M/S. RAJASTHAN ART EMPORIUMversusKUWAIT AIRWAYS & ANR.

                 [2023] 14 S.C.R. 283 : 2023 INSC 996



                            CASE DETAILS

                M/S. RAJASTHAN ART EMPORIUM
                                     v.
                      KUWAIT AIRWAYS & ANR.
                     (Civil Appeal No. 9106 of 2012)

                          NOVEMBER 09, 2023
   [A.S. BOPANNA AND PRASHANT KUMAR MISHRA, JJ.]

                             HEADNOTES

      Issues for consideration: (i) Whether the National Consumer
Disputes Redressal Commission has committed any illegality or perversity
in recording the finding that there was delay in delivery of consignment.
      (ii) Whether the NCDRC was justified in not allowing the entire claim
for compensation by calculating the total weight of the subject consignment
in view of Rule 22 (2) of Schedule-III of the Carriage by Air Act, 1972 (as
amended by the Hague Protocol).
      Carriage by Air Act, 1972 – Appellant’s case that the goods were
tendered to respondent no.1 on a specific representation that the same
will be delivered within seven days – However, there was delay of more
than 40 days – Respondent no.1 contended that time was not the essence
of contract – The NCDRC directed respondent no. 1 to pay the appellant/
complainant Rs. 20 lakhs along with interest – Propriety:
      Held: Basing on the material available on record, the NCDRC has
held that the fax message sent by respondent No.2-agent through whom
the consignment was booked (24.07.1996) to be shipped by the respondent
No.1 goes to show that the goods shall be delivered at Chicago Memphis on
29.07.1996, 31.07.1996 and 31.07.1996 – However, when the consignment
did not reach the destination, appellant/complainant informed the respondents
whereafter, the respondent no. 2 provided a revised schedule, however, the
shipments did not reach the destination even as per the revised schedule,
according to which the goods were to reach the destination on 06.08.1996

                                    283
284           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


– The agent-respondent No.2 had admitted that at the time of booking, the
complainant was informed about the tentative date of arrival of goods – Once
the agent has issued a time schedule for delivery of consignment, it cannot
be said that there is no material indicating that there was no agreement for
delivery of the consignment in time – Respondent no.1 has never taken the
stand in any of the communication arising from its office that the respondent
No.2 is not its agents or that there was no agreement or promise by its agent
that the consignment will be delivered in 07 days – The NCDRC has not
committed any illegality or perversity in recording the finding that there was
delay in delivery of consignment – Delay in the delivery of consignment
has inflicted damage to the appellant – The consignee is entitled to seek
damages for delay in delivering the consignment. [Paras 17, 19, 20, 21]
      Carriage by Air Act, 1972 – Rule 22 (2) of Schedule-III – Consumer
Protection Act, 1986 – Section 21(a)(i) – Delay in delivery of consignment
– The NCDRC directed respondent no. 1 to pay the appellant/
complainant Rs. 20 lakhs along with interest – Appellant/complainant
submitted once the NCDRC arrives at the conclusion that there is delay
in delivery of consignment due to negligence of respondent no. 1, fair,
just and reasonable compensation must be awarded in accordance with
conditions of the contract and statutory provisions of the Carriage by
Air Act, 1972:
      Held: The grievance of the appellant in this appeal is mainly on
account of the NCDRC not allowing the entire claim for compensation by
calculating the total weight of the subject consignment by calculating the
total weight of the subject consignment at 2507.5 Kg. multiplied by US $ 20
per Kg – According to the appellant, in view of Rule 22 (2) of Schedule-III
of the Carriage by Air Act, 1972 (as amended by the Hague Protocol) the
amount thus calculated would exceed the sum of Rs. 20 lakhs – However,
on this point also, this Court approves and sustain the order passed by the
NCDRC for the reason that in its complaint under Section 21(a)(i) of the
Consumer Protection Act, 1986, the complainant/appellant has sought
damages for Rs. 20 lakhs only as compensation for loss of business and
reputation – It is a trite law that a party is not entitled to seek relief which
he has not prayed for. [Para 24]
    M/S. RAJASTHAN ART EMPORIUM v. KUWAIT AIRWAYS 285



        LIST OF CITATIONS AND OTHER REFERENCES

    Dilawari Exporters v. Alitalia Cargo & Ors. (2010) 5 SCC 754: [2010]
4 SCR 927 – relied on.
      Merrrs. Trojan & Co. Vs. RM.N.N. Nagappa Chettiar AIR 1953 SC
235: [1953] SCR 789; Krishna Priya Ganguly etc. etc. Vs. University of
Lucknow & Ors. AIR 1984 SC 186: [1984] 1 SCR 302; Om Prakash &
Ors. Vs. Ram Kumar & Ors. AIR 1991 SC 409; Bharat Amratlal Kothari
Vs. Dosukhan Samadkhan Sindhi & Ors. AIR 2010 SC 475: [2009] 15 SCR
662; Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) by Lrs. & Ors. 2010
(11) SCC 557: [2010] 7 SCR 346 – referred to.
        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.9106 of 2012.
    From the Judgment and Order dated 1.10.2012 of the National
Consumer Disputes Redressal Commission, New Delhi in Original Petition
No.229 of 1997.
      With
      Civil Appeal No.9194 of 2012.
      Appearances:
      Vivek Sood, Sr. Adv., Dinesh Sabharwal, Braj K Mishra, Ms. Aparna
Jha, Ms. Himani Bhatnagar, Abhishek Yadav, Ruchit Mohan, Dhrubjit Saikia,
Ms. Rasneet Kaur, Ms. Madhurima Tatia, S. C. Birla, Subrat Birla, Advs.
for the appearing parties.
        JUDGMENT / ORDER OF THE SUPREME COURT

                                JUDGMENT

      PRASHANT KUMAR MISHRA, J.
     These two appeals are cross appeals preferred against the order
passed by the National Consumer Disputes Redressal Commission1 dated


1     (for short ‘the NCDRC’)
286          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


01.10.2012 in Original Petition No. 229 of 1997 whereby the complaint filed
by the appellant/complainant was disposed of while directing respondent
no. 1 to pay the appellant/complainant US$ 500750/- or Rs. 20 lakhs is less
along with 9% per annum compensation with effect from 31.07.1996 till
its realization.
     2. The case of the appellant/complainant is that it is an exporter of all
kinds of handicrafts goods to several countries including USA. The appellant/
complainant had received an order from M/s. Williams Sonoma Inc. USA
for supply of handicraft goods. Accordingly, the appellant/complainant
had to send three shipments of 1538 packages weighing 26,859.5 kg. to
the consignee on an urgent basis, which was specifically informed to the
respondents. On 22.07.1996, the goods were tendered to respondent no. 1
through respondent no. 2 after getting an assurance that the shipments will
reach destination at Memphis within 7 days and delivery schedule was
handed over to the appellant/complainant. As per the schedule, the entire
consignment was supposed to reach at Memphis by 31.07.1996.
      3. The consignments did not reach the destination at Memphis (USA)
as per the delivery schedule. On enquiry, respondent no. 1 expressed its
inability to deliver the consignments as per the delivery schedule provided to
the appellant and a revised delivery schedule was given on 05.08.1996, which
mentioned the date of delivery on 06.08.1996. However, the consignment
did not reach at the destination even as per the revised delivery schedule.
     4. On non-receiving the goods, the consignee expressed its anguish
by sending a letter dated 23.08.1996 and informed the complainant that
the goods are not received in toto, and respondent no. 1 was unable to tell
where the remaining cartons are.
     5. It is also on record that 69 cartons were lying with Lufthansa. The
respondent no. 1, by its letter dated 30.08.1996 addressed to respondent no.
2, accepted the short delivery. On 07.09.1996, the appellant/complainant
made a modest claim against the respondents for refund of full freight. In
response to the said claim, respondent no. 2 confirmed having short delivered
104 cartons out of 288 cartons but did not state whether the other cartons
had arrived at the destination. The appellant served the legal notice dated
04.08.1997 on the respondents, which evoked no response.
   M/S. RAJASTHAN ART EMPORIUM v. KUWAIT AIRWAYS                             287
             PRASHANT KUMAR MISHRA, J.

     6. Ultimately, the appellant/complainant lodged a complaint before
the NCDRC with the prayer that respondent no. 1 be directed to refund a
sum of Rs. 24,48,345/- being the fair charges for the consignments; pay a
sum of Rs. 20 lakhs as compensation for loss of business and reputation;
pay US$ 7042.00 being the value of the goods short delivered; pay interest
@ 18% as well as cost of litigation, which was disposed of as abovesaid.
Hence these appeals.
     7. Learned counsel for the appellant would submit that admittedly,
the shipments booked by the appellant on 24.07.1996, which were to
be delivered by 31.07.1996, were delivered to the handling agent of the
Consignee only in the month of September, 1996 from 03.09.1996 to
12.09.1996 with delay of more than 40 days.
      8. Learned counsel submitted that the goods were tendered to
respondent no. 1 on a specific representation that the same will be delivered
within seven days, therefore, time is the essence of the contract between the
parties. It is next argued that in the case in hand, it is clear from the material
on record that respondent no. 1 has been highly negligent in rendering its
services to the appellant.
      9. Learned counsel further submits that once the NCDRC arrives at the
conclusion that there is delay in delivery of consignment due to negligence
of respondent no. 1, fair, just and reasonable compensation must be awarded
in accordance with conditions of the contract and statutory provisions of
the Carriage by Air Act, 1972.
      10. Per contra, learned counsel for respondent no. 1 submitted
that there was no deficiency in service rendered by respondent no. 1. All
reasonable care in performing its duties under the contract of carriage were
discharged diligently. He would submit that no specific instructions were
given by the appellant with regard to the time by which the consignments
had to reach its destination, therefore, time was not the essence of contract
entered into between the parties.
      11. Learned counsel next submits that respondent no. 1 should not be
held liable for delay in service, as in spite of being aware of the fact, the
appellant sent the consignment through Kuwait Airways, which has various
stops over at Kuwait, Chicago and Memphis, which would consume a lot
of time period to deliver the consignment.
288          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


     12. Learned counsel lastly submits that the compensation awarded by
the NCDRC is excessive, unjust and unfair and is based on the conjectures
and surmises.
     13.We have heard learned counsel for the appellant as well as the
respondents at length and perused the material placed on record meticulously.
      14. Initially, the NCDRC passed a final order on 21.05.2003 holding
that there has been a short delivery of 104 pieces equal to 1822 Kgs.
Therefore, in view of Rule 22 of Carriage by Air Act, multiplying this
weight by US $ 20 per Kg., the amount payable work out to US $ 36440
which becomes payable by the respondent to the complainant for the loss
of goods. This amount was directed to be paid by the respondent along with
interest @ 9% from 01.10.1996. In so far as the issue concerning delay in
delivering the consignment, the NCDRC found that in the absence of any
communication emanating from the respondent No.1-Kuwait Airways
promising to deliver the goods by any particular date, the plea raised by
the complainant regarding delay in delivering the goods is not sustainable.
     15. Challenging the above order dated 21.05.2003 of the NCDRC, the
complainant preferred Civil Appeal bearing C.A.No. 8211 of 2003 which
was allowed by this Court on 15.03.2011. This Court observed that the issue
concerning delay in delivery of goods has been decided by NCDRC without
appreciating the material and evidence available on record. Resultantly,
the matter was remitted back to NCDRC for fresh consideration of the
complainant case vis-à-vis delay in delivering the consignment.
     16. After the remand, the present impugned order has been passed
holding that there was delay in delivering the consignment on time for which
the complainant is entitled to compensation of 25037.5 Kg. multiplied by
US $ 20 Kg. each which comes to US $ 500750 which exceed the sum of
Rs. 20 lakhs claimed by the complainant therefore the complainant was
only entitled to have compensation of Rs. 20 lakhs along with interest @
9% w.e.f. 31.07.1996 till its realization as also the litigation charges and
compensation for harassment and mental agony in the sum of Rs. 5 lakhs.
      17. Basing on the material available on record, the NCDRC has held
that the fax message sent by respondent No.2-agent through whom the
consignment was booked to be shipped by the respondent No.1 goes to
   M/S. RAJASTHAN ART EMPORIUM v. KUWAIT AIRWAYS                          289
             PRASHANT KUMAR MISHRA, J.

show that the goods shall be delivered at Chicago Memphis on 29.07.1996,
31.07.1996 and 31.07.1996. However, when the consignment did not reach
the destination, appellant - M/s Rajasthan Art Emporium informed the
respondents whereafter, the respondent no. 2 provided a revised schedule,
however, the shipments did not reach the destination even as per the revised
schedule, according to which the goods were to reach the destination on
06.08.1996.
       18. The evidence on record shows that the parts of the shipments were
received at Memphis on 30.08.1996 as admitted by the respondent No.1 in
its letter dated 24.09.1996. Referring to the documents showing business
relation between complainant and his buyer, the NCDRC would observe that
the buyer was the largest customer of the complainant. Thus, the complainant
has suffered huge loss due to transaction and the goods were received in the
first week of September, 1996.
     19. We have perused and examined the material available on record
and we are satisfied that the NCDRC has not committed any illegality
or perversity in recording the finding that there was delay in delivery
of consignment. As a matter of fact, it is an admitted position that the
consignment which was booked on 24.07.1996, was delivered after one
and a half month i.e. from 03.09.1996 to 12.09.1996.
      20. In its reply before the NCDRC, the agent-respondent No.2
(Dagga Air Agents) admitted that at the time of booking, the complainant
was informed about the tentative date of arrival of goods at Memphis
by 31.07.1996 and thereafter a revised schedule was also given to the
complainant. Once the agent has issued a time schedule for delivery of
consignment, it cannot be said that there is no material indicating that there
was no agreement for delivery of the consignment in time. respondent no.1
– Kuwait Airways has never taken the stand in any of the communication
arising from its office that the respondent No.2 is not its agents or that there
was no agreement or promise by its agent that the consignment will be
delivered in 07 days. The NCDRC has rightly noted that the appellant has
paid air freight which is ten times more than the sea freight only to ensure
that the consignment reaches its destination within a week because sea cargo
would have taken 25 to 30 days for delivery and the appellant has paid such
huge freight charges for ensuring early delivery, hence, the delay in delivery
290            SUPREME COURT REPORTS                         [2023] 14 S.C.R.


of consignment has necessarily inflicted damage to the appellant which is
liable to be satisfied by the respondent No.1 as provided under Section 19
and 13(3) of the Carriage by Air Act 1972.
     21. The provisions contained in Section 19 and 13 (3) of the Carriage
by Air Act 1972 read as follows:
      “19. The carrier is liable for damage occasioned by delay in the carriage
      by air of passengers, luggage or goods.”
      “13 (3). If the carrier admits the loss of the goods, or if the goods have
      not arrived at the expiration of seven days after the date on which
      they ought to have arrived, the consignee is entitled to put into force
      against the carrier the rights which flow from the contract of carriage.”
     By virtue of the above provisions, the consignee is entitled to seek
damages for delay in delivering the consignment. It is not the case of the
respondent No.1 that the respondent No.2 had acted beyond the terms of
agency. Neither it is averred that the respondent no.2 was not the agent of
respondent No.1.
     22. Section 186 of the Contract Act, 1872 provides that authority of an
agent may be expressed or implied. Similarly, Section 188 of the Contract
Act, 1872 prescribes that an agent, having an authority to do an act, has
authority to do every lawful thing which is necessary in order to do such act.
In Dilawari Exporters v. Alitalia Cargo & Ors.2 this Court has observed in
Paragraph 17 to 20 as follows: -
      “17. Section 186 of the Contract Act, 1872 (for short “the Contract
      Act”) lays down that the authority of an agent may be expressed or
      implied. As per Section 187 of the Contract Act, an authority is said to
      be express when it is given by words spoken or written, and an authority
      is said to be implied when it is to be inferred from the circumstances
      of the case; and things spoken or written, or the ordinary course of
      dealing, which may be accounted circumstances of the case.
      18. Section 188 of the Contract Act prescribes that:



2     (2010) 5 SCC 754
   M/S. RAJASTHAN ART EMPORIUM v. KUWAIT AIRWAYS                          291
             PRASHANT KUMAR MISHRA, J.

           “188. Extent of agent’s authority.—An agent, having an authority
           to do an act, has authority to do every lawful thing which is
           necessary in order to do such act.”
     19. Section 237 of the Contract Act provides that:
           “237. Liability of principal inducing belief that agent’s
           unauthorised acts were authorised.—When an agent has, without
           authority, done acts or incurred obligations to third persons on
           behalf of his principal, the principal is bound by such acts or
           obligations if he has by his words or conduct induced such third
           persons to believe that such acts and obligations were within the
           scope of the agent’s authority.”
     20. There is no gainsaying that onus to show that the act done by an
     agent was within the scope of his authority or ostensible authority held
     or exercised by him is on the person claiming against the principal.
     This, of course, can be shown by practice as well as by a written
     instrument. Thus, the question for consideration is whether on the
     evidence obtaining in the instant case, can it be said that Respondent
     3 had an express or implied authority to act on behalf of Respondent 1
     as their agent? If Respondent 3 had such an authority, then obviously
     Respondent 1 was bound by the commitment Respondent 3 had made
     to the appellant.”
      23. In the case at hand, in the absence of a plea by the respondent No.1,
that the respondent no. 2 was not its agent or that he had no authority to
give schedule of delivery of consignment, the onus has not been discharged.
Therefore, the respondent No.1 is bound by the promise held by its agent
- respondent No.2, that the goods shall be delivered within one week and
when the time schedule expired and the goods were, in fact, delivered after
one and a half month, there was negligent delay in delivery of consignment.
      24. The grievance of the appellant in this appeal is mainly on account
of the NCDRC not allowing the entire claim for compensation by calculating
the total weight of the subject consignment at 2507.5 Kg. multiplied by
US $ 20 per Kg. According to the appellant, in view of Rule 22 (2) of
Schedule-III of the Carriage by Air Act, 1972 (as amended by the Hague
Protocol) the amount thus calculated would exceed the sum of Rs. 20
292            SUPREME COURT REPORTS                        [2023] 14 S.C.R.


lakhs. The appellant would thus claim the entire amount equivalent to US
$ 50070 without limiting it to Rs. 20 lakhs. However, on this point also, we
approve and sustain the order passed by the NCDRC for the reason that in
its complaint under Section 21(a)(i) of the Consumer Protection Act, 1986,
the complainant/appellant has sought damages for Rs. 20 lakhs only as
compensation for loss of business and reputation. It is a trite law that a party
is not entitled to seek relief which he has not prayed for. For this proposition
we may profitably refer to this Court’s judgments in Merrrs. Trojan & Co.
Vs. RM.N.N. Nagappa Chettiar3, Krishna Priya Ganguly etc. etc. Vs.
University of Lucknow & Ors4., Om Prakash & Ors. Vs. Ram Kumar
& Ors5., Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi &
Ors6., Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) by Lrs. & Ors.7
      25. In view of the forgoing reasons, we are not inclined to interfere
with the Order passed by the NCDRC and resultantly both the Civil Appeals
deserve to be and are hereby dismissed.
       The parties shall bear their own costs.
       Pending application(s), if any, shall stand disposed of


Headnotes prepared by:                                           Appeals dismissed.
Ankit Gyan




3     AIR 1953 SC 235
4     AIR 1984 SC 186,
5     AIR 1991 SC 409
6     AIR 2010 SC 475
7     2010 (11) SCC 557