BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 289/2003 Filed on 30.07.2003

Dated : 15.07.2009

Complainant:

Devarajan, Karukatharayil, N.W. Thazhava, Kuthirappanthi, Kollam District.

(By adv. A.R. Unnikrishna Pillai)

Opposite party :

District Manager, Oman Air, Airport Office, Terminal II, International Airport, Thiruvananthapuram.

(By adv. A. Abdul Kharim)

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 24.11.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 30.05.2009, the Forum on 15.07.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant was a passenger in the Oman Air flight No. WY 1412 in Muscat-Thiruvananthapuram Sector on 12.09.2000, that on reaching Thiruvananthapuram Airport baggage under tag No. WYA 204970 was found missing, that the matter was informed to opposite party on the spot, that on 03.10.2000 complainant was informed by the opposite party that the said baggage was missed and could not be traced out despite best efforts vide letter dated 03.10.2003 and asked the complainant to file a claim, that the complainant submitted the claim and the contents of the baggage were also declared. The cost of the articles contained in the baggage was Rs. 65,000/-, that after continuous follow-up with the opposite party, opposite party settled the amount for Rs. 9,260/- which was not acceptable to the complainant. Hence this complaint to direct the opposite party to pay an amount of Rs. 65,000/- towards the cost of the articles and Rs. 15,000/- towards compensation.

Opposite party entered appearance and filed version contending that the claim is hopelessly barred by limitation. The date of alleged loss of baggage was on 12^th September 2000, whereas the complaint is seen filed on only 30.07.2003. Article 30(1) under Chapter III of the 2^nd schedule to the Act provides that the right to compensation shall be extinguished if an action is not brought within 2 years from the date of arrival of the passenger at the destination. The right of action in this case had extinguished as early as 12^th September 2002. Complainant was a passenger in the Oman Air flight on 12^th September 2000, that the brief case sought to be carried inside the aircraft was not conforming to the cabin size and hence a hazard to safety and security and the same was checked by issuing a limited release tag. Opposite party without admitting any liability had offered a sum equivalent to 200 US Dollars which was however unreasonably refused by the complainant and opposite party did not maintain the same offer at any time thereafter and the same is withdrawn. The contents and value of the same as claimed in the complaint are not correct. There was no negligence or deficiency of service by the opposite party. Hence opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complaint is barred by limitation?

2. Whether the complainant has entrusted his baggage with the opposite party?

3. Whether the complainant has declared the weight of the baggage or value of its contents?

4. Whether there has been deficiency in service on the part of opposite parties?

5. Whether the complainant is entitled to get cost of articles and compensation?

In support of the complaint, complainant had filed affidavit in lieu of examination in chief and Exts. P1 to P6 were marked. In rebuttal, opposite party has filed proof affidavit. Opposite parties did not file any documents.

Points (i) to (v):- Admittedly, complainant was a passenger in the Oman Air flight No. WY 1412 in Muscat-Trivandrum Sector on 12^th September 2000. It has been the case of the complainant that on reaching Thiruvananthapuram Baggage under Tag No. WYA 204970 was found missing, that the matter was informed to the opposite party on the spot, that on 03.10.2000, the complainant was informed by the opposite party that the said baggage was missed and could not be traced, that complainant was asked to file a claim in the prescribed format and submitted the claim accordingly. Ext. P1 is the letter dated 03.10.2000 issued by the opposite party to the complainant. As per Ext. P1 complainant was informed by the opposite party that the missing baggage should be treated as lost and complainant was requested to submit claims along with a copy of the ticket jacket with all supporting purchase bills, vouchers etc. if available in the prescribed format enclosed within 7 days from the date of receipt of Ext. P1 letter. Ext. P2 is the copy of baggage claim questionnaire furnished by the complainant dated 10.10.2000. As per Ext. P2, the lost baggage was unchecked and estimated weight of missing baggage is 15 kg. Ext. P3 is the letter dated August 2, 2001 issued by the opposite party to complainant informing him that a sum of USD 200 equivalent INR 9260/- has been sanctioned being compensation for the non-receipt of the retrieved hand baggage under Tag No. WYA 204970. As per Ext. P3, complainant was requested to collect the said sum from the opposite party against proper release of indemnity to the effect that no future claim will be made against the loss. Ext. P4 & P5 are two bills issued by Naga Al Hadeed Trade and Saif Mohammed Salih Al-Ismaily Traders. Ext. P6 is the arrival ticket. Opposite party resisted the complaint by submitting that the complaint is barred by limitation as stipulated under Article 30(1) of the Carriage by Air Act. As per Article 30(1) under chapter III of 2^nd schedule, to the Act, the right to damages shall be extinguished if an action is not brought within two years reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived or from the date of which the carriage stopped. In this case it is pertinent to point out that the date of alleged loss of baggage was on 12^th September 2000. On the very same day the matter of loss of baggage was informed to opposite party. On 3^rd October 2000 (Ext P1) opposite party informed the complainant that all their efforts to trace the baggage were failed and complainant was requested to submit his claim. Accordingly as per Ext. P2, dated 10.10.2000 Baggage Questionnaire is seen submitted and on August 2, 2001 opposite party, vide Ext. P3 letter a sum of US $ 200 equivalent INR 9260 has been sanctioned being compensation for non-receipt of the retrieved hand baggage. The present complaint is seen filed on 30.07.2003, which is within two years from the date of Ext. P3 letter. In view of the provisions of the Consumer Protection Act, the complaint is filed within time. Hence we find complaint is not barred by limitation. As per Ext. P3 the lost baggage is a hand baggage. The submission by the opposite party is that the briefcase sought to be carried inside the aircraft was not conforming the cabin size and hence it was hazard to the safety and security of the co-passengers and the aircraft, and hence the same was checked in by issuing a limited release tag. Complainant as per Ext. P2 has declared that subject claim is missing hand baggage. No material in evidence to show that complainant had declared the contents of the baggage or value of the contents in the said baggage while entrusting the baggage to opposite party. The onus of proving the contents of the said baggage or its value would rest on the complainant. Since opposite party had admitted the loss of baggage, complainant is entitled for compensation subject to liability limitation. If we examine the provisions of Carriage by Air Act 1976, there is limit placed on the liability of the carrier under which damages can be awarded at the US $ 20 per kg of the weight of the lost baggage. Opposite party, on confirmation of loss of baggage(briefcase), had offered a sum equivalent to 200 US $ by Ext. P3. The liability of the opposite party is determined by the provisions under Rule 22(2) of the second schedule of the Carriage by Air Act. Hence we need not consider other documents produced by the complainant. On going through complaint & version and evidence available on record, we find the above said offer by the opposite party is reasonable on the ground that Carrier's liability is limited.

In the result, complaint is allowed. The opposite party is directed to pay the complainant 200 US $ converted into rupee at the rate of exchange prevailing on the date of passing of this order within one month from the date of receipt of this order. The parties are directed to 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 15^th day of July 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 289/2003

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of letter dated 03.10.2000 issued by opposite party to the complainant.

P2 - Copy of baggage claim questionnaire dated 11.09.2000.

P3 - Letter dated 02.08.2001 issued to the complainant by Station Supervisor, Oman Air.

P4 - Cash Memo dated 07.09.2000 for Rs. 38,000/-.

P5 - Cash/credit memo No. 13176.

P6 - Passenger ticket and baggage check dated 10.09.2000

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT