Karnataka

Bangalore 4th Additional

CC/16/317

Mr.Suhail Hamid Lone, S/o. Mr. Abdul Hamid Lone, - Complainant(s)

Versus

Airport Manager (In-Charge), M/s. Emirates Airlines, - Opp.Party(s)

Siddharth B. Muchandi

21 Dec 2017

ORDER

Complaint filed on: 24.02.2016

                                                      Disposed on: 21.12.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.317/2016

DATED THIS THE 21^st DECEMBER OF 2017

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mr.Suhail Hamid Lone

S/o Mr.Abdul Hamid Lone,

Aged about 36 years,

Occ: Managing Director,

Lone Heights, No.309,

Prestige Meridian 2,

M.G.road,

Bengaluru-01.

 

R/at #13/1, II floor,

Jesse Residency,

Cline road, Cooke town, Benaluru-05.

 

By Advocates M/s.Siddharth B Muchandi & Associates

 

V/s

Opposite party/s

Respondent/s:-

 

1. Airport Manager (In-charge) M/s.Emirtes Airlines, Kempegowda International Airport (BIAL),

Devanahalli,

Bengaluru-300.

 

2. Head customer Affairs, M/s.Emirates Airlines,

3, Mittal Chambers,

Ground floor, 228,

Nariman point,

Mumbai-400021.

Rep.by the Manager

 

3. Head customer Affairs Department,

M/s.Emirates Airlines

PO Box 686, Dubai,

United Arab Emirates,

Rep. by the Manager.

 

By Adv.Sri.Ramesh.C.N. 

 

ORDER DELIVERED BY PRESIDENT

SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant u/s 12 of the CP Act against the Opposite parties no.1 to 3(herein after referred as Op.no.1 to 3 or Ops) for issuance of the directions to them to disclose the result of investigation being carried out by Emirates about the mishandling of his baggage and the action taken against the erred officials/employees and agencies and furnish such report and pay a sum of Rs.1,60,000/- towards the loss of articles and Rs.5 lakhs towards mental agony.

 

          2. The brief facts of the case of the Complainant are that he had booked on 02.09.2015 tickets for his travels from Bengaluru to Las Vegas via Dubai and New York for 12.10.2015 and the return journey from Las Vegas to Bengaluru via New York and Dubai was on 3010.2015 on the Op’s airline from the online travel portal of makemytrip.com. It is also the case of the Complainant that on the return journey, when he arrived at Bengaluru airport on 30.10.2015 and on taking delivery of his check-in baggage, he found the lock of his bag was broken. It is the case of the Complainant that the tampered bag contained two items namely an I-phone worth Rs.60,000/- and an Apple wrist watch worth Rs.1 lakh which were stolen. It is the case of the Complainant that iPhone belonged to Mr.Javed who happens to his friend, as such it is not belongs to him. In this context, he has filed the complaint as against the Ops for seeking the relief as prayed for in the complaint.

  

          3. On receipt of the notice, Ops did appear through their counsel and filed detail objection to the complaint filed by the Complainant. In brief, it is the case of the Op that on receiving an email dtd.31.10.2015 by the complainant, responded to the same and offered as a gesture of goodwill without any admission of liability a sum of US$ 1195 towards the cost of Appel watch and as the iphone did not belong to the Complainant but to a third party, hence denied the claim. It is also the contention of the Op that the Complainant refused to accept the offer made by the Op, and filed the present complaint seeking costs of the good allegedly stolen and compensation amounting in all to Rs.6,60,000/-. On these grounds and other grounds, Op prays for dismissal of the complaint as there is violation of Article 8.3.3 of the conditions of carriage of the Op.

 

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents from Ex-A1 to A27 and closed his side. Vice President of Op.no.2 filed affidavit evidence and got marked the documents Ex-B1 & B2. Both filed the written arguments. We placed reliance on the available materials on record. We heard both side.

  

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Ops, if so, whether the Complainant is entitled for the relief sought for ?
2. What order ?

                   

           

 

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:. It is not in dispute that the Complainant bag was found to be tampered with and the lock was found to be broken. It is also not in dispute that one Apple watch and also the Apple mobile handset were found to be disappeared from the said bag when it was opened by the Complainant. It is also not in dispute that the Complainant informed the said fact to the Ops by email dtd.31.10.2015. In this context, the Op responded and offered as a gesture of goodwill without any admission of liability a sum of Rs.US$1195 towards the cost of Apple watch. But it denied to compensate the cost of iphone as it did not belong to the Complainant but to the third party. It is needless to discuss in detail as the airlines authorities are not authorized to check the baggage of the travellers, but it is only the concerned airport authorities are authorized to check the baggages of the passengers, just to know, whether the passengers carrying any of the counter band articles or else the objects which are not permissible to carry in the cabin bag. The learned counsel for the Complainant submits that no doubt, the iphone did not belongs to the Complainant, but it belongs to his friend, but the service rendered by the Ops is found to be deficient, as it ought to have compensate the Complainant, in respect of the value of the iphone, though it belongs to the third party. In support of his arguments, placed reliance on the decision of the Hon’ble National Commission in first appeal no.204/2008 dtd.11.04.2013, in the case of Emirates and M/s.Emirates Airlines Vs Dr.Rakesh Chopra. We placed reliance on the said decision. The said decision will not through the light on the contention taken by the Complainant, for the simple reasons that, in the said case, airline authorities have settled the claim which was not to the satisfaction of the Complainant therein. Hence, taking in to the consideration the inconvenience caused to the Complainant therein, the Hon’ble State Commission awarded an amount of Rs.2 lakhs. In the instant case, the Ops have come forward to settle the claim of the Complainant as a kind of good gesture by offering a sum of US$ 1195 towards the Apple watch.  But the Complainant herein did not accept the said proposal as he is also seeking amount for Apple iphone. In this context, the learned counsel for the Op submits that the Article 8.3.3 of the conditions of Carriage of the Op clearly states what items cannot be carried in the checked in baggage. The same rule has been prescribed by the IATA the international body of aviation. Inspite of disclosing the contents of the said Article 8.3.3 of the conditions of carriage of the Op, the Complainant is not in a position for not considering reimbursement cost of iphone as the same belongs to third party. Further submits that, there was no proof of both items which belongs to the Complainant in the baggage during the check-in at Las Vegas and no declaration was made in respect of the contents of the Bag. In the absence of the declaration with regard to the particulars of the articles kept in the said bag, the Ops cannot take in to consideration to the alleged loss sustained by the Complainant.  Further the learned counsel for the Ops submit that the bags are scanned in the airport by the security staff of the concerned airport authorities for safety reasons and not by airlines. So, the Ops cannot be held responsible for any alleged tamper to the bag or else of any item therein. In this context, he placed reliance on the decision of the Hon’ble National Commission reported in CPJ NC (559) 2012(2) in the case of Shivgarg Vs Lufthansa, wherein it is held that:

Regarding petitioners contention that the should be compensated for the loss of diamond necklace and other valuables also, we agree with the State Commission that since these were carried in violation of the terms & conditions of the passenger ticket as stated earlier and were not insured, the Respondents were not liable to compensate the petitioner for this loss. Petitioner’s contention is that respondent/airlines should not have accepted the checked in baggage containing the necklace and other valuable which was revealed in the X-ray. We are not convinced with this contention because the baggage is X-rayed for security considerations by security staff and respondent/airlines do not scan the baggage to see whether valuables are being carried or not. In view of the above reasons, we find no infirmity in the order of the State Commission and uphold the same. The revision petition is therefore, dismissed. No costs.

 

8. Further the learned counsel for the Ops submit that, the Complainant ought not to have carried any valuable items and electronic device in his checked in baggage, as the Article 8.3.3 of the conditions of carriage of the Op which is even printed on the ticket and also available on the carrier website at www.emirates.com clearly states certain what items cannot be carried in the checked in baggage and should be carried in the hand baggage. For which he again draw our attention to the Article 8.3.3 which reads thus:

Article 8.3.3: You must not include in checked baggage fragile or perishable items, valuable items (including, for example, money, jewelry, precious metals), computers, personal electronic devices, stored data, any medication or medical equipment which may be required in-flight or during your trip or which cannot be quickly replaced if lost or damaged, house or car keys, valuable documents (including, for example, business documents, passports and other identification documents, negotiable papers, securities deeds) or samples.

 

9. Further the learned counsel for the Ops submit that the Complainant never made any special declaration as to the contents of his bag at the time of check in at Las Vegas airport by paying a supplementary sum. In this context, he draw our attention to the Article 22(2) of the schedule III of the Carriage by Air Act 1972 which reads thus:

Article 22(2): (2) In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay shall be limited to one thousand special drawing rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum, if so required. In that case, the carrier shall be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in deliver at destination.

 

10. Referring to the above provision submits that there is no any deficiency of service on the part of the Ops. Hence the claim of iphone was rightly rejected, stating that first of all this should not have been put in the bag as per the condition of the Carriage. The so called offer by it, to settle for the e-Apple watch was a purely goodwill gesture. The cost of the alleged Apple watch, the Ops are ready to reimburse, despite there being no proof of alleged pilferage and just a declaration of the alleged pilferage on part of the Complainant, which the Complainant refused to accept. Hence as per Article 22 of the Carriage by air act, liability is limited to SDR’s 1000, ($1500). In this context, he placed reliance on the following decisions.

1. Air India Vs Tej shoes, (division bench judgment of High court)
2. Sahara vs Dr.J.Rath IV
3. Egypt Air Vs Sai Leelavathi
4. Gargi parsai Vs KLM Royal Dutch Airlines
5. National Travel service Vs Gaurang Films
6. Shiv Garg Vs Lufthansa

 

Referring to the said decisions, submits that, the claim of the Complainant be dismissed as no case has been made out towards deficiency of service on part of Ops or in the alternative restrict the final award to US$1195 being the sum already offered but refused.

 

          11. We find there is considerable force in the arguments advanced by the learned counsel for the Ops, with reference to the decisions cited supra. It is not in dispute that the Ops have offered a sum US$1195 as gesture of goodwill towards the alleged loss of Apple watch, but the Complainant refused to accept it, though the Article 8.3.3 of conditions of carriage of Op clearly states what items cannot be carried in the checked in baggage. The same rule has been prescribed by the IATA the international body of aviation. We also noticed that the iphone is not belongs to the Complainant as it belongs to the third party. The Complainant never supposed to carry it with him in his bag. Further, there was no any declaration by the Complainant in respect of carrying Apple watch and also iphone, without declaration, he was carried the same which is contrary to the Article 8.3.3 of the conditions of the carriage of Op, so also under Article 22(2) of the schedule III of the carriage by Air Act 1972 which have been already extracted in the forgoing paragraphs. Even if the Complainant declared the same, in that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination. As the Complainant did not given the declaration with regard to the Apple watch and iphone, under such circumstances, we do not find any kind of deficiency of service on the part of Ops. Any how, the Ops as a good kind of gesture offered a sum of US$1195 to the Complainant with regard to the loss of his Apple watch, but he has denied it. The action taken with regard to the loss of Apple watch is concerned, the Ops have promptly looked in to the matter. Hence there is no any deficiency on the part of the Ops. Accordingly we answered the point no.1 in the negative.  

 

          12. Point no.3: In the result, we passed the following.

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed.

 

          2. Anyhow, the option is left open to the Complainant to accept the offer of the Ops for a sum of US$1195 or equalent to the Indian currency as a gesture of goodwill towards the alleged loss of Apple watch.

 

3. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties. 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 21^st December of 2017).

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

Sri.Suhail Hamid Lone, who being the complainant was examined. 

 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Emirates Skywards – Blue- Membership
Ex-A2	Passport
Ex-A3	Airtickets
Ex-A4	Boarding pass
Ex-A5	Baggage inventory form
Ex-A6 to A8	Emails dtd.31.10.15 by Ct, 02.11.15 by OPs, 03.11.15 by Ct
Ex-A9	Photographs of damaged or tampered baggage
Ex-A10	Invoice of the iPhone dtd.31.01.15
Ex-A11	Apple store repair information dtd.20.10.15 – Genius bar work authorisation
Ex-A12	Credit card statement
Ex-A13 to A20	Emails dtd.12.11.15 by Op, 01.12.15, 12.11.15 by Ct, 16.11.15 by Op, 18.11.15 by Ct, 02.12.15 by Ct, 07.12.15 by Op, 07.12.15 by Ct
Ex-A21	Legal notice dtd.05.01.15
Ex-A22	Postal acknowledgement
Ex-A23 to A26	Emails dtd.07.01.16 by Op, 11.01.16 by Op 18.01.16 by counsel, 19.01.16 by Op
Ex-A27	Invoice of the Apple watch dtd.25.10.15

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Essa Sulaiman Ahmad, who being the Vice President of Op.no.2 was examined. 

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Conditions of carriage for passengers and baggage – 15.05.2006
Ex-B2	Schedule III of carriage by Air Act, 1972

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT