SOIMEX INTERNATIONAL (P) LTD Vs. AIR INDIA INTERNATIONAL

JUDGEMENT

(1.) Complaint was filed, inter alia, alleging that M/s. Al Khwaja Overseas, Ajman, UAE, a leading importer of cotton fabric in Middle East placed an order dated 2.3.1996 (revised on 25.3.1996) for supply of 100% cotton fabric on the complainant against Letter of Credit at sight bearing No. C-17/669602769 dated 24.3.1996 issued by Standard Chartered Bank, Dubai. Since the delivery of fabric was time bound, the complainant in part compliance of the said order, delivered consignment comprising of 43 bales weighing 2725 kgs for carriage Ex-Delhi to Dubai to opposite party No. 1 vide Airway Bill No. 098-6580 2531 dated 16.10.1996 (ought to have been 10.6.1996). Standard Chartered Bank, Dubai was the consignee. M/s. Al Khwaja was the notify party. Consignment was sent on "freight collect" basis. Freight was Rs. 1,04,913. Complainant raised invoice No. SIL/Exp/056/96 for US$ 18672.30. Complainant continued to manufacturer the balance fabric in the meantime. It was further alleged that consignment was insured by the complainant with opposite party No. 2- Insurance Company under Marine Certificate No. 360700/C15/63/96 dated 11.6.1996. Flying time between Delhi and Dubai is about 3 hours. Since the consignment did not reach destination as scheduled, the complainant wrote letters dated 28.6.1996 and 29.6.1996 to opposite party No. 1 to enquire about the status thereof. Complainant further wrote letters dated 4.7.1996, 11.7.1996, 27.6.1996, 29.7.1996, 31.7.1996 and 1.8.1996 to opposite party No. 1. It was stated that the complainant later on came to know that opposite party No. 1 had allowed the consignment to damage by exposing it to pilferage/theft and soaked in rain and chemicals. On 22.7.1996, opposite party No. 1 sent a letter to the complainant stating that the consignment was lying undelivered at the destination and complainant should give alternate disposal instructions and pay the freight charges. On 26.7.1996, opposite party No. 1 wrote another letter stating that 8 pieces of consignment were with Bombay Police, it was recalling 17 bales from Dubai and remaining 18 bales were lying at Bombay. On or about 31.7.1996, complainant received a telegram from opposite party No. 1 calling upon it to collect the subject consignment on payment of charges of Rs. 1,10,982. On the same date, opposite party No. 1 wrote a letter advising that 25 out of 43 bales have reached Delhi on 30.7.1996 and in regard to remaining 8 bales, its Bombay office was in touch with the concerned authorities and shall forward the same as soon as those would be received. On or about 31.7.1996 (ought to have been 31.8.1996), opposite party No. 1 returned 35 damaged bales out of 43 bales to the complainant. At the time of return, opposite party No. 1 compelled the complainant to pay amount of Rs. 1,10,982 on account of freight. It further demanded storage charges. In view of the failure of opposite party No. 1 to deliver 43 bales the buyer cancelled the entire order. Complainant had manufactured the balance quantity of the ordered fabric and value thereof was Rs. 6,77,692. It was alleged that complainant spent more than Rs. 1,36,497 on travel and stay, etc., at Dubai. Opposite party No. 1 sent the copy of survey report of M/s. A.C. Chopra & Co.Surveyors, opposite party No. 4 on 16.5.1997. This survey report has been challenged on a number of counts as detailed in para No. 16 of the complaint. Complainant also lodged claim upon opposite party No. 2 by the letter dated 1.9.1996. Opposite party - Insurance Company thereafter appointed M/s. has Surveyors and Loss Assessors-opposite party No. 3 to assess the loss and decision to that effect was conveyed to the complainant by the Insurance Company by the letter dated 3.9.1997. After opposite party No. 3 had completed the survey, they authorized the complainant to dispose of the salvage which was disposed of on or about 30.4.1997 for a sum of Rs. 69,020. Para No. 20 of the complaint seeking direction to the opposite party to pay compensation being material is reproduced below: (i) Towards cost of value of suit cargo as per invoice value. Rs. 6,56,238.00 (ii) Duty draw back given by the Government on account of export of goods. This duty draw back is given by the Govt. so as to enable the exporter to compete with the International market. Rs. 35,605.00 (iii) Loss of value of balance goods which were manufactured and were ready for dispatch but could not be dispatched due to rescinding of the contract by the buyer for the reasons stated hereinabove. Rs. 6,77,492.00 (iv) Duty draw back on balance goods as per item (iii) above. Rs. 39,633.00 (v) Storage and other charges paid to the Airport Authority of India vide Pay Order No. 200594 dated 30.7.1996. Rs. 55,265.00 (vi) Cost of air ticket to and from Dubai for Shri J. P. Gupta paid vide cheque No. 299440 dated 13.9.1996. Rs. 11,862.00 (vii) Boarding & lodging charges for 7 days at Dubai (the amount spent was more but the permissible expenses by the Govt. is @ USD 500 per day). Rs. 1,24,635.00 (viii) Interest on the amount as per interest charged by the bankers of the complainant. This interest is calculated upto the date of filing of the complaint. Rs. 2,50,000.00 (ix) Loss of business and reputation (This amount is direct loss as result of the cancellation of the order by the buyer who has since stopped dealing with the complainant and some other buyers also did not conclude the contract in view of the rescinding of the contract by buyer). Rs. 10,00,000.00 (x) Mental tension and torture. Rs. 10,00,000.00 Total: Rs. 38,50,730.00

(2.) Opposite party No. 4 was appointed as Surveyor by opposite party No. Opposite party No. 3 was appointed as Surveyor by opposite party No. 2- Insurance Company. After filing of written versions by both opposite party Nos. 3 and 4, they were allowed to be deleted from the array of parties vide order dated 4.3.2002.

(3.) Opposite party Nos. 1 and 2 contested the complaint by filing separate written versions. It was alleged by OP No. 1 that the consignment in question was booked through M/s. Skyrider Freight (P) Ltd., agent and it was airlifted on flight AI-112 on 13th June, 96 (ought to have been 10th June) DEL/BOM to connect Al-711/15th June, 1996 BOM/SXB. While in transit, 9 bales were pilfered. Only 17 bales out of 23 bales were forwarded to Dubai. Remaining 25 bales including 9 bales were held up in Bombay for security and investigation purposes by Bombay police. One bale was still missing. Damage to the consignment was caused due to rain while it was lying in the custody of Airport Authority of India at Bombay. This Authority is, therefore, liable for the alleged loss suffered by the complainant. Complaint was stated to be bad for non-joinder of the Authority. Consignment was called back at the request of complainant and 34 bales were delivered to the complainant. On 4.11.1996, answering opposite party appointed M/s. A.C. Chopra and Company-Surveyors to conduct the survey. Surveyor visited the factory of the complainant on 6.11.1996 and 27.12.1996 and submitted the report on 30.12.1996. Surveyor assessed the loss @ Rs. 100 per kg for 31 damaged/soaked bales consisting of 1725.320 kgs which comes to Rs. 1,72,632. Regarding loss due to non-delivery of 9 bales, the complainant in one of their letter No. SIL/EXP/743/96 dated 1.2.1996 (ought to have been 1.8.1996) mentioned that the approximate value of 8 bales was Rs. 46,800. If the average of one bale is taken on that basis the amount would come to Rs. 5,850. Therefore, the total loss of 9 bales would be Rs. 52,650. By letter No. DL/FR-2631/SCS dated 16th May, 1997 the answering opposite party had offered to settle the claim for a total amount of Rs. 2,25,282 (Rs. 1,72,632 + Rs. 52,650) and asked the complainant to give their concurrence for the same. The complainant, however, chose not to accept this amount and instead filed this complaint. It was pleaded that as per the conditions printed on the reverse side of airway bill, the answering opposite party is within its right to carry the shipment directly or through any other route or on another airline and these conditions are binding on the complainant. It was further alleged that airway bill constitutes a contract of carriage between the parties. Liability of the answering opposite party is limited to USD 20 per kg. or its equivalent as the complainant had not declared the value of the consignment at the time of booking. Complainant had mentioned different figures of the alleged claim at three or four different places including the legal notice and the amount claimed is grossly inflated. Liability to pay the amount claimed was denied.