cut case of deficiency in service by the respondents. This delay is despite the fact that they had written to M/s Sunrise on 28/29.11.1993 an extract of which reads as under:

“Please try to Airlift the consignment in the first available Aeroflot Cargo and send us the original documents at the earliest.”

An extract of the letter dated 01.12.1993 which reads as under :

“Please Airlift the consignment in the Cargoluft on 7th of December positively and send us the documents at the earliest.”

The relevant portion of the letter dated 02.12.203 is as under :

“Please try to Airlift the goods by the first available Cargo and send us the original documents at the earliest.”

In an another letter dated 09.12.2003 the York Knitwear wrote to M/s Sunrise which reads as under :

“The goods will reach Delhi on Monday (13.12.1993) morning. Please Airlift this goods in Cargolux by 15.12.1993 positively.”

The underlining note in the above letters is that goods should be carried by the first available flight. This shows the urgency as they were seasonal goods and Christmas was the main festival in those areas and it being the winter season need for the woollen garments was the highest. On 26.12.1993 the complainant received a phone call from Moscow from their buyers that the goods had not reached.

On 27.12.1993 York Knitwear addressed a letter to the General Manager Lufthansa Air Cargo Division, Delhi stating as under :

“We sincerely request you to send the message to your Frankfurt office and ask them to dispatch the above shipments to Moscow before 31^st December 1993. You must be aware that Russian duty structure is changing after 1^st January 2004 and if our shipments do not reach before that then we have to pay additional duty for none of our fault. We again request you to expedite the things as early as possible.”

On 06.01.1994 M/s Sunrise wrote a letter to the Cargo Manager, Lufthansa stating as follows :

“We have been informed by the shipper that this shipment is still lying at Frankfurt. The shipper has claimed that in spite of additional exorbitant freight charges, this indefinite delay has hampered all their business activities. The shipper has also confirmed that any claim lodged by their consignee or demurrages due to this delay will be in your account.

You are requested to kindly let us have the delivery details of above consignment.”

On 07.01.1994 the M/s Sun Rise wrote a letter to the Manager, Cargo Lux, New Delhi stating as under :

“Unfortunately these all shipments are still lying at Frankfurt. Our shipper threatens that this indefinite delay has hampered all their business and has caused great loss to their buyers if shipper received any claim or loss will be debited to you. You are also requested to kindly let us have the delivery detail of the above consignment.”

This was followed up by another letter by fax dated 11.01.1994 by the company which reads as under :

“Lufthansa is known for its efficiency reliability, excellent service and punctuality to its clients. We had been regularly sending export consignments to Moscow through your Airlines.

Even whenever our Managing Director or any of our marketing executive visits Far East Europe or other places were Lufthansa services were available, we had been giving priority to Lufthansa as we were very much satisfied with the services of your Airlines keeping in view the above we sent the above consignments to Moscow through your Air Cargo with the expectation that these will be Airlifted and delivered to our buyer in Moscow in time. For this purpose we have paid higher freight to you as your Delhi office assured us prompt delivery.”

On 12.01.1994 the company had sent another fax to Lufthansa which reads as under :

Thanks for your certificate No. GF/exp/56 dated 11.01.1994 received through FAX today. Please confirm the fate of the following consignments and issue us similar certificate for the same as we are very much worried about these consignments :

Airway Bill No.	Date	Cartons	Flight No. Delhi to Frankfurt	Date
172-1387-8826	01.12.93	100	LH 7423	16.12.93
172-1387-8863	08.12.93	114	LH 7423	16.12.93
172-1387-8852	03.12.93	104	LH 7423	16.12.93

On 20.01.1994 the Lufthansa wrote to the company, which reads as under:

We acknowledge receipt of your letter dated 14^th January 1994 regarding various shipments from Delhi to Moscow.

CN 220-32329141 dated 15.12.1993 Delhi-Moscow forwarded ex LH 7419/ 21 Dec, Delhi to Frankfurt onto LH 7418/10 Jan 94 Frankfurt to Moscow.

CN 172-13888826 dated 01.12.93 Delhi-Moscow forwarded ex LH7343/16 Dec Delhi to Frankfurt.

CN 172 - 13878863 dated 15.12.93 Delhi-Moscow forwarded ex LH7343 16 Dec Delhi to Frankfurt.

The above shipments are still stuck in Frankfurt due no flight is being operated due to congestion in warehouse in Moscow as duly explained in our letter dated 28.12.93.

The Ld Counsel for the complainant submitted that the alleged letter dated 28.12.1993 was never received by them. On 07.03.1994 the Managing Director, York Knitwear wrote a letter to Lufthansa, Delhi regarding claim for delayed delivery of the consignment to Moscow (Russia) under Air way bill No. 220 3237 9141 dated 15.12.1993. The extracts of the letter are as under :

“We had been assured that the time period for reaching at destination shall be less than two weeks from the date of handing over the goods. The various details of the consignment which was booked and handed over to you ready for carriage through our handling agents M/s Sun Rise Freight Forwarders Pvt., Ltd, New Delhi are given in Annexure I. This consignment was not delivered at Moscow within the assured period of two weeks. In spite of our best efforts and repeated requests to you, we were not given any proper feed back, as to when this consignment shall be delivered at Moscow. We are enclosing the copies of the fax message dated 11.01.1994 sent to Lufthansa German Airlines in this connection. As the consignment did not reach Moscow prior to Christmas, buyer refused to accept the goods as the season was over and there was no scope of selling the goods until the next season with the result that two of our senior Executives Mr Balraj Kumar and Mr Mukesh Kumar had to travel to Moscow to arrange for a memorandum of understanding with the buyer so as to persuade them to take delivery of the goods. The goods are lying with the buyers at Moscow on our risk and costs and we have suffered a very serious loss due to the non-delivery of the consignment within time.”

The time taken for delivery of this consignment is almost the same time that would have been taken in case the consignment had been sent as Cargo through sea ship.

In this letter the complainants claim Rs.22,12,736/-.

The details are as under :

Bank interest on the value of the consignment for one year	INR 3,45,202
Difference between Air Freight and Sea Freight charges	INR 4,21,068
Cost of to and fro air ticket between Delhi and Moscow for two executives	INR 1,07,680
Lodging, Boarding, Travelling and other incidental charges	INR 4,49,856
Losses suffered due to storage rent	INR 4,00,000
Bank interest on amounts blocked in purchase of raw material	INR 4,90,930

Mr. Sibal submitted that the National Airport at Moscow was only closed for half an hour on 14^th December, 1993 from 1900 hours to 1930 hours. He also submitted that the goods reached in this case after a delay of 43 to 57 days. On the other hand, the goods sent by them by Aeroflot which left on 26.12.1993 and 29.12.1993 landed at Moscow on 27.12.1993 and 30.12.1993 respectively i.e. on the next day. The goods were stuck at Delhi and Frankfurt but not had reached Moscow in time which shows a gross deficiency of service and the casual approach which has resulted in huge loss to the company resulting in its closure. There were three buyers at Moscow they are Astrovaz D, JV Kavita and Neo Trade. Ld. Counsel for the complainant stated that they have submitted an affidavit revising their claim as they could realize some money from the sale of goods. In the affidavit filed by them on 23.10.1997 they gave the following details:

The goods having invoice value of USD 1,36,400 had been sent by the complainant company at Moscow. These goods were sent through the opposite parties. Goods under invoice No.1015 were sent to J V Kavita and the invoice value of the same was USD 26,520. These goods having been delayed had not been accepted by the purchaser M/s J V Kavita Moscow who as a measure of good will and on the basis of complainant’s long relationship, had taken delivery of the goods on behalf of complainant company and stored them in their warehouse. These goods for all intents and purposes continued to be complainant company’s goods and were lying with them at the risk and responsibility of the complainant company. This was also in terms of the purchase order. The purchaser has now vide letter dated 02.01.1997 informed the complainant company that these goods were lying in their warehouse at the complainant company’s responsibility and they had stored the goods for a number of years as a good will gesture and because of that goods had deteriorated. Since suitable customer was not forthcoming and since the goods had deteriorated, they did not want their own fresh stocks of woolens along side to be adversely affected. According to them, warehouse charges had also not been paid by the complainant company which had accumulated to USD 18,600/- till August 1996. They were, therefore, constrained to sell all this material at throw-away prices. A sum of USD 11,900/- were realized. Final claim position was stated by M/s J V Kavita in their letter which is given as under :

(Amount in USD).

1.	Balance of USD 26,520/ - 11,900/-	14,620.00
2.	Warehouse charges (from 2/94 to 8/96) 312 month @ USD 600/- pm	18,600.00
3.	Custom duty paid on behalf of complainant company @ 33.15%	8,791.00
4.	0.5% of invoice value as penalty for delayed delivery	530.40
		42,541.40

A copy of the letter is annexed as ‘A’ alongwith the affidavit.

In so far as the goods bearing invoice no. 1014 and 1016 were concerned, these goods had been sent to M/s Astrovaz D, Moscow, value of these goods was USD 44,880/-. Vide letter dated 04.01.1997, this purchaser company informed the complainant company that since the scarves and others goods lying in their warehouse have become sticky, moist-affected and infected, they had sold these goods in December 1996 to make their warehouse safe and available to store fresh woolen goods for the Christmas season of 1996-97.

The final claim position was stated by this purchaser company in their letter which is given as under :

(Amount in USD)

1.	Custom duty paid on behalf of complainant company	14,877.72
2.	0.5% penalty per day of delay of 53 days (15.12.93 to 07.02.94)	11,893.20
3.	Storage charges @ USD.600/- pm from 2/94 to 12/96	21,000.00
	Less : Sale proceeds	47,770.72 20,500.00
	Balance due to the purchaser company	27,270.72

The letter of the purchaser company is attached as Annexure ‘B’.

So far as invoice No. 1019 is concerned, the goods are still lying with M/s Neo Trade, Moscow at the risk and responsibility of the complainant company. The warehouse rent claimed by M/s Neo Trade, Moscow is USD 23,100/- and the penalty charged by them is USD 8000/- and custom duty paid on behalf of the complainant company is USD 21,547.50/-.

That the present position of all the claims is given below :

Inv. No.	Name of the Party	Inv. Value	Sale Value	Amount loss	W/house rent	C/Duty	Penalty
1015	JV Kavita Moscow`	26,520	11,900	14,620	18,600	8791.00	530.40
1014 &1016	Astrovaz-D,Moscow	44,880	20,500	24,380	21,000	14,877.72	11,893.20
1019	Neo Trade, Moscow	65,000	-	65,000	23,100	21,547.50	8000.00
		1,36,400	32,400	1,04,000	62,700	45,216.22	20,423.60

Total Loss (Col 5 to 8) USD 2,32,339.82 (Rs.36/- per dollar) -83,64,234.00 INR

Other losses

1. Total Infructuous Freight 1,04,000 x 10,11,036 7,70,878.00 INR

1,36,400

2. Loss of Goodwill 20,00,000.00 INR

3. Loss of orders 20,00,000.00 INR

-----------------------

1,31,35,112,00.INR

Accordingly their claim in the original complaint had to be substituted by what is stated in the above affidavit. Lufthansa had not disputed their delay at various Airports at Delhi, Frankfurt and Moscow in their written statement. They only said that the consignor received the goods without protest and hence they are not liable for damages. Except for Kavita, York Knitwears to be owners as they never paid him, hence there was no question of consignee protesting.

Section 19 of Sale of goods Act is relevant in this case :

Astrovaz –D in their letter dated 01.11.1993 has stated that time of delivery is hereby extended upto 15^th December 1993 as against 1^st week of November 1993 as a very special case. The goods if delivered thereafter shall be accepted under protest, only as a measure of goodwill and the claims arising out of such delay shall be borne by you. The claims shall be lodged, if necessary, in accordance with the position as obtaining on actual date of delivery and the goods received later shall continue to be your property and will lie with us at your own risk and responsibility till the claims lodged by us are settled by you.

The Neo Trade in their letter dated 27.12.1993 has stated as follows :

Contract No. 12 dated 07.12.1993 for 20,000 Scarves.

“It was provided in our contract that the goods were to be delivered by 15.12.1993 to 20.12.1993 and the date of bill was to be regarded as the date of delivery. This was in the expectation that goods would be received for sale during the Christmas season. But the same has not been received by us till date of this letter. Hence, please note that, if and when, the goods are actually received by us, the same shall be accepted under protest only and that too on account of the relations shared by us. This shall be subject to the claims which may be lodged by as a consequence of the damage suffered for the delayed delivery. Also the said goods shall lie with us as your property in custody with us till our claims are settled by you.”

As per Kavita is concerned “the damages resulting from any delay of delivery of goods beyond Christmas shall be borne entirely on your account and shall bear the entire loss.”

Appendix of the contract speaks of 1800 pullover to be dispatched within 15 days of receipt of payment.

4300 pullovers to be dispatched within 21 days of receipt of second payment.

Mr Sibal further submitted that the alleged letter of Lufthansa German Airlines is addressed to ‘Agent’ which reads as under :

“Due to warehouse congestion in Moscow and heavy backlog situation in Frankfurt a total embargo is declared on all the shipments to Moscow. We therefore, request you to please do not book any shipment to Moscow until further notice. “

It is not addressed to York Knitwear and the (Sunrise) the agent in this case has denied to have received this communication. Similarly the agent had denied the receipt of the letter dated 30.12.1993 and 31.12.1993 by them in this case. This letter speaks of heavy backlog at Frankfurt. If this letter had actually been written to York Knitwear they could have transported the goods in advance from Frankfurt to Moscow by truck. The first letter which was received by York Knitwear is dated 14.01.1994.

Submissions of the learned Counsel for respondent 4 & 5 i.e M/s Sunrise Freight Forwarders (P) Ltd.,

Mr. Rajeev Talwar, Ld. Counsel has submitted that as an IATA Agent they had the following obligations and duties :

1. to receive goods in airworthy condition.

2. to prepare and issue airway bills in accordance with IATA rules and any specific airlines rules applicable at the time.

3. to also ensure that airway bill is prepared correctly in accordance with the shipper’s documents requirement.

4. to weigh and measure the package and declare accurately the chargeable weight on the airway bills.

5. to label all package correctly.

6. to hand over goods ready for carriage to the concerned airline without any negligence or unwarranted delay.

7. to collect the freight charges from the shipper and remit the same to concerned airlines within 30 days of end of relevant fortnight i.e. in accordance with IATA regulations. If any event of failure to collect, to pay all freight charges on behalf of shipper to the airline.

8. on behalf and request of shipper, to follow up information on status of air lifting/ delivery of consignment.

Mr. Talwar said that their company had fulfilled all these 8 conditions. There is no complaint against their company except that the company was planning to send all the goods through Aeroflot Russian Airlines but M/s Sunrise advised them to divert these four consignments through Cargolux Airlines International/ Lufthansa German Airlines and assured that they would be expeditiously delivered and rather earlier than Aeroflot i.e within a period of 4/5 days. Mr Talwar vehemently denied this. He drew our attention to the letter dated 27.12.1993 wherein the York Knitwear Ltd., had stated that “we sincerely request you to send the message to your Frankfurt office and ask them to dispatch the above shipments to Moscow before 31^st December 1993. You must be aware the Russian Duty structure is changing after 1^st January 1994 and if our shipments do not reach before that then we have to pay additional duty for none of our fault. We again request you to expedite the thing as early as possible.”

The correspondence dated 11.01.1994 from the company addressed to Lufthansa Air Cargo Division which states that ‘even whenever our Managing Director or any of our marketing executive visits Far East Europe or other places where Lufthansa service were available, we had been giving priority to Lufthansa as we were very much satisfied with the services of your Airlines’ is a clear indication that they had trusted Lufthansa Airlines. He has given the following details of the Airline bills which indicated that goods were received and cleared by them on the same day, the same are as under :

Goods received on Goods cleared on

16.12.1993 16.12.1993

08.12.1993 08.12.1993

01.12.1993 01.12.1993

03.12.1993 03.12.1993

Mr Talwar submitted that Air way Bills do not mention the date of delivery. The complainants in their correspondence with them only indicated that they should send cargo by the first available flight or at the earliest except the correspondence dated 28/ 29.11.1993 they had mentioned that Airlift the consignment in the first available Aeroflot Cargo, whereas in the letter dated 01.12.1993 the company states that airlift the consignment in the Cargoluft and the letter dated 02.12.1993 states that please airlift the goods by the first available cargo. The letter dated 09.12.1993 states to airlift the goods in Cargolux. The letter dated 13.12.1993 states that airlift the consignment in Cargolux or Lufthansa. He submitted that there is no fault of their company at all. They are a mere commission agent getting the commission of .005%.

Mr. Talwar submitted that the Freight charges for the said consignments were duly paid by Sunrise Freight Forwarders (P) Ltd., to the airlines and bills were raised by Sunrise Freight Forwarders (P) Ltd., on the complainant for payment of the freight as well as other handling charges of Sunrise Freight Forwarders (P) Ltd.,. The complainant has till date not made the payment in full and is still holding the amount of Rs.3,55,129/- against the above shipments. Apart from the above said amount the complainant is also holding a further amount of Rs.9,85,999/- which is also due for payment against other shipments.

The complainant despite repeated reminders from Sunrise Freight Forwarders (P) Ltd., has failed and neglected to make the payment.

The so called instructions issued by the Lufthansa to their agent dated 28.12.2003 stated that ‘due to warehouse congestion in Moscow and heavy backlog situation in Frankfurt, a total embargo is declared on all the shipments to Moscow. We therefore, request you to please do not book any shipment to Moscow until further notice’. In an alleged letter dated 30.12.1993 the Lufthansa German Airlines has stated that ‘due to warehousing congestion in CIS countries and heavy backlog situation in Frankfurt, a total embargo is declared on all the shipments to CIS countries. We, therefore, request you to please do not book any shipment to CIS countries until further notice.’ The said letters where never received by M/s Sunrise nor they have received any phone call in this regard. IATA instructions are very clear in this regard.

Clause 19 of IATA (Cargo agency agreement) which reads as under :

All notices to the agent from the Member or from the agency administrator shall be sufficient if sent by prepaid telegraphic means or mail addressed to the principal office of the agent. All notices from the agent to the member shall be sufficient if sent by prepaid telegraphic means or mail addressed to the principal office of the member. All notice from the agent to the agency administrator shall be sufficient if sent to IATA at the address shown in this agreement, which address may be changed by notice given in writing from time to time by the agency administrator to the agent.

There is no proof that the alleged correspondence addressed to the ‘Agent’ was received by them.

He has quoted the decision of the Hon’ble Supreme Court of India – III(1999) CPJ 28 (SC) in Ravneet Singh Bagga vs M/s KLM Royal Dutch Airlines and Anrs which reads as under :

“The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent while otherwise do not amount to deficiency in service. In case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondents is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the fact of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”

Mr Talwar submitted that he has written several letters to Lufthansa to expedite the shipments of the cargo but they had not sent any response. Hence there is no deficiency in service on the part of the clearing agent.

Mr. Rajiv Talwar has brought to our notice the judgment of SC in (1998) 3SCC 247 – Marine Container Services South Pvt Ltd., vs Go Go Garments.

Submissions of Shri Tikku, learned Sr Counsel for the Lufthansa Airlines:

Mr Tikku submitted that as far as contract with Kavita is concerned the complainant who is the consignor has received the payment which is evident from the appendix one to the contract which mentions 6100 pieces of pullover valued 62,220 US Dollar i.e. 1800 pullover to be dispatched within 15 days of receipt of payment and 4300 pullover to be dispatched within 21 days of receipt of second payment.

The Ld Sr. Counsel mentions that the letter dated 02.01.1997 from J V Kavita to York Knitwear was planted by the complainants to support their case in the proceedings before the National Commission. The extract of the letter is reproduced below:

A sum of USD 11,900 were realized from the sale of goods against your invoice No.1015 for USD 26,250. In this respect we would like to inform you that we have already advanced the total invoice value of USD 26,520 on your request on some specific conditions vide our letter dated 15.04.1994.

The contract with Astrovaz D is as follows :

The goods are to be delivered within months of advance payment. Partial shipments and part shipments ahead of schedule is allowed the date of bill of lading/air way bill is considered as the delivery date.

It means that the company had received some advance payment.

The complainants had issued the first notice on 07.03.1994 wherein they have claimed Rs.22,14,736/- which is contradictory to the claim made before this Commission. Mr Tikku submitted that normal time taken from Delhi to Moscow is two weeks. In this case as the conditions were beyond their control there has been a reasonable delay. The Sunrise in their reply has clearly stated that they have not assured that cargo will be delivered within a period of 4-5 days.

Shri Tikku submitted that Air Way Bill is the contract between the parties. In the Air Way Bill No. 172-1387-8826 of Cargolux dated 01.12.1993, there is a mention of NVD i.e. No value declared under the approximate heading. There is no mention about the date of delivery. The consignee has not made any complaint to Lufthansa. Carriage by Air Rules are very clear in this regard. Mr Tikku explained in great detail the dates of delivery of various consignments and that the consignee in each case has received the goods without any protest. The complainant has filed the claim within 2 months, though part of the payment was received by him in advance. There was no loss, damage or destruction of the goods transported by Lufthansa. The case of the complainant is of delay only. The delay cannot equated with loss/ damage/ destruction. The consignee has not filed any case against the consignor in the form of arbitration or civil litigation.

The letter of Kavita addressed to York Knitwear mentioning that as per the contract the total shipment was to be done only between the period from 15^th September to 30^th November 1993 but the final shipment was received only on 15^th January 1993 and this has created lot of problems viz., lost credibility with the customers and had to pay excess duties for the storage charges etc. Further, some articles were not corresponding to the samples shown, there were improper packing and they had suffered due to no fault of theirs and goods can be handed over after settlement of duty paid by them etc., According to Mr. Tikku this letter is a created document by the company.

There was lack of storage facilities at Moscow which has been brought to the notice of the complainants by Lufthansa on 03.05.1994 in clear cut terms, as follows :

Therefore and however much we regret the inconvenience and difficulties you had, we are not in a position to accept any liability for late forwarding to Moscow. Please understand that due to the above we, unfortunately, cannot provide a positive reply.

Mr. Tikku submitted that the carrier is not responsible for the custom regulations and duties and also the payment towards the storage charges. He concluded by stating that the right of the consignor ends where the right of the consignee begins.

Rejoinder by the Ld Counsel for the complainant :

Mr Sibal submitted that what he has stated in page 14 of his complaint relating to invoice number, number of cartons, Airway bill number and date and date of lifting and flight number from Delhi to Frankfurt and flight number and date of lifting from Frankfurt to Moscow and number of cartons which indicates abnormal delay in the lifting of 585 cartons weighing 11,476 kgs has not been disputed by the Lufthansa or by Sun Rise Freight Forwarders (P) Ltd. The ld Counsel for the Lufthansa admitted that in normal circumstances cargo should have been delivered in two weeks time. But even two weeks is a long period, and in this case the delay is much longer than that.

Findings :

1. Whether there was an abnormal delay in delivery of cargo and deficiency in service ?

The following table gives details of 11,476 kgs of woolen knitwear manufactured by York Knitwear Company which were lifted by Cargolux and Lufthansa as per the Invoice numbers, number of cartons, airway bills, names of the carriers, value in USD and the dates of Air way bill and dates of reaching Moscow :

Inv. No.	No. of Cartoons	AW Bill. No. & Date	Date of Lifting and Flt No. Delhi to Frankfurt	Flt No. and Date of Lifting Frankfurt to Moscow	Cartoons
1014	100	172, 1387 8826 , 01.12.93	LH 7423 16.12.93	LH 7412 27.01.94	100
1015	104	172, 1387, 8852 03.12.93	LH 7343 16.12.93	LH 7434 05.01.94	95
1016	114	172, 1387, 8863 08.12.93	LH 734 16.12.93	LH 7416 27.01.94	114
1019	267	220, 3237, 9141 15.12.93	LH 7219 21.12.93	LH 7343 05.01.94	31
				LH 7418 10.01.94	236
Total	585				576

The Lufthansa has taken over Cargolux, hence it has accepted the responsibility of cargo booking through Cargolux. The above details given in the statement is not at all in dispute. The dates on which the cargo reached are also not disputed. It is clear that the cargo has reached with delay of 47-58 days.

The complainant has stated in his complaint that, though Lufthansa and Cargolux have delivered the cargo with inordinate delay at Moscow, certain other cartons sent by another airlines i.e. Aeroflot from Delhi to Moscow duly landed at Moscow on the very next day. The details of which are given below:

Inv. No.	No. of Cartoons	AW Bill	No.		Date	Date of Lifting	Landing
1017	143	555	1832	3793	13.12.93	26.12.93	27.12.93
1018	136	555	1832	3804	13.12.93	26.12.93	27.12.93
1020	267	555	1832	8096	15.12.93	29.12.93	30.12.93

This is a clear indication of abnormal delay in delivery of cargo by Lufthansa. The Ld Sr. Counsel for the Lufthansa submitted that generally it takes about two weeks for the cargo lifted at Delhi to reach Moscow, but in this case due to extra ordinary circumstances i.e. due to the fact that godowns in Moscow were full and it was not possible to deliver the cargo at Moscow without furnishing adequate proof for the same. He has neither contradicted the statement made about the prompt delivery of cargo by Aeroflot nor has adduced any evidence to disprove this contention of the complainants .

In our view there has been a clear cut case of deficiency in service by Lufthansa.

2. Whether Sun Rise Freight Forwarders (P) Ltd., is an agent of Lufthansa ?

It is contended by the Sr. Counsel for the Lufthansa that M/s Sun Rise is not its agent hence, it is not liable for the damages if any due to the acts of commission or omission by the M/s Sun Rise who were given some Air Way Bills to be handled by them while booking cargo on their behalf.

This argument does not hold water for the following reasons, firstly the Ld. Counsel for the Lufthansa drew our attention to the disputed letters addressed by Lufthansa to its agents on 28.12.1993, 30.12.1993 and 31.12.1993 mentioning about the warehouse congestion at Moscow due to heavy backlog situation at Frankfurt etc. and in this case, he contended that they were also addressed to Sun Rise. Hence we cannot buy this argument that they were not the agents of Lufthansa. Further assuming that the letters were received by the agent these letters were subsequent to the airlifting of cargo in this case.

Further we were shown a document by M/s Sun Rise, i.e the Cargo Agency Agreement No. 3716 between the IATA and Sun Rise FF (P) Ltd which mentions that all the agents undertake for the sale of air cargo administration and handling of consignments performed under this agreement shall be in strict compliance with the rates, rules and conditions applicable. Agent undertakes to maintain all places where air cargo ready for carriage, the premises and staff required by Section A of the Cargo Agency Rules. The argument also mentions about the indemnities and waiver.

Accordingly, the Lufthansa is bound by all the actions of the agent under this agreement and whenever the agent has been intimated by the consignor to carry the goods within the stipulated time, the carrier is bound by this intimation.

Further in all the airway Bills, there is a clear mention of M/s Sunrise as the Agent.

Hence we cannot accept this argument that they are not the agents of Lufthansa.

3. Whether the carrier/ agent received any intimation to transship the cargo early?

The letters addressed by York Knitwear to Sun Rise on several dates i.e. on 28/29.11.1993, 01.12.1993, 02.12.1993, 09.12.1993 and 13.12.1993 are indicative of the fact that M/s York Knit Wear had instructed M/s Sun Rise in the following words :

Please try to airlift the consignment in the first available Aeroflot Cargo and send us the original documents at the earliest.

Please airlift the consignment in the Cargoluft of 7^th Dec. positively and send us the documents at the earliest.

Try to airlift the goods by the first available cargo and send us the original documents at the earliest.

Please airlift this goods in Cargolux of 15.12.1993 positively.

Kindly airlift the consignment in Cargolux, if available in this week otherwise in Lufthansa urgently

Hence, the urgency of transshipment of the cargo has been reiterated over and over again by the complainant. The Ld. Counsel for the Sun Rise has stated that they had intimated the Lufthansa to carry the cargo expeditiously.

In this case if we strictly go by what is written in the air way bill there is no mention of the number of days by which the goods had to be delivered at Moscow from the day of delivering the goods to the Airlines, which means time was not the essence of the contract. If we go by the narrow sense of contract, the Airlines can escape the responsibility, but they cannot do so for the following reasons:

Several letters written by the complainant to the agent of Lufthansa clearly indicates that the goods had to be carried by the first available flight or urgently as soon as possible, so the responsibility of Sunrise cannot be disputed. They are responsible for ensuring that the goods are dispatched by the earliest flight; secondly it being the agent of the Airlines they would have definitely communicated to Lufthansa the necessity to carry the goods by the earliest flight to Moscow. The reverse of the air way bill indicates that any body who has any complaint about the delay in despatch of goods they are supposed to file a complaint with Lufthansa within 21 days. We can deduce from this condition that Lufthansa should have ensured that the goods are reached within 21 days of booking which they have not done. There has been abnormal delay and it is clear from the records which is not controverted that the goods dispatched by the same company by Aeroflot from Delhi to Moscow reached Moscow within one day. Hence, Lufthansa is liable for the delayed delivery of goods at Moscow.

4. Whether Lufthansa has informed the M/s Sun Rise about the delay in lifting the cargo. In an affidavit by Mr Ashwani Nanda, CMD of M/s Sun Rise FF (P) Ltd., has clearly stated that Lufthansa Airlines never gave any notice or issued any circular to Sun Rise Freight Forwarders (P) Ltd., that there was a problem in shifting the goods in Moscow at any stage before or immediately after the shipment of the goods. Circulars dated 28.12.1993, 30.12.1993 and 31.12.1993 purported to have been issued by Lufthansa Airlines were in fact never received by the Sun Rise FF (P) Ltd., who became aware of the circulars only after the present complaint was filed and the same were produced by the Lufthansa Airlines in support of their defence.

There is neither any proof of Lufthansa sending these communications to Sunrise or the complainant nor there is any proof of receipt of these communications by Sun Rise FF (P) Ltd., and M/s York Kinitwear.

5. Whether Sun Rise was deficient in its service? In this connection, it is useful to go through the sections 222 and 230 of the Indian Contract Act 1872.

Section 222 of the Indian Contract Act 1872 reads as follows :

Agent to be indemnified against consequences of lawful acts – The employer of an agent is bound to indemnify him against the consequences of all lawful acts done by such agent in exercise of the authority conferred upon him.

Similarly section 230 of the Indian Contract Act 1872 reads as follows :

Agent cannot personally enforce, nor be bound by, contracts on behalf of principal – In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.

Presumption of contract to contrary – Such a contract shall be presumed to exist in the following cases :-

(i) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

(ii) where the agent does not disclose the name of his principal;

(iii) where the principal, though disclosed, cannot be sued.

In this case, these presumptions mentioned in the above section (230) are not applicable.

In this connection, it is worthwhile to go through judgment of the Apex Court in (1998) 3 SCC 247 – Marine Container Services South Pvt Ltd., vs Go Go Garments wherein it has held that “we are not a little surprised to read that the Contract Act does not apply to complaints filed under the Consumer Protection Act. The Contract Act applies to all the litigants before the Commission under the Consumer Protection Act. Whether in proceedings before the Commission or otherwise, an agent is entitled to invoke the provisions of section 230 of the Contract Act and if the facts found support him, his defence based thereon cannot be brushed away”. Accordingly, in view of the aforesaid judgment of the Supreme Court and also the provisions of the Indian Contract Act, the Agent namely Sun Rise is not liable for the delayed delivery of the goods at the destination by the Lufthansa. The responsibility of Sun Rise ceases when it had got the custom clearance for the booked goods and arranged the delivery of the goods to Lufthansa. In fact, Sun Rise had taken pains to remind the Lufthansa to ensure prompt delivery of the goods. Hence, the agent cannot be held liable for delayed delivery.

6. Whether York Knitwear is eligible for any relief, if so how much ?

Under the Carriage by Air Act 1972 the liability of the carrier has been defined. The relevant portions are quoted below :

Section 18 - The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air.

Section 19 – The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.

In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor had made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the actual value to the consignor at delivery. (emphasis supplied)

There has been abnormal delay which has caused loss in the sense that by the time the consignments reached, the season was over and hence the Lufthansa cannot evade liability for payment of damages under Section 19. As regards the liability of the carrier it is limited to 250 francs per kg. This is calculated at US $ 20 per kg and as the total kilograms carried is 11,475 this comes to US $ 2,29,500. However, as the value of the invoice is US $ 1,36,400 the liability is further limited to this amount. Accordingly, the complainant would have been eligible for Rs.42,78,868/-. Learned Counsel for the Lufthansa has contended that York Knitwear has received full payment from M/s Kavita before the dispatch of the Cargo. This has not been contradicted by the learned Counsel for the complainant in his rejoinder. Appendix to the contract between York Knitwear and M/s Kavita shows that 1800 pullovers to be despatched within 15 days of receipt of payment. 4300 pullovers to be despatched within 21 days of receipt of second payment. Complainant has sent 1848 kg of wollen materials to M/s Kavita. If this is deducted the net weight comes to 9627 kg. The total value of the invoice is 1,36,400 US $, out of this, the value of the invoice pertaining to M/s Kavita is $ 26,520. So the net amount payable comes to 1,09,880 US $ and @ 31.37 per $ this is converted to Rs.34,46,936/-.

Learned Counsel appearing for the Lufthansa has submitted that as regards Astrovaz D is concerned the goods are to be delivered on advance payment. What is that advance payment received has not been explained to us by the complainant. The contract between York Knitwear and Astrovaz D shows that the goods are to be delivered within months of advance payment. Partial shipments and part shipments ahead of schedule is allowed and the date of bill of lading/ air way bill is considered as the delivery date. This has not been controverted by the learned Counsel for the complainant in his rejoinder. In absence of the quantification of the amount received in advance, we award a lump-sum compensation of Rs. 5 lakhs in respect of the consignment to Astrovaz D.

There is no dispute that no advance payment has been received against the goods dispatched to Neo Trade. 5820 kgs of Knitwear were dispatched to Neo Trade @ $ 20 per kg the value comes to US $ 69180.65353 @ 31.37 per $ the value comes to Rs.21,70,197.10. Complainant alleges that no amount was received by it from the said consignee.

Learned Counsel for the complainant has claimed 20 lakh of rupees each towards the loss of goodwill and loss of further orders refused to the complainant. No evidence has been placed before us to substantiate this claim, hence, this is purely speculative claim. Accordingly, we are not persuaded to award any relief towards this claim.

The complainants have also filed an affidavit wherein they have claimed compensation towards custom duty paid on behalf of the complainant – Company by the buyers, storage charges of goods till their disposal by their buyers, penalty for the delayed delivery etc. totaling to Rs.83,64,234/- apart from Rs.7,70,878 towards infrutuous freight paid. As there is a ceiling limit towards the reimbursement of claims under the Carriage by Air Act, which is fixed at $ 20 per kg, we do not deem it necessary to analyse this claim.

Therefore the amount payable to complainant for the delay in dispatch of goods to Neo Trade comes to Rs.21,70,197/-. Similarly, for the delay of dispatch of goods to Astrovaz D, the amount payable to the complainant comes to Rs.5 lakhs. Accordingly, this amount i.e. Rs.26,70,197/- is directed to be paid with interest @ 6% from the date of the complaint till the date of payment by Lufthansa to the complainant. They shall also pay Rs.25,000/- as costs.

……………………J

[ K S Gupta ]

Presiding Member

……………………..

[ P D Shenoy ]

Member

satish