- (1.) THIS appeal arises from order dated 17.7.2004 rendered by the learned Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad in Complaint No. 262 of 1998 directing the opponent Air India to pay to the complainant value of the goods consigned through the opponent, freight charges and compensation coupled with interest @ 9% p.a. and cost of the complaint. We have heard the learned Advocates for the parties. We have gone through the impugned order.
(2.) IT would appear from the facts appearing in the impugned order that the complainant engaged in the business of export had an occasion to consign 2000 pieces of grey cloth to M/s. Shri Ganesh Overseas Limited, Nairobi, Kenya (East Africa) under airway receipt issued by Air India Limited. The complainant had an occasion to send the original airway bill received by her along with bill of exchange, invoice and other documents through Giro Bank Limited for the same being retired against payment by consignee so that the consignee can obtain delivery of the goods from opponent Air India Limited upon presentation of the original airway bill. The consignee did not have the occasion to retire the documents by making payment of the value of the goods in the sum of US $ 3800 equivalent to then Indian Rs. 1,60,000/ - and the bank returned the documents to the complainant. The complainant addressed notice dated 7.10.1998 to the opponent to deliver the goods back at Ahmedabad. The opponent sent letter dated 17.10.1998 saying that as per their record the consignment was delivered to the consignee. The complainant was surprised about such an alleged delivery of the goods without original airway bill having been retired by the consignee from the Bank upon making the payment of the value of the goods. The complainant had, therefore, the occasion to file complaint before the Forum for the reliefs of refund of value of goods, freight charges and compensation. The opponent Air India Limited resisted the complaint inter alia on the ground that delivery of the goods was effected as stated in their aforesaid letter. The opponent Air India Limited had taken other contentions also with which we are not presently concerned. While repelling the contention of the opponent Air India Limited, the learned Forum found that the opponent Air India Limited did not produce any evidence to show that the delivery was effected to the consignee. The learned Forum has also observed that the stand of the opponent Air India about delivery of the goods cannot be accepted, as, when complainant got back the documents from the bank, those documents included original airway bill also. The learned Forum, therefore, proceeded to pass aforesaid order which has been subjected to challenge in this appeal.
(3.) THE facts of the case as appearing in the impugned order are now not in dispute. The only contention on facts is that the goods were delivered to the consignee and there was no obligation on the part of the opponent Air India to deliver the goods upon production of the original airway bill by the consignee. Even as on date the question has remained hanging. The opponent Air India did not produce any acknowledgement or receipt of the consignee having received the goods from the opponent. Under such circumstances at the time of hearing of the application for stay this Commission had an occasion to pass following order on 28.2.2005: "Heard. As either the appellant Air India Limited or its agent M/s. Tulsidas Khimji Pvt. Ltd. is bound to show evidence of receipt of goods by the consignee, this matter is adjourned to 11.3.2005 to afford such opportunity by way of last chance." What the learned Advocate for the opponent Air India would show to this Commission is a fax message received from its Nairobi office indicating that the goods in question were delivered to the consignee on 12.5.1998. This is nothing but repetition of the stand of the opponent before the learned Forum. This is not an acknowledgement of the consignee. This is also not a receipt of the consignment. There is no documentary evidence which is made available by the opponent Air India to show delivery of goods to the consignee, may be, even without being obliged to meet with the requirement of production of the original airway bill. It is in this connection that reference was made before the learned Forum as also before this Commission to a communication under the stamp of Tulsidas Khimji Private Limited, admittedly the agent of opponent Air India Limited. This communication is dated 14.10.1998. It has been addressed to the consignor. It inter alia recites that the said agent received intimation from Air India (Ahmedabad) that till date (i.e., 14.10.1998) the consignment remained undelivered at Nairobi Airport and the consignor should see to her buyer to take immediate delivery of the goods else the goods would be auctioned by the carrier namely opponent Air India Limited. Now, if the goods were delivered to the consignee on 12.5.1998, such a communication from opponent s agent would never see the light of the day. Thus, the consumer was left in the horns of dilemma even with regard to the allegations of facts concerning delivery of the goods. The opponent suggests that the goods were delivered to the consignee but its agent says that the goods were not delivered and were about to be disposed of by auction. Under such circumstances, it is obvious that opponent Air India would have to adduce evidence with regard to acknowledgement and/or receipt of goods by the consignee to support the stand that they were delivered to the consignee. As that has not been done till date despite the aforesaid order passed by this Commission, no indulgence can be shown in favour of opponent Air India Limited.;