BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 344/2003 Filed on 25.08.2003

Dated : 15.12.2008

Complainant:

Raghavan Sethurajan, Kattumpuram, Venkulam, Edava P.O, Thiruvananthapuram represented by his Power of Attorney Holder G. Varadarajan Asari, T.C 3/1212, LND 19, Lekshmi Nagar, Pattom, Thiruvananthapuram.

(By adv. V. Bhuvanendran Nair)

Opposite parties:

1. Airport Manager, Air India, Thiruvananthapuram Airport, Thiruvananthapuram.

    

2. Assistant Manager-Baggage Service, Air India, Thiruvananthapuram Airport, Thiruvananthapuram.

(By adv. R. Jagadish Kumar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 30.08.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 12.11.2008, the Forum on 15.12.2008 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that the complainant was a passenger in Air India Flight No. AI-824 on 04.09.2002 from Riyadh to Thiruvananthapuram. The complainant arrived at Thiruvananthapuram airport on 05.09.2002. When he went for his collection of his baggage he found that the baggage was missing. Complainant reported the matter with the officer concerned. The officer concerned assured that the complainant will get back the baggage within one week. After some days complainant received a letter dated 07.11.2002 from the opposite party that the baggage is irretrievably lost and the authorities concerned shall pay compensation for the loss and asked the complainant to submit a formal claim letter along with Passenger Property Questionnaire (PPQ). Accordingly the complainant submitted the filled PPQ and other required documents before the authorities. The baggage contained valuable articles including gold ornaments, clothes etc. A loss of Rs. 130500/- was reported to the opposite parties. The loss of baggage was due to the negligent act of Air India authorities. On 02.05.2003 the Airport Manager through a letter informed the complainant with apology that the baggage weighed 31 kgs and in its settlements they are forwarding a cheque of 620 US $ at the rate of 20 US $ per kilo lost. Complainant received Rs. 30,398/-. For getting the balance amount of Rs. 100000/- this complaint is filed.

Opposite parties entered appearance and filed version contending that complainant arrived at Thiruvananthapuram airport on 05.09.2002. Complainant had reported that his baggage was missing. Complainant had not submitted any complaint before the opposite parties. The passenger is not supposed to carry the valuables like gold, precious metals, debentures, currencies in the checked baggage. These items are to be carried by the passenger in the hand baggage. Complainant had at no point of time during or before his journey disclosed to these opposite parties that his baggage contained the items as alleged in para 6 of the complaint. Complainant was not supposed to carry the valuables in his checked baggage without declaring the same and ought to have obtained a higher value declaration ticket by paying appropriate valuation charges. Opposite parties issued a letter dated 02.05.2003 to the complainant stating that all the efforts to trace out the baggage were in vain. The liability of the opposite parties is limited as per rules and regulations of Rule 22(2) of the II schedule of the Carriage by Air Act. As per limited liability the carrier is limited to a sum of 20 US $ per kg unless the passenger or consignor at the time of handing over of the baggage to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. Complainant had checked the baggage weighing 31 kgs. As no declaration was made as to its contents these opposite parties are liable to pay only the sum equivalent to 620 US $ at the rate of 20 US $ per kg. This sum was offered to the complainant in full and final settlement of all his claims. This amount was received by the complainant and so complainant is estopped from demanding any further amount as compensation from the opposite parties with respect to the said claim. Hence opposite parties prayed for dismissal of the complaint with compensatory costs.

The points that would arise for consideration are:-

1. Whether the complainant has entrusted baggage to 1^st opposite party?

    

2. Whether the complainant has declared the weight of the baggage or value of its contents?

3. Whether the complainant has lost the baggage entrusted to the 1^st opposite party?

    

4. Whether there has been deficiency in service on the part of opposite parties?

5. Reliefs and costs.

In support of the complaint, the Power of Attorney holder of the complainant has filed his affidavit and marked Exts. P1 to P8. In rebuttal opposite parties did not file affidavit or documents.

Points (i) to (v):- Admittedly, the complainant was a passenger in Air India Flight No. AI 824 on 04.09.2002 and complainant arrived at Thiruvananthapuram Airport in 1^st opposite party's flight on

05.09.2002. It is admitted by the opposite parties that on arrival at the Thiruvananthapuram Airport complainant had reported that his baggage was missing. Ext. P2 is the copy of the Air Ticket issued by opposite parties in the name of the complainant. Ticket No. is 09844243083286. As per Ext. P2 complainant had entrusted the opposite parties a baggage weighing 31 kg. Ext. P3 is the copy of Property Irregularity Report. As per Ext. P3, number of bags is one. Tag number AI 166196. Ext. P3 is the letter dated 07.11.2002 issued to the complainant by the 1^st opposite party in response to the claim

towards non-delivery of baggage. It is mentioned in Ext. P4 that inspite of extensive tracer action, complainant's baggage could not be located and that opposite parties were left with no alternative but to treat complainant's baggage as irretrievably lost. It is further written in Ext. P4 that opposite parties shall proceed with tendering suitable compensation for complainant's loss and complainant was requested to submit a formal claim letter along with the attached PPQ format duly completed, landing certificate issued by customs, the baggage tag in original and copy of inner portion of complainant's ticket jacket. Ext. P5 is the copy of the letter dated Nil sent by the complainant to the Assistant Manager, Baggage Service, Air India, Thiruvananthapuram. Ext. P6 is the copy of the Passenger Property Questionnaire dated 11.01.2003. In Ext. P2 the weight of missing baggage (PPQ) stated is 32 kg. Articles of different types worth Rs. 1,20,900/- are seen mentioned in PPQ. Ext. P7is the letter dated 02.05.2003 issued to the complainant by the opposite party. It is mentioned in Ext. P7 that all their efforts to trace the missing baggage turned out in vain and opposite parties are left with no alternative but to treat it is irretrievably lost. It is mentioned in Ext. P7 that the baggage claims are settled as per industry practice, on the basis of actual weight loss in the registered baggage and not on the value of contents, unless a higher value was declared and its corresponding valuation charges paid. Accordingly, the checked-in-baggage weighed 31 kgs resulting in its settlement for 620 US $ worked out at the rate of 20 US $ per kilo lost and opposite party Airport Manager advised his Finance Department to forward a cheque for INR equivalent to 620 US $ in full and final settlement of complainant's claim. Ext. P8 is the copy of the letter dated 20.05.2003 issued by the opposite party in the name of the complainant. Ext. P8 mentions the claim amount of Rs. 30,398/- from the opposite parties. It is after receiving the said amount of Rs. 30,398/- from the opposite party complainant has filed this complaint. Main thrust of argument advanced by the counsel appearing for the opposite party was to the effect that the complainant had checked in baggage weighing 31 kgs, that as no declaration was made as to its contents during or before his journey and as no supplementary sum was paid in that respect, opposite parties are liable to pay only the sum equivalent to US $ 620 in total at the rate of US $ 20 per kilo, that the said sum was offered to the complainant in full and final settlement of all his claims and complainant received the same also and that so complainant is estopped from demanding any further amount as compensation from the opposite parties to the said claim. It is pertinent to note that complainant has no case that he carried with his small items of baggage in the passenger's cabin, which will be a case of unregistered baggage, for which the carrier's maximum liability is 5000 Francs per passenger for all items carried by him as per Rule 22(3) of the Carriage by Air Act. In the case of registered baggage the carrier's liability for loss or damage has been fixed at a maximum sum of 250 Francs per kg as per Rule 22(2) of the Act. In this case the relevant rule which we have to consider is Rule 22(2) of the Act. Rule 22(2) of the said Act reads as under: “In the carriage of registered luggage of any goods the liability of the carrier is limited to a sum of 250 Francs per kg, unless the consignor has made, at the time when the package was handed to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so required. In that case the carrier will be liable to pay a sum not exceeding the declared sum unless he proved the sum is greater than the actual value to the consignor at delivery”. At this juncture, it is pertinent to note that the complainant while entrusting the baggage to the opposite parties had not made any special declaration regarding the value of contents of the baggage or paid any supplementary charge as comparable in the Carriage by Air Act. The complainant is therefore entitled for compensation subject to liability limitation as per law. As per Ext. P2 Air ticket, complainant had entrusted the opposite parties a baggage weighing 31 kg. As per Ext. P7, before filing this complaint, opposite parties forwarded to complainant a cheque for INR equivalent to US $ 620 (that is Rs. 30,398/-) in full and final settlement of his claim and the same is accepted by the complainant. Nowhere in the complaint, it is pleaded that complainant received the said amount under protest. It is evident from the facts narrated above that there was no avoidable delay in settling the claim by the opposite parties. Opposite parties had acted within reasonable time to settle the claim and complainant had received a sum of Rs. 30,398/- in full and final settlement. The counsel for the opposite parties is right in his submission that the complainant having settled the claim in full and final settlement after accepting the amount without any protest or remarks is estopped from raising any further claim. When the claim is paid and received in full and final settlement, there is no deficiency in service and no relief can be granted under the provisions of the Consumer Protection Act. In view of the foregoing discussions, we are of the considered opinion that the complaint has no merit at all which deserves to be dismissed.

In the result, complaint is dismissed. No order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th December 2008.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 344/2003

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Power of Attorney dated 07.01.2003.

P2 - Photocopy of passenger ticket and baggage check dated

04.09.2002.

P3 - Photocopy of Property Irregularity Report dated

05.09.2002.

P4 - Letter dated 07.11.2002 issued to the complainant by the

opposite party.

P5 - Photocopy of letter issued to the opposite party by the

complainant.

P6 - Photocopy of passenger property questionnaire dated

11.01.2003 issued by the opposite party.

P7 - Letter dated 02.05.2003 issued to the complainant by the

opposite party.

P8 - Photocopy of letter dated 25.05.2003 issued to the

complainant by opposite party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT