Date of Filing:18.07.2007 Date of Order: 28.02.2008 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 28TH DAY OF FEBRUARY 2008 PRESENT Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 1508 OF 2007 Mr. Amanulla HyderAli, No.565, Rashida Manzil, Dr.A.M. College Main Road, Basavangar II Cross, K.G. Halli, Bangalore-560 045. Complainant V/S 1. M/s GULF AIR, II Floor, Anna International Terminal, Chennai Airport, Chennai-600 027, Represented by its Airport Manager, Sri. Vijay Menon. 2. M/s GULF AIR, No.1, International Departure Terminal, Airport, Airport Road, Vimanapura, Bangalore-560 017, Represented by its Airport Manager, Sri. Carlton Fernandez. Opposite Parties ORDER By the President Sri. S.S. Nagarale This complaint is filed by the complainant claiming that, he should be compensated to the tune of Rs. 2,32,765/- and for compensation of Rs.2,00,000/- for breach of trust, agony and harassment. The facts of the case are that, the complainant left Dubai by Gulf-Air and he could not get his missing luggage in Dubai Air-Port. After various correspondence Air-Port Manger for Gulf Air offered 120 US$. The complainant rejected the offer. Again the Gulf Air offered 300 US$ and complainant rejected the same as the offer was unjustified and unreasonable. Gulf Air is responsible for the loss of luggage. Even after laps of 11 months the Gulf Air authorities have failed to trace the missing luggage. After continuous correspondence they have come out with meager compensation. As per the claim lodged with the Gulf Air dated 10/2/2007 the missing suitcase contained the items and the complainant has given the detail of his articles in his complaint. He has claimed Rs.2,32,765/- and also sum of Rs. 2,00,000/- as compensation for mental agony and harassment. 2. Notice was issued to opposite parties. Opposite parties put in appearance through advocate and filed defense version. The opposite parties have stated in para-4 to 7 are as under:- The opposite parties humbly state that as soon as the missing baggage was noticed in Chennai, a Baggage claim Questionate was promptly provided by the Gulf Air at Chennai to the complainant, in order to ascertain the facts of the missing baggage, after which the opposite party in Chennai had to co-ordinate with its Head Quarters at Bahrain and the Gulf Air office at Dubai to ensure that the case of the missing baggage was enquired into and a thorough follow up of the same was done to trace the missing baggage. Since such an investigation involves the co-ordination and co-operation of the Officers at different destinations of the globe, the process of enquiry is bound to take time and the instant case is no exception. The opposite parties immediately took all effective steps to locate the missed baggage. The opposite parties had made sincere and best efforts to trace the lost baggage since they did not succeed in this and finally declared as lost. The complainant at the time of handing over the baggage should have informed to the opposite parties that the baggage contained valuable items such as documents, etc. Had he done so, the opposite parties would have advised him to retain the documents as hand baggage to carry with him to the cabin. Since the complainant deliberately avoided to disclose the contents of the baggage he cannot make such an inflated claim for the loss of the said baggage later. The opposite parties submit that according to Property Irregularity Report (Document No.1 filed by the complainant) the complaint has declared that the lost items were Clothes, Handicam, Perfumes, Documents, Certificates and Cosmetics, but while filing this complaint, the complainant intentionally added a Gold chain, Mobile Phone, Camera Memory card, a personal dairy contains US$1000 and to fro tickets from Bangalore to Dubai and Bangalore to Chennai with an intention of making himself unjustly rich at the expenses of the opposite parties. Thus, it is only an after thought on the part of the complainant. The Air ticket itself contains the conditions of contract and notice of baggage liability limitations as well in Article IX Para 1(c) of the General Conditions of Carriage for Passengers and Baggage which stipulates as follows:- The passenger shall not include in checked baggage fragile or perishable items, money, jewellery, precious metals, silverware, negotiable papers, securities or other valuables, business documents, passports and other identification documents or samples In as much as the complainant carried an educational certificate contrary to the above conditions, he is not entitled to make any allegations when the same was lost. Opposite parties being leading Air-Line of the world offered 120 US$ for missing baggage, complainant had not accepted and again on 28/3/2007 and 15/5/2007 the opposite parties offered 300 US$ as revised offer and the same was rejected by the complainant. Liability of loss, delay and loss to the baggage is limited unless a higher value is declared in advance and additional charges are paid. The complainant is entitled for compensation of 300 US$ calculated on the basis of weight of the lost baggage i.e., 15 kilograms as per the liability clause. The complainant is not entitled for the relief. The amount claimed by the complainant is exaggerated. The complainant is not entitled for the alleged loss of baggage. The opposite parties prayed to dismiss the complaint with costs. 3. Affidavit evidence of both the parties filed. Arguments are heard. 4. The points for consideration are:- 1. Whether there was a deficiency in service on the part of the opposite parties? 2. Whether the complainant is entitled for compensation if so, what would be the amount? REASONS 5. I have gone through the complaint, defense version, and the affidavit evidence and the various documents produced by the parties. As regards the facts of the case absolutely there is no dispute. It is an admitted case of the parties that the complainant had purchased Airways ticket to travel from Dubai to Bangalore. The complainant had noticed missing of his baggage on the flight from Dubai to Bangalore via Muscat to Chennai. Claim questionnaire was provided by the Gulf Air at Chennai to the complainant. It is the case of the opposite party that all effective steps to locate missed baggage was made but they did not succeed in finding the lost baggage and ultimately the baggage declared as lost. The complainant has submitted Property Irregularity Report mentioned some items in that report. The opposite party being a leading Airlines of the world in order to have relationship with the customers forwarded indemnity bond and release form to the complainant and offered 120 US $ for missing baggage. The complainant rejected the offer and again the opposite party offered 300 US $ and sent letter to the complainant on 16th May-2007. The complainant rejected this offer also. The complainant has not accepted the offer of the opposite party. The opposite party in the letter dated 6th March-2007 also offered sincere apology for the inconvenience caused to the complainant. The complainant has put up a claim of Rs.2,32,765/- for the various items lost. As per the terms and conditions governing the transaction and under the carriage by Air Act, 1972, 20 US $ per kg., is admissible. The passenger ticket and baggage check booklet also liability for loss of baggage is 20 US $ per kg., for checked baggage and 400 US $ for passenger for unchecked baggage. The opposite party offered 300 US $ as per the revised offer taking the estimate wait of the baggage as 15 Kg.,. Liability for loss, delay or damage to baggage is limited and payable as per the provisions of carriage by Air Act, 1972 unless higher value is declared in advance and additional charges are paid. Admittedly, in this case the complainant has not declared the higher value of the contents of baggage and has not paid any additional charges. The Air ticket itself contains condition that the passengers shall not include in checked baggage fragile or perishable items, money, jewellery, precious metals, silverware, negotiable papers, securities or other valuables, business documents, passports and other identification documents or samples. So in view of this condition the case of the complainant is that, he has kept gold chain and 1000 US $ and his original certificates etc., cannot be accepted. Even if the complainant had kept some valuable articles in the baggage, the Gulf-Airline cannot be held responsible because admittedly the complainant has not declared the value in advance and additional charges were not paid. Therefore, under the terms and conditions as stipulated in the Air ticket and also under the provisions of carriage by Air Act, 1972 it is not possible to award compensation of more than 300 US $. The complainant has not furnished any legal and acceptable proof that he has kept gold chain, and 1000 US $ in the baggage. The complainant while submitting Property Irregularity Report (PIR) has not mentioned in respect of gold chain, 1000 US $ and other valuable items kept in the baggage. In the PIR the complainant has declared cloths, handicam, perfumes and certificates. So, in these circumstances, the case of the complainant that he has kept 1000 US $, gold chain and other valuable items cannot be accepted at all. It is unbelievable that complainant can kept currency notes in the baggage and gold chain. Therefore, the offer made by the opposite party for payment of 300 US $ should have been accepted by the complainant as regards the value of contents in the bag. But however the opposite party Airlines cannot escape its responsibility in payment of compensation to the complainant for physical, mental, and emotional sufferings. The word compensation as a very vide connotation, it may constitutes actual loss or expected loss and may extend to compensation for physical, mental, emotional sufferings, insult or injury and mental tension and inconvenience. Therefore, the Forum is entitled to award not only statutory compensation offered by the opposite party, but also compensate the consumer for injustice, discomfort, and mental tension suffered by him. In a very recent judgment, Orissa State Consumer Disputes Redressal Commission, Cuttack in a case reported IV(2000) CPJ page-362 in SUSANT KUMAR BARAL (Complainant) V/S INDIAN AIRLINES AND OTHERS(Opposite parties) is held as under:- IV (2000) ORISSA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CUTTACK Honble Mr. Justice R.K. Patra, President & Mr. Subash Mehtab, Member SUSANT KUMAR BARAL -Complainant Versus INDIAN AIRLINES & OTHERS-Opposite parties Case No.72 of 2004-Decided on 22.8.2007 Consumer Protection Act, 1986-Section 2(1)(g)-Airlines- Baggage lost-Complainant had no friend or acquaintance on a foreign soil-Forced to stay back at Singapore for 3 days-Had to go through tribulations for no fault of his-Subjected to sufferings, mental agony and hardship-O.Ps. jointly and severally liable to pay compensation-Damages for baggage loss payable as per Carriage by Air Act, 1972 and International Carriage (Passenger and Baggage) Regulations, 1973. Result: Complaint is allowed. In para 6 and 7 of the judgment, the Honble Commission has observed as under:- 6. The moot question is: Cannot a passenger claim compensation the ground of mental agony, sufferings, etc. following the loss or damage to his registered baggage. Chapter 3 of the Second Schedule contained in the Carriage Act, 1972 provides that the limits of liability prescribed in Rule 22 shall not prevent the Court from award awarding in accordance with its own law, in addition, the whole or part of the Court costs and of other expenses of the litigation incurred by the plaintiff. For the sake of convenience the relevant Rule 22(4) is extracted hereunder: The limits prescribed in this rule shall not prevent the Court from awarding in accordance with its own law, in addition, the whole or part of the Court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded, excluding Court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later. 7. From the above, it may be seen that the Court is not debarred from awarding compensatory damages to a passenger for sufferings and mental agony under common law. In law the injured party is entitled to claim reasonable compensation for sufferings and mental agony. A Court or Forum quantifies damage on sound principles. A person is entitled to receive compensation for any loss or damage which arose naturally from the event. In estimating the actual loss the Court or Forum takes into account only such loss as may be fairly and reasonably considered to have arisen naturally and in usual course of things from the violation of obligation. In the case at hand, the sufferings and mental agony through which the complainant spent on a foreign soil following the loss of the suitcase can well be imagined. He had no friend or acquaintance at Singapore. Although he was to come back in the Kolkata-bound flight on 11/7/1999 he could not come as he expected that his grievance would be favorably considered by the Indian Airlines Authorities. But it was in vain. As there was no Kolkata-bound flight from Singapore till 14/7/1999 he requested Ramdas to accommodate him in any Madras-bound flight and was agreeable to pay the differential amount. His request was not considered. He was thus forced to stay back at Singapore for three days. The complainant is a Senior Member of the teaching staff of a University. He has standing and prestige in the society and had to go through the tribulations for no fault of his. Whatever money he had in his pocket he spent at Singapore and in absence of any evidence to the contrary, we are inclined to hold that he was subjected to sufferings, mental agony and hardship. His sufferings cannot be measured by money. For the reasons mentioned above, we hold opposite parties 1 to 5 are jointly and severally liable to pay to the complainant a consolidated amount of Rs.1,00,000/-(Rupees One Lakh) as compensation, damage along with USD 240 for the loss of the baggage and direct them to pay the entire amount to the complainant by end of October 2007 failing which it shall carry interest at the rate of 9 percent per annum from 6/7/1999. The above ruling is a good answer to the defense taken by the opposite party in this case. In view of the above authority it is not necessary to me for discuss in detail about the admissibility of compensation that could be granted to the complainant in this case. Taking into consideration of the facts that, the complainant suffered mental tension, inconvenience etc., I feel the ends of justice would be met in awarding compensation of Rs.1,00,000/- along with damage offered by the opposite party i.e, 300 US $. Since the complainant has lost his baggage it amounts definitely a negligence in duty and it is a carelessness on the part of the opposite party. Therefore, there was a deficiency in service on the part of the opposite party. Taking into consideration of the facts and circumstances of the case, I proceed to pass the following:- ORDER 6. The complaint is allowed. The opposite parties are hereby directed to pay 300 US $ towards the lost baggage claim as per the statutory obligation. In addition to this the opposite parties are directed to pay compensation of Rs.1,00,000/- to the complainant for physical, mental agony etc.,. The opposite parties are directed to pay the award amount to the complainant within 30 days from the date of this order, failing which the amount shall carry interest at the rate of 9% p.a after the expiry of 30 days. The opposite parties are directed to send the amount to the complainant through cheque or D.D with intimation to this Forum. The complainant is entitled to Rs.5,000/- towards costs of the present proceeding from the opposite parties. 7. Send the copy of this Order to both the parties free of costs immediately. 8. Pronounced in the Open Forum on this 28TH DAY OF FEBRUARY 2008. Order accordingly, PRESIDENT We concur the above findings. MEMBER MEMBER
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