BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> C.C.No. 158/2007 Filed on 21.06.2007<br /> Dated : 30.09.2008<br /> Complainant:<br /> <br /> Selvarajan Gregory, S/o Gregory, Thottam Puraidom, Puthiyathura P.O, Karumkulam Village, Thiruvananthapuram, represented by his Power of Attorney holder Mr. Wilfred Joe, B/o Selvarajan Gregory residing at Thottam Puraidom, Puthiyathura P.O, Karumkulam Village, Thiruvananthapuram<br /> <br /> (By adv. S. Christudas)<br /> <br /> Opposite party:<br /> <br /> Padmanabh Sarma, Manager, Airport Operations, Air Arabia, Terminal-II, International Airport, Thiruvananthapuram. <br /> <br /> This O.P having been heard on 11.08.2008, the Forum on 30.09.2008 delivered the following:<br /> ORDER <br /> <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> <br /> The facts leading to the filing of the complaint are that complainant travelled with his baggage from Riyadh King Khaled, Sharja to International Airport, Thiruvananthapuram via by Air Arabia Flight No. G 9154, G. 9441 of the opposite party on 19.12.2006. On reaching at Thiruvananthapuram International Airport on 20.12.2006 it was found that complainant's baggage was missing. The baggage tag No. is G 9049691. The matter of missing of baggage was immediately reported to the opposite party and concerned authorities. Opposite party promised and assured the complainant that the baggage would accompany with the traveller. Opposite party collected the ticket fare and additional charge for baggage from the complainant. Opposite party did not keep their promise of prompt delivery of baggage at the destination point. There was gross negligence and deficiency in service on the part of opposite party. The act of the opposite party caused mental agony and hardship to the complainant. Complainant on several occasions visited and telephoned the opposite party and enquired about the follow up. Complainant issued advocate notice to the opposite party. Opposite party accepted the said notice, but neither redressed the grievance nor replied. Even after entrusting the baggage claim questionnaire, ticket, ticket jacket, boarding cards, baggage receipts and other related documents, the opposite party did not care to settle the matter even after repeated demands. The baggage contained several articles including handy camera, sun glass, shoes, dresses, ornaments etc. The value of which would come to Rs. 195879.5. Hence this complaint claiming Rs. 200000/- towards the price of the items lost with 12% interest, Rs. 25000/- towards compensation, Rs. 5000/- towards cost of litigation. <br /> Opposite party did not enter appearance inspite of service of notice and opposite party remains exparte. Neither version nor documents filed by the opposite party. <br /> The points that would arise for consideration are:-<br /> (i)Whether the complainant has reported the loss of baggage on arrival at Thiruvananthapuram?<br /> (ii)Whether the weight of lost baggage or value of its contents has been declared by the complainant?<br /> (iii)Whether there is negligence or deficiency in service on the part of opposite party?<br /> (iv)Reliefs and costs.<br /> To support the contention in the complaint, the power of attorney holder of the complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and marked Exts. P1 to P8.<br /> Points (i) to (iv):- It has been the case of the complainant that complainant travelled with his baggage from Riyadh King Khaled, Sharja to International Airport, Thiruvananthapuram via Air Arabia Flight No. G 9154, G. 9441 of the opposite party on 19.12.2006. Ext. P1 is the copy of ticket reservation confirmation issued by Air Arabia to the complainant. As per Ext. P1 Flight No. is G 9154, G 9441 and travel segments are Riyadh King Khaled/Sharjah and Sharjah/Thiruvananthapuram. It has also been the case of the complainant that on reaching at Thiruvananthapuram International Airport on 20.12.2006, it was found that his baggage was missing. Submission by the complainant is that the baggage tag No. is G9049691 and that the matter of missing baggage was reported to the opposite party, immediately. Ext. P3 is the copy of Property Irregularity Report for checked baggage. As per Ext. P3 the carrier bag tag is G 9049691, contents are emergency light, dresses etc., weight of missing baggage was 30 kg and ticket No. is 10914412. Ext. P2 is the baggage tag No. Ext. P4 is the copy of the letter to Assistant Commissioner of Customs. As per Ext. P4 complainant arrived by Flight No. G. 9441 on 20.12.2006, Number of missing baggage is one and baggage tag No. is G 9049691. Submission by the complainant is that opposite party had collected the ticket fare and additional charge for baggage. Complainant did not produce any material on record to show that opposite party has collected additional charge for baggage. The first point requiring consideration is whether the complainant has reported the loss of baggage on arrival at Thiruvananthapuram. As per Ext. P4 complainant reported the loss of baggage to Assistant Commissioner of Customs, Thiruvananthapuram International Airport. Property Irregularity Report is the relevant document (Ext. P3). In the light of Ext. P3 and P4 we came to the conclusion that complainant has reported the loss of baggage on arrival at Thiruvananthapuram. On close scrutiny of Ext. P3 it could be seen that complainant had disclosed the total number of baggage carrying and its total weight. As per Ext. P3 the weight of missing baggage is 30 kg. At this juncture it is pertinent to note that the complainant while entrusting the baggage to the opposite party had not made any special declaration regarding the value of the contents of the baggage or paid any supplementary charge as comparable in the Carriage by Air Act, 1972. Complainant therefore is entitled for compensation subject to the maximum liability limitation as per law. Since the complainant failed to establish the weight of the lost baggage and the value of contents involved in the lost baggage the liability of the opposite party is determined by the provision of Rule 22(2) of the second schedule of the Carriage by Air Act, 1972. We need not consider other documents produced by the complainant on the ground that carrier's liability is limited. Rule 22(2) of the Carriage by Air Act reads as under: “In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 Francs per kg unless the consignor has made, at the time, when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if 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 the sum is greater than the actual value to the consignor at delivery”. It is worthwhile to reproduce Rule 25 of the said Act which reads as under:<br /> (1)The carrier shall not be entitled to avail himself of the provisions of this schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the court equivalent or wilful misconduct<br /> (2)Similarly the carrier shall not be entitled to avail himself of the said provision, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment.<br /> Though the complainant has pleaded gross negligence, complainant has failed to prove that the loss is caused by the wilful misconduct of the opposite party. Hence Rule 25 of the Act is not applicable here. Deficiency in service is proved on the part of opposite party. So the relevant rule which we have to consider is Rule 22(2) of the Act. So complainant is entitled to only 20 US $ per kg as compensation. Opposite party did not contest the case inspite of service of notice. We find complainant is entitled for compensation subject to the maximum liability limitation of 20 kg. The opposite party is arrayed in the complaint as Padmanabh Sarma, Manager, Airport Operations, Air Arabia, Terminal-II, International Airport, Thiruvananthapuram, in his personal capacity, and not in official capacity. There is no deficiency alleged in his personal capacity. In the interest of natural justice we allow the complaint. <br /> In the result, complaint is allowed. The Manager, Airport Operations, Air Arabia, Terminal-II, International Airport, Thiruvananthapuram shall pay the complainant 400 US $ (converted into rupee at the rate of exchange prevailing on the date of passing of this order) within two months from the date of this order. There will be no order as to cost. <br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th September 2008.<br /> <br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> <br /> S.K. SREELA : MEMBER <br /> <br /> <br /> <br /> C.C.No. 158/2007<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Wilfred Joe<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Photocopy of reservation confirmation of reservation No. <br /> 10914412 dated 16.12.2006.<br /> P2 - Photocopy of air ticket.<br /> P3 - Photocopy of Property Irregularity Report (PIR), for checked <br /> baggage. <br /> P4 - Photocopy of letter dated 20.12.2006 to the complainant. <br /> P5 - Photocopy of registered letter from the complainant to the <br /> opposite party. <br /> P6 - Original postal receipt. <br /> P7 - Original acknowledgement card dated 01.03.2007.<br /> P8(1) - Original cash/credit invoice No. 900 dated 25.11.2006.<br /> P8(2) - Original cash/credit invoice No. 184 dated 15.12.2006.<br /> P8(3) - Original cash/credit invoice No. 165 dated 02.12.2006.<br /> P8(4) - Original invoice No. 1417.<br /> P8(5) - Original cash/credit invoice No. 0885 dated 08.11.2006.<br /> P8(6) - Original invoice No. 1427.<br /> P8(7) - Original cash/credit invoice No. 240 dated 29.11.2006.<br /> P8(8) - Original invoice No. 2058 dated 17.12.2006.<br /> P8(9) - Original invoice dated 14.12.2006.<br /> P8(10)- Original receipt No.2371.<br /> III OPPOSITE PARTY'S WITNESS :<br /> NIL<br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> NIL<br /> <br /> <br /> PRESIDENT<br />