KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 55/2004

                                 JUDGMENT DATED:23..03..2010.

PRESENT

SMT. VALSALA SARANGADHARAN                : MEMBER

SRI. M.V. VISWANATHAN                                    : JUDICIAL MEMBER

SRI.S. CHANDRAMOHAN NAIR                         : MEMBER

Indian Airlines Ltd.,

Calicut Airport,

Karipoor, Kondotty,                                               : APPELLANT

Malappuram District.

(By Adv:Sri.V.K.Mohankumar & Sri.S.Reghukumar)

            Vs.

1.Samad.M, S/o Mohammed,

  Musliyarakath House, areacode.P.O,

  Ernad Taluke, Malappuram District,

  R/by his Power of Attorney Holder-                : RESPONDENTS

  K.Sulaiman Master, S/o Imbichi Mohammed,

  Kalathingal House, Areacode, Ernad Taluk,

  Malappuram District.

(By Adv:Sri.K.P.Jayachandran)

2.M/s Air India Ltd.,

  Calicut, Calicut Airport,

  Karipoor, Kondotty,

  Malappuram Dist.

(By Adv:Sri.Anoop Vijayan)

                                       JUDGMENT

SHRI.M.V. VISWANATHAN: JUDICIAL MEMBER

The above appeal is preferred from the order dated:28^th November 2003 passed by CDRF, Malappuram in OP:57/03.  The complaint in the said OP:57/03 was filed by the 1^st respondent as complainant alleging deficiency of service on the part of the appellant/1^st opposite party in not handing over the baggage (brief case) bearing tag No:641887.  The complainant alleged that articles worth Rs.60,000/- were in the said lost baggage with a demand draft for Rs.25,000/-.  The complainant has also claimed compensation of Rs.50,000/- for the mental agony and hardship suffered by him along with the value of the lost baggage amounting to Rs.60,000/-+ Rs.25,000/-.

2. Originally the complaint was filed against the 1^st opposite party/M/S Indian Airlines Limited.  At the instance of the 1^st opposite party/M/s Indian airlines Limited, the supplemental 2^nd opposite party/M/s Air India Ltd was impleaded.  The 1^st opposite party contended that the 2^nd opposite party, M/s Air India Ltd. Is a necessary party to the proceedings.

3. The 1^st opposite party filed written version denying their liability to pay compensation to the complainant.  The 1^st opposite party admitted the missing of the baggage with tag No:641887; but denied the case of the complainant regarding the value of the articles contained in the baggage.  They also contended that the flight No:AI-922 belonged to the 2^nd opposite party/M/s Air India Ltd and the baggage at Dubai Airport was handled by the 2^nd opposite party and so the 2^nd opposite party M/s Air India is to be made liable and answerable for the missing baggage.  They further contended that they offered Rs.4000/- as compensation for the missing baggage as full and final settlement and the said offer was made as a gesture of good will.  Thus, the 1^st  opposite party prayed for dismissal of the complaint filed against it.

4. The supplemental 2^nd opposite party/M/s Air India Limited filed written version contending that there was no deficiency of service on their part and they have no liability to pay compensation to the complainant.  They further contended that the admission made by the 1^st opposite party would make it clear that the baggage was handled by the 1^st opposite party, M/s Indian Airlines and they alone are liable to pay compensation to the complainant.  Thus, the 2^nd opposite party prayed for dismissal of the complaint filed against them.

5. Before the Forum below Exts.P1 to P8 and P8(a) were marked on the side of the complainant.  No oral evidence was adduced from the side of the complainant.  The opposite parties 1 and 2 did not adduce any evidence in support of their contentions.  On an appreciation of the documentary evidence on record, the Forum below passed the impugned order directing the 1^st opposite party, M/s Indian Airlines Ltd to pay the complainant Rs.60,000/- by way of compensation and cost.  It is further directed to pay the said amount of Rs.60,000/- within 3 weeks from the date of receipt of copy of the impugned order failing which the 1^st opposite party has been made liable to pay interest on the said sum of Rs.60,000/- at the rate of 12% per annum from the date of the impugned order till realization.  Aggrieved by the impugned order dated:28/11/2003 passed by the Forum below in OP:57/03, the present appeal is preferred by the 1^st opposite party M/S Indian Airlines Ltd.

6. We heard the counsel for the appellant and respondents 1 and 2.  The learned counsel for the appellant/1^st opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that there is no acceptable evidence to substantiate the claim for Rs.60,000/- and that the complainant had not declared the value of the contents.  It is further submitted that the 1^st respondent/complainant traveled in the flight owned by the 2^nd opposite party M/s Air India Ltd and that the Forum below cannot be justified in fastening the liability to pay compensation on the appellant/1^st opposite party alone. He also relied on P1 baggage landing certificate and P8(a) sales invoice produced from the side of the complainant in OP:57/03.  Thus, the appellant/1^st opposite party requested to setaside the impugned order passed by the Forum below.

7. The learned counsel for the 1^st respondent/complainant supported the impugned order passed by the Forum below.  He relied on the documentary evidence adduced from the side of the complainant and also the admission made by the 1^st opposite party regarding the missing of the baggage with tag No:641887.  It is further submitted that the 1^st opposite party admitted their liability by offering Rs.4000/- by way of full and final settlement of the claim with respect to the missing baggage.  Thus, the 1^st respondent prayed for dismissal of the present appeal.

8. The learned counsel for the 2^nd respondent/supplemental 2^nd opposite party, M/s Air India Ltd prayed for dismissal of the present appeal.  He argued for the position that the 2^nd respondent/2^nd opposite party had no occasion to handle the missing baggage and that the flight was operated by the 1^st opposite party M/s Indian Airlines and the 1^st opposite party alone is liable to compensate the  complainant.

9. The points that arise for consideration are:-

1.                            Whether the 1^st respondent/complainant has succeeded in establishing his case that the baggage which was missed or lost contained articles worth Rs.60,000/- with a demand draft for Rs.25,000/-?

2.                            Whether there was any deficiency of service on the part of the opposite parties 1 and 2?

3.                            Whether the rival contentions of opposite parties 1 and 2 (appellant and 2^nd respondent) regarding the liability to pay compensation for the lost baggage can be accepted and if so to what extent?

4.                            Whether the Forum below can be justified in fastening liability to pay compensation of Rs.60,000/- to the complainant on the appellant/1^st opposite party M/s Indian Airlines Ltd.?

5.                            Is there any sustainable ground to interfere with the impugned order dated:28/11/2003 passed by CDRF, Malappuram in OP:57/03?

10. Points 1 to 5:-

These points can be discussed and decided jointly because of the fact that  these points are inter related and interconnected.  For the sake of convenience the parties to this appeal can be referred to according to their rank and status before the Forum below in OP:57/03. 

11. The appellant herein has contended that the impugned order passed by the member in charge of the President of the Forum below with another Member is not maintainable in law.  But the appellant has not pointed out any provision in the Consumer Protection Act, 1986 to make the impugned order legally unsustainable.  The impugned order would make it clear that the Member Shri.K.Mohandasan was in charge of the President of the Consumer Disputes Redressal Forum, Malappuram.  So, the actions of the Member in charge of the President would amount to the actions of the President.  The proceedings in OP:57/03 was conducted by the acting President and another Member of the CDRF, Malappuram.  The impugned order passed by the then acting President and another Member of the CDRF, Malappuram can be considered as an order passed in accordance with the provisions of the Consumer Protection Act, 1986.  Provisions of Secs.14(2) and 14 (2-A) would make the procedure adopted by the Forum below in passing the impugned order as proper and maintainable. Moreover, Sec.29A of the Consumer Protection Act, 1986 would validate the order.  We do not find any illegality or irregularity in the proceedings conducted by the Forum below.  So, the aforesaid case of the appellant that the impugned order was passed not in accordance with the provisions of the Consumer Protection Act, 1986 cannot be upheld.

12. There is no dispute that the complainant Samad.M traveled from Dubai to Calicut by flight No:AI-922 which was operated as a joint venture of M/s Indian Airlines Ltd. and M/s Air India Ltd.  It is categorically admitted by the 1^st opposite party/M/s Indian Airlines Ltd that the crew for the said flight No:AI-922 was provided by the1st opposite party M/s Indian Airlines Ltd.  It is also admitted by the 1^st opposite party that the brief case (stroller baggage)was carrying by the complainant as a hand baggage and it was recovered from his possession by the crew at the boarding point and the complainant was provided with a tag No:641887.  In other words, the hand baggage was recovered from the possession of the complainant at the boarding point and the said hand baggage was given the tag No:641887.  No where it is stated as to why the hand baggage was taken away from the possession of the complainant and treated the same as an accompanying baggage.  It was the bounden duty of the air carrier to hand over the tagged baggage as and when the complainant landed at Calicut airport.  It is admitted that the tagged baggage was missing and the opposite parties could not trace out the missing baggage.  It is also admitted by the 1^st opposite party, M/s Indian Airlines Ltd that at the destination point namely at Calicut airport the tagged baggage was missing.  The complainant will not be in a position to locate the place or point at which the baggage was lost or missed.  The complainant being the air traveler is entitled to get the tagged baggage and the checked in baggage as and when he landed at the destination airport namely at Calicut airport.  There can be no doubt that the failure on the part of the carrier to release the tagged baggage to the complainant would amount to deficiency of service.  The Forum below has rightly held that the carrier was deficient in rendering service to the complainant/consumer because of the failure of the carrier to hand over the tagged baggage.

13. It is admitted by the 1^st opposite party/M/s Indian Airlines Ltd that Flight No:AI-922 in which the complainant traveled from Dubai to Calicut was operated by a joint venture of the 1^st and 2^nd opposite parties and that the crew for the said Flight was provided by Indian Airlines Ltd.  So, the negligence can only be attributed to the crew or staff in the flight and also the staff at the Calicut airport.  The Forum below can be justified in fastening the liability on the 1^st opposite party M/s Indian Airlines Ltd.

14. The documentary evidence available on record would make it clear that the officials of the 1^st opposite party M/s Indian Airlines Ltd admitted the missing of the tagged baggage.  Ext.P4 complaint submitted by the complainant to the Airport Manager, Indian Airlines Ltd Calicut Airport and P5 and P6 letters issued by M/s Indian Airlines Ltd would make it clear that there was non delivery of the brief case (tagged baggage) which was recovered from the possession of the complainant and treated as a tagged baggage. They also admitted their failure to deliver the said baggage to the complainant at Calicut airport.  P5 and P6 letters would also make it clear that the 1^st opposite party, M/s Indian Airlines admitted their liability to pay compensation to the complainant for the undelivered baggage and expressed their readiness to pay compensation of Rs.4,000/- to the complainant.  There is nothing in P5 and P6 letters to hold that the said offer was made by the 1^st opposite party as a gesture of goodwill.  So, the case of the 1^st opposite party (appellant) that they offered compensation of Rs.4000/- by way of gesture of goodwill cannot be accepted.  The Forum below is perfectly justified in fastening liability on the 1^st opposite party, M/s Indian Airlines Ltd.

15. The 1^st opposite party, M/s Indian Airlines Ltd has categorically admitted in their written version that the crew for the flight No:AI-922 were provided by the Indian Airlines Ltd.  It is also admitted by the 1^st opposite party that the said flight AI-922 from Dubai to Calicut was operated as a joint venture by M/s Indian Airlines and Air India Ltd.  If that be so, there will be definite understanding or agreement between the 1^st opposite party, M/s Indian Airlines Ltd and the supplemental 2^nd opposite party, M/s Air India Ltd with respect to the joint venture in operating the flight No:AI-922 from Dubai to Calicut.  But the opposite parties 1 and 2 have not produced any agreement evidencing the terms of the joint venture in operating the said flight AI-922.  The 1^st opposite party can very well proceed against the 2^nd opposite party even if any amount is due to the 1^st opposite party from the 2^nd opposite party.  It is not fair or just on the part of opposite parties 1 and 2 in making the complainant/consumer to run from pillar to post.  Moreover, the 1^st opposite party offered a sum of Rs.4,000/- as compensation to the complainant for the baggage which was missed or lost.  The 1^st opposite party, M/s Indian Airlines Ltd was in charge of the passengers’ baggages at the airport, Calicut.  As far as the complainant is concerned, he came to know about the missing of his baggage at Calicut airport and that the 1^st opposite party admitted the missing of the baggage and their inability to deliver the said baggage which was tagged with tag No:641887.  So, the order passed by the Forum below fastening liability on the 1^st opposite party, M/s Indian Airlines Ltd. Is well justified.

16.  In fact the only dispute between the complainant and the 1^st opposite party M/s Indian Airlines Ltd was with respect to the quantum of compensation.  Admittedly the 1^st opposite party, M/s Indian Airlines Ltd offered a sum of Rs.4000/- as compensation for the baggage which was missing.  The complainant was not prepared to accept the said compensation of Rs.4000/-.  He claimed Rs.60,000/- as cost of the articles contained in the said baggage.  He has also got a case that a bank demand draft for Rs.25,000/- was also enclosed in the said baggage.  But there is nothing on record to substantiate the case of the complainant that demand draft for Rs.25,000/- was kept in the said lost baggage.  The complainant has not given any details about the demand draft for Rs.25,000/- said to have been kept in the missing baggage.  It is to be noted that the date of the demand draft, the bank on which the said demand draft was drawn or about the person in whose favour the said demand draft was taken are not detailed in the complaint.  No document is also forthcoming to prove the case of the complainant that he had taken such a demand draft for Rs.25,000/-.  So, the case of the complainant that he had kept a demand draft for Rs.25,000/- in the said baggage cannot be believed or accepted.  There can be no doubt that the burden is upon the complainant to prove his case regarding the contents of the baggage and also the cost of articles  contained in the lost baggage.  The Forum below has rightly held that the complainant can very well protect his interest in the so called demand draft by taking necessary steps.  The case of the complainant that he suffered loss of Rs.25,000/- cannot be upheld.  The Forum below is justified in disallowing the said claim.

17. The case of the complainant is that he had kept articles worth Rs.60,000/- in the said lost baggage.  It is to be noted that the complaint was filed through the power of attorney holder of the complainant.  The complainant has not adduced any oral evidence in support of his case regarding the value of the articles kept in the lost baggage.  The only evidence adduced from the side of the complainant to prove the value of the contents of the baggage is Ext.P8 and P8(a) documents.  Ext.P8 is a document issued from Talal Super Market, Shaik Colony Shopping Complex, Al Qusais and it is dated:18/1/2002. It is issued in the name of Samad.M. As per P8, 8 articles namely Emergency lamp, Rado watch, B.P.Meter, Casio Digital Diary, fluorescent bulb, Torch, Mobile phone, Ladies Wrist watch are included with its value in Dirhams,  The total cost of those items is shown as 2830/-Dirhams.  It is the case of the complainant that the items/articles contained in P8document were purchased by him on 18/1/2002 and the same were kept in the baggage on his journey from Dubai to Calicut.  The exchange rate of Dirham has  not been specifically mentioned.  The averments in the complaint would show that 4450 UAE Dirhams are equal to Rs.60,000/-.  If that be so, the exchange rate of one UAE Dirham would come to Rs.13.50.  Then, the value of the articles shown in P8 document would come to Rs.38,205/-.  There can be no doubt about the fact that there were some articles kept in the lost baggage.  The production of P8 document would support the case of the complainant that those articles were kept in the hand baggage which was taken from the possession of the complainant at the boarding point in Dubai Airport and the officials of the Airliner treated that hand bag as a tagged baggage by allotting the No:641887.  Thus, the complainant had no opportunity or option to declare the value of the contents of that baggage.  It is to be noted that the complainant arrived at Dubai Airport on the bonafide belief that he can very well carry the said hand bag.  But, the officials of the air carrier were not prepared to permit the complainant to carry the same as hand bag and that the complainant had no other go but to concede to the direction of the officials of Air Career and thereby the complainant handed over that hand baggage to the officials of the air career and they treated the same as tagged baggage by allotting the tag with No:641887.  So, the case of the complainant that he is entitled to get the value of the articles shown in P8 purchase bill is to be accepted.  The 1^st opposite party is liable to pay the value of those articles amounting to Rs.38,205/-.

18. Along with P3 letter issued by the complainant to the Airport Manager the complainant has also attached list of the articles kept in the lost baggage.  Apart from the 8 items shown in P8 purchase bill some other items are also included in the list attached to P3 letter.  Among those items a gold chain having the weight of 40gms is also included.  The value of that gold chain is shown as 1320/- Dirham.  To support the said case of the complainant that he had kept gold chain also in the said hand bag, the complainant has produced P8(a) sales invoice issued from Atlas Jwellery, Karama, Dubai.  But as per P8(a) sales invoice the weight of the gold chain is shown as 80.78gms and the value of that gold chain is shown as 2705/- UAE Dirhams.  The P8(a) sales invoice is dated:30/1/2001.  The complainant traveled from Dubai to Calicut in flight AI-922 on 25/1/2002.  This would show that the gold chain was purchased one year prior to his air journey.  There is nothing on record to show that after 30/1/2001 the complainant had not traveled from Dubai to Calicut.  The complainant has not produced his passport or any other document to prove his case that he purchased the gold chain covered by P8(a) sales invoice and that the gold chain was kept in the lost baggage.  The list attached to P3 letter would belie the case of the complainant.   In the said list of articles the weight of the gold chain is shown as 40 gms and its value is shown to 1320 Dirhams.  This inconsistency or contradiction would make the case of the complainant unbelievable.  The case of the complainant that a gold chain was kept in the lost baggage cannot be believed or accepted.  The case of the complainant that he kept gold chain worth 1320 Dirhams having the weight of 40gms in the lost baggage cannot be believed or accepted.  There is no purchase bill or invoice forthcoming from the side of the complainant to show that such a gold chain was purchased by him prior to his journey on 25/1/2002.  So, the aforesaid claim is to be disallowed.  The Forum below has not considered this relevant aspect of the case.  The Forum below has also omitted to notice the discrepancy or inconsistency between the list of articles attached to P3 letter and the description of the gold chain in P8(a) sales invoice.  The Forum below cannot be justified in awarding a sum of Rs.60,000/- by way of compensation.  The complainant has also not proved purchase of the other items shown in the list of articles attached to P3 letter.  Thus, the available evidence would show that the complainant is only entitled to get the cost of the articles shown in P8 purchase bill amounting to Rs.38,205/-.

19. Admittedly the complainant failed to declare the value of the contents in the baggage.  There is no dispute that the baggage with tag No:641887 was lost and that the 1^st opposite party M/s Indian Airlines Ltd who was in charge of the baggages at the destination airport namely Calicut Airport failed to deliver the said baggage with tag No:641887.  The documentary evidence and the admission made by the 1^st opposite party would make it abundantly clear that the complainant lost the said baggage with tag No:641887.  It is also admitted by the 1^st opposite party that the said baggage was brought by the complainant as hand baggage and that the said hand baggage was recovered from the possession of the complainant by the officials of the Air Career at Dubai Airport and converted that hand baggage as a tagged baggage by allotting the tag with No:641887. 

20. There is no case for the complainant that he declared the value of the contents of the said baggage.  It is a settled position that the liability of the air career with respect to the baggage is limited unless the value is declared.  Rule 22(2) would make it clear that the liability of the career is limited to a sum of 250/- Franks per Kg, unless the passenger or consigner has declared the value of the contents of the baggage.  There is no dispute that 250 franks is equivalent to 20 US dollars.  But as far as the lost baggage is concerned, its weight has not been disclosed.  The tag No:641887 provided for the hand baggage was produced by the complainant before the officials of the air career.  In Ext.P3 letter it is specifically stated that the baggage tag and the boarding pass were submitted to the airport manager at Calicut Airport.  Probably the said baggage tag would contain the weight of the baggage.  But, the 1^st opposite party has not produced the said baggage tag.  So the compensation based on the limited liability cannot be awarded because of the fact that the weight of the lost baggage is not available.  The complainant and the opposite parties 1 and 2 have not adduced any evidence regarding the weight of the baggage.  So, the only course available is to award compensation based on the value of the articles kept in the lost baggage.  The only document which can be relied on is P8 document produced from the side of the complainant.  That document would show that the complainant kept articles worth Rs.38,205/- in the said lost baggage.  There can be no doubt that the complainant suffered some sort of inconvenience and mental agony on account of the missing of one of his baggages.  He had also spent some amount for preferring the complaint in OP:57/03 on the file of CDRF, Malappuram.  Considering all these aspects a total compensation of Rs.40,000/-  can be treated as reasonable.  Rs.60,000/-  awarded by the Forum below is on the higher side. So the impugned order passed by the Forum below directing payment of Rs.60,000/- as compensation is modified and the compensation to the complainant is reduced to Rs.40,000/-.  The 1^st opposite party, M/s Indian Airlines Ltd is made liable to pay the said compensation of Rs.40,000/- to the complainant within one month from the date of receipt of copy of this judgment failing which the said amount will carry interest at the rate of 9% per annum from the date of the impugned order passed by the Forum below in OP:57/03.  These points are answered accordingly.

In the result the appeal is allowed partly.  The impugned order dated:28^th November 2003 passed by CDRF, Malappuram in OP:57/03 is modified and thereby the compensation of Rs.60,000/- awarded by the Forum below is reduced to Rs.40,000/-.  The appellant/1^st opposite party M/s Indian Airlines Ltd is made liable to pay the aforesaid compensation of Rs.40,000/- to the complainant.  The said compensation is to be paid within one month from the date of receipt of copy of this judgment, failing which the said amount will carry interest at the rate of 9% per annum from the date of the impugned order (28/11/2003) passed by the Forum below in OP:57/03 till payment.  As far as the present appeal is concerned the parties are directed to suffer their respective costs.

M.V. VISWANATHAN    : JUDICIAL MEMBER

VALSALA SARANGADHARAN   : MEMBER

S. CHANDRAMOHAN NAIR: MEMBER

VL.