1. THIS First Appeal has been filed by the Complainant/Appellant seeking enhancement of the compensation against the judgment and order dated 20.01.09 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission '') in Complaint Case No. 293/2000 whereby the State Commission while partly allowing the complaint has directed the Respondent No.1 to pay a lump sum compensation of Rs.1 lakh to the Complainant. Rs.10,000/- were awarded as costs of litigation.
2. COMPLAINANT /Appellant was dealing in the business of manufacturing, selling and export of readymade garments. On receiving an order for supply of cotton readymade shirts from its overseas buyer, Chalco S.A, Respondent No.2 herein (O.P.No.2 before the State Commission), Appellant entrusted two consignments of cotton men shirts to the Alitalia Airlines - Respondent No.1 herein (O.P.No.1 before the State Commission) for its carriage by air from New Delhi to Barcelona against the Airways Bills No.055-4541-1704 dated 19.04.99 and No.055-4541-1785 dated 24.04.99. Respondent Airlines assured the complainant that the consignment booked on 09.04.99 and 24.4.99 would be delivered to the Respondent No.2 at Barcelona by 19.4.99 and 30.04.99 respectively. None of these consignments reached Barcelona on the scheduled time. On enquiry made by the Appellant, Respondent Airlines informed them that the part of the consignment would reach Barcelona on 3.05.99 and that a worldwide tracer message had been sent to locate the remaining part of the Cargo. Both these consignments reached Barcelona on 06.05.99. According to the Appellant, at the time of taking delivery of the consignments, it was found that the goods were in wet and damaged condition and most of the shirts were missing from many cartons. Complainant/Appellant lodged the claim with the Respondent Airlines for the damages. Respondent No.2 also lodged a claim of Rs.3,39,700/- with the Appellant for damaged and missing garments. Respondent Airlines offered a sum of Rs.50,000/- towards full and final settlement which was not accepted by the Appellant. Being aggrieved, Complainant filed the complaint before the State Commission claiming a compensation of Rs.5,00,000/- towards the loss suffered by them.
Respondent Airlines, on being served, entered appearance and filed its written statement. It was pleaded that one of the consignments booked against Airway Bill No.055-4541-1704 dated 09.04.99 from New Delhi to Barcelona weighed 1422 kgs. and the other consignment containing read-made garments booked against Airways Bill No.055-4541-1785 dated 24.04.99 weighed 268 Kgs. It was stated that no value of the goods was declared in the said two consignments and the time was not the essence of the contract. That no assurance was given to deliver the consignments at Barcelona by 19.04.99 and 30.04.99. It was further pleaded that only few contents were missing and damaged and as per terms and conditions of the contract as laid down in the Air Way Bill, they were liable to pay 20 dollars per kg. That as a goodwill gesture, a sum of Rs.50,000/- towards full and final settlement was offered which was not accepted by the Appellant.
3. APPELLANT filed its rejoinder and affidavit in evidence reiterating its claims and contentions against the Respondents and refuting the averments made in the written statement. Respondent also filed its affidavit in evidence in support of its defence.
4. STATE Commission, after perusal of the pleadings and evidence, came to the conclusion that though there was neither any specific stipulation in the AWB as to the date of delivery of the consignments to the consignee nor was the value of the consignment declared but yet the consignments were required to be delivered within a reasonable time. That there was not only delay in delivery of the consignments but also a part of the consignments was delivered in a damaged condition. That the liability of the Respondent Airlines was limited to pay US$ 20 per kg. as per the terms and conditions of the contract. Keeping in view all these factors, State Commission concluded that the sum of Rs.50,000/- offered by the Respondent Airlines was not adequate and accordingly directed the Respondent Airlines to pay a sum of Rs.1 lakh to the Appellant besides Rs.10,000/- as costs of litigation.
Respondent Airlines has accepted the order of the State Commission. Appellant/complainant, being aggrieved, has filed the present appeal.
5. RESPONDENT Airlines despite service of notice by way of publication have not appeared and are proceeded ex-parte. Learned Counsel for the Appellant has been heard.
6. WE agree with the view taken by the State Commission. There was no specific stipulation in the Airways Bill(AWB) as to the date of delivery of the consignments to the consignee. The value of the consignments was also not declared in the AWB. In the absence of declared value of the consignments in AWB, the liability of the Respondent Airlines was limited as per the terms and conditions of the contract laid down in the AWB. Though there was no specific stipulation in the AWB as to the date of delivery of the consignments but the Respondent Airlines was required to deliver the goods in a reasonable time. The goods had been received in damaged condition. Respondent Airlines had offered to pay Rs.50,000/- towards full and final settlement which was not accepted by the Appellant. Quantity and quality of the goods damaged was also not proved by the Appellant. In the absence of the declared value of the goods in AWB, the compensation has to be awarded on guess work. Appellant has failed to adduce any evidence to prove the actual damage suffered by them. In the absence of such evidence, we concur with the State Commission on the finding and the quantum awarded by it. No ground for enhancement of the compensation and interference with the impugned order passed by the State Commission is made out. Appeal is dismissed. Appeal dismissed.
