Judgment:
A.P. Chowdhri, President:
1. Brief facts necessary for the disposal of this miscellaneous application are that the complainant, which is an export house, booked two consignments with opposite parties 1 and 2 i.e. Lufthansa German Airlines and Customer Relations Cargo of the said airlines for being delivered to Ceskoslowenska Obchodni Banka Delopotckeroz Bratislava (formerly CSFR). The goods are stated to have been delivered without making payment in contravention of the direction of the consignor and, accordingly, the present complaint was filed for the recovery of Rs. 19,65,874/- on various counts. In the written statement filed by opposite party 1 it was, inter alia, stated that it was Czechoslovak Airlines which was responsible for release of the consignment under the two airways bills dated 4.1.1992 and 22.6.1992 and, therefore, the said airlines was a necessary party to the present complaint. The said necessary party, having not been impleaded, it was pleaded, the complaint was liable to be dismissed. In the rejoinder, filed by the complainant, it was stated that the fact that the shipment was carried by Czechoslovak Airlines was not known to the complainant. The opposite party never informed the complainant about this fact and the opposite party was liable to pay the claimed amount. It was further stated that the Czechoslovak Airlines was not a necessary party as there was no privity of contract between the complainant and the said airlines. Both the parties filed their affidavits and the case became ripe for final arguments. When the case came up for hearing on 19.3.1997, the present application under Order I Rule 10(2) of the Code of Civil Procedure was made by the opposite party seeking to implead Czechoslovak Airlines as additional opposite party. The application has been opposed. We have heard Miss Aparna Bhatt, Advocate for the applicant (opposite party in the main case) and Mr. N.N. Anand, Advocate for the respondent in the misc. application, who is complainant in the main case.
2. The contention of Miss Bhatt is that in the airway bill, it was expressly stated that it was open to the opposite party, hereinafter referred to as the Carrier, to appoint a sub-agent in order to effect delivery of the goods. In reply to the legal notice sent by the complainant the complainant had been duly informed of the fact that the consignment had been handed over to Czechoslovak Airlines and their liability was co-extensive with that of the Carrier. She further contended that unless it was known as to what happened to the consigned goods, it would not be fair and proper to burden the Carrier with total liability. The only airline which is in a position to furnish the relevant information was the Czechoslovak Airlines and the said airline was jointly and severally liable to settle the claim if any of the complainant along with the opposite party Miss Bhatt also contended that as would be seen from the letter dated 20.1.1994 the Carrier had taken up the matter with Czechoslovak Airlines asking them to settle the complainant's claim failing which the Carrier would be obliged to sue them in the appropriate Court/Forum. In other words, if the present application is not allowed the carrier would be obliged to initiate separate proceedings against the said airline resulting in multiplicity of proceedings which is against public policy.
3. The contention of Mr. Anand, on the other hand, is that there is no privity of contract between the complainant and Czechoslovak Airlines and according to the complainant, the Carrier was liable. Mr. Anand submitted that it was a different matter that, in turn, the Carrier may have their remedy against Czechoslovak Airlines for recovery of the amount, which they may be made to pay as a result of these proceedings. According to Mr. Anand, the Czechoslovak Airlines was not a necessary party and the complainant being dominus and litus was not bound to implead the said Airlines in these proceedings. Mr. Anand invited our attention to the provisions of Rule 30(3) of Schedule 1 of the Carriage by Air Act, 1972. He also placed reliance on M/s. Anil Co. v. Air India and Ors., AIR 1986 Delhi 312 and R. Balraj v. Manager, Grindley Bank and Ors., I (1996) CPJ 304 (NC).
4. Order 1 Rule 10 of the Code of Civil Procedure has not in terms been made applicable to proceedings under the Consumer Protection Act by virtue of Section 13 of the Act. It is, however, not disputed that the underlying principles of Code of Civil Procedure apply to proceedings before the Forum, deference in this connection may be made to Branch Manager, LIC of India and Anr. v. Smt. Zarina Suleman, I (1995) CPJ 4 (NC). It follows that the principles underlying Order 1, Rule 10 without its technical region are required to be followed,
5. The next question arising for consideration is whether there is any justification for impleading Czechoslovak Airlines when there is no privity of contract between the complainant and the said airlines. A complete reply to this question is furnished by provisions of Rule 30(1) of Schedule 1 of the Carriage by Air Act, 1972 which lays down that in the case of carriage to be performed by various successive carriers falling within the definition set out in Sub-rule (4) of Rule 1, each carrier, who accepts passenger's luggage or goods is subjected to the rules set out in the said schedule and is deemed to be one of the contracting parties to the contract of carriage insofar as the contract deals with that part of the carriage which is performed under his supervision. By fiction of law, therefore, the Czechosolvak Airlines would be deemed to be a party to the contract for having undertaken to deliver the goods to the consignee in accordance with the directions of the consigner. In M/s. Anil and Co. also it was accepted by the High Court that the liability of different carriers with regard to the consigned goods remained joint and several vide Para 13 of the report at page 315. In case, Czechoslovak Airlines is not impleaded, it would oblige the opposite party to institute fresh proceedings against the said airlines resulting in multiplicity of proceedings, which is against public policy. On the other hand, in case, the Czechoslovak Airlines is impleaded, it would be in a position to render an explanation as to how the consigned goods were dealt with. The decision in R. Balraj's case (supra) is distinguishable on the ground that in the facts of that case, it was held that there was no privity of contract between the complainant and the State Bank of India, which is not so in the facts of the present case.
6. After careful consideration, we are of the view that it would be in the interests of justice if the Czechoslovak Airlines is impleaded as opposite party No. 3. Miss Bhatt, in the course of arguments, submitted that there is no intention to delay the decision of this case and the opposite parties would undertake to serve the said Airlines by taking dasti notice. For the foregoing reasons, we allow the application subject to payment of Rs. 1,000/- as costs. Necessary particulars of the Czechoslovak Airlines with complete address be furnished by the opposite party within one week and notice to the added opposite party namely Czechoslovak Airlines be issued for 26th May, 1997 dasti. A copy of this order be furnished to both sides free of costs.
Application allowed.