Per Shri Narendra Kawde, Hon’ble Member
Complainant along with his wife travelled by Air Arabia Flight No.G9-1401 from Sharjah, U.A.E. to Mumbai on 15/07/2005. On landing at Sahar International Airport, Mumbai, it was noticed that their luggage containing four bags was not loaded from Sharjah in the said plane. Complainant along with co-passengers tried to inquire with the Airport Management of the opponent about location of the luggage. However, no satisfactory reply ever come forward and therefore, uncertainty was looming large with lot of tension about prospect of loosing valuables kept in the luggage. A letter jointly signed by the complainant along with co-passengers was handed over to the Station Manager of the opponent about location of the luggage. The complainant developed severe chest pain, fluctuations in the Blood Pressure resulting unconsciousness which attributed to deterioration of his health. Therefore, from the Sahar International Airport he was directly taken to Nanawati Hospital for further medical treatment and management.
2. It is the contention of the complainant that he was travelling to Cochin via Mumbai for undergoing By-pass Surgery in the AIMS Hospital located at Cochin presumably as it was available at affordable cost at Rs.1,50,000/-. The Hospital for surgery was chosen on the advice of Medical Export based in Sharjah. Ultimately, with much persuasion, out four bags, three bags were located and handed over to the complainant. However, fourth bag was missing and never recovered. Fourth bag contained amongst other important things, medicines and one Rolex Watch with cash of 3,000/- DH. As he could not proceed to Cochin as planned, he was forced to undergo surgery at Bombay Hospital on 22/07/2005 due to deteriorating and imminent medical emergency. The complainant spent around Rs.4 Lakhs as against estimated amount of Rs.1,50,000/- planned for surgery at AIMS Hospital at Cochin. The complainant has attributed the reason for undergoing By-pass Surgery in Bombay Hospital which was never meant to be carried out by incurring extra expenditure of Rs.2,50,000/-. The complainant underwent tremendous mental pain, agony and trauma on account of carelessness and negligence of the opponent. Opponent has admitted dislocation of luggage and loss of fourth bag and offered to settle the claim at 20 US $ per kg. presuming total weight of the bag as 30 Kg. The complainant refused the offer as loss was resulted due to act of omission of the opponent. The benefit under the relevant provision covers the offer so made only when as per Rule 25 of the Carriers Rules, the limit of liability in Rule 22 do not apply if it is proved that damage resulted from an act or omission of the Carrier. In view of this provision, the complainant claimed entire expenditure incurred in excess for undergoing By-pass Surgery together with cost of the contents i.e. valuables lost because of negligence of the opponent. However, opponent failed to settle the claim as put forth by the complainant and therefore, the complainant has preferred this consumer complaint claiming amount of Rs.47,32,324/- together with interest @ 18% p.a. from the date of incident.
3. Opponent filed written version contested the contentions and claim of the complainant. It is the stand of the opponent that maximum liability of the opponent is limited to payment of 20 US $ per Kg. in respect of baggage lost in transit. Maximum weight of single bag allowed to be carried by the passenger in an Airline was 30 Kg. Therefore, opponent made a fair offer of 640 US $ against the claim under the provisions of Carriage by Air Act, 1972. However, complainant did not come forward to accept the offer.
4. It is averred by the opponent that due to bad weather in Mumbai it was decided prior to thirty minutes of take off the flight from Sharjah that additional fuel be loaded in the aircraft in case due to bad weather craft is diverted to some other destination. Therefore, luggage on this craft was off-loaded to accommodate the weight of extra fuel. By another aircraft luggage of the passengers including luggage of the complainant was sent to Sahar International Airport, Mumbai. It is also further averred that it was international practice that not to load the baggage on the same plane in such contingency. It is the practice that in case decision is taken to carry extra fuel due to bad weather or any other reason, luggage from the aircraft is off-loaded and sent by another aircraft. This practice is internationally accepted and therefore, any lapse on the part of the opponent is denied. The complainant never disclosed his travel plan for undergoing By-pass Surgery. Mr.Rohit Ramchandran, Regional Manager of the opponent personally visited Nanawati Hospital as a goodwill gesture to verify the complainant’s health condition. However, he was told that within two hours, complainant was discharged since there were no major complications. Therefore, contention of the complainant of having critical state of health is baseless. Moreover, under the conditions of Carriage, passenger is not permitted to carry money, jewellary and other precious metals in the checked baggage. The complainant flouted the terms and conditions by carrying 3000 DH and other alleged valuables including Rolex Watch costing Rs.39,000/-. The opponent on these grounds prayed for dismissal of the complaint.
4. Heard Ms.Rashmi Manne, Advocate for the complainant. None present for the opponent. We have perused the record placed before us.
5. It is an admitted fact that complainant along with his wife undertook to travel by the aircraft of the opponent from Sharjah to Mumbai. Passengers’ luggage was transported by another craft in view of weather condition prevailed at Sahar International Airport, Mumbai. The complainant was carrying four bags. Three bags were traced and handed over to the complainant. However, fourth bag was not traceable and missing. Certificate issued by Dr.Sudhansu Bhattacharya dated 20/07/2005 certifying that complainant underwent By-pass Surgery on 22/07/2005 at Bombay Hospital. Another certificate from Dr.Balkrishnan Pai, Consultant Cardiologist dated 25/09/2005 based at Sharjah demonstrates that complainant underwent coronary angiography on 26/06/2005 and was advised Coronary Artery By-pass Surgery at AIMS Hospital, Cochin. This certificate apparently brought on record by the complainant to strengthen the claim that he was having coronary problem and his operation for by-pass surgery was planned at Cochin instead at Bombay Hospital, Mumbai. On perusal of the record, we find that there is no documentary evidence to establish that certain valuables as narrated in the complaint which includes amongst other thing, cash of 3,000 DH, Rolex Watch was ever declared at the Airport as contents being carried in the lost fourth bag. There is strong assumption that since the complainant under medi-care, medicines described in the consumer complaint might have been stocked in the lost bag. Instead of keeping the same in the handbag which normally patient is required to do after permission of the authority and that too with written prescription of the doctor. Moreover, Cash Memo of the medicines is available on record. However, we do not find any evidence to show that the complainant was required to undergo By-pass surgery only at Cochin as pleaded as there is no evidence ever brought on record about appointment of doctor at Cochin and the operation to be carried out at Cochin. Therefore, in absence of any evidence as such, contention of the complainant that he was forced to undergo By-pass surgery at Bombay Hospital is not tenable. In view of this, claim on account of alleged extra expenditure incurred at Mumbai is not acceptable to us.
6. Opponent has admitted loss of fourth bag, but failed to bring on record that loss of bag was not attributed to the omission or negligence of the opponent. Therefore, general provision to compensate the passenger at 20 US $ per Kg. would not be applicable here. The complainant has rightly relied on the authority reported in 1999 (1) BCR 553 between Smt.Archana V/s. Indian Airlines. It was held that “As per Rule 25, the limits of liability in Rule 22 do not apply if it is proved that the damage resulted from an act or omission of the carrier.” Apparently, loss of baggage is due to omission of the opponent. Therefore, benefit available under the Rules & Regulations as pleaded will not be available for deciding the compensation as a liability of the carrier.
7. Now, going through the complainant’s claim, we find that except medicines, there is no evidence available to support other alleged contents. Cost of the medicines is estimated to Rs.63,924/- supported by receipts of Chemists. The complainant did not come forward with justification as to how contrary to the provisions of terms and conditions of travel, cash and other valuables like Rolex Watch were carried in the fourth lost bag. Therefore, we are not inclined to consider the loss on account of other items as claimed for. The complainant and his relatives were required to frequently make to & fro trips to the Airport and on that account they have spent Rs.3,800/-. Though there is no documentary evidence, it is presumed that said expenditure was warranted for recovery of the baggage once they have left the Airport. In the process, the complainant and his family underwent a mental stress, but the amount claimed on this count is Rs.40 Lakhs which is totally disproportionate and without any evidence. However, awarding just and proper compensation for mental stress and agony would suffice the ends of justice. Therefore, we are inclined to award compensation of Rs.2 Lakhs on account of mental stress and agony. The complainant was also needlessly dragged into litigation due to fault of the opponent. Therefore, awarding cost of litigation will also be appropriate. Since, opponent has admitted loss of bag, per se, amounts to deficiency of service against them. Therefore, complaint must partly succeeds. We hold accordingly and pass the following order :-
-: ORDER :-
1.Complaint is partly allowed.
2.Opponent is directed to pay to the complainant an amount of Rs.67,724/- [Rs.63,924/- as cost of medicines + Rs.3,800/- as expenditure of various to & fro trips to the Airport] with interest @ 12% p.a. from the date of filing of complaint i.e. 05/05/2006 within a period sixty days, failing which rate of interest will be 15% p.a. on the awarded amount till its realization.
3.Opponent is directed to pay Rs.2 Lakhs to the complainant as compensation towards mental stress and agony suffered by the complainant.
4.Opponent to bear its own costs and pay an amount of Rs.50,000/- to the complainant as costs of litigation.
5.Copies of the order be furnished to the parties.
Pronounced
Dated 14th January 2015.
