F.A.No.20 OF 2012 AGAINST C.C.NO.785 OF 2010 DISTRICT FORUM-I HYDERABAD

Between:

1.   The General Manager
M/s Air India, RBI Road, Opp: Kalanjali
Hill Fort Road, Hyderabad

2.   The Air Port Manager, M/s Air India Baggage
Service Section Room No.2, Rajiv Gandhi
International Airport, Shamshabad, R.R.Dist.

3.   The Air Port Manager M/s Air India, Indira Gandhi
International Air Port, New Delhi

                                                        Appellants/opposite parties                                                         

                        A N D

Mrs Fazeel Thunissa W/o M.A.Akbar
Occ: Housewife, Permanent R/o 44/16-G-35/1,
Fazeelath Villa, Near Saint Joseph Degree College
Sunkesal Road, Sharada Nagar, Kurnool, A.P.
Temporary R/o C/o Mohammed Ajaz 12-2-831/77-G-1
MIG H.No.9 AP Housing Board Colony, Mehdipatnam
Hyderabad

Respondent/complainant

Counsel for the Appellant                      M/s K.Srinivasa Murthy

Counsel for the Respondents                         M/s Mohammed Ilyas

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

 THURSDAY THE THIRD  DAY OF JANUARY

                                TWO THOUSAND THIRTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.             The opposite parties no.1 to 3 are the appellants.  They have filed the appeal challenging the order of the District Forum whereby and whereunder they have been directed to pay a sum of `3,496/- as also compensation of `25,000/- besides costs to the extent of `2,000/-.

2.             The respondent filed complaint before the District Forum stating that she travelled from Louisville USA to Chicago in American Airlines and from Chicago to Hyderabad via New Delhi in the airlines of the appellants.  She paid at Louisville excess baggage charges.  Her baggage was transferred from Air India flight coming from Chicago to another plane at New Delhi.  A boarding pass was issued at New Delhi for AI -126 on 20.8.2009 by the appellant no.3.

3.             The respondent’s baggage was mishandled by the baggage handling staff of the appellants either at New Delhi or at Hyderabad resulting in damage of her baggage having barcoded check in identified baggage tag and it was found totally burnt whereby nothing was left in the baggage.  The respondent brought to the notice of the appellant no.2 on 21.8.2009 that she had not received her baggage and the second appellant informed her that the bag was totally damaged and burnt except few items which were not in a position to be used further and requested the respondent to report the same to the Baggage Service Manager at Hyderabad port. 

4.             The Baggage Service Manager admitted that the barcoded check-in identified baggage tag bearing No.AA405161 was mishandled and he prepared property irregular report at which time the respondent and her husband requested him to include all the material that was damaged and the respondents request was declined.  The respondent lost most valuable items having sentimental value.  The respondent visited the appellant no.3 several times to know at which point her baggage was destroyed.  There was no response from the appellant no.2.  The respondent got issued notice dated 19.3.2010 claiming a sum of US$10000 equivalent to INR 5 lakh towards cost of the material and compensation for mental agony.  The second opposite party issued reply apologizing inconvenience caused to the respondent for mishandling of her baggage and paid US$ 384 equivalent to INR 17,674/-. 

5.             The respondent issued another notice dated 15.4.2010 protesting for the amount for which reply dated 21.5.2010 was issued by the appellants stating that they have paid for missing baggage which was not the claim of the respondent.  The respondent was carrying more than 19.2 kgs weight of damaged baggage.  Her cloths turned into ashes have great sentimental value and the baggage contains goods having sentimental value.  The quantum ascertained by the appellants under the baggage liability limitations is not disputed.  The appellants had not calculated on maximum allowance of the baggage and loss of incalculable goods having sentimental value. 

6.             The appellants resisted the claim contending that the respondent travelled from Louisville to Chicago on 18.8.2009 on American Airlines and from Chicago to Hyderabad by the flight of the appellants.  All her four baggages were transited through Chicago and received at Hyderabad.  It was noticed by the staff of the second appellant at Hydereabad that one of the four baggages was received in a burned condition and when it was delivered to the respondent it was weighing 19.2 to 9.2 kgs.  The baggage was initially received by the American Airlines and reached to Hyderabad from Chicago by Air India.  Where the baggage was burned in whose custody it occurred is not determined.  The American Airlines is responsible for the baggage till it is shifted to Air India Flight.  The American Airlines is necessary party to the complaint.

7.             The appellants verified the claim and attempted to settle the claim as per the provisions of the Carriage by Air Act, 1972 on the weight basis as the baggage was booked under no value declaration and the respondent is entitled to compensation at US$20 per kg.  The appellants settled the claim on the basis of actual weight of the damaged baggage which was 19.02 kgs and paid compensation at US$ 20 per kg.  The respondent issued notice claiming US$10000 towards the cost of the material and compensation for suffering mental agony.  The appellants had given reply stating that the claim was already settled towards full and final settlement and further claim does not arise.  The District Forum has no jurisdiction to entertain the claim as the respondent booked the baggage with American Airlines and it is not proved where the baggage was damaged.  Hence, prayed for dismissal of the complaint.

8.             In support of her claim the respondent filed her affidavit and the documents Exs.A1 to A10.  On behalf of the appellants the Station Manager of the Second appellant filed his affidavit and had not chosen to file any documents.

9.             The District Forum has allowed the complaint on the premise that the appellants ought to have pinpointed where the damage to the baggage was occurred and as the baggage was booked without declaring the value the respondent was held entitled for compensation for the excess baggage. 

10.            Feeling aggrieved by the order of the District Forum, the opposite parties no.1 and 3 have filed appeal contending that the District Forum has not considered the rules relating to International Carriage by Air and the contract conditions in regard to the limited liability as also the District Forum failed to notice that the baggage was initially received by the American Airlines and that the claim was settled as full and final settlement.  

11.            The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?

12.            The respondent and her husband got confirmed their tickets with American Airlines from Louisville to Chicago and from Chicago to Hyderabad via Delhi.  It is not disputed that on the confirmed date they travelled from Louisville to Chicago in American Airlines and from Chicago to Hyderabad via Delhi with the Airlines of the appellants.  The respondent had checked in her baggage at Louisville USA by paying excess baggage charges at the place of embarkation evidenced by the receipts issued by the American Airlines. 

13.            The appellants had confirmed the tickets of the respondents in flight No.126 which was scheduled from Chicago to Hyderabad via Delhi and in view of the Sector selected the respondent had to change the flight at New Delhi in order to proceed to the place of destination i.e., Hyderabad.  The respondent’s baggage was transferred from Air India Flight to the India Airlines Flight in accordance with the boarding pass issued at New Delhi on 20.8.2009.  The respondent apprehended that her baggage was mishandled by the baggage handling staff of the appellants either at New Delhi or at Hyderabad.  It is pertinent to note that where the damage to the baggage was caused is not determined.  The appellants contend that the baggage might have been burnt while it was in the custody of American Airlines and as such the American Airlines should have been made as a party to the complaint.

14.            The District Forum has observed that the duty was cast upon the appellants to pin point as to where the damage to the baggage was caused.  It is pertinent to note that there was no any complaint as to the damage caused to the one of the baggage of the respondent either at Louisville or at Chicago.  As observed by the District Forum, the appellants had not made any effort to find out the place where one of the baggages sustained damage.  In the circumstances, reasonable inference can be drawn that one of the baggage was mishandled and got damaged either at New Deli or at Hyderabad. 

15.            At Rajiv Gandhi International Airport, Hyderabad the respondent lodged complaint claiming the damaged baggage.  The baggage was handed over to her and at the time the baggage in question was weighing 19.2 kgs.  The appellants settled the claim of the respondent in accordance with the liability limitation clause  of the Carriage by Air Act, which reads as follows:

                Notice of baggage liability limitation

Liability for loss, delay or damage to baggage is limited as follows unless a higher value is declared in advance and additional charges are paid.

1.      For most international travel (including domestic portions of international journey) to approximately USD9.07 per pound (USD20.00 per kg) for checked baggage.

16.            The respondent has also contended that there was no dispute as regards to the settlement of claim in accordance with the provisions of the Carriage by Air Act.  She has claimed excess amount on the premise that the cost of the material was US$10000 and she suffered mental agony at airport on 20.8.2009.  The respondent got issued notice dated 19.3.2010 claiming a sum of Rs.5 lakh on the premise that loss and injury was caused to her owing to the deficiency in public utility service and deliberate negligence as  also improper service rendered by the appellants in the matter of transportation of her baggage.  The relevant paragraph attributing deficiency in service to the appellants reads as under:

“On verifying by the baggage service manager who had admitted the Bar Coded Check in identified Baggage Tag bearing No.AA40161 was mishandled and thereafter he prepared Property Irregular Report.  At that juncture my client and her husband had requested and demanded to include all the material that was damaged in accordance to the purchase invoice receipts of the material which my client was carrying with her in another baggage.  However to the surprise of my client the above staff who was preparing PI Report was not inclined to include all the material that was damaged instead they recorded only few items as evident from the above said report inspite of remonstration.  My client had lost most valuable items having sentimental value for the clothes she had been carrying in the Bar Coded Check-in Identified Baggage Tag bearing No.AA-405161 received by her from her in-laws.  That after furnishing the above said report the said staff Viz., baggage service manager had retained the entire baggage along with spoiled/damaged contents of the baggage along with Bar Coded Check-in Identified Baggage Tag bearing No.AA405161 with them to be enquired with their Delhi Office handling baggage services and assured to inform my client at the temporary address referred above, within a period of two weeks the status and further action in this regard”. 

17.            In response to the notice of the respondent, the appellants settled the claim for US$384 and equivalent to INR 17664/- and sent the cheque for the sum of `17,664/- enclosed to letter dated 29.3.2010.  The learned counsel for the appellants has contended that the respondent has received the cheque towards full and final settlement of her claim.  The respondent immediately after receiving the cheque for `17,664/- has got issued notice through her advocate on 15.4.2010 claiming further amount on the premise that the settlement arrived at by the appellants is unilateral without applying the loss of the international freight convention in accordance of which the airlines is liable to pay full amount as claimed by the passenger if the baggage is destroyed in the transit on account of improper care.  Through the notice the respondent has brought to the notice of the appellants that the amount received by her was for the loss of baggage and not for deliberate destroying of the goods during the transit.  The appellants had issued reply dated 21.5.2010 to the notice of the respondent that the claim was settled in accordance with the liability limitation clause of the Carriage by Air Act and that the claim for loss of the baggage was already settled by the appellants. 

18.            Admittedly, the respondent was carrying excess load of baggage which however, has not been quantified either at Louisville, Chicago in USA or at New Delhi or Hyderabad in India.  The respondent has claimed the amount in addition to the amount already received from the appellants on the premise that there was deliberate attempt to destroy the contents of her baggage by the staff of the appellants.  The District Forum has awarded an amount of `25,000/- plus `3,496/- which is in addition to the amount of `17,664/- despite holding that the respondent failed to adduce evidence to show that the damaged items of the baggage included costly items or items of sentimental value.  What all the District Forum has awarded is towards the compensation for loss and mental agony said to have been suffered by the respondent owing to the deficient service of the appellants in the matter of transportation of the baggage from Louisville to Hyderabad. 

19.            The respondent had already received the amount of `17,664/-0 on 29.3.2010 and she had kept quite till she had chosen to protest by way of getting issued notice on 15.4.2010.  As observed by the District Forum, the respondent failed to adduce evidence in support of her contention that the items stated to have been destroyed included the costly items and items of sentimental value.  In the circumstances, the amount awarded towards compensation `25,000/- is liable to be scaled down to `8,000/-.  The amount awarded towards the value of the damaged items of the baggage `3,496/- is confirmed.

20.            In the result the appeal is allowed modifying the order of the District Forum.  The appellants/opposite parties are directed to pay an amount of `3,496/- plus `8,000/- in addition to the costs of  `2000/- to the respondent/complainant.  The parties shall bear their own costs in the appeal.  Time for compliance four weeks.

                                                                MEMBER

                                                                MEMBER

                                                           Dt.03.01.2013

KMK*