A C EXPORT Vs. AIR FRANCE & ANR

JUDGEMENT

(1.) THIS complaint has been filed by M/s. A.C. Exports, a partnership firm against Air France/opposite party No. 1 and New Globe Air Services Pvt. Ltd./opposite party No. 2, the authorised agent of opposite No. 1. According to complainant, it is a partnership firm inter alia dealing with knitted and woven garments. It is engaged in export of goods to U.S.A. and Canada. Complainant is a merchant exporter, who for purpose of convenience of quota requirement, enlisted the support of the shipper M/s. B.Sorabji & Co. Accordingly on 7.10.1993 through M/s. Sorabji & Co. they despatched 216 cartons containing 5184 pieces of 100% cotton knitted T -Shirts (men). Air way bill was issued to opposite party No. 2 for and on behalf of opposite party No. 1/Air France. So, there was privity of contract between complainant and opposite party No. 1. This can be asserted from the fact that the consignee M/s Seattle Pacific Industries and their associate company Bay Apparel Ltd. have been fully paid by the complainant. The complainant had enclosed invoice at Exh -B to the complaint to show that buyer was Bay Apparel Ltd. The complainant has also enclosed at Exh -B1, a copy of bank payment voucher showing that payment had been made by the complainant to Bay Apparel Ltd. for U.S. $ 15,755.70 + 33,057.36 as an export claim for delayed shipment. Exh. -C is a copy of the demand draft dated 24.5.1994 for U.S. $ 15,755.70 + 33,057.36. Complainant pleaded that a contract entered into between the complainant's agent M/s. B. Sorabji & Co. and New Globe Air Services Pvt. Ltd. was duly signed by New Globe Air Service Pvt. Ltd. as the issuing carrier agent of Air France. This fact was clear from letter dated 12.10.1993 sent to Central Bank by M/s. B. Sorabji & Co. The complainant pleaded that the perusal of the bank advice and the bank realization certificate will show the complainant had remitted U.S. $ 1,57,550.70 so as to adhere to the RBI guidelines of the mandatory period of 180 days. This additional money was remitted due to the joint and several negligence of the opposite parties.

(2.) ACCORDING to the complainant opposite party No. 2 is New Globe Air Service Pvt. Ltd., a registered International Air Transport Association member acting for and on behalf of (an agent of) the opposite party No. 1 The opposite party No. 1 pays the necessary commission to the opposite party No. 2. In the instant case as stated above the airway bill dated 30.11.1994 was duly signed by the opposite party No. 2 for and on behalf of the opposite party No. 1. In the subsequent correspondence the opposite party No. 1 has not disputed the fact that the goods were carried by them and that there was contractual liability. The complainant states that the complaint is in respect of deficiency in service and unfair trade practice on the part of the opposite party No. 1 and opposite party No. 2 jointly and severally for the following reasons:

(3.) THE complainant further pleaded that in spite of clear instructions printed on the airway bill the opposite party Nos. 1 and 2 deliberately and with mala fide intent failed and neglected to inform the consignee about the strike and there was delayed delivery of goods booked by the complainant through his agent to the consignee and delivery was made after delay of 21 days. According to the complainant, had opposite party informed them of strike, they would have taken quick remedial action. But this was not done and resultantly they suffered great financial loss caused by the opposite party and because of delayed delivery, the consignee lodged with the complainant and claimed US D 37129.80 for no fault of complainant. According to the complainant, the shipment arrived on 4.11.1993 and on 3.11.19993 a telex message was received by the complainant which clearly stated that the freight charges which had to be paid by the complainant due to delay in shipment. At Exh -E a copy of telex message sent by the complainant on 3.11.2003. Complainant further pleaded that they have made claim with the opposite party by way of fax message on 13.11.1993. Again on 17.12.1993 by common fax message they made claim of US D 37,129.80 because all buyers had withheld payment of the above consignment therefore the complainant had requested opposite party No. 1 to settle the claim at the earliest. For delayed shipment it is asserted by the complainant that they had paid Rs. 4,95,492 i.e. US $ 15,755.70 to the consignee. According to the complainant, in spite of having claim made within period of 21 days, the opposite party failed to settle the claim or to give reply and therefore, the complainant pleaded that opposite party Nos.1 and 2 are guilty of deficiency in service and they were entitled to recover amount of Rs. 20,00,000 for the delayed delivery of goods. The complainant filed affidavits and documents in support of his complaint.