D.K. Jain, J. - (1.) Challenge in this appeal under Section 23 of the Consumer Protection Act, 1986 (for short "the Act") is to the order dated 15th April, 2002 passed by the National Consumer Disputes Redressal Commission (for short "the Commission") in Original Petition No. 156 of 1995. By the impugned order, the Commission has dismissed appellant's complaint alleging deficiency in service on the part of M/s Alitalia Cargo, respondent No. 1 in this appeal, on the ground that there was no privity of contract between the appellant and respondent No. 1. Respondent Nos. 2 and 3 in this appeal are M/s Omni Marg Travels (Pvt.) Ltd., General Sales Agents and M/s Fourways Movers (P) Ltd., Cargo Clearing Agents of respondent No. 1 respectively.
(2.) The salient facts giving rise to the present appeal are as follows: The appellant is engaged in the business of export of readymade garments and handicrafts. They obtained an order from one M/s D.D. Sales, a concern based in New York, USA for supply of 2050 pairs of Cotton Gents Dhotis, 150 sets of Cotton Ladies Ghagra-Choli, 150 pieces of Dupatas, etc. As per the agreement between the appellant and the said concern of New York, USA, these articles had to reach New York, USA before 10th of October, 1994. Accordingly, the appellant handed over the consignment of the said articles to respondent No. 3 - M/s Fourways Movers (P) Ltd. on 4th October, 1994 for onward dispatch to New York, for which a House Air Waybill No. FMPL 0841 was prepared by respondent No. 3. For the sake of ready reference, the said Bill is reproduced hereunder: Shippers Name and Address: Not Negotiable HAWB NO. M/s. DILWARI EXPORTERS FMPL 0841 1-8 JANGPURA-B, MATHURA ROAD, NEW DELHI-14 INDIA HOUSE AIR WAYBILL FOURWAYS MOVERS PVT. LTD. 39/6-7A, COMMUNITY CENTRE EAST OF KAILASH, NEW DELHI- 110065 Consignee's Name and Address M/S D.D. Sales, 110-53 62ND DRIVE, FOREST HILLS N.Y. 11375, U.S.A. Issuing Carter's Agent (Name and City) Accounting Information FOURWAYS MOVERS P. LTD. "FREIGHT : PREPAID" NEW DELHI Agent's IATA CODE 14-3-3775 Airport of Departure (Addr. Of first MASTER AWB NO. Carter) NEW DELHI / AZ 055 - 2342 9276 By First Carter Routing & Destination NYC AZ Airport of Destination Currency Declared Value Declared Value for for Customs Customs NEW YORK INR NVD US$29441.70 Amount of Insurance Rs.1012706-00 The landing information NOTIFY: SAME AS ABOVE. PLS. INFORM CONSIGNEE IMMEDIATELY ON ARRIVAL OF SHIPMENT AT DESTINATION. TEL. NO. (718) - 896-0575. ORIGINAL VISA (3 SETS) COPY OF INVOICE (3 SET) PACKING LIST (3 SET), ALL INDIA HANDICRAFT BOARD CERTIFICATE AND DECLARATION TO ACCOMPANY WITH THE SHIPMENT. Carter Commodity Chargeable Rate/ Total Nature and Weight Item No. Weight Charge Quantity of Goods (Incl. POWERLOOM COTTON GENTS DHOTIES & INDIA ITEM GARMENTS HAND/EMD/ PRINTED/ZARI/ APPLIQUE/ BEAD/ MIRROR WORK (P/L COTTON LADIES CHOLI GHAGRA SET & DUPTATTAS) AS PER INV. NO. DE/EXP/358/94-95 Dt. 28-9-94 RBI : DD : 008597 48 1360-OK 1360-OK 85.00 115600-00 IEC:NC:05880 0952 Prepaid Weight Collect Other Charges Charge 215600-00 AWB: 60-00 HAWB: 150-00 SB: 175-00 CTG: 500-00 APT: 545-00 INS: 2886-00 Total other charges Due Agent 1230-00 Total other Charges Due Carter 2886-00 FOURWAYS MOVERS PVT. LTD., NEW DELHI Total prepaid 119716-00 4/10/94 NEW DELHI INDIA v.k. Signature of Issuing Carter or its Agent 055 - 2342 9276 ORIGINAL 3 (FOR SHIPPER) Simultaneously, a Master Air Waybill on a numbered (055 - 2342 9276) proforma printed by "ALITALIA" - respondent No.1 was prepared. The said Air Waybill, containing relevant particulars, is also reproduced hereinbelow: DEK 2342 9276 055- 2342 9276 Shippers Name and Address: M/s. FOURWAYS MOVERS P. LTD. Not Negotiable 39/6, 7-A COMMUNITY CENTRE, Air Way Bill EAST OF KAILASH, ALITALIA NEW DELHI/INDIA Issued by Alitalia S.p.A. Consignee's Name and Address M/S D.D. Sales, 11053 62ND DRIVE, FOREST HILLS N.Y. 11375, U.S.A. Issuing Carter's Agent (Name and City) Accounting Information FOURWAYS MOVERS P. LTD. "FREIGHT : PREPAID" NEW DELHI Agent's IATA CODE Account No. 14-3-3775 73279 Airport of Departure (Addr. Of first Carter) and requested Routing NEW DELHI / AZ By First Carter Routing & Destination NYC AZ Airport of Destination Currency Declared Value Declared Value for for Customs Customs NEW YORK INR NVD US$ 43698.60 Amount of Insurance Rs.1503101-00 The landing information NOTIFY: SAME AS ABOVE. PLS. INFORM CONSIGNEE IMMEDIATELY ON ARRIVAL OF SHIPMENT AT DESTINATION. TEL. NO. (718) - 896-0575. ONE ENV. CONTG. DOCS ATTD. ORIGINAL VISA (3 SETS) COPY OF INVOICE (3 SET), PACKING LIST, M ALL INDIA HANDICRAFT BOARD CERTIFICATE AND DECLARATION TO ACCOMPANY WITH THE SHIPMENT Carter Commodity Chargeable Rate/ Total Nature and Quantity of Weight Item No. Weight Charge Goods (Incl. POWERLOOM COTTON GENTS DHOTIES & INDIA ITEM GARMENTS 48 1993-OKQ 1993-OK 85.00 169405- GRI:AG:493861 00 493995, 493896 HAWB NO: 0841, 0842 Prepaid Weight Collect Other Charges Charge 169405-00 AWB: 60-00 HAWB: 300-00 SB: 250-00 CTG: 500-00 APT: 800-00 INS:4284-00 INS: 2886-00 Total other charges Due Agent 2010-00 Total other Charges Due Carter 4284-00 FOURWAYS MOVERS 4/10/94 NEW DELHI INDIA v.k. Signature of Issuing Carter or its Agent 055 - 2342 9276 ORIGINAL 3 (FOR SHIPPER) On 6th October, 1994, a carting order was prepared by "ALITALIA AIR LINES" handing over the consignment to AAI, Cargo Terminal (NITC), IGI Airport, New Delhi-110037 for shipment by Flight AZ-1905. The carting order bore the endorsement "Cargo accepted subject to space". The parties are ad idem that the said House Air Waybill as also the Master Air Waybill were issued under the seal and signatures of M/s Fourways Movers (P) Ltd - respondent No. 3. It is pertinent to note at this juncture itself that House Air Waybill No. 0841 had the Master Air Waybill No. 055 - 2342 9276, the running Bill number printed on ALITALIA's printed bill book. Similarly, the House Air Waybill No. 0841 was recorded on the Master Air Waybill.
(3.) Since the consignment did not reach New York by the stipulated date, M/s D.D. Sales, the importer, cancelled the order on or around 16th October, 1994 and claimed damages from the appellant. The consignment reached the destination only on 20th October, 1994.;