JUDGMENT - A.A. HALBE, President.:---The opposite party-Ethiopian Airlines has raised an important objection to the maintainability of the complaint on the ground that Ethiopian Airlines is owned by Government of Ethiopia, and that there is no permission of the Central Government. Under section 86(1) C.P.C., the consent of Government of India is a must and that the same is absent here and in absence of such permission, the proceedings stand vitiated and non-est. This objection requires serious consideration in our view because all other facts do not appear to be very much in controversy. The other question regarding jurisdiction, liability of the common carrier are settled by various cases. 2.The few facts are that the complainant No. 1 entrusted 40 cartons of medicines to the opposite party with destination Dar-Es-Salaam international airport on or about 26-4-94. Out of these 34 cartons were delivered, there was short delivery of 6 cartons valued at Rs. 3,65,777/-. The short delivery of 6 cartons has been confirmed in the delivery note dated 31-5-94 of Transit Ltd., Dar-Es-Salaam Airport Handling Co. Ltd. The letter to this effect is dated 9-9-94. The complainant No. 1 subrogated the claim in favour of complainant No. 2-New India Assurance Co. The complainants have claimed that amount plus cost with interest in all Rs. 5,27,457/-. 3.The opposite party in their affidavit by the Manager-original Director of the Ethiopian Airlines has stated that the opposite party was entrusted with the work of transportation of 40 cartons and that there was short delivery of 6 cartons. However, it is stated that the opposite party is wholly owned government undertaking of the Government of Ethiopia which is a foreign State and hence in absence of permission of the Central Government, the claim is not maintainable. We believe that this question has been extensively dealt with in the judgment of the Delhi High Court reported in 24(1983) Delhi Law Times I in the case of (Deepak Wadhwa v. Aeroflot)1. The implication of section 86(I) of C.P.C. has been extensively dealt with in the said judgment and we believe that the relevant paragraph 10 deserves to be reproduced for understanding substantive provision of section 86(1). 4.The question whether a foreign State enjoys immunity in respect of a Sovereign Act but not in respect of commercial act was raised before the Calcutta High Court in (U.A.R. v. Mirza Ali)2, A.I.R. 1962 Cal. 387. Mr. 4.The question whether a foreign State enjoys immunity in respect of a Sovereign Act but not in respect of commercial act was raised before the Calcutta High Court in (U.A.R. v. Mirza Ali)2, A.I.R. 1962 Cal. 387. Mr. Sobyasachi Mukerjee (as his Lordship then was) pointed out the then current developments of the principles of International Law, the views of Lord Denning and the view of eminent international jurists. The doctrine of restricted immunity based on the distinction between jure imperil and jure gestionis was not accepted by the Division Bench as the positive international law of our country. The case was taken to the Supreme Court and is reported as (Ali Akbar v. U.A.R.)3, A.I.R. 1966 S.C. 230. It was contended there that the Code being a codifying enactment and in as much as principle of international law has been recognised under sections 86 and 87-A to the extent mentioned in those sections, only the relevant provisions of the Code can be looked at and the principles of international law can have no application whatsoever in India. It was also urged that the effect of section 86(1) is to modify to a certain extent the doctrine of immunity recognised by international law and that it is a modified form of the absolute privilege enjoyed by independent sovereign and their ambassadors in the courts in England in accordance with principles of international law. It was held:- "The effect of the provisions of section 86(1) appears to be that it makes a statutory provision covering a field which would otherwise be covered by the doctrine of immunity under International Law. It is not disputed that every sovereign State is competent to make its own laws in relation to the rights and liabilities of foreign States to be sued within its own Municipal Courts. Just as an independent sovereign State may statutorily provide for its own rights and liabilities to sue and be sued, so can it provide for the rights and liabilities of foreign States to sue and be sued in its Municipal Courts. That being so, it would be legitimate to hold that the effect of section 86(1) is to modify to a certain extent the doctrine of immunity recognised by International Law. That being so, it would be legitimate to hold that the effect of section 86(1) is to modify to a certain extent the doctrine of immunity recognised by International Law. This section provides that foreign States can be sued within the Municipal Courts of India with the consent of the Central Government and when such consent is granted as required by section 86(1), it would not be open to a foreign State to rely on the doctrine of immunity under International Law, because the Municipal Courts in India would be bound by the statutory provisions, such as those contained in the Code of Civil Procedure. In substance, section 86(1) is not merely procedural; it is in a sense a counter part of section 84. Whereas section 84 confers a right on a foreign State to sue, section 86(1) in substance imposes a liability on foreign States to be sued, though this liability is circumscribed and safeguarded by the limitations prescribed by it. That is the effect of section 86(1)." 5.This view has been upheld by this Commission in Complaint No. 320/93 in the case of (Ganesh N. Saboo v. M/s. Ethiopian Airlines)4. To the affidavit of the opposite party, there is no denial that the opposite party is owned by the State of Ethiopia. In view of the above observations, we held that in absence of the permission of the Central Government, the claim of the complainant is not maintainable. 6.Regarding jurisdiction that the transaction took place out of Bombay at Dar-Es-Salaam, we believe section 11 sub-section (2) sub-clause (a) is an adequate answer. The opposite party has its branch at Bombay. Regarding subrogation, in the case of (Transport Corporation of India v. Davangera Cotton Mills Ltd. others)5, reported in 1994(3) C.P.R. 381 there is a clear observation that the claim by the complainant and the insurance company is maintainable. In the cases cited by the opposite party, we find that the claim was made only by the Insurance Company on the basis of subrogation and power of attorney and the Court correctly held that the Insurance Company must be a consumer. But when both the complainant and the Insurance Company joined in the claim, the claim cannot be dismissed on the basis of subrogation as well as Power of Attorney. We are therefore, unable to decide the question in favour of the opposite party. But when both the complainant and the Insurance Company joined in the claim, the claim cannot be dismissed on the basis of subrogation as well as Power of Attorney. We are therefore, unable to decide the question in favour of the opposite party. However, since the permission of the Government of India is not taken under section 86(1) of the C.P.C., the claim is not maintainable. We, therefore dismiss the complaint, with, however, no order as to costs. Complaint dismissed.