# 14 (ADDL.) S.C.R. 47 TRANS MEDITERRANEAN AIRWAYS v. M/S UNIVERSAL EXPORTS & ANR

- **Citation:** [2011] 14 S.C.R. 47
- **Court:** Supreme Court of India
- **Decided:** 2011-09-15
- **Case number:** Civil Appeal No. 1909 of 2004
- **Bench:** G.S. Singhvi, H.L. Dattu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-addl-s-c-r-47-trans-mediterranean-airways-v-m-s-universal-exports-anr-27567
- **Pages:** 51

## Headnote

CONSUMER PROTECTION ACT, 1986:
A
B
Object and historical background of its enactment - c
Discussed.
,
Complaint by consignor claiming compensation -
Jurisdiction of National Commission under the GP Act to
entertain - Held: National Commission has jurisdiction under 0
the GP Act to entertain ·'f#nd decide a complaint filed by the
consignor claiming compensation for deficiency of service by
the carrier, in view of the provisions of the Carriage by Air Act
and the Warsaw Convention - Carriage by Air Act, 1972.
Deficiency in service - Delivery of consignments -
E
Complaint filed before National Commission by consignor
claiming compensation for deficiency in service on the ground
that the consignments were delivered to wrong person -
National commission held that the services rendered by
carrier were deficient and held it liable to pay compensation F
equivalent to USO 71,615 - Order of National Commission
challenged on the grounds that it had no jurisdiction to
entertain the complaint and there was no deficiency of service
-
Held: There was no legal infirmity in the National
Commission exercising its jurisdiction, as· the same can be G
considered a Court within the territory of a High Contracting
Party for the purpose of Rule 29 of the Second Schedule· to
the CA. Act and the Warsaw Convention - Consignment was
delivered tQ Mis LIWE ESPANOLA - Perusal of the airway
47
H
48
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A
bill showed the name of the consignee as BBSAE, Madrid
and thereafter, the name of Mis LIWE ESPANOLA was
mentioned - The stand of the appellant-carrier cannot be
accepted that since the name of Mis. LIWE ESPANOLA also
appeared along with BBSAE, Madrid, the consignment was
B delivered to the notified party - If, for any reason, the
appellant-carrier was of the view that the particulars furnished
were insufficient for effecting the defi'v·ery of the consignment,
it was expected from the appellant-carrier to have made
enquiries - The appellant, being an airline carrier of high
c repute and effecting transportation of goods to various parts
of the world including Spain is expected to be fully aware of
the consignee's name, which was indicated in the consignee's
box and they should have notified the notified party
immediately after the arrival of the consignment - Since, that
was not done, the National Commission was justified in
D holding that there was deficiency of service on the part of the
carrier in not effecting the delivery of goods to the consignee.
National Commission whether a "court" - Held: The use
of the word "Court" in Rule 29 of the Second Schedule of the
E Act has been borrowed from the Warsaw Convention - The
word "Court" has not been used in the strict sense in the
Convention as has come to be in our procedural law - The
word "Court" has been employed to mean a body.that
adjudicates a dispute arising under the provisions of the GP
F Act - The Act gives the District Forums, State Forums and
National Commission the power to decide disputes of
consumers - The jurisdiction, the power and procedure of
these Forums are all clearly enumerated by the Act -
Though, these Forums decide matters after following a
G summary procedure, their main function is still to decide
. disputes, which is the main function and purpose of a Court.
H
CARRIAGE BY AIR ACT, 1972: Object and historical
background of its enactment - Discussed.
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL
49
EXPORTS & ANR.
WORDS AND PHRASES: Court -
Meaning of -
A
Discussed.
The appellant, an International Cargo carrier had its
principal place of business at Beirut, Lebanon.
Respondent No.1-consignor was a garment exporter and
8
respondent No.2 was an accredited International Air
Transport Association agent. The agent made out three
airway bills for shipping of garments to Spain on behalf
of the consignor through the appellant-carrier. In the
consignee column, the consignment was addressed to
C
"BB SAE MADRID, SPAIN NOTIFY: M/S LIWE ESPANOLA
S.A., MAYOR

## Text

_Characters 0–39,702 of 97,633. This is a partial read: ask again with offset=39702 for what follows._

[2011) 14 (ADDL.) S.C.R. 47
TRANS MEDITERRANEAN AIRWAYS
v.
M/S UNIVERSAL EXPORTS & ANR.
(Civil Appeal No. 1909 of 2004)
SEPTEMBER 15, 2011
[G.S. SINGHVI AND H.L. DATTU, JJ. ]
CONSUMER PROTECTION ACT, 1986:
A
B
Object and historical background of its enactment - c
Discussed.
,
Complaint by consignor claiming compensation -
Jurisdiction of National Commission under the GP Act to
entertain - Held: National Commission has jurisdiction under 0
the GP Act to entertain ·'f#nd decide a complaint filed by the
consignor claiming compensation for deficiency of service by
the carrier, in view of the provisions of the Carriage by Air Act
and the Warsaw Convention - Carriage by Air Act, 1972.
Deficiency in service - Delivery of consignments -
E
Complaint filed before National Commission by consignor
claiming compensation for deficiency in service on the ground
that the consignments were delivered to wrong person -
National commission held that the services rendered by
carrier were deficient and held it liable to pay compensation F
equivalent to USO 71,615 - Order of National Commission
challenged on the grounds that it had no jurisdiction to
entertain the complaint and there was no deficiency of service
-
Held: There was no legal infirmity in the National
Commission exercising its jurisdiction, as· the same can be G
considered a Court within the territory of a High Contracting
Party for the purpose of Rule 29 of the Second Schedule· to
the CA. Act and the Warsaw Convention - Consignment was
delivered tQ Mis LIWE ESPANOLA - Perusal of the airway
47
H
48
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A
bill showed the name of the consignee as BBSAE, Madrid
and thereafter, the name of Mis LIWE ESPANOLA was
mentioned - The stand of the appellant-carrier cannot be
accepted that since the name of Mis. LIWE ESPANOLA also
appeared along with BBSAE, Madrid, the consignment was
B delivered to the notified party - If, for any reason, the
appellant-carrier was of the view that the particulars furnished
were insufficient for effecting the defi'v·ery of the consignment,
it was expected from the appellant-carrier to have made
enquiries - The appellant, being an airline carrier of high
c repute and effecting transportation of goods to various parts
of the world including Spain is expected to be fully aware of
the consignee's name, which was indicated in the consignee's
box and they should have notified the notified party
immediately after the arrival of the consignment - Since, that
was not done, the National Commission was justified in
D holding that there was deficiency of service on the part of the
carrier in not effecting the delivery of goods to the consignee.
National Commission whether a "court" - Held: The use
of the word "Court" in Rule 29 of the Second Schedule of the
E Act has been borrowed from the Warsaw Convention - The
word "Court" has not been used in the strict sense in the
Convention as has come to be in our procedural law - The
word "Court" has been employed to mean a body.that
adjudicates a dispute arising under the provisions of the GP
F Act - The Act gives the District Forums, State Forums and
National Commission the power to decide disputes of
consumers - The jurisdiction, the power and procedure of
these Forums are all clearly enumerated by the Act -
Though, these Forums decide matters after following a
G summary procedure, their main function is still to decide
. disputes, which is the main function and purpose of a Court.
H
CARRIAGE BY AIR ACT, 1972: Object and historical
background of its enactment - Discussed.
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL
49
EXPORTS & ANR.
WORDS AND PHRASES: Court -
Meaning of -
A
Discussed.
The appellant, an International Cargo carrier had its
principal place of business at Beirut, Lebanon.
Respondent No.1-consignor was a garment exporter and
8
respondent No.2 was an accredited International Air
Transport Association agent. The agent made out three
airway bills for shipping of garments to Spain on behalf
of the consignor through the appellant-carrier. In the
consignee column, the consignment was addressed to
C
"BB SAE MADRID, SPAIN NOTIFY: M/S LIWE ESPANOLA
S.A., MAYOR SIN, 30006 PUENTE TOCINOR APARTADO,
741, MORCIA, SPAIN, L.C. No. C. 1036-92-00276". The
consignments reached Madrid and were ·cleared by the
Customs Authorities. The appellant-carrier delivered the
consignment to M/s Liwe Espanola, as according to them,
D
that was the only recognizable address available from the
documents furnished by the consignor.
After nine months from the date of shipment, the
agent made enquiry regarding two of the three airway
bills. Since there was no response, the agent made
further enquiry again after four months. In response to
the query, the appellant-carrier informed the consignor
that on finding the full name and complete postal
address of the consignee as M/s Liwe Espanola, the
appellant-carrier has delivered the goods to it. The
consignor claimed that the consignee of the said
consignment was Barclays Bank, Madrid and the
appellant carrier had wrongly delivered the consignment
E
F
to the address mentioned in the Block column instead
G
of routing it through Barclays Bank. The consignor
instituted a complaint under Section 12 of the Consumer
Protection. Act, 1986 (CP Act) before the National
Commission, inter alia, claiming compensation for the
alleged deficiency of service by the appellant-carrier and
H
50
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A the agent for not delivering the said consignment to the
consignee. The National Commission held that the
services rendered by the appellant-carrier was deficient
and thereby, it was liable to pay compensation equivalent
to US $71,615.75 with 5% interest from the date of the
B complaint till its realization, and imposed costs of Rs.1
lakh.
The questions which arose for consideration in the
instant appeal were whether the National Commission
under the CP Act has the jurisdiction to entertain and
C decide a complaint filed by the consignor claiming
compensation for deficiency of service by the carrier, in
view of the provisions of the Carriage by Air Act and the
Warsaw Convention or whether domestic laws can be
added to or substituted for the provisions of the
D conventions; and whether the appellant can be directed
to compensate the consignor for deficiency of service in
the facts and circumstances of the case.
Dismissing the appeal, the Court
E
HELD: 1. The Carriage by Air Act, 1972 (CA Act) was
enacted to give effect to the convention for unification of
rules relating to international carriage by air signed at
Warsaw as amended at Hague in 1995 and the Montreal
Convention of 1999. Section 2(ii) of the CA Act defines
F convention to mean convention for unification of certain
rules relating to international carriage by air signed at
Warsaw on 12.10.1929. Section 3 provides for the
application of the Warsaw Convention to India. It says that
the rules contained in the First Schedule being the
G provisions of the convention relating to the rights and
liabilities of carriers, passengers, consignors, consignees
and other persons, shall have the force of law in India in
relation to any carriage by air to which those rules apply
irrespective of the nationality of the aircraft performing
H the carriage, subject to the provisions of the Act. Section
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 51
EXPORTS & ANR.
4 provides for application of amended convention to
A
India and also provides for Second Schedule in
consonance with the amended convention. This
Schedule applies to the claim made in the instant case
as it is a dispute that occurred in 1994 before the
Montreal Convention in 1999. Section 4A provides for the
B
application of the Montreal Convention to India and
provides for the Third Schedule. Section 7 provides that
every high contracting party to the convention shall, for
the purpose of any suit brought in a Court in India in
accordance with the provisions of Rule 28 of the First c
Schedule or of the Second Schedule, as the case may .
be, enforce a claim in respect of the carriage undertaken
by him. Section 8 enables the application of the Act to
carriages which are not international. [Paras 18-19) [68D-H; 69-A]
2. The Consumer Protection Act, 1986 (CP Act) aims
to protect the interests of the consumers and provide for
speedy resolutions of their disputes with regard to
defective goods or deficiency of service. The frame work
D
for the, CP Act was provided by a Resolution dated
E
09.04.1985 of the General Assembly of the United Nations
Organization, which is commonly known as Consumer
Protection Resolutior No.39/248. India is a signatory to
the said Resolution. The Act was enacted in view of the
said Resolution of the General Assembly of the United
F
Nations. The preamble to the Act suggests that it is to
provide better protection for the consumers and their
interests. By this Act, the Legislature has constituted
quasi-judicial Tribunals/Commissions as an alternative
system of adjudicating consumer disputes.Section 3 of G
the CP Act ·gives an additional remedy for deficiency of
service and that remedy is not in derogation of any other
remedy under any other .law. The protection provided
under the CP Act to consumers is in addition to the
remedies available under any other Statute. It does not
H
52
SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A extinguish the remedies under another Statute but
provides an additional or alternative remedy. In the
instant case, at the relevant point of time, the value of the
subject matter was more than Rs.20 lakhs, by which the
National Commission is conferred jurisdiction for any
8
cause of action. that arises under the Act. The Warsaw
Convention and the Hague Protocol have been
inc-0rporated into the domestic law by the passage of the
CA Act. Therefore, there was no legal infirmity in the
National Commission exercising its jurisdiction, as the
c same can be considered a Court within the territory of a
High Contracting Party for the purpose of Rule 29 of the
Second Schedule to the CA Act and the Warsaw
Convention. [Paras 22, 24, 32] [74-B; 76-G-H; 77-A-B; 80·
D-F]
D
Proprietor, Jabalpur Tractors v. Sedmal Jainrain and Anr.
1995 Supp. (4) SCC 107: 1995 (4) Suppl. SCR 561; Fair
Air Engineers Pvt. Ltd. and Anr. v. N.K. Modi (1996) 6 SCC
385: 1996 (4) Suppl. SCR 820; State 1f Karnataka vs. Vishwa
Bharathi House Building Co-operative Society and Others
E (2003) 2 SCC 412: 2003 (1) SCR 397: Secy., Thirumurugan
Coop. Agricultural Credit Society v. Ma. Lalitha (2004) 1 SCC
305: 2003 (6) Suppl. SCR 659; Kishore Lal v. Chairman,
Employees' State Insurance Corpn. (2007) 4 SCC 579: 2007
(6) SCR 139; Skypak Couriers Ltd. v. Tata Chemicals Ltd.
F
(2000) 5 SCC 294: 2000 (1) Suppl. SCR 324; Patel
Roadways Limited v. Bir/a Yamaha Ltd., (2000) 4 SCC 91:
2000 (2) SCR 665 - relied on.
Whether National Commission is a 'Court'?
G
3. The Oxford Advanced Learner's Dictionary [8th
H
Edition] defines 'Court' as "the place where legal trials
take place and where crimes, etc. are judged." The Oxford
Thesaurus of English [3rd Ed] gives the following
synonyms: "court of law, law court, bench, bar, court of
TRAN$ MEDITERRANEAN AIRWAYS v. UNIVERSAL
53
EXPORTS & ANR.
justice, judicature, tribunal, forum, chancery, assizes,
A
courtroom". The use of the word "Court" in Rule 29 of
the Second Schedule of the CA Act has been borrowed
from the Warsaw Convention. The word "Court" has i:iot
been used in the strict sense in the Convention as has
come to be in our procedural law. The word "Court" has
B
been employed to mean a body that adjudicates a dispute
arising under the provisions of the CP Act. The CP Act
gives the District Forums, State Forums and National
Commission the power to decide disputes of consumers.
The jurisdiction, the power and procedure of these c
Forums are all clearly enumerated by the CP Act. Though,
these Forums decide matters after following a summary
procedure, their main function is still to decide disputes,
which is the main function and purpose of a Court. For
the purpose of the CA Act and the Warsaw Convention,
0
the Consumer Forums can fall within the meaning of the
expression "Court". When it comes to legislations like the
CP Act, there can be no restricted meaning given to the
word "Court". Hence, the contention that the National
Commission is not a "Court" within the meaning of Rule
E
29 of the Second Schedule of the CA Act is rejected.
[Paras 39, 42, 43] [88-D-E; 89-H; 90-A-E]
Ethiopian Airlines v. Ganesh Narain Saboo (Civil Appeal
No.7037 of 2004) Laxmi Engineering Works v. P.S.G.
Industrial Institute, (1995) 3 SCC 583: 1995 (3) SCR 174;
F
Charan Singh v. Healing Touch Hospital, (2000) 7 SCC 668:
2000 (3) Suppl. SCR 337; ·State of Karnataka v.
Vishwabharathi House Building Coop. Society (2003) 2 SCC
412: 2003 (1) SCR 397; Union of India v. R. Gandhi,
President, Madras Bar Association, (201 O) 11 SCC 1: 2010
G
(6) SCR 857; Bharat Bank Ltd. v. Employees, 1950 SCR 459;
State of Bombay v. Narottamdas Jethabhai, 1951 SCR 51
Brajnandan Sinha v. Jyoti Narain (1955) 2 SCR 955; Ram
Narain v. The Simla Banking and Industrial Co. Ltd. AIR 1956
H
54
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A SC 614:: 1956 SCR 603; Baradakanta Mishra v. Registrar
of Orissa High Court, (1974) 1 SCC 374: 1974 (2) SCR 282;
State of Tamil Nadu v. G.N. Venkataswamy, (1994) 5 SCC
314: 1994 (1) Suppl. SCR 322; Canara Bank v. Nuclear
Power Corpn. of India, (1995) Supp 3 SCC 81: 1995 (2) SCR
B 482; P. Sarathy v. State Bank of India 2000 (5) SCC 355:
2000 (1) Suppl. SCR 402; Kihoto Hollohon v. Zachillhu
(1992) Supp (2) SCC 651: 1992 (1) SCR 686; State of
Kamataka v. Vishwabharathi House Building Coop. Society
(2003) 2 sec 412: 2003 (1) SCR 397 - relied on.
c
The Oxford Thesaurus of English [3rd Ed] The Chambers
Dictionary [10th Ed.]; Stroud's Judicial Dictionary [5th Ed]
- referred to.
4. The airway bill is one of the documents produced
D along with the Memorandum of appeal. A perusal of the
same would show that the agent of the consignor in the
consignee's box specifically mentions the name of the
consignee as BBSAE, Madrid and immediately thereafter,
the name of M/s LIWE ESPANOLA is mentioned. It came
E in the evidence of the consignor and his agent that
BBSAE, Madrid is Barclays Bank, Madrid and 'SAE' is a
Spanish abbreviation for incorporation like 'limited'.
Therefore, the consignee was only Barclays Bank,
Madrid. The stand of the appellant-carrier cannot be
F accepted that BBSAE, Madrid is not the consignee and
that it was the responsibility of the consignor and his
agent to have furnished the correct and accurate
particulars of the consignee and since the name of M/s.
LIWE ESPANOLA also finds a place in the consignee box,
G the consignment is delivered to the notified party and,
therefore, It cannot be said that there was deficiency of
service. The consignor, through his agent, has stated that
in the· airway bill that is handed over to the appellantcarrier, in the consignee box, the name of BBSAE, Madrid
H is specifically mentioned. If, for any reason, the appellant-
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL
55
EXPORTS & ANR.
carrier was of the view that the name of the consignee is A
not forthcoming or if the particulars furnished were
insufficient for effecting the delivery of the· consignment,
it was expected from the appellant-carrier to have made
enquiries. At this belated stage, the appellant-carrier
cannot shift the burden by contending that it was B
expected from the consignor and his agent to have
furnished the correct and proper particulars of the
consignee in the airway bill. The appellant is an air line
carrier of high repute and they effect transportation of
goods to various parts of the world including Spain and, c
therefore, it can safely be presumed that the carriers were
fully aware of the consignee's name, which was indicated
in the consignee's box and they should have notified the
notified party immediately after the arrival of the
consignment. Since, that has not been done, the National 0
Commission was justified in holding that there is
deficiency of service. on the part of the carrier in not .
effecting the delivery of goods to the consignee. [Para 51)
[93-B-H; 94-A-C]
. .
5. Rule 6 of the Rules envisages that the airway bill E
is required to be made by the consignor and handed over
the same to the carrier with the cargo. Rule 10 stipulates
that the consignor is responsible for the correctness of
the particulars and statements relating to the cargo which
he inserts in the airway bill. Sub-clause (2) of Article 10
F
provides that the consignor shall indemnify the carrier
against all damages suffered by him or to any other
person to whom the carrier is liable, by reason of the
. irregularity, incorrectness or incompleteness of the
particulars and statements furnished by the consignor. G
Rule 16 provides that the consignor should furnish all the
information and attach it to the airway bill to meet the
requir~ments of law enforcing agencies. In the instant
case, the consignor had furnished all the relevant
information in the airway bill which would satisfy the H
56
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A requirements of both Rule 6 and 16 of the rules and,
therefore, the consignor cannot be accused of not
furnishing the correct particulars and information in the
airway bill which is handed over to the appellant-carrier
with the cargo. The appellant-carrier cannot absolve its
B responsibilities by contending that it would be practically
impossible to verify the correctness of all the airway bills
which are furnished with the cargo. The appellant's
contention that the name and address of the consignee
was inadequate is difficult to accept. There is evidence
c on record to show that documents supporting the letter
of credit was sent by the consignors using the self same
name and address and there was no difficulty in the same
being delivered to the consignee bank. Rule 14 confers
the right on the consignor to make complaint to the
0 carrier if the consignment has not reached its destination
qua the consignee. In the evidence of the consignor, it
is elicited that necessary oral enquiries were made with
· the carrier within a reasonable time, when the consignor
did not receive the value of the goods from the consignee
E and since it did not receive any reasonable explanation,
it had no other alternative but to correspond with the
appellant-carrier by written correspondence. Though, the
witnesses of the consignor are cross examined by the
appellant-carrier, nothing worthwhile is elicited.
Therefore, in the absence of any contrary evidence, the
F statement made by the consignor and its witness require
to be accepted. [Paras 52, 53] [94-D-H; 95-A-F]
Case Law Reference:
G
1995 (4) Suppl. SCR 561 relied on
Para 25
1996 (4) Suppl. SCR 820 relied on
Para 26
2003 (1) SCR 397
relied on
Para 27
2003 (6) Suppl. SCR 659 relled on
Para 28
H
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL
57
EXPORTS & ANR.
2007 (6) SCR 139
relied on
Para 29
A .
2000 (1) Suppl. SCR 324 relied on
Para 30
2000 (2) SCR 665
relied on
Para 31
1995 (3). SCR 1.74
relied on
Para 34
8
2000 (3) Suppl. SCR 337 relied on
Para 34
2003 (1) SCR 397
relied on
Para 34
2010 (6) SCR 857
relied on
Paras 34, 40 c
1950 SCR 459
relied on
Para 35
1951 SCR 51
relied on
Para 35
(1955) 2 SCR 955
relied on
Para 35
1956 SCR 603
relied on
Para 36
D
1974 (2) SCR 282
relied on
Para 36
1994 (1) Suppl. SCR 322 relied on
Para 37
1995 (2) SCR 482
relied on
Paras 37, 40
E
2000 (1) Suppl. SCR 402 relied on
Para 38
1992 (1) SCR 686
relied on
Para 38
2003 (1) SCR 397
relied on
Para 41
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1919 of 2004.
From the Judgment and Order dated 15.01.2004 of the
National Consumer Disptes Redressal Commission in Original G
Petition No. 161 of1994.
Vinoo Bhagat and Rutwik Panda for the Appellant.
Jaideep Gupta, G.S. Chatterjee, Raja Chatterjee,
H
58
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A
Siddhartha Dave, Senthil Jagadeesan and Jemtiben AO., for
the Respondents.
The Judgment of the Court was delivered by
H.L. DATTU, J. 1. This appeal is filed under Section 23
B of the Consumer Protection Act, 1986 [hereinafter referred to
as "the C P Act"] against the order in Original Petition No. 161
of 1994 of the National Consumer Disputes Redressal
Commission, New Delhi ["the National Commission" for short]
dated 15th January, 2004, whereby the National Commission
C has directed the appellant to pay a SUIT) equivalent to US
$71,615. 75 with 5% interest from the date of the complaint, till
its realization, and imposed costs of · 1 lakh for deficiency of
service.
0
2. The appellant before us is an International Cargo carrier,
with its principal place of business at Beirut, Lebanon.
Respondent No.1 is a garment exporter and respondent No.2
is an accredited International Air Transport Association agent.
By this appeal, we are called upon to examine and reconcile
E the area of operation of the C P Act on the one hand, and the
· Carriage by Air Act, 1972 [hereinafter referred to as "the CA
Act"] alon9 with the Warsaw Convention of 1929 [hereinafter
referred to as "the Warsaw Convention"] on the other. The
appellant, respondent No. 1 and respondent No. 2, hereinafter,
F for the sake of brevity, referred to as "appellant carrier'', "the
consignor" and "agent" respectively.
G
H
3. The core issues that arise for our consideration and
decision in this appeal are:
1. Whether the National Commission under the CP Act has
the jurisdiction to entertain and decide a complaint filed
by the consignor claiming compensation for deficiency of
service by the carrier, in view of the provisions of the CA
Act and the Warsaw Convention. Or whether domestic laws
TRA~S MEDITERRANEAN AIRWAYS v. UNIVERSAL
59
EXPORTS & ANR. [H.L. DATIU, J.]
can be added to or substituted for the provisions of the A
conventions.
2. Whether the appellant can be directed to compensate
the consignor for deficiency of service in the facts and
circumstances of the case.
B
Brief Facts
4. The facts leading to this appeal are as follows:
The agent made out three airway bills for shipping of c
garments to Spain on behalf of the consignor through the
appellant-carrier. In the consignee column, the consignment
was addressed as :
"BB· SAE MADRID, SPAIN
NOTIFY: M/S LIWE ESPANOLA S.A.,
D
MAYOR S/N, 30006 PUENTE TOCINOR
APARTADO, 741, MORCIA, SPAIN,
LC. No. C. 1036-92-00276"
In the box titled 'Handling Information', the following
·information was recorded:
E
"MARKS: SPAIN N/C NOS: 1027-1185
TOTAL ONE HUNDRED FIFTY NINE CARTONS ONLY/
PLS INF CNEE IMM
ON ARR/DOCUMENTS
ATIACHED"
The airway bills from Bombay to Amsterdam were dated F
•25-08-1992 and the consignment through the appellant-carrier
\reached Amsterdam on 30-08-1992. From Amsterdam, the
·consignments were sent t6 Madrid by road on the following
day, and they reached Madrid on 03-09-1992 and were cleared
by the Customs Authorities. The appellant-carrier delivered the G
consignment to M/s Liwe Espanola, as according to them, that
was the only recognizable address available from the
documents.furnished by the consignor.
·
I
5. After nine months from the date of shipment, the agent H
60
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A
made enquiry regarding two of the three airway bills. Since
there was no response, the agent made further enquiry again
after four months. In response to the query, the appellant-carrier
informed the consigner that on finding the full name and
complete postal address of the consignee as Mis Liwe
B
Espanola, the appellant-carrier has delivered the goods to it. It
was at this stage, the consignor claimed that the consignee of
the said consignment was Barclays Bank, Madrid, which had
only one branch in Madrid and since the appellant carrier had
wrongly delivered the consignment to the address mentioned
c in the Block column instead of routing it through Barclays Bank
and, therefore, there is deficiency of service. Accordingly, the
consignor instituted a complaint under Section 12 of the CP
Act before the National Commission, inter alia, claiming
compensation for the alleged deficiency of ~ervice by the
0
appellant-carrier and the agent for not delivering the said
consignment to the consignee. The National Commission, after
considering the entire evidence Jn record, has come to the
conclusion that the services rendered by the appellant-carrier
was deficient and thereby, it was liable to pay compensation
equivalent to US $71,615. 75 with 5% interest from the date of
E
the Complaint till its realization, and imposed costs of Rs. 1
lakh. It is the correctness or otherwise of this order, which is
called in question in this appeal.
6.Since this is the first appeal under Section 23 of th~ CP
F
Act, we are required to consider both the questions of facts as
well as questions of law.
Impugned Order of the National Commission
7. The appellant-carrier before the National Commission,
G by way of preliminary objection, had raised jurisdiction of the
National Commission in entertaining the complaint filed by the
complainant. It was the contention of the appellant-carrier that
in view of Rule 29 and Rule 33 of the Second Schedule to the
CA Act, the National Commission in Delhi has no jurisdiction
H to entertain and decide the complaint. It was contended that
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL
61
EXPORTS & ANR. [H.L. DATTU, J.]
only the Courts at the four places mentioned in the said A
provision have jurisdiction to adjudicate the complaint and,
therefore, no other courts, Tribunal or Commission has
jurisdiction to decide the complaint filed by the complainant. It
was also contended that in view of the Warsaw Convention, the
National Commission had no jurisdiction to decide the dispute. B
The National Commission, after a detailed analysis of the
provisions of the CP Act and carrier laws, has negatived the
contention by holding that the CP Act has vested jurisdiction to
the Consumer Courts to adjudicate upon a claim for
compensation in cases of deficiency of service. It was also held c
that due to the pecuniary jurisdiction of the National
Commission, even a matter that arose in Mumbai of value of
more than Rs. 20 lakhs, could be filed for adjudication before
the National Commission (prior to the 2002 amendment).
8. On merits, it was the case of the consignor before the D
National Commission that the services offered by the appellantcarrier and the agent were deficient and the consignment meant
for the consignee was not delivered to the notified person. It
was also the case of the consignor that in view of the conditions
of contract on the reverse of the airway bill, it was required for E
the appellant-carrier to have delivered the consignment to the
consignee only, and in case of any doubt regarding the address
of delivery, the appellant-carrier was required to enquire with
the consignor and not deliver the consignment to any other
person than the notified party. Therefore, it was contended that F
there is a deficiency of service by the appellant-carrier. ·
9. The appellant-carrier has taken the defense that the
address given by the agent of the consignor was incorrect and
incomplete, and the only address that was properly given was G
that of the notified party, to which address they have delivered
the said consignment. Further, it was contended that at no point
of time, the appellant-carrier was made known that the "BBE
SAE, MADRID SPAIN" stood for Barclays Bank, Madrid.
Further, it was contended that the consignor had to file a suit H
62
SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A within 120 days by relying on Rule 12 and the complaint was
barred by limitation. It was further contended that if there was
any damage that was suffered by the consignor, it was due to
the negligence of the agent. It was also contended that the
consignor has received payment from the notified party. The
B appellant-carrier also made reference to the CA Act, Warsaw
Convention and several other authorities in support of its claim.
10. The National Commission, in the impugned order, has
concluded that the agent was not only the agent of the
C consignor, but also of the agent of the appellant-carrier, and
hence any mistake committed by the agent would make the
principal (appellant-carrier) liable for such damages. Further,
it is held by the National Commission that the appellant-carrier
was duty bound to have contacted the consignor in case it was
not able to locate the address of the consignee or in the event,
D the consignee refused to accept the consignment. It is held that
it is not open to the appellant-carrier to have delivered the
consignment to the notified party without informing the
consignor. On the point of limitation, the National Commission
has observed that by virtue of Rule 30 of the Second Schedule,
E a suit could be brought within two years, and hence Rule 12 is
not applicable in the facts of the case. In the light of the above
findings, the National Commission has held that the services
provided by the appellant-carrier were deficient and ordered
payment of the compensation to the consignor.
F
11. Shri. Vinoo Bhagat, learned counsel, appears for the
appellant-carrier, Shri. Jaideep Gupta, learned senior counsel,
appears for the consignor (Respondent No.1) and Shri.
Siddhartha Dave, learned counsel, appears for the agent
(Respondent No.2). On the question of jurisdiction of the
G National Commission, we were assisted by Shri. Shyam Divan,
learned senior counsel, as the amicus curie. For the sake of
convenience, we will de.al with the submissions made by the
learned counsel on the issue of jurisdiction first and then, on
the factual matrix.
H
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL
63
EXPORTS & ANR. [H.l. DATIU, J.]
Issue of Jurisdiction of the National Commission
A
12. Shri. Vinoo Bhagat, learned counsel, submits that the
Warsaw Convention exclusively governs any claims arising
under it, and domestic law cannot be applied for deciding such
claims. The learned counsel relies on Rule 29 of the Second
B
Schedule to the CA Act, to contend that it was only at the places
mentioned in this Rule, the claim for compensation could have
been filed. He further submits that the appellant-carrier could
be sued at a court in Mumbai (where the contract was made),
or at Beirut (where it has its principal place of business), or at C
Madrid (place of destination), and no where else. He further
submits that the Court in Delhi has no jurisdiction to entertain
any claim against the appellant-carrier and that the provisions
of the CP Act could not alter the jurisdiction vested on Courts
by the Warsaw Convention. By pointing out to Rule 33 of the
Second Schedule, the learned counsel submits that this D
provision fortifies his contention of the exclusive operation of
Rule 29 and states that not only are the places where the
appellant-carrier can be sued are mentioned, but also the
places where arbitration can take place, are expressly stated.
The learned counsel also states that there is no cause of action
E
under the CP Act, to invoke the jurisdiction of the National
Commission. He further contends that the National Commission
is not a Court and that a suit is maintainable only in a Court
having jurisdiction. He states that it is not permissible to read
the word "Court" to include quasi-judicial authorities and . F
Tribunals. He places reliance on some decisions cf this Court,
the House of Lords, Supreme Court of the United States and
the National Commission.
13. Shri. Jaideep Gupta, learned senior counsel, appearing G
for the consignor supports the finding of the National
Commission. He submits that even assuming that Rule 29 of
t.he Second Schedule to the CA Act was applicable, the
jurisdiction of the National Commission is not ousted in any
manner whatsoever. He further submits that the word "Court"
H
64
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A
is not used .in the strict i;ense of the term, thereby it cannot be
said that a quasi-judicial Tribunal is excluded. He submits that
the Warsaw Convention was reproduced in two languages
(being English and French), and that the term "Court" seems
to be used in a sense to indicate a body that resolves disputes
B
and cannot be restricted to the meaning accorded by our judicial
system. Shri. Gupta further submits that the Warsaw Convention
does not contemplate the situation of alternate Tribunals
replacing Courts of Law. He relies on Rule 29(2) of the Second
Schedule to the CA Act and submits that the procedural law of
c the country, in which the suit is filed, is what is applicable, and
in lridia, the CP Act was the legislation that lays down the
remedy and procedure for the deficiency of service. He would
further state that the CP Act was brought into force to expedite
the justice delivery system for matters relating to deficiency of
D
service, and the CP Act not only prescribes territorial
_jurisdiction, but also the pecuniary jurisdiction of the various
Forums. The learned senior counsel would contend that since
the State Forum did not have the pecuniary jurisdiction, the
National Commission could and, in fact, has entertained the
complaint. He would further submit that . since deficiency of
E
service was computed in more than twenty lakh rupees at the
relevant time (it is presently one crore rupees after the 2002
amendment) or more, the National Commission would have
jurisdiction by virtue of Section 29 of the CP Act. He also cited
some judgments in support of his submissions and
F
differentiated those cited by Shri. Vinoo Bhagat.
14. Shri. Siddhartha Dave, learned counsel appearing for
the agent submits that the provisions of the CP Act can co-exist
with those of other Statutes and the option is given to the parties
G as to which remedy they would like to pursue and would support
this argument by referring to decisions of this Court.
H
15. Due to the importance of the question of law involved,
Shri. Shyam Divan, learned senior counsel, was requested to
assist the Court. The learned amicus has submitted a note on
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL
65
EXPORTS & ANR. [H.L. DATTU, J.]
the question of jurisdiction raised by the appellarit-carrier. The
A
learned amicus has stated that it is clear from Section 3 of the
CP Act that Consumer Courts are additional Forums to ensure
that consumers get speedy disposal of their cases/complaints
with regard to deficiency of service. He lays emphasis on the
phrase "An action for damages must be brought" at the
B
beginning of Rule 29 and states that this Rule gives an option
to the plaintiff to sue in the Courts on any one of the places
mentioned. He further states that Rule 33 provides an alternate
remedy to parties to resort to proceedings of arbitration in case
of disputes between the parties. He concludes that there is no c
express bar in the CA Act to oust the jurisdiction of the Forums .
under the CP Act.
16. To appreciate the rival contentions, it is necessary to
notice the scherpe' of the CA Act. The Statement of Objects
and Reasons of/the CA Act reads:
D
"India is a signatory to the Warsaw Convention of 1929,
which is an International Agreement governipg the liability
of the air carrier in respect of international carriage of
passengers, baggage and cargo by air. Under that E
convention 'internation~I carriage' means any carriage in
which according to the contract made by the parties, the
place of departure and the place of destination, whether
or not there be a break in t~ carriage or transshipment,
are situated either within the territories of two High
F
Contracting Parties, or within the territories of a single High
Contracting Party, if there is an agreed stopping place
within a territory subject to the sovereignty, suzerainty,
mandate or authority of another Power, even though that
Power is not a party to the Convention. The Convention
G
provides that when an accident occurring during
international carriage by air causes damage to a
passenger, or a shipper or cargo, there is a presumption
of liability of tile carrier. The carrier, however, is not liable
if he proves that he or his agent had taken all necessary
H
A
B
c
D
E
F
G
66
SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
measures to avoid the damage or that it was impossible
for him or them to take such measures. The Convention
balances the imposition of a presumption of liability on the
carrier by limiting his liability for each passenger to
1,25,000 gold francs. There is no limitation of liability if the
damage is caused by the willful misconduct of the carrier,
or by such default, on his part as, in accordance with the
law of the Court ceased of the case, is equivalent to willful
misconduct. The Convention also contains detailed
provisions regarding documents of carriage.
2. The Warsaw Convention has been given effect to in India
by the enactment of the Indian Carriage By Air Act, 1934
(20 of 1934) in regard to international carriage and the
provisions of that Act have been extended to domestic
carriage, subject to certain exception, adaptations and
modifications, by means of a notification issued in 1964.
3. A diplomatic conference under the auspices of
International Civil Aviation OrganizCltion was held at Hague
in September, 1955 which adopted a protocol to amend
the provisions of the Warsaw Convention. The Hague
protocol was opened for signature on 28th September,
1955 and more than the required number of States have
ratified the protocol which came into force between the
ratifying States on 1st August, 1963.
4. Some of the amendments effected by the Hague
protocol to the Warsaw Convention are - (a) simplification
of documents of carriage; (b) an increase in the amount
specified as the maximum sum for which the carrier may
be liable to a passenger, that is to say, the limits of the
liability of the carrier in respect of a passenger has been
doubled, and unless a higher figure is agreed to by a
special contract, the liability is raised from 1,25,000 gold
francs per passenger to 2,50,000 gold francs; (Cf rTI'aK'ing
the carrier liable where the damage was caused by an
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL.
67
EXPORTS & ANR. [H.L. DATIU, J.]
error in piloting or in the handling of the air craft or in
A
navigation.
5. Acceptance of the Hague Protocol would put our
national carrier on the same footing as many of its
international competitors, since the passengers will be
B
able to avail the limit of liability guaranteed by the Hague
Protocol the limit being double than that stipulated under
the Warsaw Convention.
6. Fifty seven countries have already ratified the Hague
Protocol and passengers traveling between those
C
countries would be ensured of the higher limit of
compensa~ion.
7. It is, therefore, proposed to enact a law, in place of the
existing Indian Carriage By Air Act, 1934, to apply the
0
existing provisions based on the Warsaw Convention to
countries which would choose to be governed by that
Convention and also to apply the provisions of the Warsaw
Convention as amended by the Hague Protocol to
countries which may accept the provisions thereof. Under
E
Section 4 of the Indian Carriage By Air Act, 1934, the rules
contained in Warsaw Convention have already been
applied to non-international carriages subject to certain
exceptions, adaptations and modifications. It is now
proposed to take power to apply the rules contained in the
F
Warsaw Convention as amended by the Hague Protocol
also to non-international carriages subject to exceptions,
adoptions and modifications.
8. The Bill seeks to give effect to the above objectives.·
17.