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. 192/2006 Filed on 06/07/2006 Dated: 16..03..2009
Complainant:
Swamydhasan Daniel, S/o Swamydhasan, No.28/A/5, Arunachallapuram, Vickramasingapuram-P.O., Thirunelveli, Tamilnadu. Represented by his authorised Power of Attorney holder Mrs. Helen Grace Beaula W/o Swamydhasan Daniel residing at No. 28/A/5, ..do..
(By Adv. C.V. Narayanan)
Opposite parties:
Managing Director/Chairman, OMAN AIR, Mark Towers, Sasthamangalam, Thiruvananthapuram – 695 010. Sales Manager, OMAN AIR, District Office, Vellayambalam, Sasthamangalam-695 010. Georgie, MHB-Section, OMAN AIR, Terminal II, International Airport, Thiruvananthapuram – 695 008.
(By Adv. A Abdul Kharim)
This O.P having been heard on 06..02..2009, the Forum on 16..03..2009 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that complainant was a passenger from Bahrain to Thiruvananthapuram by Flight No.WY 815, 816 of the opposite parties on 15/12/2005, that on arrival at Thiruvananthapuram it was found that two baggages were missing, that the matter of missing baggages were immediately reported to opposite parties, that opposite parties promised that the baggages would accompany with the traveller, that the opposite parties collected ticket fare and additional charge for baggages from the complainant, and that opposite parties not kept their promise of prompt delivery of baggages at the destination point at Thiruvananthapuram. The articles were kept in the baggages were lost which would amount to Rs. 20,30,780/-. There is gross negligence and deficiency in service on the part of opposite parties. Complainant sent an advocate notice to the opposite parties along with claim form. But opposite parties did not redress the grievance. Hence this complaint to recover Rs.2,30,780/- towards price of articles of the lost baggages, Rs. 50,000/- towards compensation and Rs.5,000/- towards costs of litigations.
2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts, that the complainant was a passenger from Bahrain to Thiruvananthapuram in the Oman Air Flight, that the complainant has not paid any excess freight charges, that complainant has reported the loss of his baggages and has lodged a Property Irregularity Report with opposite parties. The total weight of the baggages was also noted as 30kg, and that opposite parties could not trace out the lost baggages inspite of world wide tracer messages for the same. Complainant claimed in the Baggage Claim Questionnaire that his lost baggage contained very valuable items with a view to obtain heavy and hefty claim. The weight of the baggage can only be 20kg or less going by the free baggage allowance. The complainant had not made any declaration of special interest in delivery at destination nor paid any supplementary charges. As per the provisions under Article 22(2) of 11 Schedule to the Carriage by Air Act, in the absence of any such declaration, the maximum liability of the Airlines in the case of loss of baggage is statutorily limited to 20 US $ per kg. Opposite party had made all efforts to trace out the baggage. The fact was also intimated to the passenger. Opposite parties did not adopt any kind of unfair trade practice as alleged. There is no dereliction on duty on the part of opposite parties. Hence opposite parties prayed for dismissal of the complaint.
3. The points that arise for consideration are:
Whether the complainant has reported the loss of baggage? Whether the weight of the lost baggage or value of its contents has been declared by the complainant? Whether there has been negligence or deficiency in service on the part of opposite parties? Reliefs and Costs?
In support of the complaint, Power of Attorney holder of the complainant has filed affidavit and Exts.P1 to P10 were marked. In rebuttal, opposite parties did not file affidavit or documents.
4. Points (i) to (iv): Admittedly, complainant was a passenger from Bahrain to Thiruvananthapuram Via Muscat in the Oman Air Flight No.WY 815/816 of the opposite parties on 15/12/2005, and complainant had reported loss of his two baggages on arrival at Thiruvananthapuram. Submission by the complainant is that complainant had lodged a Property Irregularity Report (PIR) with opposite parties. Ext. P1 is the photocopy of the passenger ticket and baggage check. As per Ext.P1, name of passenger is Swamidhasan Daniel (complainant) date of issue is 15, December 2005, Ticket No.is 4910 5165 6110 135. Exts. P2 & P3 are copies of baggage identification tags bearing No. B5 391200, and B5 391201. Ext. P4 is the copy of Property Irregularity Report (PIR) for checked baggage. As per Ext.P4, total packets/weight of the checked baggages are 2/30. Ext.P5 is the copy of the letter dated 27/1/2006 issued by the opposite parties to the complainant. The letter reads as under:
“We request to inform you that all our efforts to trace your baggage under tag numbers B5391200/B5391201 have failed. You are kindly requested to fill the Baggage Claim Questionnaire enclosed and send it back to us along with your Ticket jacket, Boarding cards, Baggage receipts and bills of the lost items for further processing of the claim”. Ext. P6 is the copy of Baggage Claim Questionnaire dated 16/2/2006. As per Ext.P6, total number of pieces checked is 2, and total weight of checked baggage is 48 ½ kg. Ext.P7 is the copy of letter issued by the Airport Manager to the Asst. Commissioner of Customer, Thiruvananthapuram Airport to issue a landing certificate to the complainant. Ext.P8 is the copy of advocate notice dated 17/2/2006 issued to opposite parties. Ext.P9 is the bill issued by Thirunelveli. Evidently on going from Exts. P4 to P7 complainant had reported the loss of baggage to opposite parties. It is pertinent to point out that as per Ext.P4 (PIR), total number of pieces/weight of checked baggage is 2/30. While as per Ext.P6 Baggage Claim Questionnaire, total number of pieces/weight of checked baggage is 2/48.5. There is discrepancy in the weight of loss of baggage as per Ext.P4 and P6. Evidently from Ext.P1, the free baggage allowance is for 20kg. Submission by the opposite parties is that for above 20kg complainant needs to pay excess baggage charge. No material on record to show that complainant had paid any excess baggage charge. Initial onus of proving the weight of loss of baggage would rest on the complainant. Power of Attorney Holder of the complainant has filed affidavit and has been cross examined by the opposite parties. As per Ext.P4 & P6 the weight of the loss of baggage would lie between 30kg and 48.5kg. Though complainant failed to furnish any material showing the payment of excess baggage charge to determine the weight of baggage, we fix the weight of loss of baggage as 30kg. Though complainant has pleaded loss of baggage due to negligence of opposite parties, complainant has never proved it. It is worthwhile to reproduce Rule 25 of the Carriage by Air Act which reads as under:
“The carrier shall not be entitled to avail himself of the provisions of this schedule which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as in the opinion of the court equivalent to willful conduct. Similarly, the carrier shall not be entitled to avail himself of the provisions of the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment".
Since complainant has never proved that the loss of baggage has occurred to him due to the negligence of the opposite parties Rule 25 of the Act is not applicable. Rule 22(2) of the Carriage by Air 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 required. 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 nature to consignor at delivery". So the relevent Rule which we have to consider is Sub Rule 2 of Rule 22 of the Act. 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 luggage or paid any supplementary charge as comparable in the Act. The complainant therefore is entitled for compensation for 30kg. Deficiency in service on the part of opposite parties is proved. Complainant is entitled to 20 US $ per kg as compensation. Complainant is entitled to Rs.5,000/- towards compensation due to deficiency in service and Rs.5,000/- towards cost of the complaint.
In the result, complaint is allowed. Opposite parties are directed to pay to the complainant 600 US $ (converted into Rupee at the rate of exchange prevailing on the date of passing of this order) opposite parties shall also pay the complainant a sum of Rs.5,000/-(Rupees five thousand only) towards compensation for deficiency in service and Rs.5,000/- (Rupees five thousand only) towards cost. Opposite parties shall pay the said amounts within two months from the date of receipt of this order.
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 the16th day of March, 2009.
G. SIVAPRASAD PRESIDENT.
BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER ad. O.P.No.192/2006 APPENDIX Complainant's witness: NIL Complainant's documents:
P1 : Copy of flight ticket No.FC-4 4 910 51656110135 dated 15/12/2005 P2 : " Baggage Identification tag Nos.B5 – 391200 P3 : " tag No.B5 – 391201 P4 : " property Irregularity Report (PIR) for checked baggage P5 : " letter dated 27/1/2006 issued to the complainant by 3rd opp. Party P6 : " baggage claim questionnaire issued by opp. Parties. P7 : " letter issued to the Asst. Commissioner of Customs by 3rd opp. Party P8 : " Advocate notice dated 17/2/2006 issued to the opp. Parties P9 : STD details of telephone bill dated 9/1/2006 of consumer No.2015831400 of Tel.No.222761 issued by Tirunelveli Telecom Dist., BSNL
P9(a) " dated 9/3/2006 " "
P10 : True photocopy of 0471 – 2727901/02
Opposite parties' witness: NIL Opposite parties documents: NIL
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. 192/2006 Filed on 06/07/2006 Dated: 16..03..2009
Complainant:
Swamydhasan Daniel, S/o Swamydhasan, No.28/A/5, Arunachallapuram, Vickramasingapuram-P.O., Thirunelveli, Tamilnadu. Represented by his authorised Power of Attorney holder Mrs. Helen Grace Beaula W/o Swamydhasan Daniel residing at No. 28/A/5, ..do..
(By Adv. C.V. Narayanan)
Opposite parties:
Managing Director/Chairman, OMAN AIR, Mark Towers, Sasthamangalam, Thiruvananthapuram – 695 010. Sales Manager, OMAN AIR, District Office, Vellayambalam, Sasthamangalam-695 010. Georgie, MHB-Section, OMAN AIR, Terminal II, International Airport, Thiruvananthapuram – 695 008.
(By Adv. A Abdul Kharim)
This O.P having been heard on 06..02..2009, the Forum on 16..03..2009 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that complainant was a passenger from Bahrain to Thiruvananthapuram by Flight No.WY 815, 816 of the opposite parties on 15/12/2005, that on arrival at Thiruvananthapuram it was found that two baggages were missing, that the matter of missing baggages were immediately reported to opposite parties, that opposite parties promised that the baggages would accompany with the traveller, that the opposite parties collected ticket fare and additional charge for baggages from the complainant, and that opposite parties not kept their promise of prompt delivery of baggages at the destination point at Thiruvananthapuram. The articles were kept in the baggages were lost which would amount to Rs. 20,30,780/-. There is gross negligence and deficiency in service on the part of opposite parties. Complainant sent an advocate notice to the opposite parties along with claim form. But opposite parties did not redress the grievance. Hence this complaint to recover Rs.2,30,780/- towards price of articles of the lost baggages, Rs. 50,000/- towards compensation and Rs.5,000/- towards costs of litigations.
2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts, that the complainant was a passenger from Bahrain to Thiruvananthapuram in the Oman Air Flight, that the complainant has not paid any excess freight charges, that complainant has reported the loss of his baggages and has lodged a Property Irregularity Report with opposite parties. The total weight of the baggages was also noted as 30kg, and that opposite parties could not trace out the lost baggages inspite of world wide tracer messages for the same. Complainant claimed in the Baggage Claim Questionnaire that his lost baggage contained very valuable items with a view to obtain heavy and hefty claim. The weight of the baggage can only be 20kg or less going by the free baggage allowance. The complainant had not made any declaration of special interest in delivery at destination nor paid any supplementary charges. As per the provisions under Article 22(2) of 11 Schedule to the Carriage by Air Act, in the absence of any such declaration, the maximum liability of the Airlines in the case of loss of baggage is statutorily limited to 20 US $ per kg. Opposite party had made all efforts to trace out the baggage. The fact was also intimated to the passenger. Opposite parties did not adopt any kind of unfair trade practice as alleged. There is no dereliction on duty on the part of opposite parties. Hence opposite parties prayed for dismissal of the complaint.
3. The points that arise for consideration are:
Whether the complainant has reported the loss of baggage? Whether the weight of the lost baggage or value of its contents has been declared by the complainant? Whether there has been negligence or deficiency in service on the part of opposite parties? Reliefs and Costs?
In support of the complaint, Power of Attorney holder of the complainant has filed affidavit and Exts.P1 to P10 were marked. In rebuttal, opposite parties did not file affidavit or documents.
4. Points (i) to (iv): Admittedly, complainant was a passenger from Bahrain to Thiruvananthapuram Via Muscat in the Oman Air Flight No.WY 815/816 of the opposite parties on 15/12/2005, and complainant had reported loss of his two baggages on arrival at Thiruvananthapuram. Submission by the complainant is that complainant had lodged a Property Irregularity Report (PIR) with opposite parties. Ext. P1 is the photocopy of the passenger ticket and baggage check. As per Ext.P1, name of passenger is Swamidhasan Daniel (complainant) date of issue is 15, December 2005, Ticket No.is 4910 5165 6110 135. Exts. P2 & P3 are copies of baggage identification tags bearing No. B5 391200, and B5 391201. Ext. P4 is the copy of Property Irregularity Report (PIR) for checked baggage. As per Ext.P4, total packets/weight of the checked baggages are 2/30. Ext.P5 is the copy of the letter dated 27/1/2006 issued by the opposite parties to the complainant. The letter reads as under:
“We request to inform you that all our efforts to trace your baggage under tag numbers B5391200/B5391201 have failed. You are kindly requested to fill the Baggage Claim Questionnaire enclosed and send it back to us along with your Ticket jacket, Boarding cards, Baggage receipts and bills of the lost items for further processing of the claim”. Ext. P6 is the copy of Baggage Claim Questionnaire dated 16/2/2006. As per Ext.P6, total number of pieces checked is 2, and total weight of checked baggage is 48 ½ kg. Ext.P7 is the copy of letter issued by the Airport Manager to the Asst. Commissioner of Customer, Thiruvananthapuram Airport to issue a landing certificate to the complainant. Ext.P8 is the copy of advocate notice dated 17/2/2006 issued to opposite parties. Ext.P9 is the bill issued by Thirunelveli. Evidently on going from Exts. P4 to P7 complainant had reported the loss of baggage to opposite parties. It is pertinent to point out that as per Ext.P4 (PIR), total number of pieces/weight of checked baggage is 2/30. While as per Ext.P6 Baggage Claim Questionnaire, total number of pieces/weight of checked baggage is 2/48.5. There is discrepancy in the weight of loss of baggage as per Ext.P4 and P6. Evidently from Ext.P1, the free baggage allowance is for 20kg. Submission by the opposite parties is that for above 20kg complainant needs to pay excess baggage charge. No material on record to show that complainant had paid any excess baggage charge. Initial onus of proving the weight of loss of baggage would rest on the complainant. Power of Attorney Holder of the complainant has filed affidavit and has been cross examined by the opposite parties. As per Ext.P4 & P6 the weight of the loss of baggage would lie between 30kg and 48.5kg. Though complainant failed to furnish any material showing the payment of excess baggage charge to determine the weight of baggage, we fix the weight of loss of baggage as 30kg. Though complainant has pleaded loss of baggage due to negligence of opposite parties, complainant has never proved it. It is worthwhile to reproduce Rule 25 of the Carriage by Air Act which reads as under:
“The carrier shall not be entitled to avail himself of the provisions of this schedule which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as in the opinion of the court equivalent to willful conduct. Similarly, the carrier shall not be entitled to avail himself of the provisions of the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment".
Since complainant has never proved that the loss of baggage has occurred to him due to the negligence of the opposite parties Rule 25 of the Act is not applicable. Rule 22(2) of the Carriage by Air 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 required. 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 nature to consignor at delivery". So the relevent Rule which we have to consider is Sub Rule 2 of Rule 22 of the Act. 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 luggage or paid any supplementary charge as comparable in the Act. The complainant therefore is entitled for compensation for 30kg. Deficiency in service on the part of opposite parties is proved. Complainant is entitled to 20 US $ per kg as compensation. Complainant is entitled to Rs.5,000/- towards compensation due to deficiency in service and Rs.5,000/- towards cost of the complaint.
In the result, complaint is allowed. Opposite parties are directed to pay to the complainant 600 US $ (converted into Rupee at the rate of exchange prevailing on the date of passing of this order) opposite parties shall also pay the complainant a sum of Rs.5,000/-(Rupees five thousand only) towards compensation for deficiency in service and Rs.5,000/- (Rupees five thousand only) towards cost. Opposite parties shall pay the said amounts within two months from the date of receipt of this order.
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 the16th day of March, 2009.
G. SIVAPRASAD PRESIDENT.
BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER ad. O.P.No.192/2006 APPENDIX Complainant's witness: NIL Complainant's documents:
P1 : Copy of flight ticket No.FC-4 4 910 51656110135 dated 15/12/2005 P2 : " Baggage Identification tag Nos.B5 – 391200 P3 : " tag No.B5 – 391201 P4 : " property Irregularity Report (PIR) for checked baggage P5 : " letter dated 27/1/2006 issued to the complainant by 3rd opp. Party P6 : " baggage claim questionnaire issued by opp. Parties. P7 : " letter issued to the Asst. Commissioner of Customs by 3rd opp. Party P8 : " Advocate notice dated 17/2/2006 issued to the opp. Parties P9 : STD details of telephone bill dated 9/1/2006 of consumer No.2015831400 of Tel.No.222761 issued by Tirunelveli Telecom Dist., BSNL
P9(a) " dated 9/3/2006 " "
P10 : True photocopy of 0471 – 2727901/02
Opposite parties' witness: NIL Opposite parties documents: NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
