BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 40 OF 2014 AGAINST C.C.NO.68 OF 2009 DISTRICT CONSUMER FORUM RANGA REDDY
Between
United Airlines
Rep. by Country Manager
2nd floor, Tower C, Cyber Green
DLF-Phase III, Gurgaon
Haryana
Appellant/opposite party no.2
A N D
- Ms Dandu Haindavi Aruna Jyothi
D/o DVS Varma, aged about 21 years
Occ: Student R/o Flat No.D1
Green Meadows Petbasherabad
-
Respondent/complainant
- Jet Airways India Limited
Hyderabad Baggage Service Level E
Passenger Terminal Building
Rajiv Gandhi International Airport
Shamshabad, R.R.District
Respondent/opposite party no.1
Counsel for the Appellant Sri N.Balu
Counsel for the Respondent No.1 Sri G.Nanda Gopal
Counsel for the Respondent No.2 Sri S.Shyam
F.A.No. 45 OF 2014 AGAINST C.C.NO.68 OF 2009
Between
Ms Dandu Haindavi Aruna Jyothi
D/o DVS Varma, aged about 21 years
Occ: Student R/o Flat No.D1
Green Meadows Petbasherabad
Hyderabad-55
Appellant/complainant
A N D
- Jet Airways India Limited
Hyderabad Baggage Service Level E
Passenger Terminal Building
Rajiv Gandhi International Airport
Shamshabad, R.R.District
- United Airlines
Rep. by Country Manager
2nd floor, Tower C, Cyber Green
DLF-Phase III, Gurgaon
Haryana
Respondents/opposite parties
Counsel for the Appellant Sri G.Nanda Gopal
Counsel for the Respondent No.1 Sri S.Shyam
Counsel for the Respondent No.2 Sri N.Balu
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
MONDAY THE NINETH DAY OF OCTOBER
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
These cross appeals are preferred, one by the opposite party no.2 in F.A. 40/2014 aggrieved by the order of the District Forum, Ranga Reddy District dated 20.12.2013 made in C.C.No.68 of 2009 directing the opposite party no.1 to pay compensation of Rs.50,000/- for the loss of baggage of the complainant and the opposite party no.2 to pay compensation of Rs.10 lakhs within 30 days failing which the amount shall carry interest @ 12% per annum while the complainant preferred the appeal F.A.No.45 of 2014 against inadequacy of compensation in the said order.
2. The parties are described as arrayed in the complaint in order to avoid confusion in narrating the facts.
3. The case of the complainant in brief is that the complainant booked air ticket to travel from Wichita to India on 23.12.2008 through travel agent, Saber Travels. The flight from Wichita to Chicago was scheduled at 10.30 a.m. on 23.12.2008 and its connecting flight was scheduled at 4.08 p.m. on 23.12.2008. From London, the complainant was supposed to travel in the Jet Airways 9W 0119 of the appellant on 24.12.2008 to Mumbai and from Mumbai to Hyderabad in Flight 9W 0453. Because of delayed start at Wichita she had missed all the connecting flights. After she arrived at Chicago, the complainant contacted the Customer Service Department of the opposite party no.1 which rescheduled her flight UA 938 the next day to London. The complainant had to stay in Chicago Airport from 7.30 p.m. on 23.12.2008 till 9.35 on 24.12.2008 owing to the delayed start at Wichita. The opposite party no.2 issued boarding pass to the complainant informing her that she can travel by Jet Airways 9W 117 on 25.12.2008 from Heathrow Airport, London. The opposite party no.2 stated to have informed the complainant that they cannot provide accommodation to her at London.
4. The complainant landed at 11.05 a.m. at London and she was informed that her name was not listed in the flit 9W 117 that day night flight. The opposite party no.1 said to have informed the complainant that it would not provide accommodation to her as delay was not caused due to any fault on its part. The complainant baggage had gone missing and she visited the airport every day during her stay in London to know about her missing baggage. The complainant lodged complaint about mission of her baggage, at Mumbai and the opposite party no.1 paid an amount of Rs.48,960/- towards compensation for her missing baggage.
5. The complainant contended that despite her request for providing accommodation because of her illness, the opposite party no.2 refused to provide the accommodation on the premise of peak hours at Chicago. She contended that the opposite party no.1 denied her accommodation in London citing the cause for delay of the flight was somebody else. Her baggage contained her certificates and the gifts worth $3000 and that because of loss of documents she could not pursue her further studies. Hence, the complaint praying to direct the opposite parties to pay a sum of Rs.1,44,000/- towards compensation for loss of baggage, Rs.24,000/- towards the expenses incurred by her for making telephone calls from Chicago to her relatives in India, Rs.1,40,000/- spent for food, clothing etc., at London; Rs.1,40,445/-for medication, Rs.7,70,664/- expenditure incurred by her for first semester and Rs.7,50,000/- for loss of career.
6. The opposite party no.1 resisted the case contending that the complaint does not fall within the definition of a ‘consumer dispute’ under C.P. Act as there is neither unfair trade practice nor deficiency of service on their part. The subject matter of the present complaint is civil in nature and as such the District Forum has no territorial jurisdiction to entertain the complaint. The complaint is liable to be dismissed for non-joinder of proper and necessary party i.e., the travel agent by name Saber Travels. The initial part of the journey was initiated by the complainant from Wichita to Chicago and further to London was to be performed by United Airlines and hence the further part of the journey on Jet Airways was depending only upon successful performance of the initial journey on United Airlines as per her contract of Carriage with United Airlines. The United Airlines flight from Wichita had got delayed mainly due to unfavorable weather conditions and thereby forcing the complainant to miss all her consequent flights. The baggage of the complainant was not transferred by United Airlines flight on to Jet Airways flight. When the complainant lodged a complaint at Mumbai she was informed that her baggage was still with United Airlines and one of her bags was traced at Houston in the United States. Their company also paid an amount of Rs.48,960/- to the complainant in full and final settlement of all her claims regarding the lost baggage in good faith even though the responsibility lies on United Airlines. As the complainant accepted the amount paid by their company vide her email dated 01.09.2009. The damages claimed by the complainant on various heads are highly excessive and arbitrary and hence prayed for dismissal of the complaint.
7. The opposite party no.2 resisted the claim on the premise that the District Forum has no territorial jurisdiction and that cause of action arose outside the territory of India. It is contended that the complaint is not maintainable as the complainant received an amount of Rs.48,960/- towards full and final settlement of all the claims. Once complainant accepted the demand draft, the District Forum has no jurisdiction and the civil court has jurisdiction to entertain the complaint. The complaint is bad for non-joinder of necessary party i.e., agent Saber Travels at Wichita. The delay of the flight was due to bad weather conditions and in such case the opposite party no.2 cannot provide for alternate accommodation. The delay was only 5 hours and the opposite party no.2 issued alternate tickets to the complainant to travel from Chicago to London on 24.12.2008 at 9.05 p.m. flight. The liability of opposite party no.2 is limited to issuing of alternate tickets for travel of the complainant. As per the applicable law and regulations, the opposite party no.1 is the final delivering carrier and is responsible for the safe delivery of the luggage to the passenger at the final destination and also unable to compensate the passenger in case of delay or damage. Hence, the opposite party no.2 prayed for dismissal of the complaint.
8. The complainant filed her affidavit and additional affidavit and the documents Exs.A1 to A25, on behalf of the opposite party no.1, the Station Manager filed his evidence affidavit and got Exs.B6 to B11 marked and on behalf of the opposite party no.1, the General Manager-India filed his affidavit and got Exs.B1 to B5 marked.
9. The District Forum after considering the material available on record, allowed the complaint directing the opposite party no.1 to pay compensation of Rs.50,000/- to the complainant for the loss of her baggage while the opposite party no.2 is directed to pay compensation of Rs.10 lakhs towards deficiency in service and negligence on its part.
10. Aggrieved by the said decision, the opposite party no.2 preferred the appeal F.A.No.40 of 2014 contending that the Dist. Forum did not appreciate the facts in correct perspective. It is contended that the District Forum initially passed orders on 14.02.2011 in favour of the complainant and aggrieved by the said order the opposite party no.1 preferred the appeal before the State Commission wherein the State Commission passed orders on 12.12.2012 by remitting back the case for de nova enquiry. Despite the opposite party no.2 furnishing with the detailed account of the case afresh the District Forum ignored and disregarded all the well settled legal principles as laid down by the Hon’ble Supreme Court and the Hon’ble National Commission. The District Forum failed to consider the various statutory provisions and the opposite party no.2 Contract Carriage Rules which are binding on the complainant. As there was no cause of action arose in Ranga Reddy District the District Forum Ranga Reddy has no territorial jurisdiction to entertain the complaint. The District Forum while admitting that the flight has been delayed mainly due to unfavourable weather conditions attributed the deficiency of service on the opposite party no.2. The District Forum did not deal with the judgments of the Hon’ble Supreme Court and the Hon’ble National Commission cited by the opposite party no.2. The opposite party no.2 cannot be made liable for the loss of personal documents as per Contract of Carriage Rule 28(K)(3). The opposite party no.2 provided alternative tickets and all corresponding actions for the connecting Jet Airways flight in good faith. The delay is due to bad weather and for want of clearance from ATC and as such it does not amount to negligence. The delays are necessary to ensure passenger safety and no negligence can be attributed to the carrier under such circumstances. Therefore, there has been no negligence on the part of the opposite party no.2 and that no compensation at all is payable by the opposite party no.2 and as such the appeal is to be allowed by setting aside the order of the District Forum.
11. Dissatisfied with the order of the District Forum the complainant preferred appeal F.A.No.45 of 2014 contending that the Dist. Forum did not appreciate the facts in correct perspective. It is contended by the complainant that the District Forum erred in partly allowing the complaint as against a sum of Rs.19,69,052/- as claimed in the complaint. Both the opposite parties are code sharing partners and once a ticket is being booked for certain destination the two airlines are involved and hence both the opposite parties are liable for the consequences that were occurred during the travel of the complainant. As the entire record of the complainant is being in the bags she could not prosecute studies at Wichita because of loss of baggage. The District Forum failed to direct the opposite parties to return back the traced out baggage to the complainant. As rule 22 and 23 of second schedule of Carriage by Air Act, 1972 the complainant is entitled to compensation of Rs.3,33,030/- for weight of 40 kgs of baggage but the District Forum wrongly calculated the weightage of the missing baggage and awarded only Rs.50,000/-. The opposite parties did not provide any accommodation till her departure to her destination and for that she had to spent an amount of Rs.7,70,604/- but the District Forum failed to award the same. Hence, the complainant prayed to allow the appeal and grant reliefs as prayed for in the complaint.
12. Counsel for the complainant present and was heard. No representation for the opposite parties. The counsel for both parties have filed their respective written arguments.
13. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief.
14. The counsel for the opposite party no.2 would contend that the District Forum had no jurisdiction to entertain the complaint as no cause of action arose in Ranga Reddy District. On the other hand, it is the contention of the complainant that the office of opposite party no.1 is situated within the limits of Ranga Reddy District and moreover Hyderabad is the destination point as per the ticket booked by the complainant and hence the District Forum Ranga Reddy had jurisdiction to entertain the complaint.
15. We are afraid, these objections of the learned counsel for the opposite party no.2 have to be over-ruled, firstly on the ground that the same objections were raised before the fora below and have been dealt with at length. On the question of territorial jurisdiction objection has been rightly rejected as the complainant landed at Rajiv Gandhi International Airport and the Branch Office of the opposite party no.1 is situated at Rajiv Gandhi International Airport, Shamshabad, R.R.District and, therefore, clearly a part of cause of action arose at Ranga Reddy District.
16. The next contention of the opposite parties is that the complainant paid the journey ticket charges to Saber Travels at Wichita at US. Due to the delayed start of the flight at Wichita, the complainant has missed the connecting flights at Chicago and London. In the circumstances, the delayed start of the flight at Wichita goes to show that M/s Saber Travels is a proper and necessary party to the proceedings. It is not in dispute that the complainant purchased the tickets from one Saber Travels who sold the tickets of the opposite parties and there is no dispute regarding purchase of tickets and the dispute is with regard to the delay of the flight arranged by the opposite party no.2.
17. The next contention of the opposite party no.2 is that as per Rule 19 of the Carriage by Air Act 1972 the operating carrier would not be liable to pay compensation to a passenger in respect of either cancellation or delays attributable to meteorological conditions or air traffic control directions/instructions which are beyond the control of the carrier. In this case the delay was due to bad weather and want of clearance from ATC and the reasons are beyond control of the airlines. In support of its contention it has filed Exs.B2 to B4. Further, if the complainant lost her baggage containing important documents, it cannot be made liable for the same as per Rule 28(K)(3) of the Contract of Carriage.
18. The Hon’ble Supreme Court in M/s Interglobe Aviation Ltd. vs N.Satchidanand reported in (2011) 7 SCC, 463, has held:
Liability to provide facilitation during delay
26. The issue of responsibility for delay in operating the flight is distinct and different from the responsibility of the airline to offer facilitation to the passengers grounded or struck on board due to delay. If the obligation to provide facilitation to the passengers is legally recognized, either based on statutory requirements or contractual obligations or recognized conventions, failure to provide the required minimum facilitation may, depending upon the facts of the case, amount to either breach of statutory/contractual obligation, negligence, want of care or deficiency in service on the part of the operating airline entitling the passengers for compensation.
27. We may consider whether there was any such obligation to provide facilitation to passengers by the appellant on 14.12.2007. As per the DGCA's guidelines dated 5.12.2007 which were in force on 14.12.2007, there was such obligation on the part of the carrier. Clause 35 provided if the flight is delayed, after boarding, appropriate facilitation has to be given by the Airlines on board. Clause 36 provides that the Airlines, even low cost carriers, had to provide facilitation in terms of tea/water/snacks to the passengers of their delayed flights.
28. Under the CAR circular dated 6.8.2010 which came into effect on 15.8.2010, in the event of delays attributable to air traffic control or meteorological conditions, the operating Airlines shall have to offer to the passengers free of cost, meals and refreshment in relation to waiting time, vide clause 3.6.1(a) read with clause 3.4.1. Facilitation of passengers who are stranded after boarding the aircraft on account of delays is an implied term of carriage of passengers, accepted as an international practice, apart from being a requirement to be fulfilled under DGCA's directives. Such facilitation which relates to the health, survival and safety of the passengers, is to be provided, not only by full service carriers, but all airlines including low cost carriers. This obligation has nothing to do with the issue of liability or non-liability to pay compensation to the passengers for the delay. Even if no compensation is payable for the delay on account of bad weather or other conditions beyond the control of the air carrier, the airline will be made liable to pay compensation if it fails to offer the minimum facilitation in the form of refreshment/water/beverages, as also toilet facilities to the passengers who have boarded the plane, in the event of delay in departure, as such failure would amount to deficiency in service. At the relevant point of time (14th December 2007), in the event of delay, passengers on-board were to be provided by the air carriers, including low cost carriers, facilitation by way of snacks/water/tea apart from access to toilet. [Note: The facilitation requirement was subsequently revised and upgraded with effect from 15.8.2010 as "adequate meals and refreshments" due during the waiting period].
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Effect of IndiGo Conditions of Carriage on the liability for facilitation
30. The next question is whether the exclusion clause in the IndiGo Conditions of Carriage can absolve liability to provide facilitation to passengers affected by delay. The relevant clause in the Indigo conditions of carriage is extracted below :
"Flight Delays, Reschedule or Cancellations IndiGo reserves the right to cancel, reschedule or delay the commencement or continuance of a flight or to alter the stopping place or to deviate from the route of the journey or to change the type of aircraft in use without incurring any liability in damages or otherwise to the Customers or any other person whatsoever. Sometimes circumstances beyond IndiGo's control result in flight delays, reschedule or cancellations. In such circumstances, IndiGo reserves the right to cancel, reschedule or delay a flight without prior notice. Circumstances beyond IndiGo's control can include, without limitation, weather; air traffic control; mechanical failures; acts of terrorism; acts of nature; force majeure; strikes; riots; wars; hostilities; disturbances; governmental regulations, orders, demands or requirements; shortages of critical manpower, parts or materials; labour unrest; etc. IndiGo does not connect to other airlines and is not responsible for any losses incurred by Customers while trying to connect to or from other airlines. If an IndiGo flight is cancelled, rescheduled or delayed for more than two/three hours (depending on the length of the journey), a Customer shall have to right to choose a refund; or a credit for future travel on IndiGo; or re-booking onto an alternative IndiGo flight at no additional cost subject to availability.
x x x x x x x x x Please note that in the event of flight delay, reschedule or cancellation, IndiGo does not provide compensation for travel on other airlines, meals, lodging or ground transportation."
(emphasis supplied)
31. The said exclusion clause no doubt states that in the event of flight delay, IndiGo would not provide any "meals". But it can apply to passengers who have not boarded the flight and who have the freedom to purchase food in the airport or the freedom to leave. It will not apply to passengers who are on board and the delay in the flight taking off, denies them access to food and water. In the extra-ordinary situation where the passengers are physically under the complete care and control of the airline, as it happens when they have boarded the aircraft and have no freedom to alight from the aircraft, the duty of the airlines to protect and care for them, and provide for basic facilitation would prevail over any term of the contract excluding any facilitation (except where the carrier itself cannot access food due to emergency situations). No public utility service can say that it is not bound to care for the health, welfare and safety of the passengers because it is a low cost carrier. At all events, the said clause in question stood superseded, in so far as flights taking off from IGI Airport, Delhi, having regard to the guidelines relating to Aircraft operations during low visibility conditions at IGI Airport, Delhi, which provide that all airlines including low cost carriers shall provide facilitation in terms of tea/water/snacks to the passengers of delayed flights. (The DGCA directives in force from 15.8.2010 clearly provide that passengers shall be offered free of cost meals and refreshment in relation to the waiting time). What we have stated above is with reference to the passengers on board, in delayed flights which have not taken off. Subject to any directives of DGCA to the contrary, the exclusion clause will be binding in normal conditions, that is, during the flight period, once the flight has taken off, or where the passenger has not boarded.
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Whether the airline failed to provide facilitation to respondent?
34. It is not in dispute that during the initial period of delay, when it was not known that there would be considerable delay, the respondent purchased a sandwich in the normal course. When flight No.6E-301 was cancelled and combined with the subsequent flight No.6E-305, the on-board passengers including respondent who opted to continue in the flight were offered snacks (sandwiches) and water free of cost, around 12 noon. As the combined flight (No.6E-305) was also delayed, a second free offer of sandwiches and water was made around 3 p.m. But the second time, what was offered to respondent was a chicken sandwich and as the respondent who was a vegetarian refused it, he was offered biscuits and water, instead. It is not the case of the respondent that toilet facilities were denied or not made available. In the circumstances, the appellant being a low cost carrier, the facilitations offered by it, were reasonable and also met the minimum facilitation as per the DGCA guidelines applicable at the relevant point of time.
35. In the absence of prior intimation about the preference in regard to food and in emergency conditions, the non-offer of a vegetarian sandwich in the second round of free snacks cannot be considered to be a violation of basic facilitation. While the dietary habits or religious sentiments of passengers in regard to food are to be respected and an effort should be made to the extent possible to cater to it, in emergency situations, non-offer of the preferred diet could not be said to be denial of facilitation, particularly when the airline had no notice of passengers' preference in food. In fact, the appellant being a low cost carrier, there was also no occasion for indicating such preferences. We however note that in the subsequent DGCA guidelines which came into effect from 15.8.2010, the facilitation to be provided has been appropriately upgraded by directing that the delayed passengers are to be provided with meals and refreshment as and when due depending upon the period of delay.
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40. There can be no doubt that the respondent, like any other passenger forced to sit in a narrow seat for eleven hours, underwent considerable physical hardship and agony on account of the delay. But, it was not as a consequence of any deficiency in service, negligence or want of facilitation by the appellant. Consumer fora and Permanent Lok Adalats can not award compensation merely because there was inconvenience or hardship or on grounds of sympathy. What is relevant is whether there was any cause of action for claiming damages, that is whether there was any deficiency in service or whether there was any negligence in providing facilitation. If the delay was due to reasons beyond the control of the airline and if the appellant and its crew have acted reasonably and in a bona fide manner, the appellant cannot be made liable to pay damages even if there has been some inconvenience or hardship to a passenger on account of the delay.
19. Now remains the only deficiency attributed on the part of opposite party no.2 is regarding non-providing of boarding and lodging to the complainant. The complainant has stated that the second respondent disowned its liability to provide accommodation to her at Chicago and the opposite party no.2 has not provided accommodation at London on the premise that it was not at fault. On the other hand the opposite party no.2 contended that their only responsibility is to issue alternative tickets for the connecting flights missed by the passenger but not to provide accommodations, payments or reimbursements when the flights are delayed or cancelled because of bad weather, Air Traffic Control or any other cause outside the control of the Airline. The Directorate General of Civil Aviation (DCGA) and applicability of Civil Aviation Requirement (CAR) under Section 3, say that airlines should provide facilities to passengers affected by cancellation or delay in flights for more than three hours. It states, “Airlines are supposed to provide compensation and other benefits to passengers, including food and beverages, in case of delays. The airlines will not be under any obligation in case the delay is on account of things that are beyond its control like political unrest, bad weather, air traffic problems, or technical problem.” If the missed connection is the airline’s fault (a delayed flight or mechanical problems, for example), the airline should re-book you on the next available flight. If the next outbound flight is the following morning, the airline should either book you on any other airline or provide accommodations and meals. But these arrangements are voluntary with the airline; they’re not mandated by any law or regulation. If inclement weather causes you to miss your connection, the airline will help you re-book but likely won’t offer any compensation for meals or accommodations. It is also pertinent to note that as the opposite partyno.2 does not have direct flights to India, it had re-issue of alternate tickets for the complainant on some other flight on some other airline which takes the complainant to Hyderabad. Airlines have no responsibility for missed connections on two separate tickets. Therefore, the opposite party no.2 will not take responsibility for actions of the opposite partyno.1. Bad weather and mechanical problems are obviously beyond the control of the airliners and they are nothing to do for such delay. It is therefore clear from the above discussion, judgment of the Hon’ble Supreme Court and the DGCA Guidelines if the flights are delayed or cancelled because of bad weather, Air Traffic Control, or any other cause outside of the control of the Airline, the opposite parties are not liable to pay any compensation or provide accommodation to the passengers.
20. The further contention of the opposite party no.2 is that the complainant preferred the complaint for lost baggage with the opposite party no.1 staff and not with the opposite party no.2 as is evident from the Lost Baggage report. It is further contended that by emails dated 9th January and letter dated 25th January the opposite party no.1 airline has accepted liability for lost baggage and to that effect the opposite party no.1 paid an amount of Rs.48,960/- towards full and final settlement for loss of her baggage offered by the opposite party no.1. On the other the opposite party no.1 contended that the actual responsibility/liability to deliver the complainant’s baggage was of opposite party no.2 and that the burden of proof vests upon opposite party no.2 to show whether it had transferred any baggage belonging to the complainant on to the aircraft of opposite party no.1 or not. The opposite party no.1 did not receive the baggage from opposite party no.2 and that there was no communication made in that regard and that there is no agreement between the opposite parties no.2 and 1. It is also contended by the opposite party no.1 that having received Rs.48,960/- towards full and final settlement about missing luggage the complainant again made the opposite party no.1 as a party to the complaint is an after thought for the purpose of claiming more compensation. Admittedly, the complainant accepted the cheque for an amount of Rs.48,960/- from the opposite party no.1 to that effect an email was sent stating that “ I agree for the settlement about my missing luggage. I agree for the payment of Rs.48,960/-. But for my expenses I will contact United (OP No.2) and then confirm about the status. Thank you”. It is also to be seen that the complainant requested the opposite party No.1 to issue the cheque in the name of her mother Dandu Varalakshmi and the opposite party no.1 also issued cheque as per her request without any protest but having received the same she did not encash the same nor returned to the opposite party no.1.
21. The Counsel for the complainant, submitted that since the baggage containing important documents such as certificates and the articles worth of $3000 was found missing, as such, the Opposite Parties were required to compensate her, for that amount and also loss of her career. She further submitted that the complainant also suffered a lot of mental agony and physical harassment. She further submitted that the plea taken up by the Opposite Parties, for making refund of a sum of Rs.48,960/- was totally untenable. She further submitted that, no doubt, a cheque, in the sum of Rs.48,960/- was sent, by the Opposite party no.1, taking the liability for the maximum weight of 40 kgs, yet, the same was not got encashed by the complainant, as she was hoping that she would be given the compensation, as demanded by her. She further submitted that the District Forum was wrong, in coming to the conclusion in awarding only Rs.50,000/- by way of compensation by the opposite party no.1 and Rs.10 lakhs by the opposite party no.2 She further submitted that the order of the District Forum be modified to the extent of the reliefs prayed for in the complaint.
22. The question now involved is whether the liability of the opposite parties for the loss of the baggage is to be restricted in terms of Rule 22 of the Schedule 2 of the Carriage by Air Act or the Consumer Forum is competent to award compensation, commensurate with the loss suffered by the complainant, along with additional compensation for the harassment and mental agony suffered by her on account of loss of her essential belongings. Rules 22, 23 and 25 of the Schedule 2 to the Carriage by Air Act, 1972, to the extent they are relevant, read as under:
"22.
2. (a) In the Carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the passenger or consignor 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 of the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger's or consignor's actual interest in delivery at destination.
b. In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air way bill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
3. .............
4. The limits prescribed in this rule shall not prevent the Court form 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 provisions shall not apply if the amount of the damages awarded, excluded 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.
5. ........ .......
23 (1). Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in these rules shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of these rules.
25. The limits of liability specified in rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his 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 he was acting within the scope of his employment".
23. In a similar case the Hon’ble National Commission in The Manager, Air India Ltd. Vs. M/s. India Everbright Shipping & Trading Co., First Appeal No. 451 of 1994, decided on 20.4.2001 wherein in that case 31 cartons were carried by the carrier from Mumbai to Nairobi where the same were handed over to Kenya Airfreight Handling Ltd. for onward carriage from Nairobi to Botswana. However, only 15 cartons were delivered in time at the destination, the remaining 16 cartons having been delivered late. Being aggrieved from the loss suffered by it, on account of the delay in late delivery, the complainant approached the concerned State Commission by way of a consumer complaint. The State Commission awarded compensation, commensurate with the value of the goods, freight charges, interest and damages for loss of business to the complainant. Being aggrieved from the order passed by the State Commission, the carrier approached National Commission by way of an appeal and contended that assuming negligence on its part in not delivering the consignment in time the liability of the carrier could not exceed a sum calculated at US$ 20 per kg. of the weight of the goods, as stipulated in the Carriage by Air Act, 1972. Upholding the contention of the carrier, the National Commission, inter-alia observed and held as under:
".....Section 3 of the CPA provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Section 3only provides for an alternative mode by enforcing the right or obtaining redress for the contravention of any provisions of law and no more. It does not change the sustentative law which law limits the award of damages when there is violation of any obligation or right. If damages are to be awarded it has to be within the four corners of law on the subject. Section 14 (1) (d) of the CPA has to be read with CA Act. When there is law defining the rights and its applications in any particular respect that has to be followed. Viewed from this angle when CA Act limits the liability of an air carrier to an extent that cannot be exceeded by the Forum under the CPA. This is how Section 14 is to be read and understood. Looked from that angle we do not think it can be disputed that CA Act is applicable to the facts of the present case.
In the complaint filed under the CPA, the complainant says loss had occurred to him due to the negligence and lethargic manner of handling of Cargo by the Opposite Parties'. In another place he says "all this happened due to negligence and cheating attitude of the opposite parties and deficiency in service in wrong handling of the cargo contrary to the terms of bill of lading'. He nowhere alleges if that damage was caused by wilful misconduct of the carrier (Rule 25 of the First Schedule of Warsaw Convention) or that the damage resulted from an act or omission of the carrier done with the intent to cause damage or recklessly and with knowledge that damage would probably result (Rule 25 of the Second Schedule of the Hague Protocol). As to what is 'wilful' has been described in a simple language in the Black's Law Dictionary. It says a wilful act may be described as one done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The 'wilful' act differs essentially from a negligent act. The one is positive and the other is negative. Wilful misconduct would be such conduct committed with an intentional or reckless disregard for the safety of others or with an intentional disregard of a duty necessary to the safety of another's property.
In the absence of even allegation in the complaint that there was any wilful misconduct or the damage resulted from an act or omission of the Air Carrier (opposite parties) done with intent to cause damage or recklessly and with the knowledge the damage would probably result, it is difficult for us to hold that Rule 25 (of either the First Schedule or the Second Schedule) would apply.
Having thus considered the provisions of the Ca Act, CPA and various judgments on the subject, we are of the view that it is a case which fall under Rule 22 of the First Schedule or the Second Schedule of the CA Act. The respondent - complainant would be entitled to relief of US$ 4180 @ US$ 20 per kg. for its weight of 209 kgs of the cargo".
24. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the opposite parties and the complainant, and the evidence, on record, and the decisions of the Hon’ble Supreme Court and the Honb’el National Commission along with rules 22, 23 and 25 of Carriage by Air Act, we are of the considered opinion undisputedly, the complainant travelled from Wichita to India, through the opposite parties Airlines. The complainant was carrying baggages, containing gifts, project report and her certificates relating to further studies besides cloths, brush, contact numbers of her cousin etc., in her main luggage. No doubt, the complainant gave the details of the missing goods/articles, but no concrete proof was produced by her. If the contents of the luggage have been of such value, the complainant would have sought to protect her luggage by way of insurance or would have kept receipts of gifts etc. purchased by her from customs and otherwise. The complainant also did not mention the missing items in her Property Irregularity Report that is filed by the complainant vide Ex.A6. The complainant has only mentioned about her two bags to be missing and that the particulars column has been left blank. As per the Carriage by Air Act and according to the International Air Transport Association (IATA) Rules, the reimbursement for the missing baggage was based on US$ 20.00 per kilogram. Accordingly the opposite party no.1 offered to compensate in terms of the weight loss of her missing baggage to the extent of Rs.48,960/-. Having accepted the said amount by way of cheque in her name, the complainant cannot now turn back to file complaint seeking compensation against the opposite parties. Not only that the complainant requested to issue the cheque in the name of her mother and the opposite party no.1 considered her request issued cheque in the name of her mother but the complainant did not encash the said cheque nor returned the same to the opposite party no.1. There was, therefore, no deficiency, in rendering service, on the part of the Opposite Parties. . The District Forum without any cogent reason committed error in allowing complaint with exorbitant compensation though the opposite party no.1 shown its bonafides by paying the compensation to the complainant.
25. For the reasons recorded above we are of the considered opinion that the appeal F.A.No.40 of 2014 filed by the opposite party no.2 is liable to be allowed and the appeal F.A.No.45 of 2014 filed by the complainant is liable to be dismissed.
26. In the result, the appeal F.A.No.40 of 2014 is allowed by setting aside the order of the District Forum consequently the complaint is dismissed. As sequel the appeal F.A.No.45 of 2014 is dismissed with the clarification to the extent that, in case, the cheque in the sum of Rs.48,960/-, already sent to the complainant, has not been encashed, by her, and the validity thereof has already expired, then a fresh cheque, for the same amount, shall be issued by the opposite party no.1 in her favour. Time for compliance four weeks.
PRESIDENT MEMBER
09.10.2017
