BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.62 OF 2008 AGAINST C.C.No.130 OF 2007, DISTRICT FORUM-II HYDERABAD
Between:
1. Chiratla.R.Chowdary
S/o. C.Veerraju, aged 37 years
Occ:Service
R/o 104,Ho.no.2-2-18-16/C
Shantamma Apts., D.D.colony
Baghamberpet, Hyderabad.
2. Payyavula B.Prasad
S/o. P.Ramanna, aged 36 years
Occ:Service,
R/o 104, Ho.no.6-3-596/47
Malavya Mansion,
Hyderabad. Appellants/Complainants
A N D
- Customer Relations Representative
Air France-KLM 7,Atmaram Mansion (Scindia House)
Connaught Circus, New Delhi 110001
- Manager-Customer Relations
Air France-KLM, 210/Bsarjan Plaza
2nd Floor, 100, Annie Besant Road
Worli, Mumbai-18.
- Manager-Customer Relations
Air France-KLM
Rajiv Gandhi International Terminal
Begumpet Airport, Hyderabad-16.
Respondents/Opposite parties
Counsel for the Appellant: M/s C.V.Narasimham & O.S.Sastry.
Counsel for the Respondent: Mr Ravi S.
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER.
AND
SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER
THE TWENTY NINTH DAY OF DECEMBER,
TWO THOUSAND TEN
Oral Order (As per Sri R.Lakshmi Narasimha Rao, Hon’ble Member.)
***
1. The complainants are the appellants.
2. The facts of the case are the appellants had traveled from Cincinnati USA to Mumbai by Air France Flight No.AF383 and AF384 on 6th August 2006. and landed on Mumbai 8th August 2006. While boarding at Cincinnati the appellants checked in their baggage and handed it over to the opposite parties. On arrival at Mumbai that appellants found that their baggage was missing. They had lodged complaint with the respondent no-2 to track the baggage. The respondent no-2 sought time to track the baggage and requested the appellants to hand over the keys along with the list of items in the baggage. The keys were sought for as the customs authorities might check the baggage. After a period of two days, the baggage was delivered to the appellants on 10th of August 2006 through a courier service, M/s J&A courier and cargo logistics. The appellants noticed that the lock and keys had been changed and found that some items were missing in the baggage and the appellants had endorsed about the loss of items on the delivery note of the courier and reported the matter to the respondent no-3 by fax on 10th August 2006 stating that the worth of missing items is about `50,000/-. The appellants, in this regard addressed letters on 14th August 2006, 21st August 2006, 28th August 2006, 31st August 2006, 7th September 2006, 15th September 2006, 27th September 2006, 28th September 2006, 6th October 2006 and 8th October 2006. The respondents gave reply on 8th October 2006 and offered an amount of `6360/- towards the loss of items in the baggage. It is submitted that the limitation in general conditions of carriage applicable only for damage of articles but not in the case of willful negligence, cheating, dishonest conduct and theft of the articles.
3. The appellants did not agree to the amount of `6360/- offered by the respondents towards compensation for the lost items as there were some new items purchased in the USA. The conduct of the respondents amounts to deficiency in service.
4. The respondents resisted the claim contending that the appellants had furnished a tentative list of items for which on being requested, furnished some invoices which do not cover 1/4th of the amount claimed. In accordance with Indian Law, the appellants would be entitled to compensation for the difference in weight of the checked-in-baggage and the delivered baggage at the rate of US $20 per Kilogramme under the Warsaw and Hague conventions. The respondents offered a sum of rupees 6,360/- as compensation based on the receipts supplied for those items that were not excluded by the general conditions of carriage. The appellants voluntarily granted the respondents the authority to have the bags cleared at the risk of the appellants. Even if it is assumed that the relevant items (one camcorder, two DVD players, one Cordless Phone, two digital camera, two Audio CD Players, two pairs children’s garments, some cosmetic items, some toys and electronic games and a physiotherapy hot bag kit and pain relief bomb) were lossed and the respondents are liable, the same could not have weighed more than 4 or 5 Kilogrammes, the appellants would be entitled to the compensation of US $20 X 5=US $100.
5. It is submitted that as per the general conditions of Carriage, the compensation payable is increased from US $20 per kilogramme to 17 SDR per KG. The appellants are entitled to 17 SDRs (currently US $25.5) X 5KG = US $127.5/-. If the amount is converted at the current rate of `41/- per US $, the amount payable at law under the general conditions of Carriage and the Warsaw and Hague conventions would be a sum of `5,227.50/- which is still less than the amount offered. The appellants had no cause of action to file the complaint. They had carried the items that were not permissible for transport in check-in baggage under the terms of the contract of Carriage and having been checked-in would only be carried at the risk of the appellants. The appellants failed to substantiate the amount of `50,000/- which was claimed towards costs of the lost items. Mental agony and hardship are not covered by the provisions of the Warsaw/Hague conventions. There is no such entity in existence as Air France-KLM since Society Air France continues to exist both in France and in India and KLM Royal Dutch Air Lines continues to exist as such in Netherlands and in India. The tickets were booked with Air France, Delhi.
6. The respondent should be arrayed as “Air France” are “Society Air France” and having its office at Roissy CDG Cedex, Paris with its branch office at New Delhi. The District Forum lacks territorial jurisdiction to entertain the compliant. The tickets of the appellants were booked at New Delhi by their employer company for the company’s come business purpose. The courts at Mumbai are Cincinnati and Mumbai, Paris or Delhi where the respondent corporation has branch office but not in the State of Andhra Pradesh as the respondent corporation does not have any branch office.
7. The appellants are not consumers. The tickets of the appellants were booked by their employer company for its business purpose. The appellants have not availed service of the respondents and their employer company was the one to have availed the service of the respondents which is the ultimate beneficiary of the service.
8. The appellants were informed of the delay in arrival of there baggage and they were offered the option to clear the bags on arrival on to have airline clear it and have the bags transported to them. The appellants addressed letter of authority stating that they would not hold the respondents or their agents liable for the contents of the baggage. The baggage is transferred from the arrival airport to the passenger home address wherever possible. The baggage were traced and delivered to the appellant no-1 in Hyderabad on the morning of 10th August 2006 through courier. The general conditions of Carriage are applicable to all the passengers including the appellants by virtue of condition no-3 of the conditions of contract mentioned in the air ticket jacket. The appellants did not declare any special value of the goods and have not paid any supplementary charges. There was no deficiency in service on the part of the respondents.
9. The appellants have filed their affidavits and Ex A-1 to A-26. On behalf of the respondents, the documents are marked Ex B-1 to B-5.
10. The District Forum has dismissed the complaint holding that the appellants had not declared the value of the articles before boarding the flight and that they could have carried those articles with them in their hand bags.
11. The points for consideration are
1. Whether the appellants are entitled to the amount sought for?
2. To what relief?
12. POINT NO.1 It is not disputed that the appellants had traveled from Cincinnati, USA to Mumbai by Air France Flight No.AF 383 and AF 384 on 6.8.2006 and landed in Mumbai on 8.8.2006. The appellants found their baggage missing when they had checked it in Mumbai. It is not in dispute that the appellants lodged complaint with the respondent no.2 to track the baggage as also that the respondentno.2 sought time to track the baggage. At the time of lodging the complaint, the respondent no.2 had asked the appellants to give the list of items in the baggage along with the keys of the baggage. There is no disputing the fact that the respondent no.2 delivered the baggage on 10.8.2006 to the appellants through courier service M/s J & A Courier and Cargo Logistics.
13. The respondents had come up with the explanation for seeking the keys of the baggage from the appellants as there was probability of check by the customs authorities. The respondent’s seeking keys of the baggage thus cannot be found fault with. The appellants had contended that the lock and keys of the baggage had been changed and to the effect they had endorsed on receipt of the courier. The appellants had not stated anything of change of lock and keys of their baggage in the complaint sent in the form of FAX message on 10.8.2006 and 11.8.2006 and both times the appellants have not stated any change of lock and keys. The contention of the appellants that the lock and keys had been changed after they had handed over the original keys to the respondent no.2 is lacking the basis of positive evidence.
14. Coming to the question of the items of the baggage and the value thereof, the appellants had contended that the worth of the missing items is `50,000/-. The respondents have contended that the appellants failed to substantiate the amount of `50,000/- claimed towards cost of the missing items and that mental agony and hardship are not covered by the provisions of the WARSA/Hague conventions. The appellants have not denied the statement of the respondents that they were informed of the delay in the arrival of their baggage and they were offered the option to clear the bags on arrival or to have the corporation clear it at the risk of the appellants and have the bags transported to them. The appellants had issued letter of authority in favour of the corporation and it reads as under:
“Would not hold Air France or its agents liable for the contents of the baggage and further that I am “ aware that this facility has been given entirely for my convenience and therefore I accept the same at my risk and shall not hold Air France or its servants or agents responsible for any damage or pilferage of my above said baggage or raise any dispute on the duty charged by the customs on the items. I hereby agree and undertake to indemnify M/s Air France, its servants and handling agents, harmless and indemnified from and against all demands, actions, proceedings loss, claims, damage, lialbities charges and expenses which may be made or which you may or may have to bear, pay incur or suffer directly or indirectly including expenses incurred in clearing the baggage from the customs and amount paid to the customs.”
15. Referring to the contents of the letter, the respondents contended that there was no negligence on their part and the appellants have consciously authorized them to deal with the baggage and the appellants cannot contend that the respondents had negligently dealt with the baggage whereby certain items of the baggage found to have been missing. The appellants had authorized the respondents in regard to the tracing out their baggage and in the process if the respondents incur any liability were promised to be indemnified. In the light of authorization given by the appellant in terms of the letter, it is difficult to find negligence on the part of the respondents in regard to the pilferage of articles of the baggage in question. It is pertinent to note that the contention of the respondents that the appellants had handed over a list of all items contained in the baggage along with approximate value to the corporation, the list actually handed over mentioned only some of the items therein and subsequently more items were allegedly lost. In this backdrop, the contention of the respondents that there is no mention the other items and they had benn included as an after thought in the correspondence and later on in the complaint gains significance.
16. The respondents had contended that the appellants had failed to prove any dishonest intention in regard to the handling of the baggage by the respondent and there was no such dishonest intention on the part of the corporation at any stage in handling the baggage of the appellants till it was sent it to them through the courier. It is true that within two days of receipt of the complaint from the appellants, the respondents had traced the baggage and had sent to the appellants. In this regard, the respondents point out the agreement placed on the appellants for the risk associated with carriage overland from the airport to their address. It is pointed out that the appellants could as well collect the baggage personally if they were not willing to accept the transport of the baggage at their risk.
17. The appellants had contended that the baggage was handed over to them two days after they had lodged complaint with the respondent no.2. The respondents referred to the conditions of contract printed in the ticket jacket. Condition No.9 contained in the ticket jacket reads as under:
“ Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch. Times shown in time table are elsewhere or not guaranteed and forms no part of this contract. Carrier may without notice substitute alternate carrier or aircraft and may alter or omit stopping places shown on the ticket in case of necessity. Schedules are subject to change without notice. Carrier assumes no responsibility for making connections”
18. The condition no.9 of the terms and conditions of the ticket jacket provides immunity to the corporation in case there has been any delay in the dispatch of the baggage. As against this, the appellants have not placed any evidence on record. Therefore, it is difficult to assume that the delivery of the baggage in about 48 hours would be a considerable delay in the teeth of condition no.9 of the terms and conditions of the air jacket ticket.
19. The contention of the appellants that they had placed valuable items such as Camcorder, two DVD players, cordless phone, two digital cameras, two audio CD players, two pairs of children garments, some cosmetic items, some toys and electronic games and a physiotherapy hot bag in the two bags is not acceptable in the light of the general conditions of carriage. Article VIII(3)(f) of the General Conditions of Carriage reads as under:
Fragile or perishable items, money, foreign currency, jewellary, works of art, precious metal, silverware, securities or other valuables expensive cloths, optical and/or electronic or telecommunication devices, cameras of all kinds, music instruments business documents, negotiable papers, passports and other documents, samples and shares as well as any valuable items.
20. In the light of Article VIII(3)(f), the appellants are not supposed to keep the fragile items and other articles stated to have been lost in the baggage. The appellants can carry weight of 16 kgs in the hand baggage and the total weight of all the articles stated to have been missing as mentioned in the FAX message will not come upto 10 kgs. The appellants could have carried those items by themselves in their hand baggage.
21. The appellants had not declared the items and their value at the time of boarding the flight. The appellants had declared the value of the missing items only after they landed at Mumbai. Article XV(2(c)(i) of the General Conditions of Carriage by Air France provides that the travelers have to inform the corporation about the contents of their check in baggage through a special declaration of values and that they have to pay supplementary charges for carriage of valuables. Article XV(2(c)(i) of the General Conditions of Carriage by Air France is extracted below
We shall not bear a particular liability, other than our liability under Sub paragraph (ii) hereunder, for any damage and for loss caused to fragile and perishable items or valuables as mentioned in article VIII(3) except if you have made a special declaration of value, if available under article VIII (8)(a) and if you have paid the applicable charge as required.
22. Thus, in order to claim compensation beyond the limitation prescribed by Rule 22 (ii) of the Carriage by Air Act, the appellants ought to have submitted a special declaration in regard to the items in the baggage and their respective values.
23. The learned counsel for the respondents has submitted that the respondents are liable to pay the amount in terms of instructions in the travel ticket which reads as under:
In the carriage of registered baggage and cargo the liability of the carrier is limited to a sum of 250 francs per kg unless the passenger or consigner 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 of not exceeding the declared sum unless he proves that the sum is greater than the passenger’s or consignor’s actual interest in delivery at destination.
24. In view of Rule 22(ii), II of schedule and in the light of the condition incorporation in the ticket, the appellants entitled to only @ 250 franks per kilogram.
25. The respondent came forward to pay the amount as per the WARSAW Convention. The respondents had calculated the amount in terms of general conditions of carriage as 17 SDRs (currently US$ 25.5) X 5kg = US$ 127.5 and if the amount is converted at the current rate of `41 per US$ the amount payable in terms of General Conditions of Carriage and under WARSAW Convention would be `5,227.50. The respondent offered to pay a sum of `6,360/-.
26. The appellants had failed to establish that they are entitled to claim compensation in terms of Rule 25 of Carraige by Air Act, instead of Rule 22 of the Act and also that the WARSAW and Hague conventions do not apply to their case. The appellants failed to show as to how they are entitled to claim compensation in the absence of any special declaration or payment of supplementary charges. It is pertinent to note that the District Forum has observed that the appellants could not answer its question that as to why they had not carried the articles in the hand baggage. The relevant portion of the order reads as:
The complainants never declared these articles before boarding the flight and they told the same only after seeing that the baggage was misplaced. The complainants could have easily carried the articles in the hand baggage but they did not do so. The opposite parties prayer in this regard is true that every passenger has to take proper care of their baggage. When such valuable goods of worth Rs.50,000/- are in the baggage, the complainant should have carried them in their handbag, but they failed to do so when the same question was raised by the bench, the complainants could not answer the same. They are two persons and together they can carry weight of 16 kgs in the hand baggage and the total weight of these articles mentioned in Ex.A19 will not come upto 10 kgs which can be carried by both the complainants easily.
27. The appellants had not answered the question posed by the District Forum for not carrying the articles in their hand baggage. Even at the appellate stage the appellant had not come with any answer to the question. In the circumstances, we do not find any infirmity in the order of the District Forum.
28. The respondents had contended that they do not have any branch office at any place within the jurisdiction of the District Forum. Their registered office and branch office are situated in New Delhi and Mumbai only. The appellants had submitted that the cause of action had arisen in Hyderabad as their baggage was received at Hyderabad within the limits of the jurisdiction of the District Forum. The respondents have not filed appeal against the order of the District Forum in regard to their objection that the District Forum has no jurisdiction to entertain the complaint. The respondents had acquiesced to the jurisdiction of the District Forum. The District Forum has not awarded any amount in favour of the appellants except upholding the offer extended the respondents to the tune of `6,360/-
29. The decisions relied upon by the appellants in Indian Airlines Pvt. Ltd., Vs Prakruti Shetty reported IV (2007) CPJ 154, “B.Chandramouliswara Rao and another vs M/s British Airways and another in FA No.205 of 2006 of this State Commission and M/s Jet Airways (I) Pvt. Ltd., and others Vs. Mr.Venkatmundla in F.A.No.1768 of 2007 of this State Commission are not applicable to the facts of the present case. The decisions relied upon by the respondents in Union Bank of India Vs. Seppo Rally OY and Anr. Reported in 1999 (8) Supreme Court Cases, 357, Indian Airlines Corporation and others Vs Consumer Education and Research Society, Ahmedabad and another reported in II (1991) CPJ 686, N.V.Bhaskara Raju Vs P.Dayakar Reddy reported in I (2004) CPJ 233 of this State Commission, Puran Chand Wadhwa Vs Hamil Era Textiles Ltd., reported in IV (2003) CPJ 26 are not applicable to the facts of the case on hand are different.
30. The baggage liability limitation followed by the Tamilnadu State Commission in Manager South India, AIR India Vs Smt Visakalakshmi Subramanyam reported in I (2003) CPJ 538, the Manager Air India Ltd., and Anr. Vs. India Everbright Shipping and Trading Co., II (2001) CPJ, 32 (NC), Air Lanka Ltd., Vs S.Prasannan, reported in I (1998) CPJ 117 of Kerala State Commission are identical to the facts of the case on hand.
31. In the light of discussion, we are of the opinion that the appellants had not established any negligence on the part of the respondents in handling their baggage. The impugned order does not warrant any interference in the appeal.
32. In the result the appeal is dismissed. Order of the District Forum is confirmed. In the circumstances of the case, there shall be no order as to costs.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.29.12.2010
KMK*
