seeks judgement as well as advice
ASHUTOSH
(Querist) 04 July 2008
This query is : Resolved
respecteted all experts my qurey is iam a private limited company dealing in freight forwarding and custom clearence agent one of my client which is suitabel to say ultimate consigeen. i have handel handel a consigment on the basis of my client from canda a 30 packet of some cotton yarn at at airport when i receive the packet out of 30 packet 5 packet was missing we intemate to air india they state wait some time packet come on other flight in nut shell no packet we have receive air india given a shorland certificate for missing the packet my client has debited my account due to loss of his consigment and my client who is ultimate consignee has lodge his claim before air india but air india refuse to pay they said to me you have to lodge claim with in 120 days as per carrage by air act and they refuse claim on technecally you have not file the claim because your name is written on Airways bill and claim lodge by ultimate consignee pls tell any judgement and gide iam moving case in consumer court and tell the defenation of ultimate consignee and claim either file by ultimate consignee or me is same
awating reply
ashutosh
KamalNayanSaxena
(Expert) 04 July 2008
Dear Mr. Ashutosh
I am referring a judgement of Supreme Court, I understand it will help you:
AIR 1974 SUPREME COURT 923 "Trustees of Port of Bombay v. Premier Automobiles Ltd.
Coram : 3 D. G. PALEKAR, V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.
A) Bombay Port Trust Act (6 of 1879), S.87 - WORDS AND PHRASES - "Any thing done, or purporting to have been done in pursuance of this Act" - Meaning of - Accrual of the cause of suit - Starting point of limitation.
Section 87 is attracted not merely when an act is committed but also when an omission occurs in the course of the performance of the official duty. The act-omission complex, if it has a nexus to the official function of the Board and its officers, attracts limitation under Section 87. Section 87 insists on notice of one month. This period may legitimately be tacked on to the six months" period mentioned in the section. The starting point of limitation is the accrual of the cause of action. Two components of the "cause" are important. The date when the plaintiff came to know or ought to know with reasonable deligence that the goods had been landed from the vessel into the port. Two clear, though not conclusive indications of when the consignee ought to know are (i) when the bulk of the goods are delivered, there being short delivery leading to a suit, (ii) 7 days after knowledge of the landing of the goods suggested in Section 61A. Whichever is the later date ordinarily sets off the running of limitation. Letters of assurances that the missing packages are being searched for cannot enlarge limitation, once the goods have landed and owner has come to know of it. To rely on such an unstable date as the termination of the search by the bailee is apt to make the law uncertain, the limitation liable to manipulation and abuse of other types to seep into the system.
H. S. Thukral
(Expert) 05 July 2008
If you want to take the transporter/airliner to the Consumer Court in your name, you may not succeed but it is possible to claim by getting a letter of subrogation and power of attorney from the consignee to sue the airliner.
In this regard judgment of SC in Oberoi Forwarding Agency v New India Assurance
2000 AIR (SC) 855 is suggested for further reading. There are several HC judgments relying upon SC. You may refer them to frame your case within the parameters of consumer law.
Rajan Salvi
(Expert) 28 November 2008
Please give more details. rajan.salvi11@gmail.com
