ORDER
S.N. Kapoor, J. (Presiding Member)
1.Tamil Nadu State Consumer Disputes Redressal Commission by its order dated 17.10.1997 dismissed the complaint against the British Airways World Cargo for loss due to non-delivery of the insured cargo to the appellant. Feeling aggrieved by the order, the appellant consignee and the insurer both have filed the present appeal.
2. The complaint was jointly filed by Southern Petrochemical Industries, the consignee beneficiary a consumer and the New India Assurance Co. Ltd., the insurer of the consignment on 24th May, 1996.
3. On 26.5.1994, M/s. Siemens, Germany entrusted a consignment of 298 pcs. of ICs for SCE/OPU system to British Airways for safe carriage from Frankfurt Germany to Madras, India. The appellant No. 1, Southern Petrochemical Industries was the consignee in respect of the consignment of 298 pcs. of ICs. British Airways, the respondent accepted the consignment in good and sound condition and issued an Airway Bill bearing No. AWB 0936 3911 dated 26.5.1994 and HWAB No. FRA-310 103. The flight, which was supposed to carry the above said consignment namely, BA 147 arrived at Madras on 29.5.1995. As per the landing remarks issued by the International Airport Authority of India, the cartons in which the above said 298 ICs were sent were delivered in a tampered/damaged condition and the contents of 298 pcs. of ICs were missing at the time of landing and were not available for delivery. Non-delivery of ICs was due to gross negligence and misconduct, misfeasance and malfeasance of the respondent and/or its employees, etc. It was clear and wilful dereliction of the respondent’s duty as an air carrier amounting to total deficiency in service. An independent survey was also conducted by Mr. P. Sridharan. He also certified vide his report dated 1.7.1994 about non-delivery of the imported ICs to the complainant/appellant No. 1. On 8.7.1994, claim preferred by the appellant No. 1 was repudiated by the respondent on the untenable ground that the respondent is not liable to pay the complainants the value of nondelivery of consignment amounting to Rs. 4,51,000 with interest @ 24% from 25.5.1994 along with compensation for the loss caused due to non-delivery of consignment estimated at Rs. 4,50,000. Insofar as the insurance claim preferred by the appellant No. 1 against the New India Assurance Co. Ltd. was concerned, it was settled on 16.8.1994. The beneficiary consumer executed a letter of subrogation for the British Airways did not satisfy the claim of the complainant. As the two complainants, the beneficiary consumer and their insurer filed a joint complaint on 24.5.1996.
4. The respondent-British Airways contested the matter, inter alia, on the ground that the beneficiary being stranger to the contract could not file the complaint for they had not hired the services of the respondent nor they promised to pay anything and still further, the respondent was not required to deliver the consignments to the complainant, in question. The respondent was not the consignee of the consignor. As such, the goods were not required to be delivered to him. It is further contended that the appellants were not consumers. Inasmuch as the first appellant heavily been paid the value of the consignment by the 2nd appellant, the first complainant/appellant could not make a claim. The claim of damage was not tenable and could not be sustained. Insofar as 2nd appellant Insurance Company is concerned, being a subrogee is not a consumer and consequently cannot maintain the complaint as well as appeal. It is submitted that the contract being governed by the Carriage by Air Act, 1972, the method to assess the loss is given in such matters in Rule 22(2) of Second Schedule of the Act. On the basis of Rule 22(2) of Second Schedule of the Carriage by Air Act, 1972, it is submitted that for 1.1 kg at the most compensation could be awarded for as US$ was 250 francs per kg. and weight being 1.1 kg. Consequently, it could not be more than the said amount since 250 francs = 20 US$ weight being 1.1 kg. The complainant could claim only the said amount at the most. The appellant/ complainant refused the amount offered accordingly.
5. The State Commission took the view that none of the complainants were consumers for the purpose of filing of complaint. The appellant not even consignee for T.P. Bank of India, Guindy Branch has been shown as the consignee. As such, the services were neither provided nor were agreed to be provided to the complainant-Southern Petrochemicals Industries. Consequently, the complainant No. 2, the Insurance Co. could not have paid any amount to the respondent No. 1.
6. We have heard the learned Counsel for the respondent and have gone through the written submissions, as well.
7. Insofar as the first question relating to Appellant No. 1 being consumer, is concerned, undisputedly, he was not consignee, for the consignment was booked by Word Freight GMBH in the name of consignor, Express Freight Pvt. Ltd. Name of none of the complainants/ appellants was found anywhere in the Airway Bill. In terms of Exb. ‘A-5’, the consignee was Express Freight Pvt. Ltd. and the appellant was supposed to establish how the first complainant could make a claim against the first opposite party. On the other hand, it was claimed that M/s. Siemens, Germany was the consignor for the Invoice was issued by M/s. Siemens, Germany to the first complainant. Whatever is being claimed by the complainant/appellant may be true but unfortunately it had not been so proved, particularly, in terms of the endorsements and entries in the Airway Bill.
8. The State Commission referred House Airway Bill, Exb. ‘A-6’, Exb. ‘A-5’ Master Airway Bill. House Airway Bill and Master Airway Bill cover consolidated consignment showing the consolidator as per carrier, and not as per the terms of the House Airway Bill, which covers each individual shipment of consolidation, which was issued by the consolidator with instructions to the Freight Bulk Agent (See: The Air Cargo Tariff Rules-April 1955 Issue 40). In Exb. ‘A-6’, T.P. Bank of India, Guindy Branch had been shown as consignee. Thus, there could not be any dispute that the said bank was consignee of the opposite party.
9. The tampered consignment would have been delivered only after the bank made endorsement in favour of the appellant No. 1. As the carrier had undertaken to deliver it to the consignee the said Bank, but since the consignment was to be delivered ultimately to the complainant and the documents were released for taking possession of the articles, we have no inhibition in holding that the appellant being the beneficiary of the consignment is a consumer.
10. However, since the appellant could not deliver the goods to any person other than the T.P. Bank of India, Guindy Branch, in terms the Airway Bill from the point of liability, the matter needs further scrutiny, about legal position.
11. Section 12 on the basis of which was interpreted against the appellant reads as under:
12. Manner in which complaint shall be made.-A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum, by-
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central or the State Government.
(Emphasis supplied)
12. The above said section has to be interpreted in a holistic and harmonious way. The main clause of Section 12 itself for the present purpose may be read to the effect that a complainant in relation to any service provided or agreed be provided, may be filed by the consumer to whom such service provided or agreed to be provided.
13. It is not disputed before us that as per respondent the said consignment was part of a consolidated consignment, which was handed over to them by World Freight GMBH, who are apparently Cargo Consolidation Agents and they were consignors/shippers in the Airway Bill issued by the respondent. The respondent accepted the consolidated consignment from the said World Freight GMBH. The said Airway Bill is a Master Airway Bill issued to the said World Freight GMBH as the shippers in relation to the consoli