AIR FRANCE Vs. PATEL EXPORTS INDIA

JUDGEMENT

(1.) THE challenge in this appeal is directed against the order dated December 31, 1993 passed by the State Commission, Tamil Nadu allowing a complaint-O.P. No. 335 of 1993 which was filed by the respondent herein against the appellant-Air France � alleging deficiency in service on the part of the latter and seeking to recover a sum of Rs. 6,51,895.10 from the respondent by way of compensation for the loss stated to have been suffered by the complainant on account of alleged negligence and deficiency in service on the part of the opposite party.

(2.) THE complainant had consigned 2820 pieces of men's shirts packed in 79 cartons valued at U.S. $ 14805 from Madras to Zurich through the opposite party-Air France under Airway Bill dated 24.3.92 issued by the opposite party. According to the complainant, the consignee was Swiss Credit Bank, Zurich, Switzerland and the purchaser had to pay the amount of the bill to the said Bank, negotiate the documents by getting them endorsed in its favour and then only taken delivery of the consignment. As no information was received by the complainant about the delivery of the consignment, the complainant sent a letter to the opposite party on 23.6.92 asking for details of delivery and the opposite party replied to it by its letter dated 25.6.92 stating that the cargo had been delivered on 1.4.92. Thereupon the complainant by letter dated 19.9.92 drew the attention of the opposite party to the stipulation that the purchaser had to negotiate the documents only through the Swiss Credit Bank which was the consignee and stated that since payment had not been made by the purchaser and the original documents had not been got endorsed by the purchaser from the consignee Bank by the purchaser after making payment, it was ununderstandable how delivery could have been made. On receipt of the said letter from the complainant, the opposite party is said to have changed its stand and informed the complainant that the goods had not been cleared and they were lying with their handling agents. In view of the said representation made by the opposite party, the complainant by letter dated 7.11.92 called upon the opposite party to intimate the approximate freight charges that should be paid for rebooking the consignment as well as the demurrage charges incurred at the destination airport so that those particulars could be forwarded to the Export Credit Guarantee Corporation of India Ltd. Thereafter, with a view to mitigate the loss, the complainant arranged with another customer M/s. Rey Trade for purchase of the goods and requested the opposite party to hand over the consignment to them but delivery of the consignment was not given by the opposite party to M/s. Rey Trade. In the meantime the Swiss Credit Bank returned the documents to the complainant's Banker � State Bank of India on the ground that the purchaser had not paid the amount of the bill and taken the documents. Thereupon the State Bank of India claimed from the complainant the invoice value together with Bank changes, interest etc., since the bill had been discounted with the Bank by the complainant. According to the complainant, subsequently it was found out by them on enquiry that the original purchaser M / s. Rovi Fashion AG had taken delivery of the consignment from the opposite party without negotiating the documents through the Bank and the said purchaser had since become bankrupt. Since such delivery to the purchaser without production by him of the original documents after obtaining them duly endorsed from the Swiss Credit Bank after payment of the full

(3.) BESIDES raising a preliminary objection about the maintainability of the complaint under the Consumer Protection Act, the opposite party resisted the claim by contending that the complainant by letter dated 30.11.92 had directed the opposite party to amend the name of the consignee as M/s. Rey Trade and accordingly the amendment was carried out and the consignment had been safely delivered to the newly amended consignee namely, M/s. Rey Trade. On this basis it was pleaded that there had been no negligence or deficiency in service on the part of the opposite party and hence the claim put forward in the complaint for recovery of compensation was wholly baseless and unsustainable.