Order No. 49 dt. 26/10/2017
Fact of the case according to the complainant, in brief, is that the complainant purchased air ticket of British Airways for journeys starting on 24.12.2008 from John F Kennedy Airport, Newyork to Kolkata via Heathrow Airport, London. But said journeys had been rerouted fromLondon to Singapore and from Singapore to Kolkata via Delhi. From Singapore to Kolkata complainant had to avail the flights of Jet Airways. During the journey complainant was to escort two baggage, weighing 23 Kg each, other than the hand bag, if any kept with him. At Delhi Airport complainant came to know that two baggage were left behind somewhere during the entailing journey. Complainant filed a complaint and procured the complaint bookingno.DEL 9W17388 on 26.12.2008 from the concerned authority of the Jet Airways. Thereafter Jet Airwaysfound out one of the baggage and was delivered to the complainant on 02.01.2009 but the baggage was collectedin deplorable condition. On that day Jet Airways declared theother missing baggage as ‘lost one’, probably, for the purpose of calculation of compensation to be paid to the complainant and an amount of Rs.22,632/- towards compensation was offered to the complainant. Complainant refused to accept their offer of compensation and claimed that the baggage was with important official document, deeds and documents of ancestral property and some medicines, the loss/want of which items creates immense problems in his scheduled business programmes, journeys, health maintenance and other en-route performance and thus, complainant had suffered irreparable loss and harassment as well as mental agony. Again there were jewelries, gifts,cloths, babyfood etc in the lost baggage. Complainant stated that he spent more than 30,000/- for tracing out the baggage. Being aggrieved with such poor service of the Jet Airways, complainant issued lawyer’s notice on 07.03.2009 against deficiency in service and unfair trade practices of the Air ways. In the notice complainant asked for the irreparable loss and harassment suffered by him and demanded compensation of Rs.50 Lakh. But o.ps had not responded to the cry of the complainant and therefore, complainant compelled to lodge complaint at CDRF Unit-I on 08.05.2009. During the proceedings of case complainant submitted an amended petition and in the amended petition complainant demanded compensation of Rs.19,50,000/- and litigation cost of Rs.20,000/-.
The case had been heard ex-parte and an order had been issued by the CDRF, Unit-I vide order no.27 dated 16.01.2012 against which two appeals had been preferred and the Ho’nble State Commission had allowed the appeals and the case had been sent back on remand to this Forum below for fresh adjudication after giving opportunity of hearing of both the parties. On 21.10.2013 Jdrs through EA No.22/12 filed a copy of the Hon’ble State Commission’s order for FA No.184/12 as well as for FA No. 187/12 wherein the Hon’ble State Commission had remanded back the original case to the Forum below.
Accordingly, all the ops have been allowed to participate in the proceedings for fresh adjudication.O.p.1, 2 and 3 jointly filed a w/v, and o.p. nos. 3 & 4 togetherfiled another w/v in the proceedings. In the 1st w/v o.p.1, 2 and 3 had contended that value of the complaint petition is above Rs.20 lakh and the cause of action has arisen at Delhi Airport and therefore, the case is not maintainable at this District Forum in respect of pecuniary jurisdiction as well as territorial jurisdiction.
O.ps has argued that according to Rules under the carriage by Air Act, 1972 the passenger is required to declare the contents and the value of the checked in baggage at the time of checking. Then, in event of loss or damage to such checked in baggage or the object contained therein, the airline is liable to pay the declared value of such lost baggage or the object contained therein. However, if passenger has not declared the contents and its value of the checked in baggage the airlines liability is limited to a sum of $ 20 (equivalent to 250 francs) per kg. The weight of the checked in baggage has to be taken into consideration and not its content for determining the amount of compensation. For the missing bag of 23 Kg., o.p. offered compensation of Rs.22,632/-.
(Weigh of loss of bag 23 Kg x 20 USD = 460 USD; 460 USD x INR 49.2 = INR 22,632/- )
The carriage by Air Act,1972 which governs the liability of the Airlines in report of loss, damage or delay in delivery of baggage. According to Rule 22(2) 5 of the said Act the passenger is required to declare the contents and its value of the checked in baggage at the time of checking. In the event of loss, airline is liable to pay the declared value.The British Airways diverted the complainant’soriginal journey and rerouted it from London to Singapore on the flight of British Airways and from the Singapore to Delhi and from Delhi to Kolkata on the flight of the Jet Airways. Therefore it is the British Airways which failed to transfer the complainant’s baggage as per its revised journey according to World Tracer Report.
Ld. Lawyer of the o.p. nos. 4 and 5 denied and disputed that the bags contained original deeds/documents/bank details of petitioner’s family and indispensible medicines. The medicines supposed to take regularly were lost which deteriorated the health condition of the petitioner during his stay in India and thereby leading to massive business loss. The bag contained medicine, food for baby, the want of which caused stomach disorder of the child during his stay in India. Complainant lost new dresses, gifts also. O.p. nos. 4 & 5 stated that these were all cock and bull story cooked up for the purpose of extracting money because all demands and dispositions were not supported by documentary evidences. Therefore the case should be dismissed.
Ld lawyer for the complainant argued that complainant had rightly refused to accept the offer of the Jet Airways for compensation as the contents in the baggage were valuable ones such as official documents, jewelries, deeds and documents of ancestral property, bank related documents, some indispensable medicines, cloths, gifts and baby foods, the loss of which items creates immense problems to the complainant by deteriorating his journeys and health condition which in turn hampered all the activities and programmes including business transactions. And thus,the complainant had to bear irreparable loss, physical harassment and mental agony. The claim of compensation of the complainant should not be considered by the Forum on the basis of weight of the baggage as roughly and bluntly assessed by the ops.
On the basis of the pleadings of parties the following points are to be decided:
- Whether there was deficiency in service on the part of the respective parties?
- Whether the complainant will be entitled to get any relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Considering the submission of the respective parties it is admitted fact that the British Airways rerouted the journey from London to Singapore to Kolkata via Delhi. But the British Airways failed to re routed the two baggageto follow the route of the complainant. Consequently the two baggage had been left for the negligence of the concerned transshipment personnel or the concernedAirways authority. It is also an admitted fact that Jet Airways by their sincere endeavor recovered one of the baggage which had been found in damaged condition and for the lost one the said Airways offered compensation as per rules of the Airways. Therefore, op-1,2 &3 had taken the responsibility of deficient service in escorting the baggage of the complainant. But there was a huge difference between the compensation offered by the ops and the compensation claimed by the complainant. According to the compensation rule of the ops, they offered compensation of Rs22,632/-(in thousands) but according to his loss, harassment and mental agony, complainant demanded compensation of Rs 19,50,000/- ( in lakhs).
However, it is evident that complainant had not disclosed even an estimated value of the baggage. From the contents received from the damaged baggage complainant had a convenient scope to estimate an approximate value of the goods including the jewelries, medicine, cloths, baby foods etc. Again, it is advised in the important information for the passengers in the air-tickets that all valuables like jewelries, cash, perishable items and medicines must be carried in cabin baggage only but the complainant had neglected/omitted to obey those guidelines. Deeds & documents can be procured on nominal cost. Contents of the lost baggage had not been specifically and quantitatively declared even in complaint petition or in the evidence in chief for facilitation of adjudication.
It is pertinent to mention that when the complainant lodged the complaint regarding missing of his baggage, a Property Irregularity Report had been prepared and handed it over to the complainant wherein in the horizontal lines under serial no.8, complainant was to mention the contents in the baggage in the said two lines one of which had been left blank and other line had been filled up with cloths, baby food and medicines etc. By this PIR damaged bag had also been handed over to the complainant. On 27.12.2008 by ref.no.DEL9W17388 complainant mentioned that the 2nd baggage contains cloth, jewelry, gift, medicines, baby food etc.
Again, complainant had demanded compensation of Rs.50,00,000/- through legal notice before submission of complainant in this forum, which was reduced to Rs 20,00,000/- in the complaint petition which was again reduced to Rs19,50,000/- in the amended petition for accommodating in the pecuniary jurisdiction. But none of the above amount had been claimed by proper justification by substantiating the value of the baggage or by elucidating the status and position of the complainant in the larger arena, if any. But complainant had miserably failed to justify his claim of compensation. We have no scope to read his position or to introspect his loss without evaluating the value of the lost baggage by any manner.
With the above points in view we hold that there was deficiency in service on the part of ops and the ops indirectly accepted such deficiency by allowing a quantum of compensation on their own and therefore, complainant is entitled to get relief. Thus all the points are disposed of accordingly.
Hence, ordered
that the CC No.175/2009 is allowed on contest with cost against the ops. The ops are jointly and/or severally directed to pay Rs 60,000/- (Rupees sixty thousand) only for cost of the baggage with compensation for harassment and mental agony and litigation cost of Rs.6,000/-(Rupees six thousand) only to the complainant within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
