J.D. Kapoor, President:
1. Complainant is a Private Limited Company and is engaged in the business of manufacture and fabrication of hosiery garments and import export. On account of delay in delivery of the consignment booked by the respondent, the complainant sought through this complaint a compensation of Rs. 21.13 lacs (Rupee conversion of US $) on account of value of the consignment, interest and as damages for loss of business and reputation, mental agony and harassment.
2. The case of the complainant in brief is that in the course of its business, it had an export order of Rugby T-Shirts to be exported to Guruji Inc., Austin, Texas, USA and as per the terms governing the said export order, the complainant was required to ensure delivery of the export order to the buyer on or before the midnight of 17.12.1996 (IST). The complainant made inquiries from various carriers carrying cargo to Houston whose rates were comparatively lower than those quoted by the O.P. 1. Since time was the essence of the contract with respect to delivery schedule and in furtherance with the specific assurance given by the O.P. 1 that consignment would be delivered at its destination within 48 hours of being booked with them and further specific statement of O.P. 1 that 'they had reputation to protect', the complainant opted to book the consignment through O.P. 3 to be carried by O.P. 1, vide O.P. 1’s Airway Bill No. 057-20484590 dated 9.12.1996. The consignment was handed over to the customs department on 10.12.1996 and the same was duly cleared by the customs department and thereafter the same was handed over to O.P.1 through O.P. 3 at about 1400 hours (ISYT) on 11.12.1996. O.P. 1 assured that the consignment in question would reach its destination, i.e., Houston on 13.12.1996 at about 1400 hours. However, the consignment left Delhi on 14.12.1996 at 7.00 a.m. It was specifically informed to the complainant by the buyer that the goods were to be sold by the said buyer further to its clients so that the same could be marketed during Christmas season of 1996. For the above reasons, the complainant contacted the office of the O.P. 1 and was informed by its authorized representative that the goods could not be sent on 11.12.1996 and were sent by Flight No. 6703 dated 13.12.1996. The said Authorised Representative of O.P. 1 had also informed the complainant after ascertaining necessary information from his computer that the freight had physically left Delhi on 14.12.1996 at 7.00 hours (IST). The consignment reached its destination, i.e. Houston in the morning of 19th December, 1996 by Flight No. 6702. In order to mitigate the losses of the complainant the consignment was got cleared on 20.12.1996 by the consignee on the condition that though the order stands cancelled but he would keep the goods with him which can be got collected by the complainant on payment of expenses incurred by the buyer/consignee on clearance customs duty, transportation, storage, etc.
3. That the complainant had borrowed funds from various sources including Banks at heavy interest rate in order to execute the order in question and on account of deficiency in service on the part of O.Ps. incurred heavy losses and also lost its valuable customer and was on the verge of closing its small unit. The value of the consignment in question was US Dollar 35,932 on which the buyer had incurred expenses to the tune of US Dollar 8,000 to be reimbursed by the complainant. Hence the complaint.
4. As against this, besides raising a legal objection as to the maintainability of the complaint, being barred by rule, which according to the O.P. is barred by Sec. 26 of the Carriage By Air Act, 1972 and Rule 12(4) Schedule-l of the Carriage By Air Act, 1972, the O.P. has come out with the stand that the claim is for Rs. 21.13 lakh on account of delayed delivery of consignment from Delhi to Houston, USA. The shipment was delivered on 19th December, 1996 within 5-6 days from the date of lifting and customs clearance. Even the complainant’s own estimation of delivery was by 17th December but he claims that it should have been delivered in 48 hours. In the absence of any special arrangement for delivery of shipment, the complaint is not maintainable when the goods have reached the destination within 5-6 days. This stand of O.P. 1 is reinforced with a decision of this Commission dated 15.9.2006 in Registan Exports v. Air France & Anr., Complaint Case No. C-17/1996, in which it was held that 7 days time is reasonable period of time within which the delivery should be made. Further at the time of filing of the complaint in 1997, this Commission had the pecuniary jurisdiction of only up to Rs. 20 lakh. The complainant paid no consideration whatsoever for the shipment to any party. The instant complaint was filed only to avoid payment of freight and thus is an abuse of process and is thus barred under Section 2(d) of the Consumer Protection Act since the contract is without consideration. The complainant is not a consumer since it did not pay consideration.
5. It is settled law that the parties are bound by term of the contract and in the instant case the airway bill which was a document of contract between the parties nowhere stipulates that the consignment was booked with an assurance or stipulation that it shall be delivered in 48 hours. Admittedly, the goods had reached the destination within eight days. Whenever a consignment of the nature in question is booked with the airlines the main object is quick delivery of the consignment. Merely because there was no contract between the parties that the consignment should be delivered within 48 hours does not give a handle to the airlines not to deliver it within a reasonable time. It was with this object that the standards of service (s) were laid down by the Legislature by way of bringing the Consumer Protection Act on the statute book. However, in the instant case, the delivery was made within 8 days which was not a reasonable period as the consignment was booked with a view that it would be delivered within a short period.
6. Learned Counsel for the O.P. 1 has contended that in those days there was a provision of ‘express delivery’ where a consignment would be accepted by the airlines subject to ‘additional charge’ to be delivered on a ‘specific date’ depending on availability of space and flight schedule. This airway bill (Annexure-D) does not contain reference to ‘additional charges’ or ‘express delivery’ and the normal period of time would, therefore, have been followed which comes between 7-8 days for delivery from Delhi to Boston in those days.
7. In our view, the delay in delivery of the consignment was not such a delay that entitles the complainant to the amount of compensation as cla
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imed by him. 8. In the given facts and circumstances of the case, we deem that a compensation of Rs. 25,000 besides Rs. 5,000 as cost of litigation would meet the ends of justice, particularly for the deficiency in service, in not delivering the consignment within a reasonable period of time keeping in view its urgency as well as its utility. Otherwise no consumer would avail the services of airlines if reasonable time of delivery is not the essence of the contract. 9. Complaint is disposed of in above terms. Payment shall be made within one month from the receipt of this order. 10. Copy of order as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record. Complaint allowed.