8PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of December 2011
Filed on :28/05/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 285/2009
Between
1. M/s. Floora Tex Rubber &. : Complainants
Plastics (P) Ltd, PRP Towers, (By Adv. V.B. Unniraj,
Kayamkulam-690 502, V.R. Unniraj & Associates,
Rep. by its Managing director, F-18, Vth Floor, The Esplanade
P.R. Nag. Convent Jn, Ernakulam-11)
2. P.R. Nag, Managing Director,
M/s. Floora Tex Rubber &
Plastics (P) Ltd., PRP.
Towers, Kayamkulam-690 502.
And
1. M/s. Qatar Airways, : Opposite parties
Bajaj Bhavan, Ground Floor, (1st and 2nd O.P. by Adv.
Nariman Point, B.D. Jaiswal, High Court &
Mumbai-400 021, Notary Govt. of India,
rep. by its Regional Manager, 21 Sai Leela Kailash Nagar
Sri Navin Chawla. Dombivli (W) 421 202,
Dist. Thane, Maharashtra)
2. M/s. Qatar Airways,
Hotel Le Meridian,
Maradu, Ernakulam,
rep. by its District Sales Manager.
3. Riya Travels, BAB Chambers, (3rd O.P. by Lal K Joseph,
Atlatis, M.G. Road, Ernakulam, M/s. Sheriff Associates,
Rep. by its Manager. 41/318-c, Kolliyil Buildings,
Near Mullassery Canal,
Chittoor road, Kochi-682 011)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The 1st complainant is a private limited company and the 2nd complainant is its managing director. The 1st complainant decided to participate in the trade fair held at Germany from 15-01-2009 to
24-01-2009 . To participate in the meeting the complainant had booked ticket for the 2nd complainant and the executive directors of the 1st complainant with the 1st opposite party through the 3rd opposite party. The 2nd complainant had to attend a meeting of the prospective customers of the 1st complainant at Doha on 22-01-2009. They duly attended the meeting in Germany and boarded the air Berlin Flight from Germany to Doha on 21-01-2009.
One of the boxes contained the personal belongings of the 2nd complainant and the file in which the names and addresses of the several customers who had placed orders with the complainants in Germany was missing at Doha. Since the 1st opposite party failed to deliver the box he could not attend the business meeting . Finally on 09-02-2009 the box was delivered in a dismantled condition. The complainant is entitled to get a total compensation of Rs. 18 lakhs from the opposite parties. Hence this complaint.
2. Version of the 1st and 2nd opposite parties.
This Forum has no territorial jurisdiction to entertain this complaint. On receipt of the complaint regarding the missing of the baggage the 1st opposite party sent world wide tracer messages to find out the baggage. They managed to trace out the baggage and it was delivered to the complainant on 09-02-2009. The complainant had hired the services of the opposite parties for travel in connection with their commercial purposes and complainants are not consumers as per Section 2 (1) (d) of the Consumer Protection Act. The maximum liability of the air lines for the delay, damage or loss of baggage in any international carriage is 20dollars per K.G. The maximum liability of the air lines is only 180 US dollars considering weigh of the delayed baggage as 9.K.G. The complainant had not disclosed the contents of the baggage at the time of entrustment of the same. The complainants are not entitled to get any compensation from the 1st and 2nd opposite parties.
3. The version of the 3rd opposite party.
The 3rd opposite party is not an agent of the 1st opposite party. The 3rd opposite party has communicated the price of the ticket from the 1st opposite party. The 3rd opposite party has no responsibility or obligation over the entrustment and retaining of baggages. The complainant has no cause of action against the 3rd opposite party.
4. The 2nd complainant was examined as PW1 and Exts. A1 to A4 were marked on the side of the complainants. The witness of the 3rd opposite party was examined as DW1. Subsequent to the filing of the version the 1st and 2nd opposite parties opted not to contest the matter for their own reasons. Heard the counsel for the complainant and the 3rd opposite party.
5. The following points arose for consideration.
i. Whether this Forum has jurisdiction to entertain this
complaint?
ii. Whether the complainant is a consumer?
iii. Whether the complainants are entitled to get a compensation
of Rs. 18 lakhs from the opposite parties?
6. Point No. i. At the outset the 1st and 2nd opposite parties challenged the maintainability of the complaint in I.A. 312/2010 by relying on the decision rendered by the Hon’ble Supreme Court in Sonic Surgical Vs. National Insurance Company Ltd. 2010 (1) SCC 135. The said I.A. was dismissed by this Forum vide order dated 29-08-2010. The opposite parties did not challenge the order. So this point has not necessarily to be discussed further.
7. Point No. ii. As per Section 2(1) (m) of the Consumer Protection Act a “person” includes a juristic person. Moreover “transport” is a service as per Section 2 (1) (o) of the Consumer Protection Act. We are at a loss to appreciate the contention of the 1st and 2nd opposite parties on that point.
8. Point No. iii. Admittedly the baggage entrusted on 21-01-2009 with the 1st opposite party was missing at the time of collection on 22-01-2009 and they could trace it out only on 09-02-2009,an elapse of 18 day for which no explanation has forthcome.
9. According to the complainant important articles like a mobile phone worth 800 dollars a gold chain, a shaving set, some cloths and a file containing the details of customers and the orders placed by them at the trade fare in Germany were missing from the baggage. However the opposite parties 1 and 2 maintain that since the 2nd complainant failed to declare the value of the articles or nature of the articles they are only liable to indemnify the complainant as per rule 22 Sub clause (2) of the 2nd schedule to the carriage by Air Act 1972. Indisputably complainant has not produced any evidence in this Forum to substantiate the fact that the baggage contained the missing articles as stated by the complainant. Even if so there is nothing to repudiate that the 1st and 2nd opposite parties had not taken reasonable care and caution to safeguard the valuable articles in the baggage of their customers in spite of non declaration of the contents of the baggage. Considering the fact that the 1st and 2nd opposite parties had not taken any effort to substantiate their contentions we need not go into the statements in the version. The Hon’ble High Court of Kerala in Srilankan Airlines Ltd. Vs. The Permanent Lok Adalath, 2009 (4) KLT 625 held that “Therefore the airlines should be put to prima-facie proving that they took adequate and proper care to the baggage and the same was damaged or lost despite proper care.” Contractually having agreed that baggage entrusted with them would be delivered in time in the instant case the 1st an 2nd opposite parties failed there, for no reason or fault of the complainant The liability persists which calls for compensation we fix it at Rs. One lakh. The 3rd opposite party have only booked the tickets for the complainants with the 1st and 2nd opposite parties. Therefore we heel that the 3rd opposite party can be exonerated from any liability.
9. Accordingly, we partly allow the complaint and direct that the 1st and 2nd opposite parties shall jointly and severally pay a compensation of Rs.1,00,000/- (Rupees one lakh only) to the complainants for the reasons stated above.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order, failing which the amount shall carry interest at the rate of 12% p.a. till payment.
Pronounced in the open Forum on this the 28th day of December 2011
