Tamil Nadu

South Chennai

513/2008

Arumugam Thangamani - Complainant(s)

Versus

M/S.Air France & others - Opp.Party(s)

M/S.K.Bijai Sundar

07 May 2018

ORDER

                                                                        Date of Filing  : 02.12.2008

                                                                          Date of Order : 07.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.513/2008

DATED THIS MONDAY THE 07^TH DAY OF MAY 2018

                                 

 

Arumugam Thangamani,

S/o. Late P.T. Arumugam,

No.2, Meeran Shahib,

Second Street,

Triplicane,

Chennai – 600 005.                                                .. Complainant.                                                     

 

                                                                                          ..Versus..

 

1. M/s. Air France,

No.7, Atma Ram Mansion,

Scindia House,

Connaught Circus,

New Delhi – 110 001. 

 

2. The Manager,

M/s. Air France,

Meenambakkam International Airport,

Chennai – 600 027.

 

3. The Manager,

M/s. Air France,

No.42, Kubers Pantheon Road,

Egmore,

Chennai – 600 008.                                        ..  Opposite parties.

          

Counsel for complainant         :  M/s. K. Bijai Sundar & another

Counsel for Opposite parties  :  M/s. K. Manoj Menon & another

 

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to return a sum of Rs.85,500/-  towards the value of articles damaged in the checked baggages, to pay a sum of Rs.45,000/- towards compensation for mental agony and to pay the cost of the complaint.

1.    The averments of the complaint in brief are as follows:

The complainant travelled from Montpellier MPL to Chennai MAA in the flight belongs to the opposite parties bearing No.AF 135 and AF 204 on 29.12.2006.  The complainant carried additional package weighing 10 kgs.    For that, he paid a sum of Euro 360.   The complainant carried expensive gift articles for his relatives and friends in the additional package.  Totally, complainant carried 2 checked in baggages.   When he arrived at Chennai Airport, he was shocked that both the checked in baggages were opened and damaged and some of the contents found missing.  The complainant submits specifically that, both the baggages were damaged and there was a loss of 5 number of perfumes and 2 number of liquor bottles.  The complainant lodged a complaint / declaration with regard to the loss and damages of baggages wherein specifically stated 5 sent bottles and 2 liquor bottles, damaged to the wheels, handles and lock etc of the baggage.   Since there was a huge crowd in the Airport, the complainant was not able to find out all the damages and missing articles in the baggages.  After reaching the house, on verification of the baggages, the complaint found that the following articles are found missing:

1. Liquor bottles            - 1 liter x 2 Nos.
2. Perfume bottle           -300 ml x 6 Nos.
3. Perfume bottle           -300 ml x 3 Nos. (broken)
4. Body spray                – 200 ml x 5 Nos.
5. Shave gel                  – 8 Nos.
6. Wrist watches ladies  – 10 Nos.
7. Wrist watches gents  -11 Nos.
8. Chocolate                  – 500 x 6 Nos.
9. T-shirts                     – 3  Nos.

10. Winter clothing        – 2 Nos.

11. Both the checked in luggage’s damaged and cannot be used again.  

Hence the complainant issued legal notice dated:06.03.2007 but the opposite parties has not come forward to settle the dues of the complainant.  Hence the complaint is filed.

  2.   The brief averments in the written version filed by the opposite parties is as follows:

The opposite parties specifically deny each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The opposite parties state that this complaint is filed by the complainant relating to damage and loss of articles in the checked in baggage and claiming a sum of 1500 Euros without any basis.  Admittedly, the complainant received the checked in baggage with some damage.  This opposite parties duly replaced the baggages.  After due verification of articles inside the baggages, the complainant claimed that there is a loss of 5 perfume bottles and 2 liquor bottles.  Thereafter, the complainant improved his claim demanding compensation for 2 liquor bottles, 6 perfume bottles, 3 perfume bottles alleged to be broken, 5 body sprays, 8 shaving gel, 10 ladies wrist watches, 11 gents wrist watches, 3 T-shirts, 2 winter clothing against the declaration.  The complainant produced certain bills showing very meagre amount.  As per rule 22 (2) of the Warsaw Convention and Hague Protocol, the opposite party airlines made an offer to reimburse with an amount equalent to 17 Special Drawing Rights (SDR) per kilogram US$25.975 multiplying the affected rate of 12 kilograms amounting to Rs.12,780/-.  But the complainant is claiming a sum of Rs.1,30,500/- with a view to profiting the minor accidental damages.  The rights and liabilities of airlines and passengers are governed by The Carriage by Air Act, 1972 and the Schedules I & II (Warsaw convention and the Hague Protocal) thereto.  As per rule 3 of Schedule II to The Carriage by Air Act, 1972, the passenger ticket shall constitute the prima facie evidence.     The Carriage by Air Act, 1972 is subject to the conditions contained in the ticket – “Conditions of Contract”, applicable tariffs as well of the General Conditions of Carriage.  As per The Carriage by Air act, 1972 the liability is limited to US$ 20 per kilogram.   Further the opposite parties stated that the complainant is not entitled to any compensation towards mental agony which is excluded by the Warsaw and Hague convention except physical injury.  Schedule I & II of the Carriage by Air Act, 1972, is very clear that the carrier is not liable for mental agony and sufferings unless it is accompanied by physical injury.   There is no deficiency of service on the part of the opposite parties.  This complaint is liable to be dismissed.

3.   In order to prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A9 are marked.  Proof affidavit of the opposite parties filed and documents Ex.B1 to Ex.B3 are filed and marked on the side of the opposite parties.

4.     The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.85,500/- (Euros Rs.1,500/-) towards the value of articles damaged in the checked in baggages as prayed for?
2. Whether the complainant is entitled to a sum of Rs.45,000/- towards compensation for mental agony with cost as prayed for?

5.     On point

The complainant has not filed any written arguments and has not advanced any oral arguments also.   The opposite parties arguments heard.  Perused the records namely the complaint, written version, proof affidavits, documents etc.  Admittedly, the complainant travelled from Montpellier MPL to Chennai MAA in the flight belongs to the opposite parties on 29.12.2006.  The complainant carried additional package weighing 10 kgs.    For that, he paid a sum of Euro 360 as per Ex.A1.  The complainant carried expensive gift articles for his relatives and friends in the additional package.  Totally, complainant carried 2 checked in baggages.    When he arrived at Chennai Airport, he was shocked that both the checked in baggages were opened and damaged and some of the contents were found missing.  The complainant pleaded specifically that, both the baggages were damaged and there was a loss of 5 number of perfumes and 2 number of liquor bottles.  The complainant lodged a complaint / declaration with regard to the loss and damages of baggages as per Ex.A2. wherein specifically stated 5 sent bottles and 2 liquor bottles, damaged to the wheels, handles and lock etc. of the baggage.   Since there was a huge crowd in the Airport, the complainant was not able to find out all the damages and missing articles in the baggages.  After reaching the house, on verification of the baggages, the complaint found that the following articles are found missing as per Ex.A4:

10. Liquor bottles            - 1 liter x 2 Nos.
11. Perfume bottle           -300 ml x 6 Nos.
12. Perfume bottle           -300 ml x 3 Nos. (broken)
13. Body spray                – 200 ml x 5 Nos.
14. Shave gel                  – 8 Nos.
15. Wrist watches ladies  – 10 Nos.
16. Wrist watches gents  -11 Nos.
17. Chocolate                  – 500 x 6 Nos.
18. T-shirts                     – 3  Nos.

10. Winter clothing        – 2 Nos.

11. Both the checked in luggages were damaged and cannot be used again.  

The complainant claimed a sum of 1500 Euros valuing of Rs.85,500/- towards damages and a sum of Rs.45,000/- towards compensation for mental agony.  The complainant produced certain bills related to the missing articles also.  But the complainant has not explained in detail regarding the bills and the items. 

6.     The contention of the opposite parties is that this complaint is filed by the complainant relating to damage and loss of articles in the checked in baggage and claiming a sum of 1500 Euros without any basis.  Admittedly, the complainant received the checked in baggage with some damage.  This opposite parties duly replaced the baggages but no record.  After due verification of articles inside the baggages, the complainant claimed that there is a loss of 5 perfume bottles and 2 liquor bottles.  Thereafter, the complainant improved his claim demanding compensation for 2 liquor bottles, 6 perfume bottles, 3 perfume bottles alleged to be broken, 5 body sprays, 8 shaving gel, 10 ladies wrist watches, 11 gents wrist watches, 3 T-shirts, 2 winter clothing against the declaration in Ex.A2.  The complainant produced certain bills showing very meagre amount.  As per rule 22 (2) of the Warsaw Convention and Hague Protocol, the opposite party airlines made an offer to reimburse with an amount equalent to 17 Special Drawing Rights (SDR) per kilogram US$25.975 multiplying the affected rate of 12 kilograms amounting to Rs.12,780/-.  But the complainant is claiming a sum of Rs.1,30,500/- with a view to profiting the minor accidental damages.  The rights and liabilities of airlines and passengers are governed by The Carriage by Air Act, 1972 and the Schedules I & II (Warsaw convention and the Hague Protocal) thereto.  As per rule 3 of Schedule II to The Carriage by Air Act, 1972, the passenger ticket shall constitute the prima facie evidence.  In this case, the complainant has not produced the complete ticket.   But the opposite parties has not denied the ticket and travel by the complainant. 

7.     The Carriage by Air Act, 1972 is subject to the conditions contained in the ticket – “Conditions of Contract”, applicable tariffs as well of the General Conditions of Carriage.  As per The Carriage by Air act, 1972 the liability is limited to US$ 20 per kilogram.  

 

In District Forum, Bangalore

Katapadi Srinivas rao & Another

-Versus-

Air France & Another

Held that “Liability for loss, delay or damage to baggage is limited, unless a higher value is declared in advance and additional charges are paid.  For most international travel ... the liability limit is approximately US$ 9.07 per pound (US $20.00 per kilo) for checked baggage ... the liability of the OP is limited as per the Carriage by Air Act, 1972.  It is an admitted fact that the complainant has not made any declaration in respect of the contents of the suitcase”.

and

In 2002 (III) CPJ 190 NCDRC

Mrs. Helen Wallia

-Versus-

Cathay Pacific Airways Ltd.

Held that “As stated in our passenger ticket airlines liability for checked baggage is limited to 20 USD per kilo unless a higher value is declared in advance and additional charges are paid prior to the commencement of carriage ... If we examine the provisions of Carriage by Air Act, 1972, there is a limit placed on the liability of the carrier where damages can be awarded @ US $ 20 per Kg. Of the weight of the lost baggage”.

In II (2006) CPJ 43 (NC)

Egypt Air

-Versus-

Smt. Sai Leelavathi

Held that “... However, it is contended that as per the Carriage by Air Act, 1972 the liability of Carrier is 20 US $ per kg.  Subject  to maximum of 20 Kg. which works out to 400 US $.  Therefore, it cannot be held liable for the sum awarded b the District forum i.e. Rs.1,17,000/- with interest @ 6% p.a. along with cost of Rs.10,000/-.

        In our view there is a specific provision under the Carriage by Air Act, 1972, Schedule II Rule 22 which provides for the maximum limit of payment of compensation in such cases.  In this view of the matter, this revision application requires to be allowed.  Petitioner is directed to pay an amount equivalent to 400 US $ to the Complainant”.

8.     Further the contention of the opposite parties is that the complainant is not entitled to any compensation towards mental agony which is excluded by the Warsaw and Hague convention except physical injury.  Schedule I & II of the Carriage by Air Act, 1972, is very clear that the carrier is not liable for mental agony and sufferings unless it is accompanied by physical injury.  In this case, the complainant has not sustained any physical injury.  But in practise, severe mental agony leads several bodily diseases.  Considering the facts and circumstances of the case, this Forum is of the considered view that, the opposite parties shall pay a sum of Rs.12,780/- and to pay a sum of Rs.10,000/- towards compensation with cost of Rs.5000/- to the complainant.

In the result, this complaint is allowed in part.  The opposite parties 1 to 3 are jointly and severally directed to pay a sum of Rs.12,780/-(Rupees twelve thousand seven hundred and eighty only) to the complainant and to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 07^th  day of May 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1		Copy of receipt for payment of excess baggage
Ex.A2		Copy of complaint given to the opposite party
Ex.A3	01.01.2007	Copy of fax message sent by the complainant to the opposite party
Ex.A4	01.01.2007	Copy of E-mail sent by the complainant to the opposite party
Ex.A5	08.02.2007	Copy of reply letter sent by the 1st opposite party to the complainant
Ex.A6	06.03.2007	Copy of legal notice sent by the complainant to the 1st opposite party along with the acknowledgement card
Ex.A7	22.08.2007	Copy of reply notice sent to the complainant by  the opposite party
Ex.A8	30.10.2008	Copy of notice sent by the complainant to the 3rd opposite party
Ex.A9		Copy of acknowledgement card

 

OPPOSITE  PARTIES SIDE DOCUMENTS:  

Ex.B1		Copy of ticket jacket of the opposite parties
Ex.B2		Copy of General conditions of carriage of the opposite parties
Ex.B3	15.02.2007	Copy of faxed letter from the complainant to the 1st opposite party

 

 

 

MEMBER –I                                                                      PRESIDENT