BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.NO. 286/2002 Filed on 06..07..2002

Dated: 29..11..2008

Complainant:

Shareefkutty, S/o. Hassankunju, Kinaruvila Kizhakkathil, Perayam, Umayanalloor – P.O., Kollam District – represented by his brother and Power of Attorney Holder Sulaiman, S/o Hassan Kunju, Kinaruvila Kizhakkathil, Perayam,Umayanalloor -P.O., Kollam.

(By Adv. B.S. Prasad Gandhi)

Opposite parties:

1. Gulf Air – represented by its Area Manager, Trivandrum International Airport, Thiruvananthapuram.

(By Adv. A. Abdul Kharim)

2. The Air India Ltd. Represented by its Area Manager or the Officer-in- charge, Trivandrum International Airport Authority, Thiruvananthapuram.

(By Adv. S. Reghukumar)

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 13..05..2005 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 15..11..2008, the Forum on 29..11..2008 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that the complainant was a passenger from Kuwait to Trivandrum through Morning Gulf Air Flight, Kuwait-Bahrain-Trivandrum on 21..06..2001 (Flight Nos.216 & 1060) (Ticket No.3353572379) and reached Trivandrum on 22..06..2001. Prior to boarding the aircraft at Kuwait after security check the complainant's baggages consisting of a card board box and one Diplomatic Brief case which contains his personal belongings and other valuables was entrusted to the Gulf Air as ordered by the Gulf Air Authorities for which an excess baggage ticket tag No.GF 805063 was issued by the Gulf Air Authorities so as to get it back at the destination point at Trivandrum. The above said brief case contained Gold ornaments, Emergency tube, Powder, Cream, Nivea, Tooth paste, Audio & Video cassettes, Letter pad, Rothman Cigarette packet, Electric bulbs, Mercury bulbs, Ball pen, sketch pen, colour pencil, Hair pin (cover) Microphone, Wrist Watch (KCO), Kuwait War claim papers & cheque books of SBT & Union Bank.Total value of the contents was Rs. 54,720/-. Complainant reached his destination point on 22..06..2001. When complainant approached the Area Manager, Air India Limited, Thiruvananthapuram International Airport to clear his baggage, it was informed that the said baggage brief case under Tag No.GF 805063 was not arrived. As directed by the Area Manager, Air India the complainant collected a PIR copy from the Air India. Thereafter the complainant went to the Airport several times to collect the missed baggage but the concerned authorities failed to trace out the missed baggage. On 30..06..2001 the 1^st opposite party was informed about the loss through a letter by the complainant and requested to trace out to deliver the baggage. It could not be traced out thereby the Gulf Authorities committed severe deficiency in service and gross negligence to trace out the baggage. Hence this complaint claiming an amount of Rs.1,25,000/- from the opposite parties.

2. 1^st opposite party entered appearance and filed version contending that the complainant was a passenger in the Thiruvananthapuram bound flight of the 1^st opposite party from Kuwait to Thiruvananthapuram (via) Bahrain on the Gulf Air Flight Nos. GF 216 & GF 1060 on the 21^st and 22^nd June 2001. There was no report of any loss on the date of his disembarking the flight to Thiruvananthapuram. The complainant had also not lodged any Property Irregularity Report (PIR) on the date of alleged loss. The failure to lodge a PIR by the complainant on the date of his travel had disabled the opposite party to take timely action to locate the lost baggage. The 1^st opposite party however took all efforts on late report by the passenger, to trace out the said baggage , the said brief case could not be traced out. The complainant did not disclose the weight of the lost of the brief case. The complainant attempted to carry a comparatively big size of brief case as hand baggage inside the aircraft cabin, not conforming the overhead cabin size. Complainant had checked in a baggage utilising the free baggage allowance and he purposefully did not check in the brief case in the counter in order to avoid payment of excess baggage charge. As the above baggage did not conform to the cabin size and the Airline staff compelled to retrieve the same at the boarding gate of the flight at Kuwait Airport and checked in the same for carriage under limited release tag. Complainant ought to have checked in the said baggage at the Airport Counter itself by paying necessary freight charges and the failure of the complainant to do so was improper and illegal. Complainant had not produced any PIR before the 1^st opposite party. The complainant had not made any declaration at Kuwait Airport Counter regarding the contents nor paid any supplementary charges. The claim for valuables including gold ornaments is absolutely unsustainable on the above ground and also on the ground that the Conditions of Carriage of the Airline which prohibits carriage of gold, currency and other documents in a checked baggage. The claim for Rs.54,720/- being cost of the alleged contents of the baggage is highly exaggerative and not sustainable on facts. There was no negligence or irresponsibility on the part of the opposite party as alleged in the complaint. The complainant is not entitled to get the exorbitant amount of Rs.1,25,000/- as the cost of the alleged lost items or as compensation for sufferings and mental agony. The claims are without any basis. Compensation for a lost baggage in an International Carrier is governed by the provisions under Article 22 of the 2^nd Schedule to the Carriage by Air Act 1972 which limits the maximum liability of the Airline at US Dollars 20/Kg in the absence of any special declaration of interest in delivering at destination. Hence his entitlement is only at the rate of 20 US Dollar/Kg subject to proof of the weight of the baggage.

3. 2^nd opposite party entered appearance and filed version contending that 2^nd opposite party is unnecessarily made a party in the complaint. There is no privity of contract between the 2^nd opposite party and the complainant and the complaint is liable to be dismissed on that sole ground. Complainant travelled to Thiruvananthapuram through 1^st opposite party flight. His baggage was also boarded in the 1^st opposite party Aircraft. Complainant neither made any special declaration nor paid any supplementary sum as envisaged by Section 22(2) of Carriage by Air Act. The complainant is entitled only to the limited liability prescribed in accordance with the weight of the baggage. The said sum has to be paid by M/s. Gulf Air as it is the 1^st opposite party which had carried the baggage of the complainant from Kuwait to Thiruvananthapuram and 1^st opposite party is alone liable to pay for the loss of baggage as per the provisions of Section 22(2) of the Carriage by Air Act. The duty of the 2^nd opposite party is only to entrust the baggage and cargo, handed over to it M/s. Gulf Air. Hence 2^nd opposite party prayed for dismissal of the complaint as against the 2^nd opposite party.

4. 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 1^st opposite party?

    

5. Reliefs and cost?

5. In support of the complaint, the Power of Attorney Holder of the complainant has filed his affidavit and marked Exts. P1 to P10 series. In rebuttal the Financial Controller of the 1^st opposite party and Deputy Manager of the 2^nd opposite party have filed their affidavits.

6. Points (i to v): It has been the case of the complainant that complainant was a passenger from Kuwait to Thiruvananthapuram in the Thiruvananthapuram bound flight of the 1^st opposite party on Gulf Air flight Nos. 216 & GF 1060 on 21^st June 2001 and the complainant had entrusted his baggage consisting of a card board box and one Diplomatic brief case containing his personal belongings and other valuables to the 1^st opposite party for which 1^st opposite party had issued an excess baggage ticket tag No.GF 805063 to the complainant. It has also been the case of the complainant that complainant has lost his baggage on his arrival at Thiruvananthapuram and thereby complainant has sustained a monetary loss of Rs.54,720/-. Ext.P2 is the Gulf Air Ticket. As per Ext.P2, passenger name is Hussainkunju/Sheriefkutty, Flight No.is GF 216 and GF 1060, Date is 21^st July, Ticket No.is 33535723793, Baggage checked unchecked PCS 2/26. Ext.P3 is the boarding pass to Flight GF 216 issued in the name of the complainant, where it is recorded that PCS 2 WT.46. Ext. P4 is the Limited Release Card No.GF 805063. On the reverse of Ext.P4 it is printed that “This is not the luggage ticket (baggage check) described by article 4 of Warsaw Convention”. Ext.P5 is Landing Certificate with particulars of missing baggage issued by the 2^nd opposite party. Submission by the complainant was that on his arrival at Trivandrum Airport on 22..06..2001 his baggage was not arrived on the Cargo Section and that on enquiry, 2^nd opposite party informed that the said baggage brief case under Tag No.GF 805063 was not arrived and that as directed by the 2^nd opposite party complainant collected PIR from the 2^nd opposite party Mishandled Bag Section. It has been resisted by the 1^st opposite party by submitting that there was no report of loss on the date of his disembarking the said Flight to Thiruvananthapuram and that complainant had also not lodged any PIR on the date of alleged loss which is mandatory. As per Ext.P5, complainant has applied for issuing a landing certificate in favour of complainant who arrived in flight No.GF 1060 dated 22^nd June 2001 and Tag No.GF 805063. Complainant did not produce copy of the PIR. According to 1^st opposite party non-production of PIR disentitled the complainant from getting any relief in this case. Main thrust of argument advanced by the 1^st opposite party was to the effect that complainant attempted to carry an unconforming size of brief case as hand baggage inside the aircraft cabin, not conforming to the overhead luggage cabin and that Airline staff retrieved the same at the boarding gate of the flight at Kuwait Airport and checked in the same for carriage under limited release tag. Submission by the 1^st opposite was that complainant ought to have checked in the said baggage at the Airport counter itself by paying necessary freight charge. 1^st opposite party has submitted that complainant had not lodged any PIR, and not reported the alleged loss on the date of arrival and hence the claim of loss of baggage to the 1^st opposite party on 30..06..2001 which was 8 days after the travel according to the 1^st opposite party. Ext.P6 is the copy of letter dated 17..08..2001 addressed to the Airport Manager, Gulf Air. Ext.P7 is the copy of Advocate notice dated 18..09..2001 addressed to the Air India Ltd., which was acknowledged by the 2^nd opposite party by Ext.P8. As per Ext.P8, 2^nd opposite party informed the complainant that his travel was with the 1^st opposite party and any query/claim towards baggage will be dealt by the 1^st opposite party and requested the complainant to contact 1^st opposite party for further details. Complainant's case is that he has lost one Diplomatic Brief case which consists of articles worth Rs.54,720/- and other War claim papers and cheque books. Ext.P9 & P10 series include copies claim category – Claim 'C'. UNCC claim documents. As per claim category 'Claim-C', the claim amount is 3920 K.D. To substantiate the articles contained in the Diplomatic baggage complainant never produced any documents nor revealed the weight of the said bag. It is pertinent to note that complainant has never revealed the weight of lost baggage, nor produced Property Irregularity Report. As per Ext.P3 baggage consists of 2 pieces weight 46 and as per Ext.P2 Air ticket, complainant had carried 2 pcs/26kg.and free baggage allowance was 20kg. If weight was 46kg., after free baggage allowance of 20kg complainant ought to have paid supplementary sum for 26kg. No material on record to show that complainant had remitted supplementary sum, nor did complainant make special declaration of the value at delivery. If complainant had made special declaration of the value at delivery and had paid supplementary sum, the carrier would be liable to pay a sum not exceeding the declared sum. It is pertinent to note that complainant has no case that he carried with him 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 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 by 22(2) of the Act. In Ext.P4 Limited Release, it is mentioned that carrier's participating in transporation of the item may not accept claims resulting from the above conditions of acceptance. Baggage checked subject to tariffs including limitations of liability therein contained being the maximum US $ 20/kg or its equivalent in any other currencies upto 20kgs. In the absence of declaration value of the contents of the lost baggage, and payment of supplementary sum, we consider the limitation of liability of the carrier upto 20kg. Complainant is entitled to get only 20 US $ per kg as compensation. For 20kg., the complainant is entitled to get 20x20 US $ = 400 US $ or equivalent Indian Rupees. We need not consider other claims of the complainant on the ground that carrier's liability is limited.

In the result, complaint is allowed. The 1^st opposite party is directed to pay 400 US $ converted into Indian rupee at the rate of exchange prevailing on the date of passing of this Order within two months from the date of this order. 1^st opposite party shall also pay the complainant a sum of Rs. 1,000/- (Rupees One thousand only) as cost. The above amounts shall carry interest at the rate of 12% per annum, if not paid within the said period.

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 29^th day of November, 2008.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.286/2002

APPENDIX

I. Complainant's witness : NIL

II. Complainant's documents:

P1 : Photocopy of passport of complainant No.P-780925 issued by Embassy of India, Kuwait

P2 : Original Gulf Air Ticket No.3353572379-(3) of complainant

P3 : Original Boarding pass to flight No.GF-216 in respect of complainant.

P4 : Original luggage limited release card No.GF-805063

P5 : Original Landing Certificate dated 22..06..2001 issued by Tvpm International Airport.

P6 : Photocopy of letter dated 17..08..2001 submitted to Airport Manager

P7 : Photocopy of advocate notice dated 18..09..2001 sent to the opposite parties.

P8 : Reply of advocate notice dated 28..09..2001

P9 : Photocopy of directions issued by the Ministry of External Affairs

P10 Photocopy of direction issued Ministry of External Affairs and pages of passport issued by Embassy of India, Kuwait.

III. Opposite parties witness : NIL

IV. Opposite parties' documents : NIL

PRESIDENT.