BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 206/2006 Filed on 18/07/2006

Dated: 15..12..2010

Complainant Rajan Samuel, Ashirwad, Manampuzha – P.O., Kavanad, Kollam.

(By Adv. Dinesh Sajan)

Opposite parties:

1. M/s. Emirates, Ground Floor, Mullassery Towers, Punnan Road, Palayam, Thiruvananthapuram.

   (By Adv. Sonay John)

2. The Chairman, The Airport Authority of India, Thiruvananthapuram International Airport, Thiruvananthapuram.

   (By Adv. L. Mohanan)

3. The Air India Handling Agent, Thiruvananthapuram International Airport, Thiruvananthapuram.

   (By Adv. S. Reghukumar)

Addl. 4^th opp. Party

4. The Gulf Air, 1^st Floor, The Residency Towers, Press Road, Thiruvananthapuram.

(By Adv. Ranjit. R)

This O.P having been heard on 30..11..2010, the Forum on 15..12..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant had an occasion to fly from Abu Dhabi to Thiruvananthapuram on 13..2..2006 that he booked his reservation ticket in advance with the Gulf Air and boarded the Gulf Air, that since there was no connection available from Muscat to Thiruvananthapuram, the Gulf Air arranged flight ticket so as to enable the complainant to reach Dubai by Muscat – Dubai Flight of the 1^st opposite party, that thereafter complainant flew from Dubai to Thiruvananthapuram by Emirates Airlines of which the flight ticket were expedited by the 1^st opposite party, that when complainant reached Thiruvananthapuram his baggage containing valuable articles were not available and found lost, that the complainant approached the Officers of the Emirates Airlines at Thiruvananthapuram International Airport to trace out the missing baggage, that complainant handed over the baggage tag to the 3^rd opposite party, that the 3^rd opposite party prepared a Property Irregularity Report which was signed by the Officer of the Emirates, as well as the complainant that on 17/2/2006, complainant received a telephone call from the 1^st opposite party Office that they had located the baggage and asked the complainant to reach the Airport soon, that complainant reached the Airport accordingly, it was revealed that the said baggage was not found out, that complainant's baggage contains valuable articles which weighs 42.500kgs, that the value of the articles would come to Rs. 1,96,248/-, that the opposite parties did not settle the claim thereby they have committed deficiency in service and unfair trade practice and hence this complaint to direct opposite parties to pay Rs.1,96,248/- together with interest at 18% per annum from 13/2/2006 along with a compensation and cost.

2. 1^st opposite party, Emirates Airlines filed version contending interalia that any service rendered to the complainant was on the request from Gulf Air (Addl. 4^th opposite party) who is the original Airline transporting the passenger and because of disruption of the Gulf Air flight at Muscat, the complainant was accommodated on an Emirates flight and, accordingly, were sent on the said flight to Thiruvananthapuram via Dubai, that complainant had checked in his seat and his luggage at Abu Dhabi and because of the cancellation on the second half of the journey, the complainant was re-routed via Dubai on 1^st opposite party's Aircraft, that if any complaint arose, it should be against the Gulf Air as the ticket was issued by Gulf Air and the journey started on Gulf Air and the baggage of the complainant was checked in by Gulf Air on their Aircraft which should have been transferred to Emirates and further evidenced by the fact that the baggage tag was a Gulf Air tag indicating that it was Gulf Air that transported the bag and delivered the same finally to Thiruvananthapuram, that complainant has approached this Forum with unclean hands and has maliciously filed a complaint against the 1^st opposite party despite knowing the true facts and that it is just and necessary for making Gulf Air a party in this complaint.

3. 2^nd opposite party filed version contending that the Airport Authority of India provides only Airport for various Airlines including the 1^st opposite party for landing and to take off flight services, that the issuance of flight ticket, arranging flight service, carrying passengers and baggages etc...are the duties of concerned Airlines, that complainant was a passenger of the 1^st opposite party and as such the 2^nd opposite party has nothing to do with the complainant's baggage, that there is no deficiency of any service on the part of the 2^nd opposite party and hence 2^nd opposite party prayed for dismissal of the complaint against them.

4. 3^rd opposite party, M/s. Air India handling agent, filed version contending that 3^rd opposite party is only a handling agent of the 1^st opposite party at Thiruvananthapuram International Airport, that it has got no role in the transportation of baggage, that the carriage of the baggage is exclusively done by the carrier in which the baggages are sent, that it is the duty of the Air carrier to deliver the baggage entrusted to it, that there is no privity of contract between the complainant and the 3^rd opposite party and that 3^rd opposite party is a total stranger to the complainant, that there is no consumer relationship between the complainant and 3^rd opposite party. Hence 3^rd opposite party prayed for dismissal of the complaint.

5. 4^th opposite party, M/s. Gulf Air filed version contending that the claim against 4^th opposite party is hopelessly barred by limitation and also extinguished as per Rule 30 of IInd Schedule to the Carriage by Air Act 1972 as against the 4^th opposite party is liable to be dismissed, that complainant was travelled from Dubai to Thiruvananthapuram on 13/2/2006 while complainant landed at Thiruvananthapuram Airport in the flight of the 1^st opposite party, that as per Rule 30 (1) of IInd Schedule to the Carriage by Air Act, the right to damages shall be extinguished, if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the Aircraft ought to have arrived or from the date on which the carriage stopped, that the 4^th opposite party denies any liability to compensate the complainant as claimed by him or at all and the claim as against Gulf Air also stands extinguished and the complainant is not entitled to raise or realize any claim as against 4^th opposite party. Hence 4^th opposite party prayed for dismissal of the complaint.

6. The points that arise for consideration are:

1. Whether there is negligence and deficiency in service on the part of the opposite parties?

2. Whether complainant is entitled to get Rs.1,96,248/- on account of loss of baggage?

3. Whether complainant is entitled to get compensation and cost?

In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P9. Opposite parties have not filed affidavit or documents.

7. Points (i) to (iii) : It has been the case of the complainant that he had purchased an Air ticket from the 4^th opposite party to travel from Abu Dhabi to Thiruvananthapuram via Dubai on 13/2/2006, that since no connection available from Mascot, 4^th opposite party arranged flight to Dubai and from Dubai to Thiruvananthapuram by the flight of the 1^st opposite party. It has also been the case of the complainant that when complainant reached Thiruvananthapuram his baggage contained valuable articles were not available and found lost, that though complainant had informed the 1^st opposite party to trace out the missing baggage they could not trace out the till date. It has also been the case of the complainant that his baggage contained valuable articles weighing 42.500kgs whose value come to Rs.1,96,248/-. Complainant has not been cross examined by the 1^st opposite party while opposite parties 1 to 4 have cross examined the complainant. Ext. P1 series are the used Air tickets issued by the Addl. 4^th opposite party. Ext. P2 is the Baggage Inventory Form issued by the 1^st opposite party. As per Ext. P2 Airline Flight No: E.K 520, Date 13 February from Dubai to Thiruvananthapuram and Ticket Number: 0722418418538, Number of baggage checked in is One and its weight is 42.5 kg. Ext. P3 is the Courier receipt addressed to 1^st opposite party. Ext. P4 is the copy of the Frequent flyer card issued by Gulf Air to the complainant. Ext. P5 is the letter from the 1^st opposite party dated 25 May, 2006 to the complainant stating that all baggage claims are settled on the basis of weight and not value, the Airlines' limit of liability is 20 US Dollar/kg, that as per records complainant had checked in at Abu Dhabi Airport with one piece of baggage, that on arrival at Thiruvananthapuram Airport the baggage was not delivered to him, that thereafter, without prejudice 1^st opposite party offered 400 US Dollar in full and final settlement of the claim based on the standard Economy class baggage allowance of 20kgs. Ext. P6 is the copy of the Property Irregularity Report. Ext. P7 is the copy of the letter addressed to City Police Commissioner, Thiruvananthapuram by the complainant about the loss of baggage. Ext. P8 is the postal receipt and Ext. P9 series shows various bills for articles purchased at Dubai. The stand of the 1^st opposite party is that Gulf Air is the original Airline and on the request of the Gulf Air, 1^st opposite party agreed to transport the complainant on the said flight to Thiruvananthapuram via Dubai. Initially Gulf Air has not been made a party in the complaint. Complainant filed a petition to implead Gulf Air as Addl. 4^th opposite party on 4/6/2009, 4^th opposite party strongly objected the said application on the ground that the claim against 4^th opposite party is hopelessly barred by limitation and also extinguished as per Rule 30 of IInd schedule to the Carriage by Air Act 1972. But complainant submitted that for proper adjudication of the complaint, 4^th opposite party is a necessary party. Complainant further submitted that no relief is sought against the addl. 4^th opposite party and on the strength of which 4^th opposite party was impleaded in the complaint. It is submitted by 4^th opposite party that as per Rule 30 of the IInd schedule of the Carriage by Air Act 1972

1. The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

2. The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.

Under this Rule, limitation for filing the present complaint would be two years from the date the complainant arrived at Thiruvananthapuram under Section 24A of the Consumer Protection Act no complaint shall be admitted unless it is filed within two years from the date on which the cause of action has arisen. This delay can be condoned if the complainant shows sufficient cause for not having filed the complaint within the prescribed period. But, then under Rule 30 which they quoted, there cannot be any condonation of delay, even if any sufficient cause is shown, as right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. Since Carriage by Air Act is a special provision provided for liability of the Air carrier, complainant is barred if he brings an action for damages after two years. He cannot refer to the provisions of Section 24A of the Consumer Protection Act. But in this case the same Rule is applicable against addl. 4^th opposite party since complainant has filed application to implead addl. 4^th opposite party after two years as under Rule 30 of the IInd schedule. Moreover, complainant has submitted that he has not sought any relief from the 4^th opposite party. As such the liability of the 4^th opposite party is barred by Rule 30 of the IInd schedule. 2^nd & 3^rd opposite parties have cross examined the complainant. In his cross examination by 2^nd opposite party, complainant admitted that he had never availed any service from the 2^nd opposite party and hence he is not entitled to get any relief from the 2^nd opposite party. In his cross examination by 3^rd opposite party complainant has admitted that 3^rd opposite party has assisted him to prepare PIR. He has also admitted that he has not sought any relief from the 3^rd opposite party. Now, though 1^st opposite party has filed version, no affidavit to substantiate the contention of the version was filed by 1^st opposite party nor was cross examined the complainant. 1^st opposite party denied the contention of the complaint that the baggage contained valuable articles and that the weight of the baggage was 42.500kgs. Further it has been contended by the 1^st opposite party that when complainant checked in his baggage at Abu Dhabi Airport at the Gulf Air counter he had not made any declaration in writing as regards to the contents of the check in baggage. Complainant has not furnished any document to show that he has declared the contents of the check in baggage. Complainant has not produced any material to show that the baggage was checked in at 1^st opposite party's Air counter nor has he made any declaration in writing as regards to the contents of the baggage before 1^st opposite party. According to 1^st opposite party the maximum weight allowed to Airline would be in then range of 25 to 28kgs. Further, the conditions of carriage which form an integral part of the contract between the Airlines and the passenger which clearly mentions that carrier will not be responsible for loss or damage of items in check in baggage such as Jewellery, currency, important documents unless passenger emigrates special declaration as to the contents of the bag at the time of check in, for which additional charge would have to be paid to the passenger to the carrier. Complainant never filed any material to show that he has made supplementary charges to the carrier. It is to be noted that 1^st opposite party vide Ext. P5 letter offered by the complainant a sum of 400 US Dollars in full and final settlement of the claim based on the standard economy class baggage allowance of 20kg. In the absence of any evidence in support of the declaration of contents of the baggage and payment of supplementary charges we are of the opinion that amount offered by the 1^st opposite party is as per provisions of the Carriage by Air Act 1972 wherein the liability of the carrier is limited to 20kg. Deficiency in service proved. Admittedly, the baggage entrusted by the complainant has been lost on account of which complainant is entitled to 400 US Dollars. In addition to aforesaid limited liability 1^st opposite party's liable to pay compensation on account of deficiency in service.

In the result, complaint is allowed. 1^st opposite party shall pay the complainant a sum of 400 US Dollars (converted into rupees at the rate of exchange prevailing on the date of passing of this Order). 1^st opposite party shall also pay Rs. 10,000/- towards liability arising out of deficiency in service along with Rs.2,000/- towards cost.

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 the 15^th day of December, 2010.

G. SIVAPRASAD : PRESIDENT

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

C.C.No. 206/2006

APPENDIX

I. Complainant's witness:

PW1 : Rajan Samuel

II. Complainant's documents:

P1 : Series are the used Air tickets issued by the Addl. 4^th opp. Party

P2 : The Baggage Inventory Form issued by the 1^st opposite party

P3 : The Courier receipt addressed to 1^st opp. Party

P4 : Copy of the Frequent Flyer card issued by Gulf Air to the complainant.

P5 : " letter from the 1^st opposite party dated 25/5/2006 to the complainant.

P6 : " Property Irregularity Report

P7 : " letter addressed to City Police Commissioner, Thiruvananthapuram.

P8 : The Postal receipt

P9 : Series show various bills for articles purchased at Dubai.

III. Opposite parties' witness : NIL

4. Opposite parties' documents : NIL

PRESIDENT