Tamil Nadu

StateCommission

A/33/2016

The Manager(Claims) Air India Limited - Complainant(s)

Versus

M/s Kirti Sanghavi - Opp.Party(s)

M/s N.G.R.Prasad

09 Feb 2022

ORDER

 

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

            Tmt. Dr. S.M.LATHA MAHESWARI  ... MEMBER

 

F.A. No.33 of 2016

 

(Against the Order, dated 26.11.2015,  in C.C. No.647/2009,

on the file of  the  DCDRF, Chennai-South)

 

                                    

                                               Order Dated:-09.02.2022

            

1. The Manager (Claims),

Baggage Services,

Air India Limited,

Anna International Airport,

Meenambakkam,

Chennai 600 027.

 

2.M/s. Air India Ltd.,

Rep. By its Manager (Finance),

No.119, Rukmani Lakshmipathi Road,

Egmore, Chennai 600 008.     ...Appellants / Opp. Parties

 

vs.

 

Mrs.Kirti Sanghavi,

W/o. Mr.Hiren Sanghavi,

No.C-226, Swapnalok Apartments,

No.60, E.V.K.Sampath Road,

Vepery, Chennai 600 007.      …Respondent / Complainant.

 

             Counsel for Appellants         :  M/s.N.G.R.Prasad

             Counsel for Respondent       :  Mr.K.Ganesan

 

 

    

O R D E R

 

R.Subbiah, J. - President

             The appellants herein/Opposite Parties/Air India Limited have filed the present Appeal, seeking this Commission to set aside the order, dated 26.11.2015, passed by the DCDRF-South, Chennai, in C.C. No.647 of 2009, in and by which, the District Forum allowed the complaint in part by directing the Air India to pay a sum of Rs.50,000/- to the complainant as compensation and also Rs.5,000/- towards litigation expenses. 

 

               2. The case of the complainant/respondent herein, as reflected from the complaint filed before the District forum, in brief, is as follows:-

               The complainant, who was working as a Consultant in the United States,  travelled from New York to Chennai on 06.01.2009 by an Air India Flight belonging to the Opposite Parties.  On the date of journey, she booked 4 pieces of baggage at the New York Airport by paying necessary baggage charges and, on reaching the Chennai Airport on 08.01.2009, while waiting at the Baggage Clearance Spot, to her utter shock and dismay, she received only two pieces of baggage and the other two bearing No.A1-758724/medium size black pierre cardin suitcase with wheels approximately weighing 24 Kgs.  and A1-376633/Black Trolley with wheels pierre cardin suitcase approximately weighing 28 kgs, were found missing.  Immediately, the complainant had lodged a complaint with the Customs Department at the Anna International Airport, Chennai.   After a lapse of 10 days, the Opposite Parties traced the 3^rd piece/baggage bearing No.A1-758724 from Ahmedabad and handed over the same to the complainant by assuring her that they would trace out the other missing bag shortly.  While so, the complainant received a forwarding message from the Chennai Office of the Opposite Parties that the other baggage was also located at Ahmedabad and the same would be delivered on 15.01.2009, however, they failed and neglected to follow-up/hand over the said baggage.  In spite of the continuous efforts made by the complainant, she did not receive any information from the Opposite Parties.  The said conduct of the Opposite Parties would not only amount to deficiency in service, negligence, dereliction of duty but also unfair trade practice in the matter of handling the baggage.   Hence, through a legal notice, dated 29.01.2009, she called upon the 1^st opposite party to restore the missing baggage or pay a sum of Rs.1,35,000/- in lieu of the lost baggage and also to pay a sum of Rs.1,50,000/- towards compensation for the mental agony and physical strain & stress undergone by her due to their deficiency in service, negligence etc;  for which, it was replied by the Opposite Parties that the matter was referred to their Headquarters at Mumbai and they would get back, soon after the reply from the Headquarters.  While so, by letter, dated 10.02.2009, the Opposite Parties sent a cheque for Rs.19,556/- purporting to be in full and final settlement of her claim.  Since the said cheque amount was only a paltry sum as against the complainant’s claim for Rs.1,35,000/- towards the lost baggage and since the Opposite Parties did not come forward to pay compensation as previously demanded, a legal notice, dated 11.06.2009,  was sent to the Opposite Parties, calling upon them to comply with the demands made in her previous legal notice, dated 29.01.2009, for which, by reply dated 19.06.2009, the Opposite Parties stated that they had already paid Rs.19,556/- towards full and final settlement and thereby, declined to accede to her demand.  Hence,  she filed the complaint before the District Forum, seeking to direct the Opposite Parties to pay to her Rs.1,15,444/- towards the value of the lost item together with interest @ 18% p.a. from 08.01.2009 till the date of payment; to refund $123 being the excess baggage charges collected by them in respect of the mishandled baggage; to pay Rs.1,50,000/- as compensation towards mental agony, etc.; and to pay the costs of the complaint.

 

               3. The respondents/Opposite Parties resisted the same by filing a written version, wherein, among other things, it is stated as follows:-

               The complainant had checked in three bags weighing 78 Kgs, whereas, she can check three  pieces weighing 69 Kgs. only, hence, the Opposite Parties had collected the applicable charges from the complainant. Later, it was found that she was carrying a heavy cabin bag weighing more than the allowed weight of 8 kgs., which she was asked to hand over to the staff, who issued a limited release tag under Reference AI376633.  Since the hand baggage exceeded the prescribed weight/size, due to safety reasons, the personnel of the Opposite Parties were compelled to retrieve it from the passenger and load it in the baggage hold.  Though there is a provision to charge extra for the said heavy hand-baggage, the Opposite Parties did not do so as a gesture of goodwill. 

               On arrival, the complainant had collected two pieces of baggage and filed a complaint with the Opposite Parties staff for the remaining two.  One of the missing baggages/3rd piece, on retrieval, was collected by the Opposite Party on 12.01.2009.  As far as the other missing baggage/4th piece is concerned, although it was located in Ahmedabad, the same did not reach Chennai, hence, the complainant was advised to forward her claim for the said missing bag with a list showing the contents in the bag and the value of each item so as to enable the Opposite Parties to settle her claim.  As per the Conditions of Contract, the Airline’s legal liability for loss of retrieved hand baggage or loss of items is a maximum of US$ 400 and the same was paid to the complainant by the Opposite Parties vide Cheque No.931713, dated 27.02.2009, in full and final settlement.  Therefore, absolutely, there is no deficiency in service on the part of the Opposite Parties; as such, they sought for dismissal of the complaint.

 

               4.  In order to substantiate their claim and counter-claim, both sides filed their respective proof affidavits and while, on the side of the complainants, 8 documents were marked as Exs.A1 to A8, the Opposite Party filed 2 documents as Exs.B1 to B2.   By the impugned order, dated 26.11.2015, the District Forum allowed the complaint in part by issuing the direction as stated supra, hence, the present appeal before this Commission by the Appellants/Air India.

 

          5.  Learned counsel for the appellants points out that there is no dispute in respect of the two pieces  of baggage collected at the Clearance Spot and that the 3^rd baggage, although went missing when she arrived at the Chennai Airport, was subsequently traced out and safely handed over to her.   He further points that, insofar as the 4^th baggage is concerned, which is the subject-matter of the complaint, initially, the respondent carried it as a hand baggage, which should be less than 8 Kgs., but, at the time of boarding, she was struggling even to lift the same, whereupon, it was weighed and found to be  28 Kgs.  Therefore,  since that baggage exceeded in weight and size and also owing to safety reasons, it was retrieved and loaded in the baggage hold.  On the basis of the complaint-cum-requests made by her, although the Authorities made every sincere attempt to retrieve the same, it could not be traced out  and  thereupon,  as  per  the  Conditions of Carriage, the Appellants had paid the respondent Rs.19,556/- at the rate of 20 dollars per kilogram subject to a maximum of 400 dollars (according to the Warsaw Convention), which sum had been received without any protest; as such, the respondent is not entitled to anything else beyond that.  It is submitted that, if the said baggage contained valuables, she should have made a special declaration of higher valuation and paid the applicable higher valuation charges at the time of check-in and, in the absence of the same, she would be paid only on ‘weight loss basis’ as mentioned above and accordingly, the maximum eligible amount was paid.  When the appellants duly discharged their responsibilities as a National Carrier by paying the maximum compensation applicable as against the missing baggage, the direction for payment of compensation issued by the District Forum is not sustainable in law and on facts as it runs contrary to the decision of the National Commission  in Regional Manager, Air India vs. R.Devivam (1996 (2) TNCR 558 (NC)), wherein, it is ruled that liability of the carrier for cost of the baggage is limited according to the weight of the baggage declared and not on the basis of the value of the baggage unless specifically declared and additional charges were paid for them.  While so, in the absence of any special declaration of higher valuation and payment of applicable higher valuation charges by the respondent, since the applicable maximum compensation was paid on weight loss basis, the impugned order that runs contrary to the ruling cited above deserves interference by this Commission, he pleaded ultimately.

               6.  Per contra, learned counsel for the respondent, by stating that the respondent had kept valuables in the missing baggage, would submit that though the Opposite Parties claimed that they located the missing baggage in question at Ahmedabad, they failed to retrieve and hand over the same to the complainant, which clearly exhibits the deficiency in service on their part.    Further, the amount settled by the Airways was in lieu of the missing baggage as per the Warsaw Convention, whereas, the compensation awarded by the District Forum is for the mental agony suffered by the complainant, therefore, the settlement  received by the complainant without any prejudice is, in no way, a bar for awarding the compensation amount.  Hence, the above case law cited by the appellants, distinguishable on facts, cannot be made applicable to the facts of the present case.  Accordingly, he prayed for dismissal of the appeal.

 

              7. We have considered the rival submissions advanced on either side as well as the impugned order under challenge before us, having regard to the materials available on record.

            

           8. The main ground taken by the appellants is that, having received Rs.19,556/- as full and final settlement towards the missing baggage, the complainant is not entitled to seek any further claim, particularly when she never made any special declaration about valuables and did not pay the applicable higher valuation charges at the time of check-in, but, without considering that core aspect, the District Forum rushed to erroneously allow the complaint in part, by directing the appellants to pay Rs.50,000/- as compensation.  

                 In that regard, on perusal of the materials, we find that, of course, when one of the two baggages viz., the 3^rd piece was retrieved, after such retrieval, the same was duly handed over to the complainant; thus, the respondent has no grievance in that regard.  But, regarding the 4^th baggage, which is the present subject-matter, although the Airways hurried to inform that they located the baggage at Ahmedabad, there was a failure in retrieving the same for the purpose of handing it over to the respondent.   In a case of this nature, before passing on any such information to the Passenger, they should have done a thorough verification and come up with a definite conclusion as to whether the baggage was in fact retrieved or not for the purpose of handing it over to the concerned.  After informing that they located the baggage at Ahmedabad, to say later on that the baggage went untraceable, exhibits their callous      approach that apparently gave room to draw an inference of deficiency in service.  That is why, the District Forum only after clearly recording the fact that the Airways had settled the claim as per Rules, proceeded to award compensation for the reason that, in the endeavor to trace/retrieve the missing baggages, the complainant had to address several demand notices/communications that caused mental agony and hardship to her and as such, she is entitled to compensation.  From this, we can clearly infer that the amount awarded as compensation by the District Forum is for the mental agony and stress undergone by the respondent in her incessant efforts with the Opposite Parties for retrieving the missing baggage.  Although the amount awarded is termed as compensation, since it is meant for the mental agony and stress suffered by the respondent, we are of the view that the settlement made by the appellants in terms of the Warsaw Convention would not be an embargo to award compensation for the mental agony.  Having held so, we are of the view that, although the District Forum is justified in awarding compensation for mental agony, the sum fixed for that seems to be on the higher side, hence, we reduce it to Rs.25,000/- (Rupees twenty five thousand only) as it would meet the ends of justice. 

 

                9.  In the result, the appeal is allowed in part to the extent that the compensation of Rs.50,000/-, as awarded by the District Forum, stands reduced to Rs.25,000/- (Rupees twenty five thousand only).  In all other aspects, the order of the District Forum shall stand as such. The appellants are directed to pay the said sum of Rs.25,000/- within two months from the date of receipt of a copy of this order, in default, to pay the same along with interest @ 9% p.a. from the date of complaint till the date of payment. 

            

S.M.LATHA MAHESWARI                             R.SUBBIAH, J.

MEMBER                                                      PRESIDENT.

 

Index  : Yes  / No.

 

ISM/TNSCDRC/Orders/Feb/2022.