28.11.2014.

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal has been preferred against the judgment and order dated 3.7.2013 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, in C.C.Case No. 13/2013, directing the Appellants/Ops to pay within one month from the date of order to the Respondent/Complainant Rs. 45,000/- as compensation, Rs. 5,000/- as cost and also to deposit with the State Consumer Welfare Fund the punitive damages @ Rs. 200/- per day for the period of default.

          The facts of the case, in short, are that the Respondent/Complainant had undertaken an air journey on 27.9.2012 from Mumbai to Kolkata by Spicejet Flight No. SG 873 having PNR No. YIBQBG.  In course of such air journey, even waiting for an hour after the landing of the flight, the Respondent/Complainant did not get back his baggage the said Airlines was carrying along with the Respondent/Complainant.  The baggage having thus not been got back the Respondent/Complainant lodged Baggage Loss Report with Spicejet Complaint Cell in Kolkata with a description of the contents of the baggage and the declared value at Rs. 1,60,000/- (Vide Complaint No. 8944 dated 27.9.2012 – Running Pages 18 & 70 of Memo of Appeal).  Since then till the filing of the Complaint the Respondent/Complainant did not get back the baggage despite several communications with the Appellants/Ops including the demand for compensation of loss  (Running Page-14 of Memo of Appeal) resultant from non-recovery of the baggage, but to no avail.  The Appellants/Ops, having thus failed to return the baggage to the Respondent/Complainant,  paid to the Respondent/Complainant  Rs. 3,000/- by cheque as compensation, which the Respondent/Complainant refused to receive.  In this factual background, the Ld. District Forum passed the impugned judgment and order in the aforesaid manner.  Aggrieved by such order the Appellants/Ops have preferred this Appeal.

          The Ld. Advocate for the Appellants/Ops submits that the Ld. District Forum erred in awarding compensation more than what was maximum  permissible, i.e. Rs. 450 per Kg. under Clause (a) of Sub rule (2) Rule 22 framed under the Second Schedule to the Carriage By Air Act, 1972 as amended, vide Notification No. SO 659(E) dated 22.8.1989 (for non-international air carriage) of Ministry of Tourism and Civil Aviation, as there was no special ‘declaration of interest in delivery at destination’ and no payment of supplementary sum at the time of handing over the baggage to the carrier as required under the rule of the Baggage By Air Act, 1972, as referred to hereinbefore.  It is also submitted by the Ld. Advocate that in spite of Respondent’s/Complainant’s act of ignoring the provisions against carrying the valuables in check-in baggage in the flight as per standard rule, the Appellants/Ops had issued in favour of the Respondent/Complainant a Cheque bearing No. 016965 dated 9.10.2012 for Rs. 3,000/- as compensation on the basis of the Respondent’s/Complainant’s declaration in the Baggage Irregularity Report (Running Pages-18 & 70 of Memo of Appeal) of the ‘distinctive items’ in the check-in baggage.  It is further submitted by the Ld. Advocate that in view of the above facts the Appellants/Ops have no deficiency in service in the light of the compensation allowed to the Respondent/Complainant. The Ld. Advocate finally concludes that in view of the above, the impugned judgment and order should be set aside and the Petition of Complaint be dismissed, it being unjust and improper.  In this context, the Ld. Advocate has referred to a decision in The Manager, IA Ltd. Vs. Indian Everbright Shipping and Trading Co., reported in 2001 (II) CPJ 32 NCDRC (Running Page-63 of Memo of Appeal).

          The Ld. Advocate for the Respondent/Complainant, on the other hand, submits that the norms and conditions, as relied upon by the Appellants/Ops this time to absolve themselves from their liability, were nowhere mentioned in the e-ticket, neither were those notified to the Respondent/Complainant.  It is also submitted by the Ld. Advocate that as per the decision in M/s. Economic Transport Organization Vs. Dharwad Distt. Khadi Gramudyog Sangh, reported in AIR 2000 SC 1635, the burden of proof of negligence gets shifted to the carrier by the application of legal presumption under the common law as well as u/s 14(1)(d) of the Consumer Protection Act, 1986.  It is further submitted by the Ld. Advocate that the declaration to the effect of Rs. 5,000/- in the Baggage Irregularity Report, as relied upon by the Appellants/Ops, relates only to the currency as specifically mentioned in the Baggage Irregularity Report and not to the value of the other contents of the baggage.  It is finally submitted by the Ld. Advocate that the compensation amount should have been equivalent to Indian rupee as stands converted at the exchange rate of 5000 francs (20Kgs. X 250 francs per Kg.) as per Rule 22(2)(a) of The First Schedule, Chapter-III to The Carriage By Air Act, 1972.  The Ld. Advocate concludes that in view of the above position of the case, the Appeal should be dismissed and the impugned judgment and order should be modified to the extent of enhancement of compensation and other costs as prayed for.

          We have heard both the sides, considered their rival submissions and perused the materials on records.

          It is evident from the ‘Baggage Irregularity Report’ duly signed by the Respondent/Complainant, as available on records, that the value of the contents of the baggage as declared by the Respondent/Complainant himself was only Rs. 5,000/-.  Further, in the said declaration about the contents of the baggage there was no hint of any valuable articles in the baggage, as mentioned in the Complaint, except some sundry articles like clothes, cosmetics, shoes, etc.

          In view of the discussion above as well as the evidence in the Baggage Irregularity Report, we are of the opinion that the impugned judgment and order, which being not based on correct appreciation of facts and evidence on records, deserves modification to the extent of awarding compensation for Rs. 5,000/- equivalent to the value of the contents declared in the Baggage Irregularity Report and cost of litigation for Rs. 5,000/-.

          Consequently, the Appeal is allowed in part and the impugned judgment and order is modified to the extent of awarding compensation to the tune of Rs. 5,000/- and litigation cost to the tune of Rs. 5,000/-.  The other directions of the impugned judgment and order are set aside.  No order as to costs.