JUSTICE V.K. JAIN, PRESIDING MEMBER

          The complainant is an International Paralympic Shooter with 70% disability but being able to play in both, open and handicapped category.  He has been regularly representing India in International Events.  The complainant travelled from New Delhi to Atlanta via Amsterdam, on 04.11.2015, on a flight operated by the opposite party KLM Royal Dutch Airlines, in order to participate in International Paralympic World Cup in Fort Benning, G.A., to be held from 31.10.2015 to 08.11.2015. The complainant had been permitted to carry rifles and ammunition required for competing in the aforesaid event. The said rifles and ammunition were also booked by him with the opposite party. However, when he disembarked from the aircraft at Atlanta airport and reached the lounge of the airport, he did not find the rifles and ammunition on the luggage belt/counter. The aforesaid articles could not be located by the opposite party despite efforts made by the complainant. He was assured by the opposite party that the missing articles of baggage would be delivered to him by next day i.e. 05.11.2015. The opposite party however, failed to deliver the said articles either on 05.11.2015 or on 06.11.2015. As a result, the complainant could not participate in the matches held on the aforesaid two dates. It was only on 07.11.2015, which was the last date of the tournament that the complainant was able to get a shooting rifle from a colleague namely Naresh Kumar Sharma but the opportunity to play in Rio 2016 Paralympic Games slipped away from him. On 08.11.2015, the complainant while embarking on his return journey to India, again made enquiry about the missing baggage but was told that the same would be delivered to him in Amsterdam. The baggage however, was not delivered to him even in Amsterdam and he was told that the same would be delivered to him in Delhi. When the complainant reached Delhi, the aforesaid missing baggage was not delivered to him. It was only on 04.12.2015 that the opposite party informed the complainant that they were able to trace the baggage but again they were unable to deliver the said baggage to him.

            Vide letter dated 30.11.2015, SHO, P.S. IGI Airport informed the complainant that during the course of inquiry, the opposite party informed them that the missing baggage containing his licensed rifles/ammunition was delivered at Atlanta and they had initiated steps to get the baggage returned to India in order to hand over the same to him. The airlines however informed the SHO that the retrieval/restoration of the rifles/ammunition would be subject to U.S. security and legal requirements though they would take all possible steps to ensure that the time taken is reduced to the bare minimum. A copy of the communication dated 10.11.2015 received by the police from the opposite party was annexed to the aforesaid letter. A similar e-mail was sent by the opposite party to the complainant on 04.12.2015.

Since the rifles and ammunition booked by the complainant were not returned to him, he allegedly not only lost an opportunity to participate in Rio 2016 Para Olympic Games but also could not participate in the IPC Shooting World Cup held in UAE from 23.01.2016 to 27.01.2016. He also had to miss the forthcoming IPC Shooting World Cup to be held in Bangkok. Being aggrieved from the aforesaid negligence and deficiency on the part of the opposite party in rendering services to him, the complainant is before this Commission seeking the following compensation:

2.      Considering the provisions contained in the Carriage by Air Act, 1972, I have heard the learned counsel for the complainant on the maximum compensation which can be awarded to the complainant.

3.      The Carriage by Air Act, 1972 was enacted in order to give effect to the convention for the unification of certain rules relating to international carriage by air signed at Warsaw on the 12th day of October, 1929 and to the said Convention as amended by the Hague Protocol on the 28th day of September, 1955 a [and also to the Montreal Convention signed on the 28th day of May, 1999] and to make provision for applying the rules contained in the said Convention in its original form and in the amended form (subject to exceptions, adaptations and modification) to non-international carriage by air and for matters connected therewith.

          Section 4A of the said Act inserted with effect from 01.07.2009 reads as under:

4A. Application of Montreal Convention to India – (1) The rules contained in the Third Schedule, being the provisions of the Montreal Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall, subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage. (2) For the purpose of this Act, the State Parties to the Montreal Convention and the date of enforcement of the said Montreal Convention shall be such as are included in Part III of the Annexure. (3) Any reference in the Third Schedule to the territory of any State Party to the Montreal Convention shall be construed as a reference to all the territories in respect of which he is a party. (4) Any reference in the Third Schedule to agents of the carrier shall be construed as including a reference to servants of the carrier. (5) The Central Government may, having regard to the objects of this Act, and if it considers necessary or expedient so to do, by notification in the Official Gazette, add to, or, as the case may be, omit from, Part III of the Annexure, any State Party and on such addition or, as the case may be, omission, such Party shall be or shall cease to be, a State Party.

4.      Clause 22(2) and 22(5) of the Third Schedule to the Carriage by Air Act, 1972 read as under:

22.(2) In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay shall be limited to rupees twenty thousand for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum, if so required. In that case, the carrier shall be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.

22.(5) The provisions of sub-rules (1) and (2) shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result:

          Provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

          It would thus be seen that even if the baggage is altogether lost, the liability of the carrier is restricted to Rs.20,000/- unless the passenger while handing over the checked baggage of the carrier, made a special declaration of interest in delivery at destination. In that case, the carrier is liable to pay a sum not exceeding the declared sum to the passenger.  If, however, the carrier is able to show that the actual interest of the passenger in the baggage is less than the sum declared by him, the liability of the carrier can even be less than the declared sum.  The monetary ceiling on the liability of the carrier however, does not apply if the consumer is able to prove that the damage to his baggage has resulted from an act or omission done with intent; (a) to cause damage or (b) done recklessly and with the knowledge that the damage would probably result.  The onus obviously would be upon the passenger to allege and prove such an act or omission on the part of the carrier, its servants or agents.

5.      Clause 29 of the aforesaid schedule reads as under:

29. In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under these rules or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in these rules without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

6.      Section 3 of the Consumer Protection Act, 1986 provides that the provisions of the said Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Though the Consumer Protection Act, 1986 is a later enactment to provide for better protection of the interests of the consumers and one of the primary aims of the Act is to provide for an expeditious settlement of consumer disputes and matters connected thereto, the said Act applies to consumers of all classes, whereas the provisions of Carriage by Air Act apply only to the air carriers. Though, the provisions of Section 3 of the Consumer Protection Act, 1986 are in addition, they are not in derogation of the provisions of other laws which at the relevant time were in force. The expression ‘derogation’ is defined in Oxford Dictionary as (i) an occasion without a rule or law is allowed to be ignored and (ii) words or actions which show that sb or sth is considered to have no worth. Therefore, the provisions of the said Act cannot be read in such a manner as to defeat the express provision of another Act which was in force at the relevant time. The Carriage by Air Act, 1972 was enacted under Article 253 of the Constitution of India which enables the Parliament to make laws for implementing any treaty, agreement or convention with other country or countries or any decision made at any international conference, association or other body.

7.      There is neither an averment in the complaint nor any material on record to show that any specific value to the baggage comprising the rifles and ammunition was declared by the complainant or a special declaration of interest in delivery of the said baggage at destination was made, while entrusting the said baggage to the opposite party. Therefore,  Sub clause (5)of the Clause 22 does not come into play and in view of clause 22(2) of the Third Schedule to the Carriage by Air Act, the liability of the opposite party is limited to Rs. 20,000/-.

8.      As provided in Section 21 of the Consumer Protection Act, this Commission has jurisdiction to entertain the complaint where the value of the goods or services and compensation if any, claim exceeds Rs. 1 crore. Since the legally payable compensation to the complainant does not exceed Rs. 1 crore, it would be difficult to dispute that this Commission lacks the requisite pecuniary jurisdiction to entertain this complaint.

9.      The learned counsel for the complainant during the course of hearing, has referred to the decision of the Hon’ble Supreme Court in Trans Mediterranean Airways Vs. Universal Exports (2011) 10 SCC 316 and Ethiopian Airlines Vs. Ganesh Narain Saboo IV (2011) CPJ 43 (SC).  In neither of these cases, the Hon’ble Supreme Court was concerned with the question as to whether, in case of negligence on the part of the airlines, compensation higher than that prescribed in the Schedule to the Carriage by Air Act, 1972 can be granted or not.  In Trans Mediterranean Airways (supra), the Hon’ble Supreme Court inter-alia held that this Commission is a Court for the purpose of the Carriage by Air Act, 1972 since the said word must be understood in the context of a body that is constituted in order to settle disputes and decide rights and liabilities of the parties before it.  It was further held that in some situations the word ‘Court’ may be used in wide / generic and cannot be in a narrow and pedantic sense and must in those cases be interpreted thus.  In Ethiopian Airlines (supra), the Hon’ble Supreme Court rejected the contention of the appellant Ethiopian Airlines that being a foreign sovereign it cannot be sued in India.  Though, there can be no dispute with the legal proposition that a consumer complaint against a carrier would be maintainable, the compensation awarded by the said Forum cannot exceed the monetary ceiling, if any, prescribed in the Schedules to the said Act, since granting a higher compensation would be in conflict with and thus in derogation of the provisions contained in the Carriage by Air Act, 1972.  In fact, in Patel Roadways Ltd. Vs. Birla Yamaha Ltd. 2000 (4) SCC 91, the Hon’ble Supreme Court inter-alia held that the proceedings before the Consumer Forum cannot be decided ignoring the expressed statutory provisions of the Carrier Act, in a proceedings in which a claim is made against a common carrier.  The said view would equally apply in a consumer complaint filed against a carrier governed by the provisions of the Carriage by Air Act, 1972.

10.    For the reasons stated hereinabove, the complaint is dismissed for want of pecuniary jurisdiction. It is however, made clear that the dismissal of the complaint will not come in the way of the complainant approaching an appropriate consumer forum for the redressal of his grievance against the opposite party.