BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.41 OF 2010 AGAINST C.C.NO.108 OF 2009 DISTRICT FORUM-III HYDERABAD
Between:
1. The Manager, Air India
Rajiv Gandhi International Airport
Shamshabad, R.R.District, A.P.
2. The Manager, Air India
D.No.5-10-193, HACA Bhavan
Saifabad, Hyderabad-004
Appellants/opposite parties
A N D
Mr.Shaik Raheem S/o Shaik Yousuf
H.No.10-1-202, Chintal Basti
Khairatabad, Hyderabad
Respondent/complainant
Counsel for the Appellants Sri K.Srinivasa Murthy
Counsel for the Respondent Sri Syed Talha Hussain
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
TUESDAY THE TENTH DAY OF APRIL
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The respondent travelled by Air India flight from Dammam,KSA to Hyderabad, India on 16.06.2008. One of his baggage weighing 14kgs did not reach Hyderabad on the same flight in which he travelled to India. The appellants could not trace the baggage. The respondent claimed `1,25,000/- towards value of lost baggage, `25,000/- towards damages and compensation and `5,000/- towards costs .The appellants had sent messages to Air India, Dammam and the missing baggage could not be traced. The appellants agreed to pay compensation as per the terms and conditions of the contract of passenger ticket and baggage check. The appellants were prepared to pay maximum amount of USD 20 kg. for the weight of the baggage lost subject to the respondent submitting all the required documents upon which he based his claim.
2. The respondent claimed that he was carrying electronic items in the baggage and the appellants made false promise as also he was made to run from pillar to post for more than three months which according to him would amount to deficiency in service on the part of the appellants.
3. The appellants contend that the respondent did not submit the relevant documents and excess baggage ticket to process the claim and there was no deficiency in service on their part and the delay for settlement of the claim was due to the respondent’s failure to furnish the relevant documents.
4. The respondent has filed his affidavit and the documents, ExA1 to A9. K.S.Reddy , the station master of Air India, Airport, Hyderabad filed his affidavit and the documents, ExB1 and B2.
5. The District Forum allowed the complaint on the premise that the bag was lost during transit and the appellants having collected a sum of 258 riyals through the authorities of Dammam, KSA, Airport are liable to pay the amount of `14,480/- @USD 20 and they are also held liable to pay an amount of `40,000/- towards compensation for their failure to retrieve the baggage.
6. The opposite parties preferred the appeal contending that they had sent the first system generated message immediately after preparing the Property Irregularity Report on 16.06.2008 and created a file number on receipt of the complaint from the respondent. It is contended that the District Forum had mistaken the Reminder Message dated 26.06.2008 for the first message and the delay in settlement of the claim occurred as the respondent did not fulfill the formalities such as submission of relevant documents.
7. The point for consideration is whether the order of the District Forum is vitiated by misappreciation of facts or law?
8. The respondent’s travel by AIR India flight No.814 from Dammam, KSA to Hyderabad on 16.06.2008 and loss of his baggage weighing more than 14kg are the facts not disputed. The appellants expressed their readiness to pay the amount as per the conditions of contract of the passenger ticket and baggage check. It cannot be denied that the respondent cannot claim more than the maximum amount in view of baggage liability limitation under the Warsaw Convention and Carriage by Air Act. The respondent claimed the value of the articles to the extent of `1,25,000/-. The respondent did not mention the details of the items kept in the baggage. The representation containing the particulars of the items in the baggage stated to have been submitted to the appellants and the items said to have been kept in the baggage is held not proved by the District Forum and the respondent has not challenged the finding returned by the District Forum. The District Forum observed that:
When the complainant noticed about the missing bag, he ought to have made a representation in writing in the office of the opposite party by disclosing the contents kept in the lost bag. The complainant stated in his complaint as well evidence he filed a representation in writing before the office situated at the Air Port, Hyderabad. The complainant has not field the copy of the said representation before the forum in order to know whether he disclosed the contents in the representation given to the opposite party by disclosing the specific items of articles kept in that bag as mentioned in the legal notice as well as in the complaint. The non-filing of the copy of the complaint given to the opposite party an adverse inference can be drawn against the complainant.
From the evidence of the complainant, the complainant has not proved the items kept in the lost bags and their value of the same by placing clear and cogent evidence and thus it could be aid that it is a pure and simple case of entrust of the luggage, “checked-in-baggage and its lost during the transit. Ex.B1 copy of the message dt.26.6.2008 sent to Air India Dammam KSA to trace out the bag proves, the negligence on the part of the opposite party in their attempt in tracing out the missing luggage of the complainant, even though, complainant reported to the opposite party on 16.6.2008. The opposite party, being one of the reputed carriers of the passengers and luggage is found lacking in discharging it’s legal and moral duty in a way it is expected to do. For which, the complainant is made to suffer financial loss besides mental agony, and this amounts to “deficiency in service of gross negligence on the part of the opposite parties.
9. The limited liability clause would protect the appellants from the claim exceeding maximum compensation @USD20 per kg for the weight of baggage lost.
Rule 22 of Carriage by Air Act reads as under:
22. (1) In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 1,25,000 francs. Where damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 1,25,000 francs. Nevertheless, by special contract the carrier and the passenger may agree to a higher limit of liability.
(2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has 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 it 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.
(3) As regards objects of which the passenger takes charge himself theliability of the carrier is limited to 5000 francs per passenger.
(4) The sums mentioned in this rule shall be deemed to refer to the French franc consisting of sixty-five and a half milligrams gold of illesimal fineness nine hundred.
10. The District Forum awarded a sum of `40,000/- towards compensation which the appellants challenge as excessive and exceeding the claim of the respondent. The respondent was requested to wait for a period of one week in order to know about the status of the missing baggage and thereafter one more week time was requested to find out whether the baggage could be traced and subsequently three months elapsed by the time the appellants made their intention to pay amount for the lost baggage. These facts weigh in favour of the respondent for grant of compensation. At the same time the fact that the respondent did not submit documents for settlement of the claim and he did not inform the appellants about the Excess Baggage Ticket till the time he produced before the District Forum mitigate the circumstances warranting the award of compensation.
11. Balance has to be struck between “the compensation awarded recompensing the consumer and the change it brings in the attitude of the service provider” .The District Forum observed that the respondent failed to prove the items said to have been kept in the baggage and their value. The respondent claimed an amount of `25,000/- towards compensation. The learned counsel for the appellants rightly contended that the District Forum awarded the amount of `40,000/- in excess of the amount sought for, by the respondent. In the circumstances, we reduce the amount of `40,000/- awarded as compensation to `20,000/- and set aside the portion of the order passed by the District Forum in regard to payment of the equal value of 258 riyals in Indian Currency prevailing as on 16.06.2008.
12. In the result, the appeal is allowed. The order of the District Forum is modified. The appellants/opposite parties directed to pay a sum of `14,288/- which is equal to the value of 14Kgs @USD20 per kilo gram and pay a sum of `20,000/- towards compensation as also costs of `5,000/-. There shall be no order as to costs in the appeal. Time for compliance four weeks.
MEMBER
MEMBER
DT.10.04.2012
KKM*
