Supreme Court of India
TRANS MEDITERRANEAN AIRWAYSversusM/S UNIVERSAL EXPORTS & ANR.
- Citation
- 2011 INSC 689
- Decided
- 15 September 2011
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
The National Consumer Disputes Redressal Commission is a "court" within the meaning of the Carriage by Air Act and has jurisdiction to adjudicate the complaint, and the carrier is liable for deficiency of service.
Summary
The case concerned a complaint by Universal Exports (the consignor) that Trans Mediterranean Airways, an international cargo carrier, misdelivered a consignment intended for Barclays Bank, Madrid, delivering it instead to M/s Liwe Espanola. The consignor sought compensation under the Consumer Protection Act, 1986, alleging deficiency of service. The National Consumer Disputes Redressal Commission held the carrier liable and ordered payment of US$71,615.75 with interest. The carrier appealed, arguing that the Commission lacked jurisdiction because the dispute fell under the Carriage by Air Act, 1972 and the Warsaw Convention, and that the Commission was not a "court". The Supreme Court held that the Consumer Commission is a "court" for the purposes of the Carriage by Air Act, that the CP Act provides an additional remedy and does not conflict with the international conventions, and that the carrier was indeed deficient in service. Consequently, the appeal was dismissed and the compensation order upheld.
Issues considered
- Whether the National Consumer Disputes Redressal Commission has jurisdiction to entertain a complaint for deficiency of service by an international carrier under the Consumer Protection Act, given the Carriage by Air Act and the Warsaw Convention.
- Whether the term "court" in Rule 29 of the Second Schedule of the Carriage by Air Act includes quasi‑judicial tribunals such as the National Commission.
- Whether domestic law (the CP Act) can be applied in addition to, or in substitution for, the provisions of the Warsaw Convention and related statutes.
- Whether there was a deficiency of service (misdelivery) by the carrier under the facts of the case.
- Whether the limitation period under the airway bill (120 days) or the two‑year period under the Carriage by Air Act governs the claim.
Legislation cited
- Carriage by Air Act, 1972s. 29, s. 2(ii), s. 3, s. 30, s. 33, s. 4, s. 4A, s. 7, s. 8
- Consumer Protection Act, 1986s. 12, s. 21, s. 3
Subjects
Consumer Protection ActCarriage by Air ActWarsaw Conventionjurisdictioncourt definitiondeficiency of servicemisdeliveryinternational carriagecompensationNational Consumer Disputes Redressal Commission
Judgment
[2011) 14 (ADDL.) S.C.R. 47
TRANS MEDITERRANEAN AIRWAYS A
v.
M/S UNIVERSAL EXPORTS & ANR.
(Civil Appeal No. 1909 of 2004)
SEPTEMBER 15, 2011
B
[G.S. SINGHVI AND H.L. DATTU, JJ. ]
CONSUMER PROTECTION ACT, 1986:
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
the GP Act to entertain ·'f#nd decide a complaint filed by the
0
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.
CARRIAGE BY AIR ACT, 1972: Object and historical
background of its enactment - Discussed.
H
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 E
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 F
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
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) [68-
D-H; 69-A]
D
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
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
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
H
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 appellant-
carrier, 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:
1995 (4) Suppl. SCR 561 relied on Para 25
G
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.
3. The core issues that arise for our consideration and
decision in this appeal are:
G 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
H
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"
F
The airway bills from Bombay to Amsterdam were dated
•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
appellant-carrier and the agent for not delivering the said
0
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 appellant-
carrier 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.
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
H
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
66 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 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
B 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.
c 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
D 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
E 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.
F
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
G 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.·
G
17. The preamble to The Carriage by AIR Act, 1972 reads
as follows:
"An Act to give effect to the Convention for the unification
of certain rules of international carriage by air signed at
Wa~aw on the 12th day of October, 1929 and to the said H
68 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Convention as amended by the Hague Protocol on the 28th
day of September, 1955 and to make provision for
applying the rules contained in the said Convention in its
original form and in the amended form (subject to the
exc!=!ptions, adaptations and modifications) to non-
B international carriage by air and for matters connected
therewith."
18. The CA Act was enacted to give effect to the
convention for unification of rules relating to international
C carriage by air signed at Warsaw as amended at Hague in
1995 and the Montreal Convention of 1999.
19. Section 2 of the CA Act is the definition clause. Section
2(ii) of the CA Act defines convention to mean convention for
unification of certain rules relating to international carriage by
D 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 provisions
of the convention relating to the rights and liabilities of carriers,
passengers, consignors, consignees and other persons, shall
E 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 the carriage, subject to the provisions of the
Act. Section 4 provides for application of amended convention
to India and also provides for Second Schedule in consonance
F with the amended convention. This Schedule applies to the
cla.im made in the present case as it is a dispute that occurred
in 1994 before the Montreal Convention in 1999. Section 4A
provides for the application of the Montreal Convention to India
and provides for the Third Schedule. Section 5 sets out the
liability in case of death of a passenger as being those
G governed by the First and Second Schedules. Sections·s and
6A provide for conversion of francs and conversion of special
drawing rights. 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
H
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 69
EXPORTS & ANR. [H.L. DATTU, J.]
28 of the First Schedule or of the Second Schedule, as the A
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.
20. The First Schedule to the Act, vide Rule 1, provides B
that the rules under this Schedule shall apply to all international
carriage of persons, luggage or goods performed by aircraft
for reward. Sub-Rule 2 defines "the High Contracting Party" to
the convention. Sub-Rule 3 defines international carriage. Rule
18 provides for liability of the carrier for damages. Rule 19
provides for liability of the carrier for damages occasioned by C
delay and Rule 28 provides for territorial jurisdiction for suing
for damages. The Second Schedule of the CA Act provides
for rules for the purpose of the Act. Chapter I of the Second
Schedule gives the definitions and the scope of the Sch~dule.
Chapter II deals with the documents of carriage, viz. passenger D
ticket (Part I), baggage check (Part II), airway bill (Part Ill).
Chapter Ill enumerates the provisions regarding the liability of
· the carrier with regard to the acts which the carrier will be held
liable for, the jurisdiction of the Court at which the carrier can
be sued, the limit of the liability, limitation for bringing a suit, E
etc. Chapter IV and Chapter V deal with provisions relating to
combined carriage and general provisions respectively. Part
Ill of Chapter II of the Second Sct:iedule is relevant for the
purpose, of the case. Therefore, omitting what is not necessary,
relevant rules are extracted as : F
"5. (1) Every carrier o(cargo has the right to require the
consignor to make out and hand over to him a document
called as "air waybill"; every consignor has the right to
require the carrier to accept this document. G
(2) The absence, irregularity or loss of this document does
not affect the existence or the validity of the contract of
carnage which shall, subject to the provisions of rule 9, be
nonetheless governed by these rules.
H
70 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 6. (1) The air waybill shall be made out by the consignor
in the three original parts and be handed over with the
cargo.
(2) The first part shall be marked "for the carrier", and shall
be signed by the consignor. The second part shall be
B
marked "for the consignee"; it shall be signed by the.
consignor and by the carrier and shall accompany the
cargo. The third part shall be signed by the carrier and
handed by him to the consignor after the cargo has been
accepted.
c
(3) The carrier shall sign prior to the loading of the cargo
on board the aircraft.
(4) The signature of the carrier may be stamped; that of
0 the consignor may be printed or stamped.
(5) If, at the request of the consignor, the carrier makes
out the air waybill, he shall be deemed, subject to proof to
the contrary, to have done so on behalf of the consignor.
E 10. (1) The consignor is responsible for the correctness
of the particulars and statements relating to the cargo
which he inserts in the air waybill.
(2) The consignor shall indemnify the Carrier against all
damage suffered by him, or by any other person to whom
F
. the carrier is liable, by reason of the irregularity,
incorrectness or incompletness of the particulars and
statements furnished by the consignor."
12. (1) Subject to his liability to carry out all his obligations
G under the contract of carriage, the consignor has the right
to dispose of the cargo by withdrawing it at the aerodrome
of departure or destination, or by stopping it in the course
of the journey on any landing, or by calling for it to be
delivered at the place of destination or in the course of the
H journey to a person other than the consignee named in the
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 71
EXPORTS & ANR. [H.L. DATIU, J.]
air waybill, or by requiring it to be· returned to the A
aerodrome of departure. He must not exercise this right
of disposition in such a way as to prejudice the carrier or
other consignors and he must repay any expenses
occasioned by the exercise of this right.
B
(2) If it is impossible to carry out the orders of the consignor
the carrier must so inform him forthwith.
(3) If the carrier obeys the orders of the consignor for the
disposition of the cargo without requiring the production
of the part of the air waybill delivered to the latter, he will C
be liable, without prejudice to his right of recovery from the
consignor, for any damage which may be caused thereby
to any person who is lawfully in possession of that part of
the air waybill.
D
(4) The right conferred on the consignor ceases at the
moment when that of the consignee begins in accordance
with rule 13. Nevertheless, if the consignee declines. to
accept the waybill or the cargo, or if he cannot be
communicated with, the consignor resumes his right of E
disposition.
13 ....
14. The consignor and the consignee can respectively
enforce all the rights given to them by rules 12 and 13, F
each in his own name, whether he is acting in his sown
interest or in the interest of another, provided that he carries
out the obligations imposed by the contract.
15. (1) Rules 12, 13 and 14 do not affect eitherthe relations G
of the consignor or the consignee with each other or the
mutual relations of third parties whose rights are derived
either from the consignor or from the consignee.
(2) The provisions of rules 12, 13 and 14 can only be varied
by express provision in the air waybill. H
72 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A (3) Nothing in these rules prevents the issue of a negotiable
air waybill.
16. (1) The consignor must furnish such information and
attach to the air waybill such documents as are necessary
to meet the formalities of customs, octroi or police before
B
the cargo can be delivered to the consignee. The consignor
is liable to the carrier for any damage occasioned by the
absence, insufficiency or irregularity of any such
information or documents, unless the damage is due to the
fault of the carrier or his servants or agents.
c
(2) The carrier is under no obligation to enquire into the
correctness or sufficiency of such information or
documents."
.0 21. We also need to ;iotice Rule 17, 18, 20, 29, 30 and
33 of Chapter Ill and V of the Second Schedule. These are :
.·-'
"17. Th(! ca"ier is liable for damage sustained in the
event of the death or wounding of a passenger or any
other bodily injury suffered by a passenger if the accident
E which caused the damage so sustained took place on
board the aircraft or in the course of any of the operations
of. embarking or disembarking.
18. (1) The carrier is liable for damage sustain~d in the
F event of the destruction or loss of, or of damage to, any
registered baggage or any cargo, if the occurrence which
caused the damage so sustained took place during the
carriage by air.
(2) The carriage by air within the meaning of the preceding
G sub-rule comprises the period during which the baggage
or cargo is in charge of the carrier, whether in an
aerodrome or on board an aircraft, or in the case of a
landing outside an aerodrome, in any place whatsoever.
H (3) The period of the carriage by air does not extend to
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 73
EXPORTS & ANR. [H.L. DATIU, J.]
any carriage by land, by sea or by river performed outside A
an aerodrome. If, however, such a carriage takes place in
the performance of a contract for carriage by air for the
purpose of loading delivery or transshipment, any damage
is presumed, subject to proof to the contrary, to have been
the result of an event which took place during the carriage B
by air.
20. The carrier is not liable if he proves that he and his
servants or agents have taken all necessary measures to
avoid the damage or that it was impossible for him or them
to take such measures. C.
29. (1) An action for damages must be brought, at the
option of the plaintiff, in the territory of one of the High
Contracting Parties, either before the Court having
jurisdiction where the carrier is ordinarily resident, or has D
his principal place of business, or has an establishment
, by which the contract has been made or before the Court
having jurisdiction at the place· of destination.
(2) Questions of procedure shall be governed by the law E
· of the Court seized Qf the case.
30. (1) The right to damages shall be extinguished if an
action is not brought within two years, reckoned from the
date of arrival at the destination, or from the date on which
the aircraft ought to have arrived, or from the date on which F
the carriage stopped.
(2) The method of calculating the period of limitation shall
be determined by the law of the Court seized of the case.
33. Any clause contained in the contract and all special G
agreements entered into before the damage occurred by
which the parties purport to infringe the rules laid down by
this Schedule, whether by deciding the law to be applied,
or by altering the rules as to jurisdiction, shall be null and
H
74 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A void. Nevertheless for the carriage of cargo arbitration
clauses are allowed, subject to these rules, if the
arbitration is to take place within one of the jurisdictions
referred to in sub-rule (1) of rule 29."
22. The CP Act aims to protect the interests of the
8
consumers and provide for speedy resolutions of their disputes
with regard to defective goods or deficiency of service. The
Statement of Objects and Reasons of the CP Act are as under:
"The Consumer Protection Bill, 1986 seeks to provide for
C better protection of the interests of consumers and for the
purpose, to make provision for the establishment of
Consumer councils and other authorities for the settlement
of consumer disputes and for matter connected therewith.
o 2. It seeks, inter alia, to promote and protect the rights of
consumers such as -
(a) the right to be protected against marketing of
goods which are hazardous to life and property;
E (b) the right to be informed about the quality,
quantity, potency, purity, standard and price of
goods to protect the consumer against unfair trade
practices;
(c) the right to be assured, wherever possible,
F
access to an authority of goods at competitive
prices;
(d) the right to be heard and to be assured that
consumers interest will receive due consideration
G at appropriate forums;
(e) the right to seek redressal against unfair trade
practices or unscrupul.ous exploitations of
consumers; and
H
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 75
EXPORTS & ANR. [H.L. DATIU, J.]
(f} right to consumer education. A
3. These objects are sought to be promoted and
protected by the Consumer Protection Council to
be established at the Central and State level.
4. To provide speedy and simple redressal to 8
consumer disputes, a quasi~judicial machinery is
sought to be set up at the district, State and Central
levels. These quasi-judicial bodies will observe the
principles of natural justice and have been
empowered to give relief of a specific nature and C
to award, wherever appropriate, compensation to
consumers. Penalties for non-compliance of the
orders given by the quasi-judicial bodies have also
been provided.
D
. 5. The Bills seeks to achieve the above objects."
23. The relevant provisions of the CP Act that are required
to be noticed for resolving the issues before us are Sections 3
and 21. They are as under:
E
"3. Act not in derogation of any other laws. - The provisions
of this Act shall be in addition to and not in derogation of
the provisions of any other law for the time being in force.
F
21. Jurisdiction of the National Commission. - Subject to
the other provisions of this Act, the National Commission
sh~ll have jurisdiction -
(a) to entertain - G
(i) complaints where the value of the goods
or services and compensation, if any,
claimed exceeds rupees one crore; and
H
76 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
·'
A (ii) appeals against the orders of any State
Commission; and
(b) to call for the records and pass appropriate
orders in any consumer dispute which is pending
before or has been decided by any State
B
Commission where it appears to the National
Commission that such State Commission has
exercised a jurisdiction not vested in it by law, or
has failed to exercise a jurisdiction so vested, or
has acted in the exercise of its jurisdiction illegally
c or with material irregularity."
It is to be noted that at the relevant time, the pecuniary
jurisdiction was twenty lakh rupees for the National
Commission.
D
Jurisdiction of the National Commission
24. It was rightly argued by learned counsel Sri Vinoo
Bhagat that the primary question that arises for our
consideration in this appeal is whether the CA Act and the three
E international conventions in it constitute all the law governing
liabilities of international air carriers arising out·of international
carriage of passengers and goods by air or whether domestic
law can be added or substituted for the provisions of the
conventions. In a nutshell, the submission of the learned
F counsel for the appellant-carrier is that conventions,' viz. Warsaw
Convention, as amended at Hague in 1955 and the Montreal
Convention of 1999 exclusively govern carrier liabilities and,
therefore, a remedy under domestic law cannot be invoked.
G The frame work for the CP Act was provided by a
Resolution dated 09.04.1985 of the General Assembly of the
United Nations Organization, which is commonly known as
Consumer Protection Resolution No.39/248. India is a signatory
to the said Resolution. The Act was enacted in view of the
H aforementioned Resolution of the General Assembly of the
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 77
EXPORTS & ANR. [H.L. DATTU, J.]
United Nations. The preamble to the Act suggests that it is to A
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.
B
· -Section 3 of 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.
25. In Proprietor, Jaba/pur Tractors vs. Sedmal Jainrain
and Anr. 1995 Supp. (4) SCC 107, it is held: C
"The Consumer Protection Act is not in derogation of any
law."
26. In Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi
0
(1996) 6 sec 385, it is held:
"15. Accordingly, it must be held that the provisions of the
Act are to be construed widely to give effect to the o~ject
and purpose of the Act. It is seen that Section 3 envisages
. that the provisions of the Act are in addition to and are not E
in derogation of any other law in force. It is true, as rightly
contended by Shri Suri, that the words "in derogation of
the provisions of any other law for the time being in force"
would be given proper meaning and effect and if the
complaint is not stayed and the parties are not relegated F
to the arbitration, the Act purports to operate in derogation
of the provisions of the Arbitration Act. Prima facie, the
contention appears to be plausible but on construction and
conspectus of the provisions of the Act we think that the
contention is not well founded. Parliament is aware of the G
provisions of the Arbitration Act and the Contract Act, 1872
and the consequential remedy available under Section 9
of the Code of Civil Procedure, i.e., to avail of right of civil
action in a competent court of civil jurisdiction.
Nonetheless, the Act provides the additional remedy." H.
78 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 27. In State of Karnataka vs. Vishwa Bharathi House
Building Co-operative Society and Others (2003) 2 SCC 412,
a three Judge Bench of this Court observed:
"16.... inasmuch as the provisions of the said Act are in
addition to the provisions of any other law for the time
B
being in force and not in derogation thereof as is evident
from Section 3 thereof." ·
28. In the case of Secy., Thirumurugan Coop. Agricultural
Credit Society v. Ma. Lalitha, (2004) 1 SCC 305, this Court
C took the view:
"12. As per Section 3 of the Act, as already stated
above, the provisions of the Act shall be in addition to and
not in derogation of any other provisions of any other law
D for the time being in force. Having due regard to the
scheme of the Act and purpose sought to be achieved to
protect the interest of the consumers better, the provisions
are to be interpreted broadly, positively and purposefully
in the context of the present case to give meaning to
additional/extended jurisdiction, particularly when Section
E
3 seeks to provide remedy under the Act in addition to
other remedies provided under other Acts unless there is
a clear bar.·
29. This Court, in the case of Kishore Lal v. Chairman,
F Employees' State Insurance Corpn. (2007) 4 SCC 579, took
the view:
"7. The definition of "consumer" in the CP Act is apparently
wide enough and encompasses within its fold not only the
G goods but also the services, bought or hired, for
consideration. Such consideration may be paid or
promised or partly paid or partly promised under any
system of deferredpayment and includes any beneficiary
of such person other than the person who hires the service
for consideration. The Act being a beneficial legislation,
H
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 79
EXPORTS & ANR. [H.L. DATIU, J.]
aims to protect the interests of a consumer as understood A
in the business parlance. The important characteristics of
goods and services under the Act are that they are
supplied at a price to cover the costs and generate profit
or income for the seller of goods or provider of services.
The comprehensive definition aims at covering every man .B
who pays money as the price or cost of goods and
services. However, by virtue of the definition, the person
who obtains goods for resale or for any commercial
purpose is excluded, but the services hired for
consideration even for commercial purposes are not c
excluded. The term "service" unambiguously indicates in
the definition that the definition is not restrictive and
includes within its ambit such services as well which are
specified therein. However, a service hired or availed,
which does not cost anything or can be said free of charge, 0
or under a contract of personal service, is not included
within the meaning of "service" for the purposes of the CP
Act."
30. In Skypak Couriers Ltd. v. Tata Chemicals Ltd., (2000) E
1
5 SCC 294, this Court observed:
"2. With the industrial revolution and development in the
international trade and commerce, there has been a
substantial increase of business and trade, which resulted
in a variety of consumer goods appearing in the market F
to cater to the needs of the consumers. The modern
methods of advertisement in media, influence the mind of
the consumers and notwithstanding the manufacturing
defect or imperfection in the quality, a consumer is
tempted to purchase the goods. There has been possibility G
of deficiency in the services rendered. For the welfare of
such consumer and to protect the consumers from the
exploitation to provide protection of the interest of the
consumers, Parliament enacted the Consumer Protection
Act, and the Act itself makes provision for the H
80 SUPREME COURT REPORTS. [2011] 14 (ADDL.) S.~.R.
A establishment of Commissions for settlement of the
consumer disputes and matters connected therewith. The
Commissions, under the Act, are quasi-judicial bodies and
they are supposed to provide speedy and simple redressal
to consumer disputes and for that purpose, they have been
B empowered to give relief of a specified nature and in an
appropriate way, to award compensation ... "
31. This Court in the case of Patel Roadways Limited v.
Birl"i Yamaha Ltd. (2000) 4
I sec 91, has considered this
question and has laid down that the Disputes Redressal
C Agency provided for in the Act will have the jurisdiction to
entertain complaints in which the claim for loss or damage of
goods entrusted to a carrier for transportation is in dispute.
32. In our view, the protection provided under th.e CP Act
o to consumers is in addition to the remedies available under any
other Statute. It does not 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
E Commission is conferred jurisdiction for any cause of action
that arises under the Act. Further, we are not inclined to agree
with the argument of Shri. Bhagat that exercising of jurisdiction
was in contravention of International Law, as the Warsaw
Convention and the Hague Protocol have been incorporated
F into the domestic law by the passage of the CA Act. Therefore,
we do not find any legal infirmity in the National Commission
exercising its jurisdiction, as the 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. Before we conclude on this issue, we
G may usefully notice a three Judge Bench decision of this Court
in the case of Ethiopian Airlines vs. Ganesh Narain Saboo
(Civi/Appeal No. 7037 of 2004) which view is binding on us. It
is held:
H "67. Similarly, the Carriage by Air Act, 1972 explicitly
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 81
EXPORTS & ANR. [H.L. DATTU, J.]
provides that its rules apply to carriage performed by the A
State or by legally constituted public bodies under Chapter
1, Section 2, Sub-section 1. Thus, it is clear that according
to the Indian Law, Ethiopian Airlines can be subjected to
suit under the Carriage Act, 1972. It may be pertinent to
mention that the Carriage by Air Act, 1972 (69 of 1972) B
is an Act to give effect to the Convention for the unification
of certain rules relating to international carriage by air
signed at Warsaw on the 12th day of October, 1929 and
to the said Convention as amended by the Hague Protocol
on the 28th day of September, 1955 and to make provision c
for applying the rules contained in the said Convention in
its original form and in the amended form (subject to
exceptions, adaptations and modification) to non-
international carriage by air and for matters connected
therewith." D
33. However, Shri. Vinoo Bhagat, learned counsel
appearing for the appellant-carrier has placed reliance on the
decisions of foreign courts to contend conventions exclusively
govern carriers' liabilities. We do not wish to refer to all those
decisions, since in our view, this issue is no more res integra E
in view of the decisions of this Court in Ethiopian Airlines,
wherein this Court has observed:
"72. On careful analysis of the American, English and
Indian cases, it is abundantly clear that the appellant F
Ethiopian Airlines must be held accountable for the
contractual and commercial activities and obligations that
it undertakes in lntlia.
73. It may be pertinent to mention that the Parliament has
recognized this fact while passing the Consumer G
Protection Act, 1986 and the Carriage by Air Act, 1972.
Section 86 was itself, a modification and restriction of the
principle of foreign sovereign immunity and thus, by limiting
Section 86's applicability, the Parliament though these
incorrect acts, further narrowed a party's ability to. ~
82 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A successfully plead· foreign sovereign immunity. In the
modern era, where there is close interconnection between
different countries as far as trade, commerce and business
are concerned, the principle of sovereign immunity can no
longer be absolute in the way that it much earlier was.
B Countries who participated in trade, commerce and
business with different countries ought to be subjected to
normal rules of the market. State owned entities would be
able to operate with impunity, the rule of law would be
degraded and international trade, commerce and business
c will come to a grinding halt. Therefore, we have no
hesitation in coming to the conclusion that the appellant
cannot claim sovereign immunity."
National Commission is a 'Court'?
D 34. Shri. Bhagat has cited several decisions of this Court
in which this Court has taken the view that Consumer Forums
are not Courts but are quasi-judicial bodies or authorities or
agencies, in furtherance of his contention that only a Court in
Mumbai has the jurisdiction to try a suit against the appellant-
E carrier and that the National Commission is not a Court. [See
Laxmi Engineering Works v. P. S. G. Industrial Institute, (1995)
3 SCC 583; Charan Singh v. Healing Touch Hospital, (2000)
7 SCC 668; State of Karnataka v. Vishwabharathi House
Building Coop. Society, (2003) 2 SCC 412]. This position has
F been fortified recently by a decision of a Constitution Bench of
this Court in the case of Union of India v. R. Gandhi, President,
Madras Bar Association, (2010) 11 SCC 1, where this Court
has observed:
"38. The term "courts" refers to places where justice is
G administered or refers to Judges who exercise judicial
functions. Courts are established by the State for
administration of justice that is for exercise of the judicial
power of the State to maintain and uphold the rights, to-
punish wrongs and to adjudicate upon disputes. Tribunals
H on the other hand are special alternative institutional
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 83
EXPORTS & ANR. [H.L. DATTU, J.]
mechanisms, usually brought into existence by or under a A
statute to decide disputes arising .with reference to that
particular statute, or to determine controversies arising out
of any administrative law. Courts refer to civil courts,
criminal courts and the High Courts. Tribunals can be either
private tribunals (Arbitral Tribunals), or tribunals constituted B
under the Constitution (Speaker or the Chairman acting
under Para 6(1) of the Tenth Schedule) or tribunals
authorised by the Constitution (Administrative Tribunals
under Article 323-A and tribunals for other matters under
Article 323-8) or statutory tribunals which are created c
under a statute (Motor Accidents Claims Tribunal, Debt
Recovery Tribunals and Consumer Fora). Some Tribunals
are manned exclusively by Judicial Officers (Rent Tribunals,
Motor Accidents Claims Tribunal, Labour Courts and
Industrial Tribunals). Other statutory tribunals have judicial
0
and technical members (Administrative Tribunals, TDSAT,
Competition Appellate Tribunal, Consumer Fora, Cyber
Appellate Tribunal, etc.)
E
45. Though both courts and tribunals exercise judicial
power and discharge similar functions, there are certain
well-recognised differences between courts and tribunals.
They are:
F
(i) Courts are established by the State and an'! entrusted
with the State's inherent judicial power for administration
of justice·in general. Tribunals are established under a
statute to adjudicate upon disputes arising under the said
statute, or disputes of a specified nature. Therefore, all
courts are tribunals. But all tribunals are not courts. G
(ii) Courts are exclusively manned by Judges. Tribunals
can have a Judge as the sole member, or can have a
combination of a judicial member and a technical member
who is an "expert" in the field to which the tribunal relates. H
84 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Some highly specialised fact-finding tribunals may have
only technical members, but they are rare and are
exceptions.
(iii) While courts are governed by detailed statutory
procedural rules, in particular the Code of Civil Procedure
B
and the Evidence Act, requiring an elaborate procedure
in decision making, tribunals generally regulate their own
procedure applying the provisions of the Code of Civil
Procedure only where it is required, and without being
restricted by the strict rules of the Evidence Act."
c
35. In the case of Bharat Bank Ltd. v. Employees, 1950
SCR 459, this Court took the view that to be a court, the person
or persons who constitute it, must be entrusted with judicial
functions, that is, of deciding litigated questions according to
D law. This Court further observed that before a person or
persons can be said to constitute a court, it must be held that
they derive their powers from the State and are exercising the
judicial powers of the State. In State· of Bombay v. Narottamdas
Jethabhai, 1951 SCR 51, this Court held that the word "Court"
E denoted a place where justice was judicially administered,
having been vested the jurisdiction for this purpose by the State.
In the case of Brajnandan Sinha v. Jyoti Narain, (1955) 2 SCR
955, it was held that in order to constitute a "Court" in the strict
sense of the term, an essential condition is that the Court should
F have, apart from having some trappings of a judicial tribunal,
power to give decision or a definitive judgment which has finality
and authoritativeness which are the essential tests of a iudicial
pronouncement. This Court, in Ram Narain v. The Simla
Banking and Industrial Co. Ltd., AIR 1956 SC 614, held that
G a Tribunal which exercised jurisdiction for executing a decree
would be a "court" for the purpose of the Banking Companies
Act.
36. While examining the Contempt of Courts Act, 1971, a
Constitution Bench of this Court in Baradakanta Mishra v.
H
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 85 ·
EXPORTS & ANR. [H.L. DATTU, J.]
Registrar of Orissa High Court, (1974) 1 SCC 374, observed: A
"68. What then is a court? It is
"an agency of the sovereign created by it directly or
indirectly under its authority, consisting of one or more
officers, established and maintained for the purposes of B
hearing and determining issues of law and fact regarding
legal rights and alleged violations thereof, and of applying
the sanctions of the law, authorised to exercise its powers
in due course of law at times and places previously
determined by lawful authority." Isbill v. Stovall, Rex. Civ. C
App. 92 SW 2d 1057, 1070." ... "
37. In State of Tamil Nadu v. G.N. Venkataswamy, (1994)
5 SCC 314, this Court observed that the primary function of a
Court was to adjudicate disputes, Vllhile holding that a Collector .o
constitutes a Revenue Court within the meaning of Entry 11-A
of the List, Ill of the Seventh Schedule of the Constitution. In
Canara Bank v. Nuclear Power Corpn. of India, (1995) Supp .
3 SCC 81, this Court observed:
"26. In our view, the word 'court' must be read in the E
context in which it is used in a statute. It is permissible,
given the context, to read it as comprehending the courts
of civil judicature and courts or some tribunals exercising
curial, or judicial powers ... "
F
This Court also quoted, with approval, the Halsbuf} 's Laws
of England and observed thus:
"29. In Halsbury's Laws of England (4th Edn., Vol. 10,
paras 701 and 702), this is observed:
G
"701. Meaning of 'court'. Originally the term 'court' meant,
among other things, the Sovereign's palace. It has acquired .
the meaning of the place where justice is administered and,
further, has come to mean the persons who exercise
judicial functions under authority derived either directly or H
86 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A indirectly from the Sovereign. All tribunals, however, are not
courts, in the sense in which the term is here employed.
Courts are tribunals which exercise jurisdiction over
persons by reason of the sanction of the law, and not
merely by reason of voluntary submission to their
B jurisdiction. Thus, arbitrators, committees of clubs and the
like, although they may be tribunals exercising judicial
functions, are not 'courts' in this sense of that term. On the
other hand, a tribunal may be a court in the strict sense of
the term even though the chief part of its duties is not
judicial. Parliament is a court. Its duties are mainly
c deliberative and legislative; the judicial duties are only part
of its functions. A coroner's court is a true court although
its essential function is investigation. ·
702. What is a court in law. The question is whether the
D tribunal is a court, not whether it is a court of justice, for
there are courts which are not courts of justice. In
determining whether a tribunal is a judicial body the facts
that it has been appointed by a non-judicial authority, that
it has no power to administer an oath, that the chairman
E has a casting vote, and that third parties have power to
intervene are immaterial, especially if the statute setting it
up prescribes a penalty for making false statements;
elements to be considered are (1) the requirement for a
public hearing, subject to a power to exclude the public in
F a proper case, and (2) a provision that a member of the
tribunal shall not take part in any decision in which he is
personally interested, or unless he has been present
throughout the proceedings.
A tribunal is not necessarily a court in the strict sense of
G exercising judicial power merely because (1) it gives a final
decision; (2) it hears witnesses on oath; (3) two or more
contending parties appear before it between whom it has
to decide; (4) it gives decisions which affect the rights of
H
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 87
EXPORTS & ANR. [H.L. DATIU, J.]
subjects; (5) there is an appeal to a court; and (6) it is a A
body to which a matter is referred by another body.
Many bodies are not courts even though they have to
decide questions, and in so doing have to act judicially,
in the sense that the proceedings must be conducted with
8
fairness and impartiality. Examples are the benchers of
the Inns of Court when considering the conduct of one of
their members, the disciplinary committee of the General
Medical Council when considering questions affecting the
conduct of a medical man, a trade union when exercising
disciplinary jurisdiction over its members .... " C
-
30. These passages, from the earlier edition of Halsbury,
were cited by this Court in Thakur Jugal Kishore Sinha v.
Sitamarhi Central Coop. Bank Ltd. The question there was
whether the provisions of the Contempt of Courts Act D
applied to a Registrar exercising powers un~er Section
48 of the Bihar and Orissa Cooperative Societies Act. It
was held that the jurisdiction of the ordinary civil and
revenue courts of the land was ousted in the case of
disputes that fell under Section 48. A Registrar exercising E
powers under Section 48, therefore, discharged the duties
which would otherwise have fallen on the ordinary civil and
revenue courts. He had not merely the trappings of a court
but in many respects he was given the same powers as
Were given to the ordinary civil courts of the land by the F
Code of Civil Procedure, including the power to summon
and examine witnesses on oath, the power to order
inspection of documents, to hear the parties after framing
issues, to review his own order and to exercise the
inherent jurisdiction of courts mentioned in Section 151. G
In adjudicating a dispute under Section 48 of the Bihar
Act, the Registrar was held to be "to all intents and
purposes a court discharging the same functions and
duties in the same manner as a court of law is expected
to do".
H
88 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 38. The aforesaid observation has been strongly relied
upon by Shri. Jaideep Gupta in reply to the contention of Shri.
Bhagat that the National Commission was not a Court, and
therefore, lacked jurisdiction to decide the complaint filed by
the opposite party. In P. Sarathy v. State Bank of India, 2000
B (5) SCC 355, this Court took the view that the term "Court" in
Section 14 of the Limitation Act, 1963, meant any authority or
tribunal having the trappings of a court. It may also be relevant
to notice that a Constitution Bench of this Court in the case of
Kihoto Ho/lohon v. Zachil/hu, (1992) Supp (2) SCC 651 held
c that all Tribunals may not be Courts, but all Courts are Tribunals.
39. Now let us look at the definition of the term "Court" as
commonly understood. The Oxford Advanced Learner's
Dictionary [8th Edition] defines it as "the place where legal
trials take place and where crimes, etc. are judged." The
D Oxford Thesaurus of English [3rd Ed] gives the following
synonyms: "court of law, law court, bench, bar, court of justice,
judicature, tribunal, forum, chancery, assizes, courtroom". The
Chamber's Dictionary [10th Ed.] has described a court as "a
body of person assembled to decide causes". In Stroud's
E Judicial Dictionary [5th Ed], the word "court" has been described
as "a place where justice is judicially ministered, and is
derived", and is further observed, "but such a matter involves
a judicial act which may be brought up on certiorari".
F 40. The above dictionary meaning and decision ofthis
Court in the case of Canara Bank (Supra.) and also the
observations of the Constitution Bench decision of this Court
in the case of R. Gandhi (Supra.) reveal that word "Court" must
be understood in the context of a body that is constituted in order
G to settle disputes and decide rights and liabilities of the parties
before it. "Courts" are those bodies that bring about resolutions
to disputes between persons. As already mentioned, this Court
has held that the Tribunal and Commissions do not fall under
the definition of "Court". However, in some situations, the word
H "Court" may be used in a wide, generic sense and not in a
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 89
EXPORTS & ANR. [H.L. DATIU, J.]
narrow and pedantic sense, and must, in those cases, be A
interpreted thus.
41. In State of Karnataka v. Vishwabharathi House
Building Coop. Society, (2003) 2 SCC 412, this Court took the
view that there is a legal fiction created in giving tribunals like 8
the Consumer Forum the powers of a Court. It was held:
"57. A bare perusal of Section 25 of the Act clearly
shows that thereby a legal fiction has been created to the
effect that an order made by District Forum/State
Commission or National Commission will be deemed to C
be a decree or order made by a civil court in a suit. Legal
fiction so create,d has a specific purpose i.e. for the
purpose of execution of the order passed by the Forum
or Commission. Only in the event the Forum/State
Commission or the National Commission is unable to D
execute its order, the same may be sent to the civil court
for its execution. The High Court, therefore was not correct
to hold that in each and every case the order passed by
the District Forum/State Commission/National
Commission are required to be sent to the civil courts for E
execution thereof.
58. Furthermore, Section 27 of the Act also confers
an additional power upon the Forum and the
Commission to execute its order. The said provision is
F
akin to Order 39 Rule 2-A of the Code of Civil Procedure
or the provisions of the Contempt of Courts Act or
Section 51 read with Order 21 Rule 37 of the.Code of
Civil Procedure. Section 25 should be read in
conjunction with Section 27. A parliamentary statute
indisputably can create a tribunal and might say that non- G
compliance with its order would be punishable by way of
impriscnment or fine, which can be in addition to any
other mode of recovery." ·
42. The use of the word "Court" in Rule 29 of the Second H
90 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Schedule of the CA Act has been borrowed from the Warsaw
Convention. We are of the view that 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
B 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 Forums are all clearly
enumerated by the CP Act. Though, these Forums decide
C matters after following a summary procedure, their main function
is still to decide disputes, which is the main function and
purpose of a Court. We are of the view that for the purpose of
the CA Act and the Warsaw Convention, the Consumer Forums
can fall within the meaning of the expression "Court".
D 43. This view of ours is fortified by the decision of this Court
in the case of Patel Roadways Ltd (supra) where this Court
has held that a complaint before the Consumer Forum is within
the meaning of the term "suit" as employed by Section 9 of the
Carriers Act, 1865. In other words, we are of the view that when
E it comes to legislations like the CP Act, there can be no
restricted meaning given to the word "Court''. Hence, we reject
the argument of Shri. Bhagat that the National Commission is
not a "Court" within the meaning of Rule 29 of the Second
Schedule of the CA Act.
F
Deficiency of Service
44. Shri. Vinoo Bhagat, learned counsel appearing for the
appellant-carrier, would contend that there was no deficiency
of service on the part of the appellants. He would point out that
G the appellant-carrier had delivered the consignment to the
address that was given by the consignor in tt:e box with the title
"Consignee's Name and Address". He would further state that
the only party in the consignee box with a name and an address
was that of M/s. Liwe Espanola S.A. He would assail the
H findings of the National Commission that there was a deficiency
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 91
EXPORTS & ANR. [H.L. DATIU, J.) ·
of service on the part of the appellant-carrier for not having A
delivered the· consignment at the correct address, and state that
"BBSAE, MADRID, SPAIN" was not ·identifiable address to
which any delivery of goods could be made. He would also
state that there was no way of finding out that the consignment
was to be made to a Bank. Shri. Bhagat would lay emphasis B
on the fact that it was the duty of the consignor to place the
correct address and particulars while making the airway bill,
by placing reliance on the Air Cargo Tariff Rules framed and
notified by IATA. He states that the entire responsibility for the
correct address of the consignee falls upon the consignor and c
there is no obligation on the part of the carrier or shipper to
ensure that the address is correct. The carrier, Shri. Bhagat
would submit, is only responsible to ensure the contents of the
consignment and not the addressee. He would further submit
that it would not be practical for the carrier to check the
authenticity of the address in the consignee box for each and D
every consignment and that they would only check if there is
an address or not.
45.The learned counsel, Shri. Bhagat would also contend
that the consigner did not invoke the rights under the Warsaw E
Convention for the non-arrival of goods in a timely manner and
as a result, was disentitled to later complaining about the lost
consignment. He would then refer to Clause 12 of the airway
bill and state that if the notice was not given by the consignor
within a period of 120 days, then the claim would get F
extinguished. He would further contend that neither the
consignee nor the consignor invoked their rights under Article
13(3) and Article 14 at any time. This fact sufficiently proves,
according to the learned counsel, that the claim made is not
genuine. , G
46. Before the National Commission, appellant-carrier had
filed the affidavit of Mr. Daulat Kripalani, who was working as
Manager of the appella.nt-carrier in India. In the affidavit, it is
stated that the consignor must provide all the information of the
consignee and further. the consignor did not give the address H
92 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A of the consignee even when it is asked for and it was also not
informed to them tha.t the goods must be released after
obtaining appropriate credit. It is the responsibility of the
consignor to give full particulars of the consignee as provided
in IATA Regulations. It is also stated that Barclays Bank has
B several offices in Madrid and the Bank did not receive any
letters of credit (L/C) from Canara Bank, Bangalore. It is also
stated that L/C was not attached to the airway bill and,
therefore, there was no way of finding out that the consignment
was addressed to the Bank. It is also stated that if the name
c and address of the Bank was not given in full, the custom
authorities would not have released the goods. He also states
that there was delay in approaching the air carrier after
shipment of th~ goods, which would disentitle them from making
any claim.
D 47. The appellant has also filed the affidavit of Khaled El
Tameer, Asstt. Vice President, lnc;urance claims, who has also
stated in the same lines on that of Mr. Daulat Kripalani. In his
cross-examination, he has stated that it is the responsibility of
the agent of the consignor to furnish all required documents and
E they would accept the Airway bill on the basis of the documents
furnished by the agent.
48. The cargo agent/respondent No.2 has filed the affidavit
of Mr. Anil Vazirani, who is the partner of the firm. He has stated
F that the airway bills are prepared as per the instructions of the
consignor and the abbreviations used in the airway bills are
universally known and in the dispute between the appellant-
carrier and the consignor, it has no role to play and they are
also not liable for any damages for any deficiency of service.
G 49. Mr. Rajendra Hinduja - partner of the consignor, has
filed his affidavit. He has stated in his affidavit that the address
of BBSAE has been given to notify the party, who is the
consignee. The same stands for Barclays Bank, Madrid. It is
also stated that since they did not receive the value of the
H consignment, they had made several oral enquires with the
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 93
EXPORTS & ANR. [H.L. DATTU, J.]
appellant-carrier and since they did not get positive response, A
they made written correspondence in the year 1993.
50. All the witnesses, who had filed their affidavit by way
of examination-in-chief, have been cross examined by the
contesting parties. B
51. The learned counsel Sri Vinoo Bhagat would contend
that in the airway bill, the consignor had indicated the name of
the consignee as M/s. LIWE ESPANOLA in the consignee box
and, therefore, the consignor could not have expected the
carrier to have delivered the consignment to BBSAE, Madrid, C
Spain. The airway bill is one of the documents produced along
with the Memorandum of civil 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 D
LIWE ESPANOLA is mentioned. It has come in t~e 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 is only
Barclays Bank, Madrid. It is the stand of the appellant-carrier E
that BBSAE, Madrid is not the consignee and further, 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, the consignment is delivered to the F
notified party and, therefore, it cannot be said that there was
deficiency of service. We cannot agree. The consignor, through
his agent, has stated that iri the airway bill that is handed over
to the appellant-carrier, in the consignee box, the name of
BBSAE, Madrid is specifically mentioned. If, for any reason, the G
appellant-carrier was of the view that the name of the consignee
is 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. In our view,
at this belated stage, the appellant-carrier cannot shift the H
94 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A . burden by contending that it was 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,
B 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
r.ot been done, the National Commission was justified in
c holding that there is deficiency of service on the part of the
carrier in not effecting the delivery of goods to the consignee.
52. Learned counsel for the appellant-carrier has
contended that by virtue of Articles 6, 1O and 16 of the Rules,
the consignor is required to make the airway bill and they are
D only responsible for correctness of the airway bill and
consequences of errors in it and the carrier is not required to
check correctness of consignors documents. We have already
noticed the relevant rules. Repetition of it may not be necessary.
Rule 6 of the Rules envisages that the airway bill requires to
E be made by the consignor and handed over the same to the
carrier with the cargo. Rule 10 stipulates that the consignor is
resporisible for the correctness of the particulars and
statements relating to the cargo which he inserts in the airway
bill. Sub-clause (2) of Article 1Oprovides that the consignor shall
F 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. Rule 16
provides that the consignor should furnish all the information
G and attach it to the airway bill to meet the requirements of law
enforcing agencies. In the present case, as we have already
noticed that the consignor had furnished all the relevant
information in the airway bill which would satisfy th~
requirements of both Rule 6 and 16 of the rules and, therefore·;
H the consignor cannot be accused of not furnishing the correct'
TRANS MEDITERRANEAN AIRWAYS v.. UNIVERSAL 95
EXPORTS & ANR. [H.L. DATTU, J.]
particulars and information in the airway bill which is handed A
over to the appellant-carrier with the cargo. In our view, the
appellant-carrier cann'ot absolve its 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 e
of the consignee was inadequate is difficult to accept. There
is evidence 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. c
53. The learned counsel also submits that the consignor,
having not invoked Article 14 of the Rules within a reasonable
time, is disentitled to make any complaints before any forum,
much less National Commission. We are not impressed with
the arguments canvassed. Rule 14 ·confers the right on the D
consignor to make complaint to the 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 E
the consignee 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 !he
appellant-carrier, nothing worthwhile is elicited. Therefore, in the F
absence of any contrary evidence, the statement made by the
consignor and its witness require to be accepted.
54. It is also contended that Clause 12 of the Conditions
. of Contract printed on the reverse of airway bill requires that G
the person entitled to delivery must make a complaint to the
carrier in writing in the case of non delivery of the goods within
120 days from the date of the issue of the airway bill. If not done
within the time stipulated, claim, if any, against the carrier
extinguishes. Per contra, Shri Jaideep Gupta, learned senior H
96 SUPREME COURT REPORTS [2011] 14 (ADDL.) $.C.R.
A counsel, submits that under CP Act, the cause of action does
not depend on any notice in writing being served on the carrier
unlike in certain other Statutes. While considering this issue,
the National Commission, in the impugned Judgment, has
concluded:
B
"In our view, this submission cannot be accepted.
First!Y, Clause (12) only provides that the persons entitled
to delivery must make a complaint to the carrier in writing,
in case of non-delivery of the goods within 120 days from
the date of issue of airway bill. There is no question of
c delivery of goods to the shipper/Complainant. Further, it
cannot control the period of limitation provided under 'the
Act'. Rule 29(2), upon which heavy reliance was placed by
the Respondent, also nowhere provides that it should be
filed within 120 days. On the contrary, Rule 29(2)
D specifically provides that Questions of procedure shall be
governed by the law of the Court seized of the case.
In addition, Rule 30 of the second Schedule leaves
no doubt that the right to damages shall be extinguished
E only if the action is not brought within two years as provided
therein. It reads thus:
"30(1). The right to damages shall be extinguished
if an action is not brought within two years,
reckoned from the date of arrival at the ilestination,
F or from the date on which the aircraft ought to have
arrived, or from the date on which the carriage
stopped.
(2) The method of calculating the period of limitation
G shall be determined by the lnw of the Court seized
of the case."
The Complainant entru$ted the goods to the. carrier
on 25th August, 1992 and the goods reached Madrid on
H
TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL 97
EXPORTS & ANR. [H.L. DATTU, J.]
3rd September, 1992. Admittedly, the complaint is filed A
within a period of 2 years.
Further, Rule 33 which is quoted above, upon which
heavy reliance was placed by the learned Counsel Mr.
Bhagat for Opposite Party No.1, in contending that this
8
Commission would have no jurisdiction to decide the
matter, specifically provides that any clause contained in
the contract entered into before the damage occurred by
which the parties purport to infringe the rules laid down by
the schedule, whether by deciding the law to be applied, C
or by altering the rules as to the jurisdiction, ·shall be null
and void'.
Hence, Clause 12 of the airway bill would not be of
any ground for holding that petition filed by the
Complainant is barred by period limitation (sic.)." D
55. We are in total agreement with the conclusion reached
by the National Commission. Therefore, we do not see any
merit in the contention canvassed by the learned counsel for
the appellant-carrier: E
56. We conclude that the National Commission has
jurisdiction to decide the dispute between the parties and it is
a Court and that there was deficiency in service by the
appellant-carrier.
F
57. In view of the above discussion, we do not see any
merit in this appeal. Accordingly, it is dismissed. Parties are
directed to bear their own costs.
D.G. Appeal dismissed. G
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