ORDER
(Passed this on 7th July, 2017)
Shri Shekhar P. Muley, President
01. This is a complaint of deficiency in service and unfair trade practice against the Opposite Party, Air India Ltd in respect of mishandling and damaging the goods of the complainant.
02. The Opposite Parties are Air India Ltd Company, having office in New Delhi and in Nagpur. The complainant is a businessman and a Golfer. He had participated in Golf tournament in Mumbai. He had booked his return air tickets of the Opposite Party from Nagpur. His return flight No. was AI 627t be operated by the Opposite Party on 21/2/2012. accordingly on that day of return he reached Mumbai Airport along with his baggage’s containing his personal belongings and baggage containing highly valued Golf Sticks. At the counter of the Opposite Party he declared the bags containing golf sticks as fragile cargo. The said bag was duly X-rayed and were accepted as fragile cargo and an entry was taken in a Register maintained by the Opposite Party and a sticker was pasted on the said bag. Te bag was taken into custody by the Opposite Party for being loaded in the Flight No. AI 627.
03. When he landed at Nagpur Airport and received his luggages and the bags containing golf sticks were brought to him by the staff of the Opposite Parties. That time he noticed the outer Golf bag was damaged. He opened the bag at the luggage counter in presence of officials of the Opposite Parties. It was noticed the inner bag was also damaged and total five Golf Sticks were broken. The loss was brought to the notice of the officials of the Opposite Parties. A Damage Baggage Report was filled up by the official of the Opposite Parties and its copy was given to the complainant. The value of the damage was declared at Rs. 48,500/-. The damaged sticks were taken into custody by the Opposite Parties as he was to be compensated. Though he was assured of an early settlement of the claim, nothing was done. Even several oral and written requests fell onto deaf ears. He then issued legal notice to the Opposite Parties. A false reply was given and liability was denied. An offer was however, given that he may be compensated for the damage to the baggage at the rate of Rs.450/- per Kg. This is nothing bur unfair trade practice as the baggage’s were damaged due negligence and mishandling of the baggage’s by the staff of the Opposite Parties. Hence, the complainant has sought relief’s of damages to the tune of Rs. 48,500/- with 18% interest along with compensation of Rs.1 lakh for mental and physical agony from both the Opposite Parties.
04. The Opposite Parties filed their joint (sic) written version and raised some preliminary objections. It is stated no permission is obtained from the forum to join the O.P.N0-2, who carries on business outside the limits of the forum. Secondly there is no privity of contract between the complainant and the Opposite Parties as the luggage was not booked with the Opposite Parties in his name. In para wise reply, it is not denied that the complainant had booked return ticket in Flight No. AI 627 of the Opposite Parties on 21/2/2012. but it is denied that he had carried the Golf Sticks bag and at the counter of the Opposite Parties declared the contents of the bags as fragile cargo and accordingly an entry was taken in the Register by the Opposite Parties. It is also denied a sticker declaring fragile cargo was pasted on the bags. But it is admitted the Golf Sticks were taken into custody and loaded on Flight No. AI 627. it is denied that at Nagpur Airport the bags were found damaged and Golf Sticks were found broken as alleged by the complainant. But it is not denied that he filled in Baggage Damage Report. Rests of the averments of the complaint are denied. It is stated a false notice claiming damages of Rs.48,500/- was sent to which appropriate reply was given. It is stated there was declaration at Mumbai Airport about fragile cargo by the complainant; therefore the Opposite Parties are not liable for any damage. Denying the allegations of indulging in unfair trade practice or negligence, it is submitted to dismiss the complaint.
05. We have heard the submissions of both the learned counsels and perused documents, rejoinder and notes of arguments. Following points arise for our determination and we record our findings thereon for the reasons given below.
POINTS FINDINGS
1. Whether the complainant
is a consumer of the
Opposite Parties? Yes
2. Whether it is established that
the complainant had booked
Golf Sticks as fragile cargo? Yes
- Whether it is established that the
Opposite Parties were negligent
in handling the luggage ? Yes
- Whether the complainant is
entitled to damages ? Yes
- What Order ? As per final order
POINT No. 1 and 2
06. Both these points being interlinked, are taken together for discussion. Though the Opposite Parties have not denied that the complainant had booked his ticket on their Flight No. AI 627, it is strongly denied that he had also booked his luggage and that too as fragile cargo. It is contended that there was no privity of contract between him and the Opposite Parties so far as the damage to the luggage is concerned. The Opposite Parties have flatly denied any luggage was carried by the complainant in his name on that flight. Further, no declaration of nature and value of cargo was given nor any additional charges were paid by the complainant, so no question of giving compensation arises for alleged damage.
07. To rebut this plea of the Opposite Parties the complainant has relied on the Baggage Damage Report filed as document No.1. This document is not disputed by the Opposite Parties. As per this Report the complainant was on flight No. AI 627 on relevant date. The ticket No. with baggage Tag No. is also given. It is mentioned the baggage was a Golf kit bag. By this Report the O.P. accepted his complaint about damage to Golf kit bag and Golf Sticks. Learned counsel for the O.P., however, pointed out that as per this Report the baggage’s were booked in the name of one Harjinder Singh, therefore the complainant has no right to claim damages. In order to strengthen his point, he further referred to the list of passengers who were on board on 21/2/2012. The list shows name of the complainant with his ticket number. On that flight Harjinder Singh was also booked. It further reveals number of baggages with weight the passengers were carrying with them and the complainant was shown with nil baggage weight. But Harjinder Singh was shown carrying 7 baggage’s having weight of 85 kg. It is thus contended by Ld counsel for the O.P. the list falsifies the claim of the complainant that he was carrying the Golf kit bags with him. It is submitted the complainant has therefore, no insurable interest and therefore he cannot be regarded as a consumer. Reliance is placed on a judgment in Rama Shankar v/s M/s Ahuja Brothers Cold Storage Pvt. Ltd. 2017 (1) CPR 128 (NC).
08. What has been brought before us by the O.P. appears right, but we are not fully convinced. It may be noted that as per Airlines Regulations a passenger is allowed to check in two baggage’s of 15 Kg with him without charge. If it exceeds, extra charge is to be paid by passenger. If we accept this list, Harjinder Singh was carrying 7 baggage’s and the weight was 85 Kg. Nothing is said about whether he had paid extra charges and how he was allowed to check in 7 baggage’s in his name. Moreover, the said list does not bear any seal of the OP or signature of any official for its authentication. Secondly, if the complainant was not carrying Golf Stick bags or no such bags were checked in his name on that flight, why the O.P. accepted Damaged Baggage Report from him is not understood and explained. Moreover, Harjinder Singh never made any claim for the damaged sticks. Therefore we are not inclined to accept this list as documentary evidence to rebut the contention of the complainant.
09. It may also be stated that the complainant was pursuing the matter with the O.P. by writing letters for an early settlement. There are two such letters on record written in April and May 2012, but no reply was given. It was only on service of legal notice the O.P. sent its reply. The reply is also worth to take note of. In Para 1(b) of the reply it is specifically admitted the complainant had checked in 7 pieces of baggage including the baggage containing the golf sticks, though the same was under the name of one Harjinder Singh. However, exact number of golf stick is denied. It is not necessary to draw any inference from this reply as it is plain enough to suggest that the baggage’s containing golf sticks were checked in by the complainant. Why the same were under the name of third person is not understood, but then it is also surprising that Harjindar Singh never made any claim for broken golf sticks or baggage’s. If the baggage’s and golf sticks were of him he would have claimed compensation. But he did not do so and that suggests the owner of the baggage’s containing Golf Sticks was not him but was the complainant. We have thus no doubt to say that the complainant is consumer of the O.P.
10. Ld counsel for the O.P. then submitted liability of the O.P., at the most, is restricted to Rs.450 per Kg as laid down in Rules of Carriage by Air Act and it could not exceed that limit. He relied on a judgment in National Travel Services v/s Gaurang Films I (2012) CPJ 4 (NC). In that case complainant at the time of booking of cargo did not declare the nature and value of goods and not paid additional charges, therefore, it was held liability of Air Carrier could not exceed limit laid down in Rule 22(2) of Carriage by Air Act. In present case the O.P. has stated in its reply to the notice that the complainant had checked in Golf Sticks. It cannot be denied that Golf Sticks are fragile and have to be handled carefully. Whether or not the complainant was required to pay additional charges for carrying fragile goods is not established, since the O.P. failed to place on record any such Rules in this regard.
For aforesaid reasons we record the findings on first two points in the affirmative.
POINTS NO. 3 & 4:
11. It is not in dispute the Golf Sticks were found broken when the baggages were off loaded at Nagpur Airport. The OP had accepted baggage damage report from the complainant. It is not its case that the Sticks were already broken when the same were checked in at Mumbai Airport. The sticks must have been handled negligently while loading or off loading. It was the responsibility of the O.P. to see passengers luggage is being handled carefully. There was definitely deficiency in service of the O.P. in mishandling the baggages of the complainant, which caused him harassment. The complainant being consumer of the O.P., is entitled to claim compensation and damages from the O.P.
12. Ld counsel for the complainant placed before us two judgments, viz 1) MalaysianAirlines System Berhad v/s Dentsply India Pvt Ltd. I (2017) CPJ 523 (NC) and 2) Emirates (M/s Emirates Airlines) v/s Dr. Rakesh Chopra 2013(2) CLT 581 (NC), wherein complainant was suitably compensated for the loss or damage of his luggage due to negligence of the Airlines.
13. The complainant has claimed Rs. 48,500/- being the value of damaged sticks. How he quantified this value is not explained, but from his complaint it appears he had mentioned this value in Baggage Damage Report. A perusal of the said report reveals total 5 Golf Sticks were in the bag, each costing Rs. 7000/-. Total value was Rs. 35,000/-. Apart from that the baggage’s were also damaged causing loss of Rs.10,000/-. In all total loss was Rs.45,000/-. This cost of Golf Sticks and baggage’s was of the year December, 2011. The incident occurred in February, 2012. So there was not much depreciation in value. He is entitled to get Rs. 45,000/- for loss of the baggage’s and Golf Sticks. Because of deficiency in service on the part of O.P. in losing and mishandling the luggage, the complainant suffered harassment, agony apart from loss of Golf Sticks. Therefore he is entitled to compensation for this deficiency. Hence, these points are held accordingly.
14. Before passing operative order one point is to be mentioned. It is brought to our notice by the Ld counsel for the complainant that though there are two Opposite Parties, the written version is filed by only O.P. No.-2. As per affirmation the reply was filed by one Zodape as an authorised representative of the O.P.No.-1 and on behalf of the O.P. No.-2 . In fact, both the Opposite Parties are Air India Airlines, which is a private limited company. When a complaint is filed against a company or corporation, it may appoint a representative to appear on its behalf and such appointment need not be under the seal of the company. Vakalatnama is also filed for both the Opposite Parties, though it is signed by only Zodape representing both the Opposite Parties. It is thus not necessary to attach much significance to this point alleged by the complainant.
15. In the result, we pass following order.
ORDER
- Complaint is partly allowed against Opposite Parties.
- The Opposite Parties, Air India Ltd, are directed to pay, jointly and severally, a sum of Rs. 45,000/- (In words Rupees Forty Five Thousand only) to the complainant for the loss of bags and Golf Sticks within 30 days from receipt of order, else the amount shall carry simple interest of 9 % p.a.
- The Opposite Parties are further directed to pay, jointly and severally, a sum of Rs. 10,000/- (In words Rupees Ten Thousand only) towards compensation for physical and mental agony and litigation cost Rs. 3000/- (In words Rupees Three Thousand only) to the complainant.
- The order shall be complied by the Opposite Parties within 30 days from receipt of order.
- Copy of the order shall be supplied to both the parties, free of cost.
