BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No: 207/2004 Filed on 12/05/2004

Dated: 30..11..2011

Complainant:

Maniyan, S/o Pachan, Greeshma Bhavan, Mohanapuram, Kaithoorkonam, Pothencode, Thiruvananthapuram.

(By Adv. G.S. Kalkura)

Opposite parties:

1. Cargo Sales Manager, Air India, Air Cargo Complex, Thiruvananthapuram Airport, Shangummughom, Thiruvananthapuram.

2. Air India, Thiruvananthapuram. Represented by the General Manager, Air India, Shangummughom, Thiruvananthapuram.

    

(By Adv. S. Reghukumar)

This O.P having been heard on 14..11..2011, the Forum on 30..11..2011 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant was working in Soudi Arabia, that on 20/3/2002 complainant sent baggages weighing 202kg through opposite party Air India, Thiruvananthapuram vide bill No.09878591951dated 20/3/2002, that on 10/4/2002 complainant approached Air Cargo at Thiruvananthapuram, opposite party delivered articles weighing 162kg and the same was received by the complainant and instructed the complainant by the opposite party to come and collect the balance baggage after two weeks, that thereafter complainant approached several times the opposite parties, but opposite parties could not deliver the same, that thereafter on 15/7/2002 complainant lodged a complaint before the opposite parties for compensation stating that the lost baggage contained Camera, Watches, Gold coins, Gold chains and other valuable articles, that the value of the article would come to Rs. 1,00,000/-, that there is deficiency in service on the part of the opposite parties in not delivering the entrusted baggage. Hence this complaint to direct opposite parties to deliver the lost baggage or its value of Rs. 1,00,000/- along with compensation and other expenses of Rs.50,000/-.

2. Opposite parties entered appearance and filed version contending inter alia that the complaint is not maintainable either in law or on facts, that the liability of the carrier is limited to a sum of 20 US Dollars / kg, unless the passenger or the consignor made a special declaration regarding the contents at the time when the baggage was handed over to the carrier or paid a supplementary sum, that the complainant neither gave any special declaration regarding the contents of the baggage or supplementary sum was paid. Hence opposite parties are liable to pay only the limited liability fixed under the statute, that the weight of the baggage is the sole criterion for fixing liability and not its value, that complainant had sent a letter dated 15/7/2002 to opposite party regarding the non-delivery of the consignment, that opposite party sent a letter explaining that the claim made by the complainant for the value of the alleged articles packed in the missing cardboard carton cannot be entertained because of the prohibition under the Act, that opposite parties had expressed willingness to settle the dispute as per the Rules and Regulations of the Carriage by Air Act, that the allegation in the complaint that articles worth Rs. 1,00,000/- were kept in the missing baggage of the complainant is false, that at the time of entrustment of the baggage the complainant had not disclosed the contents of the baggage, the allegation that the complainant and his friend had to spend Rs. 25,000/- as the expense for travel and other expenses is false and denied, that complainant is not entitled to any compensation. Hence opposite parties prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is negligence and deficiency in service on the part of the opposite parties?

2. Whether the complainant is entitled to get compensation. If so, to what amount?

3. Whether the complainant is entitled to cost?

In support of the complaint, complainant has filed proof affidavit as PW1 and has marked Exts. P1 to P9. In rebuttal, opposite party has filed proof affidavit.

4. Points (i) to (iii) : Admittedly, complainant entrusted his baggages to opposite party for delivery at Thiruvananthapuram on 20/3/2002. Ext. P1 is the copy of Airway bill issued by opposite party. On perusal of the Airway bill it is seen that it's No. is 098 – 78591951, that the bill was executed on 20/03/2002, consignor and consignee are one and the same person. On perusal of Ext. P1 complainant had sent 5 cartons weighing 202 kgs, total charges: Rs. 1,616/-. As regards the nature and quantity of goods it is stated 'personal effects used household goods not for resale', total prepaid including other charges is Rs. 1,727/- and along with Ext. P1 copy of Delivery Order is appended. As per the Delivery Order opposite party delivered 4 baggages. Ext. P2 is the copy of the letter dated 28/08/2002 issued by Air India, Cargo Sales Manager requesting the consignor to furnish claim for the fifth piece which has not been located till date. It is further stated in Ext. P2 that opposite party received letter dated 15 July 2002 claiming for valuables like Cameras, Watches, Gold Coins and Gold Chains that complainant claims to have packed in the missing cardboard carton. It is informed by opposite party that loss of the said articles cannot and should not be packed in cartons and Air India will not be responsible for the loss. Ext. P3 is the copy of the letter addressed to Cargo Sales Manager claiming compensation for the missing baggage. Ext. P4 is the bill issued by Universal Gold, the date of the bill is not readable. Ext. P5 is the another bill for watches and cameras, whose date also is not readable. Ext. P6 is the bill issued by Dar Liala For Gold & Jewels. Ext. P7 is the bill whose description and date are not clear. Ext. P8 is the bill issued by Al Dhabiyan Electronics description is not clear, but date is 12/01/2002. Ext. P9 is the carbon copy of Ext. P1. Complainant has been cross examined by the opposite party. In his cross examination when asked whether entire cargo charges were remitted, PW1 said – the amount remitted as required by opposite party. PW1 has admitted that what he had remitted is the cargo charge, PW1 denied the suggestion that he had never disclosed the articles contained in the baggages nor had he paid supplementary charges. PW1 has deposed that the nature of articles disclosed is not seen written in Ext. P9. PW1 has further deposed that Exts. P4 to P8 were translated by the person, who is authorised to do so. PW1 has admitted in re-examination that he had sent baggages through the agent of the Air India. PW1 has further deposed in the re-examination that Exts. P4 to P8 bills were translated by Imam of Palayam Juma Masjid. Opposite party has filed affidavit as DW1. DW1 has been cross examined by the complainant. In his cross examination DW1 has deposed that complainant's baggage was an unaccompanied one and out of the five baggages four baggages were delivered. PW1 has admitted that once the goods are entrusted to opposite party the person who entrusted the goods has no control over it. DW1 has deposed that he has not verified the records maintained at Riyadh. DW1 has deposed in cross examination that he had maintained book or register regarding the movement of articles. Further DW1 has added that he has no idea regarding maintenance of register at Riyadh. DW1 has deposed that only household articles may be received as unaccompanied baggages. On going through the complaint, version and evidence available on record it may be noted that there is no dispute on entrustment of consignment of 5 cartons. Complainant has received 4 cartons, one carton is yet to deliver. According to complainant the lost carton weighs 40kg. On perusal of Ext. P9, carbon copy of a consignment note or Airway bill, it is seen that 5 pieces of cartons having gross weight of 202kgs. In the column of gross weight 162kg is also written. The claim of the complainant that he had received 162kg from the opposite party is never challenged by the opposite party. Further the allegation of the complainant that he is entitled to get carton weighing 40kgs which is also not challenged by opposite parties, eventhough weight of each carton is not described in Ext. P9, it is written 162kg in the column of gross weight. Complainant admitted that he had received 162kg out of 202kgs. There is no dispute on the gross weight of the consignment. In view of the above it can be inferred that complainant is entitled to get 40kgs. The contention of the complaint is that the missing carton contains valuable articles including Cameras, Watches, Gold coins, and Gold chains etc... Complainant has produced Exts. P4 to P8 bills regarding the purchase of Gold, watches. There is no material on record to show that complainant had disclosed the contents of the baggages. There is no material on record to show that complainant has paid supplementary charges for the articles declared. It is pertinent to point out that valuable articles like jewellery and others have to be sent or entrusted only after declaration for which additional charge would have to be paid to the carrier. Moreover, no prudent passenger would send gold chain or coins through Air cargo, rather the same will be carried by the passenger in the hand bag. If the said items is sent as cargo it should be done after due declaration and on payment of additional charge as required by the opposite party. Admittedly, there were 5 cartons complainant has no case that he has kept the alleged articles in such and such cartons. The burden is on the part of the complainant to show that he has sent the alleged articles in the lost consignment, complainant failed to do so. In this circumstance we find complainant is entitled to get compensation subject to the charges limitation of liability and other provisions applicable to the carriage of baggage. We have already found that the missing carton is having a weight of 40kg. As per the Rules and Regulations of the Carriage by Air Act the liability of the carrier is limited to a sum of 20 US Dollars / kg unless the consignor / passenger has made the special declaration of interest in delivering at destination and has made a supplementary sum in the case requires. As per the Rules and Regulations of the Carriage by Air Act we find a loss of 40kgs for which complainant is entitled to get an amount of Rs. 40 x 20 = 800 US Dollars. Admittedly, the non delivery of the entrusted consignment amounts to deficiency in service. Complainant has never produced any material on record to show that there is negligence on the part of the opposite parties in the loss of the baggage. No negligence is pleaded or proved. But deficiency in service is proved for which complainant is entitled to compensation also.

In the result, complaint is allowed. Opposite party shall pay the complainant a sum of 800 US Dollars (converted into Rupees at the rate of exchange prevailing on the date of passing this Order). Opposite party shall also pay a sum of Rs.5,000/- towards liability arising out of deficiency in service along with Rs. 3,000/- as cost.

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 30^th day of November, 2011.

G. SIVAPRASAD

PRESIDENT.

BEENA KUMARI .A,

MEMBER.

S.K. SREELA,

ad. MEMBER.

C.C.No: 207/2004

APPENDIX

I. Complainant's witness:

PW1 : Maniyan

II. Complainant's documents:

P1 : Copy of Airway bill

P2 : Copy of the letter dated 28/8/2002

P3 : " letter dated 15/7/2002 issued by the complainant

P4 : The bill No. 07065 dated 3/3/2006

P5 : The bill No. 01256 dated 3/3/2006

P6 : The bill No. 09527 dated 3/3/2006

P7 : The bill No. 01377 dated 3/3/2006

P8 : The bill No. 47551

P9 : The Airway bill

III. Opposite parties' witness:

DW1 : Aruna Anbunathan

IV. Opposite parties' documents: NIL

PRESIDENT