Per:- Mr. Deshpande, President Place : BANDRA JUDGMENT
The Opposite Party – British Airways; is in the business of airlines and offer services to the air-passengers. On 15/6/2008, the Complainant returned to Mumbai from London, by the Opposite Party’s Flight No.BA-139. On his arrival at Chhatrapati Shivaji International Airport, Mumbai; the Complainant found that his suitcase was missing. He complained with airport staff about missing of the suitcase and lodged a complaint vide Reference No.75182. Airport duty staff assured the Complainant that his suitcase would arrive within one or two days from London. On the next day i.e. 16/6/2008, the Complainant received his missing suitcase at his residence, but he found that it was tampered and its locks were broken. According to the Complainant, he had kept valuable articles and cash in the suitcase and amongst those, following articles and cash were missing:-
Articles | Description | Approximate Rate | Gold Bracelet | 45.5 gms. | Rs.49,140/- | Diamonds | 1.10 Carats | Rs.30,250/- | Gold Ring | 15.200 gms. | Rs.16,400/- | Semi Precious Stone | | Rs.*2,600/- | Olympus Camera | 2000 U.S. Dollars @ Rs.43/- per dollar | Rs.15,000/- | | Total Amount | Rs.1,99,390/- |
[2] On 19/6/2008, the Complainant sent a letter to the officials of the Opposite Party – Airlines; about his missing articles and money. On 21/6/2008, the Complainant received a reply from the Opposite Party – Airlines; that their airlines has limited legal liability where check-in luggage is concerned. Valuables such as electronic items and other valuable articles are not covered under their conditions of carriage. On 17/7/2008, the Complainant served a legal notice through is advocate, claiming refund of price of lost articles. However, he did not receive any reply from the Opposite Party – Airlines. Ultimately, the Complainant filed present complaint for recovery of compensation in sum of Rs.1,99,390/- and compensation in sum of Rs.1,00,000/-. [3] The Opposite Party – Airlines; appeared and filed its written version of defence through its Airport Manager and took stand that the Complainant at the time of handing over his baggage to the carrier has made no special declaration of interest in delivery at destination and has not paid the supplementary sum thereof. The Opposite Party – Airlines; also referred to the fact that the Complainant was not entitled to keep valuable articles and cash in the check-in baggage and there was contravention of conditions of carriage, which are binding upon every air-passenger. Thus, the Opposite Party – Airlines; denied its liability to pay compensation to the Complainant. [4] The Complainant has filed his affidavit of evidence. The Opposite Party – Airlines; also filed an affidavit of its Airport Manager, by name – Mr. Vivek Anand. The Complainant annexed copy of air-ticket as well as copies of correspondence. The Opposite Party – Airlines; filed its written notes of arguments and annexed to the same general conditions of carriage as applicable to the air-passengers of the Opposite Party – Airlines. The Opposite Party – Airlines; also relied upon decisions of Hon’ble National Consumer Disputes Redressal Commission and some State Consumer Disputes Redressal Commissions. [5] We have gone through the pleadings, affidavits as well as documents and conditions of carriage produced on the record by the Opposite Party – Airlines. [6] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Party – Airlines; is guilty of deficiency in service on account of loss of valuable articles and cash kept in the luggage of the Complainant, which was found missing? | NO | 2. | Whether the Complainant is entitled to claim from the Opposite Party – Airlines; refund of amount and compensation? | NO | 3. | What order? | The complaint stands dismissed. |
REASONS FOR FINDINGS [7] There is no dispute about the fact that the Complainant traveled by Flight No.BA-139 on 15/6/2008, operated by the Opposite Party – Airlines; from London to Mumbai and on landing at Mumbai, the Complainant found that his one suitcase was missing. The Complainant has produced on the record a copy of letter dtd.16/6/2008, sent by the Opposite Party – Airlines; to the Complainant, while returning the suitcase. At the bottom of the said letter, which is marked as Annexure-‘B’, there is a mention that lock was open and following articles were missing:- (a) Digital camera; (b) Gold Ring; and (c) U.S.$2000/-. [8] While traveling by air, an air-passenger is entitled to carry his luggage either by check-in luggage or by keeping certain luggage with him, which is known as ‘Cabin Luggage’. In the present case, the suitcase in question was given in custody of staff of the Opposite Party – Airlines; by the Complainant at airport at London as a part of Check-in luggage. In the written version, the Opposite Party – Airlines; has referred to general conditions of carriage, which are applicable to every air-passenger. Those conditions are marked Annexure-III, page (20) of the compilation of the written notes of arguments filed by the Opposite Party – Airlines. On the air-ticket, a copy of which is produced on the record as Annexure-‘A’, there is a reference to the conditions in the following manner:- “SUBJECT TO CONDITIONS OF CARRIAGE. COPIES AVAILABLE ON REQUEST.” [9] Thus, on the air-ticket itself, there was a reference to conditions of carriage, as applicable to the Opposite Party – Airlines. Those conditions of carriage were available on the website of the Opposite Party – Airlines. Annexure-III, page (20) of the compilation of the written notes of arguments filed by the Opposite Party – Airlines; is a print-out of the General Conditions of Carriage downloaded from the said website. As per Condition No.8(f) thereof, an air-passenger was not entitled to keep money, jewellery, precious metals and electronic devices etc., in the checked in baggage. This shows that a passenger is not entitled to carry these valuable articles in the checked luggage. [10] The Opposite Party – Airlines; has also referred to Rule-22(2a) of the Second Schedule of Carriage By Air Act, 1972. It reads as follows:- “In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination 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 that sum is greater than the passenger’s or consignor’s actual interest in delivery at destination.” [11] On reading of the same, it is seen that for keeping the valuable articles in the checked in luggage, a passenger is required to make a special declaration and he is also required to pay supplementary sum if the case so requires. In the present case, admittedly, there was no special declaration on the part of the Complainant while handing over the luggage to the staff of the Opposite Party – Airlines; at London Airport. Question of making payment of supplementary sum does not arise because there no declaration. These provisions contained in General Conditions of Carriage as well as Rules framed under the Carriage by Air Act, 1972; govern the liability of Airline company. Provisions in the Second Schedule are known as ‘Rule of Limited Liability’. These provisions as well as general conditions of carriage were considered by the Hon’ble National Consumer Disputes Redressal Commission in Ms. Gargi Parsai Vs. M/s. K. L. M. Royal Dutch Airlines ~ 2003-(2)-CPR-1-(NC). In that case, the Complainant therein traveled from Milan, Italy to Amsterdam by KLM Flight. On reaching there, she found that the baggage had a duplicate tag and it was in a damaged condition. It contained gold and diamond jewellery, estimated at U.S.$2,400/-. She filed report with the airport staff. On correspondence, she filed a complaint with the State Commission for recovery of compensation. On trial, the State Commission found that the Complainant therein had not declared value of the contents of the baggage. The State Commission held that the Complainant therein failed to discharge the onus of proving willful misconduct on the part of the Opposite Party therein. The Complainant therein preferred an appeal before the Hon’ble National Commission. Hon’ble National Commission referred to Rule-25 as well as Rule-22(2) of the rules framed under the Carriage by Air Act, 1972. On analysis of both the provisions and effect of the same on the background of facts of the case, the Hon’ble National Commission held that Rule-22(2) was applicable and the Complainant therein was not entitled to compensation. Thus, it upheld the order passed by the State Commission. We have referred to this particular judgment amongst the compilation of various judgments relied upon by the Opposite Party – Airlines; because the facts of the case in the relied upon judgment are more or less similar to the facts of the present case inasmuch as in the present case also, the Complainant alleges that he had kept some valuable articles and gold in the suitcase, which was found missing. In that case like in the present case, there was no declaration and the suitcase was kept in the check-in luggage. Thus, the ratio of this above-referred case would be squarely applicable to the present case. Similar are the observations in the judgment of the Union Territory Consumer Disputes Redressal Commission, Chandigarh in Ritesh Singla Vs. M/s. Air India Limited & Ors. ~ 2008-(1)-CPR-205. [12] The Learned Advocate for the Opposite Party – Airlines; also brought to our notice variance between the remarks in the note below letter dtd.16/6/2008 under which, the suitcase was returned to the Complainant and description of the articles given in the complaint. According to him, in the first instance, the Complainant alleged loss of digital camera, gold ring and cash in sum of U.S.$2000/-; whereas in the legal notice the Complainant mentioned about diamond, precious stones, camera, gold bracelet etc. This shows that the Complainant is not bonafide and his statements are not consistent qua number and nature of the missing articles. However, this aspect of the matter becomes insignificant in view of the conclusion drawn by us that because of the effect of conditions of carriage and provisions of Rule-22(2) of the Second Schedule of Carriage By Air Act, 1972; the Complainant is not entitled to cost of articles. As a result of this, we hold that the Complainant has failed to prove that the Opposite Party – Airlines; is guilty of deficiency in service. With this, we proceed to pass the following order:- ORDER The complaint stands dismissed. No order as to costs.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
