A Rajesh, President.
The case of the complainant is as follows:
The complainant and his family traveled by the opposite party’s flight from Canada to Cochin International Air port and arrived at Cochin Air Port on 05-09-2008. At the airport it was noticed that one of the accompanied eight baggages was received in torn and damaged condition and items were missing from it. On the same day the complainant sent the list of missing items and cost of baggage to the opposite party by mail. On 18-09-2008 the complainant received baggage claim questionnaire from the opposite party and he filled out the same and sent it back. Thereafter the opposite party offered Rs. 2,450/- by their letter dated 23-09-2008 to indemnify the loss. But the complainant did not accept the offer. The complainant has sustained the loss of baggage only due to the negligence and carelessness of the opposite party. The complainant is entitled to get Rs. 1,30,400/- the price of missing items and cost of the baggage from the opposite party together with costs of the proceedings. Hence this complaint.
2. Version of the opposite party.
The complainant intimated damage in the outer bag and lodged a property irregularity report. The complainant did not raise loss or missing of any items while taking delivery of the baggage. He submitted his baggage claim questionnaire only on 18-09-2008 that is after 13 days from the delivery of baggage. Under Rule 27(2) of the II schedule to the carriage by Air Act 1972 the damage or loss ought to have been reported within 7 days. There is no evidence to show that the items mentioned in the baggage claim questionnaire contained the alleged damaged baggage. However as a goodwill gesture the opposite party offered Rs. 2,450/- on receipt of the baggage claim questionnaire. The liability of the Air line as per Rule 22(2) of II schedule to the carriage by Act is 20 US dollar per Kg. The complainant had not made any special declaration nor paid any supplementary charge regarding the baggage. There is no deficiency or negligence on the part of the opposite party. The opposite party requests to dismiss the complaint.
3. The complainant was examined as PW1and Exts. A1 to A12 were marked on his side. The witness for the opposite party was examined as DW1 and the documents were marked as Exts. B1 and B2. Heard the counsel for the parties.
4. The points that emerged for consideration are.
i. Whether the complainant is entitled to get a sum of Rs. 1,30,400/-from the opposite party?
ii. Costs of the proceedings.
5. Points Nos. i&ii. The following issues are not disputed by the parties.
i. The complainant and his family traveled by the flight of the opposite party from Canada to Cochin.
ii. The complainant reached Cochin International airport on 05-09-2008.
iii. The complainant duly filled out the baggage claim
questionnaire and sent it to the opposite party on 18-09-2008 claiming Rs. 1,30,400/-.
iv. The opposite party offered a sum of Rs. 2,450/- on receipt of the baggage claim questionnaire evidenced by Ext. A6.
6. Admittedly, on 05-09-2008 the date of arrival of the complainant at the instance of the complainant an employee of the opposite party prepared Ext. A2 property irregularity report in which the description of the baggage is stated as “left bottom torn”. Ext. A5 letter was forwarded to the opposite party by the complainant on the same day evidenced by Ext. A4 postal receipt. In Ext. A3 letter the complainant has detailed the missing items from the baggage. Subsequently the opposite party forwarded the baggage claim questionnaire along with Ext. A5 covering letter dated 16-09-2008. The complainant duly filled out the form and the same has been forwarded to the opposite party on 18-09-2008. Indisputably the complainant has forwarded Ext. A3 letter as well as Ext. A6 baggage claim questionnaire from Thiruvalla his native place. It is pertinent to note that the missing items mentioned in Ext. A3 and A6 are not identical. Some discrepancy is evident. In short further embolishment in the missing items in Ext. A6 is not sustainable especially when the complainant was carrying 8 baggages. The complainant has not disclosed the contents of the baggage at the airport for his own reasons.
7. According to the opposite party though the baggage was torn nothing was missing from the baggage and therefore the complainant is not entitled to get any compensation. Then the question would arise as to why they have forwarded baggage claim questionnaire to the complainant and in consequence of that they have offered a compensation of Rs. 2,450/- to the complainant.
8. The Hon’ble High court of Kerala in Srilankan Airlines Ltd. Vs. The Permanent Lok Adalath 2009 (4) KLT 625 (cited by the complainant) “Therefore the airlines should be put to prima facie proving that they took adequate and proper care to the baggage and the same was damaged or lost despite proper care”
9. In the instant case, as well the opposite parties failed to prove that they had taken adequate and proper care in dealing with the baggage of the complainant. In view of the above the only option before us to resolve the dispute with the help of clause 22 (2) in schedule 2 of the carriage by Air Act in which the liability of carrier is limited to a sum of Rs. 250 francs per kilo gram. In this case neither of the parties could furnish the weight of the baggage in this Form. Since the weight of the luggage is not available in the interest of justice we think that the weight of the baggage can be fixed at the maximum weight that can be carried by a passenger during the journey.
10. Since the primary grievance of the complainant has been met squarely. We order no costs.
11. In the result, we partly allow the complaint and direct that the opposite party shall pay compensation to the complainant in tune with clause 22 (2)in schedule 2 of the Carriage by Air Act treating the weight of the baggage of the complainant at the maximum weight of the baggage that can be carried by a person
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order failing which the above amount shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 30th day of April 2011.
