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. 174/2002 Dated: 28..02 ..2009
Complainant:
Kumari Shubha, Pranavam, Uliakovil, Kollam – 691 019.
Opposite parties:
CRM-Cum-Airport Manager, Air India, Trivandrum Airport Terminal II, Trivandrum. General Manager, AIR INDIA, New Delhi – 1.
(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 22..11..2004, 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 16..02..2009, the Forum on 28..02..2009 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that the complainant was a passenger in Air India Flight No.AI-938 from Muscat to Thiruvananthapuram on 22nd June 2001, that complainant had entrusted two baggages to the opposite parties, that on reaching Thiruvananthapuram opposite parties handed over only one baggage booked by the complainant out of two and that complainant had submitted the details of contents of the missing baggage to the opposite parties. The total value of the missing articles amounts to Rs.49,900/-. Opposite parties vide letter dated 28th August, 2001 informed to the complainant that all efforts to trace the missing baggage proved futile and hence opposite parties would be paying the complainant 100 US Dollars as compensation, which is not acceptable to the complainant. Hence this complaint to grant cost of missing articles of Rs.49,900/- with interest at the rate of 18% and Rs.3,000/- towards compensation and Rs.5,000/- towards cost.
2. Opposite parties filed version contending that on reaching Thiruvananthapuram complainant reported to the opposite parties that out of two baggages entrusted only one piece of baggage weighing 50kg was delivered to the complainant, that complainant had no details about other baggage, that the complainant submitted the passenger property questionnaires to the opposite parties, that the weight of the missing baggage was calculated with reference to the passenger property questionnaire and that the weight of the missing baggage was 5kg and the amount fixed under the provisions of the Carriage by Air Act was tendered to the complainant. At the time of entrustment of the baggage complainant had not made any special declaration or paid any supplementary sum regarding the baggage. Hence as per Rule 22 (2) of the Carriage by Air Act the liability of the carriage is limited to a sum of 20 US Dollars/kg. A statutory compensation was already paid to the complainant by a cheque No.246575 dated 9/10/2001 for an amount of Rs.4,666/- equivalent to 100 US Dollars. Hence opposite paties prayed for dismissal of the complaint.
3.The points that arise for consideration are:
Whether there has been deficiency in service on the part of opposite parties? Reliefs and costs?
4. In support of the complaint, complainant has filed affidavit in lieu of examination in chief and Exts.P1 to P6 were marked. In rebuttal, the Deputy General Manager (Admn), Air India has filed affidavit and Ext.D1 was marked. 5. Points (i) & (ii) : Admittedly, complainant was a passenger in Air India Flight No.AI-938 from Muscat to Thiruvananthapuram on 22/6/2001 and she had carried two baggages. It has been the case of the complainant that on reaching Thiruvananthapuram opposite parties handed over only one baggage and the other baggage containing personal belongings including few ornaments, worth Rs.49,900/- was missing, that as instructed by the opposite parties, a passenger property questionnaire was filled up and handed over to opposite parties, that the opposite parties in their letter dated 28/8/2001 had informed the complainant that all efforts to trace the missing baggage have proved futile and that opposite parties would pay 100 US Dollars as compensation. It has been rebutted by the opposite parties by submitting that the weight of the missing baggage was calculated with regard to the passenger property questionnaire submitted by the complainant, that the weight of the same was fixed at 5kg and the amount fixed under the provisions of the Carriage by Air Act was tendered to the complainant. Submission urged by the opposite parties is that opposite parties had received the passenger claim letter dated 'Nil' on 14th July 2001 for compensation for loss of baggage and that opposite parties had informed the complainant vide letter dated 28/8/2001 that all the efforts made by the opposite parties to trace out the baggage of the complainant did not yield any result, and opposite parties are ready and willing to settle the claim of the complainant by paying 100 US Dollars. It is urged by the opposite parties that they had sent a cheque dated 9/10/2001 bearing No.246575 for an amount of Rs.4,666/- equivalent to 100 US Dollars to the complainant and the complainant had received the same. Ext.D1 is the copy of the letter dated 28/8/2001 issued by the opposite parties to the complainant. As per Ext.D1 opposite parties had estimated the weight loss in the registered baggage as 5kg as per the itemised list mentioned by the complainant on the passenger property questionnaire and worked out an amount of 100 US Dollars for 5kg. It is seen stated in Ext.D1 that the INR equivalent of 100 US Dollars will be sent to the complainant in full and final settlement. It is pertinent to note that opposite parties have pleaded in the version as well as affidavit that they had sent a cheque dated 9/10/2001 bearing No.246525 for an amount of Rs.4,666/- equivalent to 100 US Dollars to the complainant and the complainant had received the same. Complainant had admitted the offer given by the opposite parties by Ext.D1. Complainant never denied in her affidavit the acceptance of cheque for Rs.4,666/- dated 9/10/2001 issued by the opposite parties. Evidently from Ext.P6 (the photocopy of cheque dated 9/10/2001) itself we hold that complainant had received the said cheque. But the complainant suppressed the same in the complaint and affidavit. In the instant case no case is pleaded or proved by the complainant for claiming compensation exceeding the liability of the carrier provided under Rule 22 (2) of the Carriage by Air Act 1972. Further no such case is pleaded or proved that the loss is caused by the willful misconduct of the opposite parties. Since the complainant has never pleaded or proved that the loss has occured to her due to the negligence of the opposite parties Rule 25 of the Carriage by Air Act is not applicable. So the relevant rule which we have to consider is Sub rule 2 of Rule 22. Rule 22 (2) of the Act reads as under: "In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kg, unless the consignor had made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the actual value to the consignor at delivery".
5. At this juncture it is pertinent to note that the complainant while entrusting the baggage to the opposite parties had not made any special declaration regarding the value of the contents of the baggage or paid any supplementary charge as comparable in the Carriage by Air Act 1972. The complainant is therefore entitled for compensation subject to the liability limitations as per law. Main thrust of argument advanced by the complainant is that the limitation liability as claimed under rule 22 (2) is not available to opposite parties in view of Section 9 of the Carriage by Act as no 'Air consignment note' has been set out. Further it is urged by the complainant that 'Luggage Ticket' under 4(1) of the Carriage by Air Act was not issued by Air India and hence opposite parties are not eligible for exemption as per Section 4(4) of the Act. Submission urged by the opposite parties is that complainant has quoted First schedule of Section 3 of the Carriage by Air Act which has no force of law in view of Second schedule of Section 4 of the Carriage by Air Act. Further, it is contended by the opposite parties that all international carriage in India is governed by Second schedule of Section 4 and not First schedule of Section 3. It is further argued by the opposite parties that the air ticket issued by Air India is a combination of passenger ticket and baggage check and no other document will be issued by Air India other than air ticket which is a combination of both. Further, submission by the opposite parties is that Airway bill is introduced in Part (1) of Second schedule and deals with cargo only. Air consignment note is not in existence because of Section 4 and the corresponding schedule. The Air consignment note is confined to cargo and not baggage. In this case, complainant will not be issued an Airway bill because she transported her belongings as unaccompanied baggage and not cargo. In view of the foregoing discussion, we hold the argument of the complaint, that the limitation liability as claimed under rule 22 (2) is not available, to opposite parties as no 'Air consignment note' has been set out, will not stand. Now we have to consider the veracity of the estimated weight loss fixed by the opposite parties. As per Ext.D1/P2 the estimated weight loss is 5kg. It is seen stated in Ext. D1/P2 that the said 5 kg is estimated as per the itemised list mentioned by the complainant on the passenger property questionnaire (Ext.P1). It is to be noted that complainant had mentioned only 6 items in Ext.P1 such as gold chain (4 sovereign), wrist watches (RADO- 2 Nos.), clothing, sarries, bed sheets etc....worth Rs. 10,000/-, cosmetics worth Rs. 2,000/-, umbrellas (3 Nos.) and bangles (3 sovereigns), and the total value of the missing articles claimed is Rs.49,9000/-. Ext.P3 & P4 are two cash memos showing purchase of gold ornaments issued by Modern Jewellery House LLC, Sultanate of Oman. On going through the description of contents in Ext.P1 we find the estimated weight loss as 5kg as fixed by the opposite parties is genuine and reasonable. It is to be mentioned that the passenger claim for compensation for loss of baggage was sent by the complainant on 14/7/2001, settlement proposal was sent by the opposite parties on 28/8/2001 and the cheque dated 9/10/2001 for Rs.4,666/- equivalent to 100 US Dollars for 5kg was sent by the opposite parties to the complainant before filing this complaint. Opposite parties settled the claim within the reasonable time. In the light of the above said evidence, we do not find that any case has been made out for this Forum to go behind such full and final settlement. We therefore, do not find any merit in this complaint for us to hold that there was any deficiency in service on the part of opposite parties. The complaint deserves to be dismissed.
In the result, complaint is dismissed. Both parties will bear and suffer their costs.
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 28th day of February, 2009.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER ad.
O.P.No.174/2002 APPENDIX Complainant's witness: NIL
Complainant's documents:
P1 : Photocopy of passenger ticket questionnaire dated 22/6/2001 P2 : " letter No.TAP/60/BAH TRVAII/7874/4408 dated August 28/2001 of Air India P3 : " cash memo dated 21/6/2001 from Modern Jewellery of LLC, Oman P4 : " cash memo dated 21/6/2001 from Modern Jewellery of LLC, Oman P5 : " order dated 20/1/2002 of Dist. Forum, Kollam.
P6 : " cheque No.246575 dated0/10/2001 for Rs.4,660/- issued by opposite parties.
III. Opposite parties' witness : NIL
Opposite parties' documents:
D1 : Copy of the letter dated 28/7/2001 sent by the opposite parties to the complainant.
PRESIDENT
ad.
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. 174/2002 Dated: 28..02 ..2009
Complainant:
Kumari Shubha, Pranavam, Uliakovil, Kollam – 691 019.
Opposite parties:
CRM-Cum-Airport Manager, Air India, Trivandrum Airport Terminal II, Trivandrum. General Manager, AIR INDIA, New Delhi – 1.
(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 22..11..2004, 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 16..02..2009, the Forum on 28..02..2009 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that the complainant was a passenger in Air India Flight No.AI-938 from Muscat to Thiruvananthapuram on 22nd June 2001, that complainant had entrusted two baggages to the opposite parties, that on reaching Thiruvananthapuram opposite parties handed over only one baggage booked by the complainant out of two and that complainant had submitted the details of contents of the missing baggage to the opposite parties. The total value of the missing articles amounts to Rs.49,900/-. Opposite parties vide letter dated 28th August, 2001 informed to the complainant that all efforts to trace the missing baggage proved futile and hence opposite parties would be paying the complainant 100 US Dollars as compensation, which is not acceptable to the complainant. Hence this complaint to grant cost of missing articles of Rs.49,900/- with interest at the rate of 18% and Rs.3,000/- towards compensation and Rs.5,000/- towards cost.
2. Opposite parties filed version contending that on reaching Thiruvananthapuram complainant reported to the opposite parties that out of two baggages entrusted only one piece of baggage weighing 50kg was delivered to the complainant, that complainant had no details about other baggage, that the complainant submitted the passenger property questionnaires to the opposite parties, that the weight of the missing baggage was calculated with reference to the passenger property questionnaire and that the weight of the missing baggage was 5kg and the amount fixed under the provisions of the Carriage by Air Act was tendered to the complainant. At the time of entrustment of the baggage complainant had not made any special declaration or paid any supplementary sum regarding the baggage. Hence as per Rule 22 (2) of the Carriage by Air Act the liability of the carriage is limited to a sum of 20 US Dollars/kg. A statutory compensation was already paid to the complainant by a cheque No.246575 dated 9/10/2001 for an amount of Rs.4,666/- equivalent to 100 US Dollars. Hence opposite paties prayed for dismissal of the complaint.
3.The points that arise for consideration are:
Whether there has been deficiency in service on the part of opposite parties? Reliefs and costs?
4. In support of the complaint, complainant has filed affidavit in lieu of examination in chief and Exts.P1 to P6 were marked. In rebuttal, the Deputy General Manager (Admn), Air India has filed affidavit and Ext.D1 was marked. 5. Points (i) & (ii) : Admittedly, complainant was a passenger in Air India Flight No.AI-938 from Muscat to Thiruvananthapuram on 22/6/2001 and she had carried two baggages. It has been the case of the complainant that on reaching Thiruvananthapuram opposite parties handed over only one baggage and the other baggage containing personal belongings including few ornaments, worth Rs.49,900/- was missing, that as instructed by the opposite parties, a passenger property questionnaire was filled up and handed over to opposite parties, that the opposite parties in their letter dated 28/8/2001 had informed the complainant that all efforts to trace the missing baggage have proved futile and that opposite parties would pay 100 US Dollars as compensation. It has been rebutted by the opposite parties by submitting that the weight of the missing baggage was calculated with regard to the passenger property questionnaire submitted by the complainant, that the weight of the same was fixed at 5kg and the amount fixed under the provisions of the Carriage by Air Act was tendered to the complainant. Submission urged by the opposite parties is that opposite parties had received the passenger claim letter dated 'Nil' on 14th July 2001 for compensation for loss of baggage and that opposite parties had informed the complainant vide letter dated 28/8/2001 that all the efforts made by the opposite parties to trace out the baggage of the complainant did not yield any result, and opposite parties are ready and willing to settle the claim of the complainant by paying 100 US Dollars. It is urged by the opposite parties that they had sent a cheque dated 9/10/2001 bearing No.246575 for an amount of Rs.4,666/- equivalent to 100 US Dollars to the complainant and the complainant had received the same. Ext.D1 is the copy of the letter dated 28/8/2001 issued by the opposite parties to the complainant. As per Ext.D1 opposite parties had estimated the weight loss in the registered baggage as 5kg as per the itemised list mentioned by the complainant on the passenger property questionnaire and worked out an amount of 100 US Dollars for 5kg. It is seen stated in Ext.D1 that the INR equivalent of 100 US Dollars will be sent to the complainant in full and final settlement. It is pertinent to note that opposite parties have pleaded in the version as well as affidavit that they had sent a cheque dated 9/10/2001 bearing No.246525 for an amount of Rs.4,666/- equivalent to 100 US Dollars to the complainant and the complainant had received the same. Complainant had admitted the offer given by the opposite parties by Ext.D1. Complainant never denied in her affidavit the acceptance of cheque for Rs.4,666/- dated 9/10/2001 issued by the opposite parties. Evidently from Ext.P6 (the photocopy of cheque dated 9/10/2001) itself we hold that complainant had received the said cheque. But the complainant suppressed the same in the complaint and affidavit. In the instant case no case is pleaded or proved by the complainant for claiming compensation exceeding the liability of the carrier provided under Rule 22 (2) of the Carriage by Air Act 1972. Further no such case is pleaded or proved that the loss is caused by the willful misconduct of the opposite parties. Since the complainant has never pleaded or proved that the loss has occured to her due to the negligence of the opposite parties Rule 25 of the Carriage by Air Act is not applicable. So the relevant rule which we have to consider is Sub rule 2 of Rule 22. Rule 22 (2) of the Act reads as under: "In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kg, unless the consignor had made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the actual value to the consignor at delivery".
5. At this juncture it is pertinent to note that the complainant while entrusting the baggage to the opposite parties had not made any special declaration regarding the value of the contents of the baggage or paid any supplementary charge as comparable in the Carriage by Air Act 1972. The complainant is therefore entitled for compensation subject to the liability limitations as per law. Main thrust of argument advanced by the complainant is that the limitation liability as claimed under rule 22 (2) is not available to opposite parties in view of Section 9 of the Carriage by Act as no 'Air consignment note' has been set out. Further it is urged by the complainant that 'Luggage Ticket' under 4(1) of the Carriage by Air Act was not issued by Air India and hence opposite parties are not eligible for exemption as per Section 4(4) of the Act. Submission urged by the opposite parties is that complainant has quoted First schedule of Section 3 of the Carriage by Air Act which has no force of law in view of Second schedule of Section 4 of the Carriage by Air Act. Further, it is contended by the opposite parties that all international carriage in India is governed by Second schedule of Section 4 and not First schedule of Section 3. It is further argued by the opposite parties that the air ticket issued by Air India is a combination of passenger ticket and baggage check and no other document will be issued by Air India other than air ticket which is a combination of both. Further, submission by the opposite parties is that Airway bill is introduced in Part (1) of Second schedule and deals with cargo only. Air consignment note is not in existence because of Section 4 and the corresponding schedule. The Air consignment note is confined to cargo and not baggage. In this case, complainant will not be issued an Airway bill because she transported her belongings as unaccompanied baggage and not cargo. In view of the foregoing discussion, we hold the argument of the complaint, that the limitation liability as claimed under rule 22 (2) is not available, to opposite parties as no 'Air consignment note' has been set out, will not stand. Now we have to consider the veracity of the estimated weight loss fixed by the opposite parties. As per Ext.D1/P2 the estimated weight loss is 5kg. It is seen stated in Ext. D1/P2 that the said 5 kg is estimated as per the itemised list mentioned by the complainant on the passenger property questionnaire (Ext.P1). It is to be noted that complainant had mentioned only 6 items in Ext.P1 such as gold chain (4 sovereign), wrist watches (RADO- 2 Nos.), clothing, sarries, bed sheets etc....worth Rs. 10,000/-, cosmetics worth Rs. 2,000/-, umbrellas (3 Nos.) and bangles (3 sovereigns), and the total value of the missing articles claimed is Rs.49,9000/-. Ext.P3 & P4 are two cash memos showing purchase of gold ornaments issued by Modern Jewellery House LLC, Sultanate of Oman. On going through the description of contents in Ext.P1 we find the estimated weight loss as 5kg as fixed by the opposite parties is genuine and reasonable. It is to be mentioned that the passenger claim for compensation for loss of baggage was sent by the complainant on 14/7/2001, settlement proposal was sent by the opposite parties on 28/8/2001 and the cheque dated 9/10/2001 for Rs.4,666/- equivalent to 100 US Dollars for 5kg was sent by the opposite parties to the complainant before filing this complaint. Opposite parties settled the claim within the reasonable time. In the light of the above said evidence, we do not find that any case has been made out for this Forum to go behind such full and final settlement. We therefore, do not find any merit in this complaint for us to hold that there was any deficiency in service on the part of opposite parties. The complaint deserves to be dismissed.
In the result, complaint is dismissed. Both parties will bear and suffer their costs.
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 28th day of February, 2009.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER ad.
O.P.No.174/2002 APPENDIX Complainant's witness: NIL
Complainant's documents:
P1 : Photocopy of passenger ticket questionnaire dated 22/6/2001 P2 : " letter No.TAP/60/BAH TRVAII/7874/4408 dated August 28/2001 of Air India P3 : " cash memo dated 21/6/2001 from Modern Jewellery of LLC, Oman P4 : " cash memo dated 21/6/2001 from Modern Jewellery of LLC, Oman P5 : " order dated 20/1/2002 of Dist. Forum, Kollam.
P6 : " cheque No.246575 dated0/10/2001 for Rs.4,660/- issued by opposite parties.
III. Opposite parties' witness : NIL
Opposite parties' documents:
D1 : Copy of the letter dated 28/7/2001 sent by the opposite parties to the complainant.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
