BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.986 OF 2010 AGAINST C.C.NO.189 OF 2008 DISTRICT FORUM RANGA REDDY.
Between:
1. M.Amarnath
Airport Services Manager, Emirates Airlines
Rajiv Gandhi International Airport
Level G Room No.16, Shamshabad
Hyderabad
2. Amjad Khan, Manager Customer Affairs
Emirates Airlines, PO646 Dubai UAE
3. Navin Masood, Customer Affairs
PO646, Emirates Airlines, Dubai, UAE
Appellants opposite parties
A N D
Sivalenka Mallikarjuna Vara Prasad
S/o Veerasalingam, 62 yrs
Occ: Retired Employee R/o #6
MIGH Colony, New Bholakpur
Secunderabad-080
Respondent/complainant
Counsel for the Appellants Sri C.V.Narasimham
Counsel for the Respondent Sri S.Ramachandra Prasad
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
FRIDAY THE TWENTY SEVENTH DAY OF APRIL
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The respondent filed the complaint before the District Forum seeking the following relief:
2. The District Forum allowed the complaint awarding US$3,700/- and INR of `2,000/- along with interest @9%p.a. from the date of complaint till payment besides USD 300 towards compensation and `25,000/- towards compensation on account of deficiency in service on the part of the appellants and mental tension he had undergone.
2. The respondent and his wife traveled from San Francisco to New York along with their luggage of four suit cases at No.0016 UA-952160, 951427, 951426 and 951875 checked in at SFO and they carried with them two hand bags. The flight arrived at 22.20 hrs at New York and the flights from NYC to DXB was scheduled to depart at 22.40 hrs. When the respondent and his wife started to board the flight, the staff of the Airlines stopped them on the premise that there was no room to accommodate the baggage into the cabin and the staff requested the respondent to leave the baggage with them so that it could be carried in the aircraft rack.
3. The staff of the Airlines did not inform the respondent and his wife to remove the valuables from the baggage. The respondent and his wife observed that there was sufficient room in the overhead cabin of their respective seats to accommodate the baggage which was not allowed to be carried along with the respondent. The baggage was not handed over to the respondent at Dubai though the respondent informed the staff that they are through passengers to Hyderabad and the respondent was to collect the baggage at the baggage belt. The in charge at the counter at first stop informed the respondent that the baggage can be collected at Hyderabad. The staff of the Emirates did not hand over baggage to the respondent at Hyderabad. The respondent submitted PIR . The baggage was handed over to the respondent on 5.06.2008 three days after the respondent arrived at Hyderabad. US$ 300, `2,000/- , two mobile phones and a watch found missing which were not handed over to the respondent in spite of his request made on 5.06.2008, 9.06.2008,17.06.2008 and 19.06.2008.
4. The appellants resisted the claim on the premise that the despite knowing the weight restriction in carrying hand baggage aboard the aircraft, the respondent deliberately ignored the restrictions and were made to hand over the baggage at JFK. The appellants offered a um of USD 1100 in full and final settlement of the claim. The amount was offered in accordance with the provisions of the Carriage by Air Act. The hand baggage of the respondent was bulky and it did not conform to the specifications allowed on board. The respondent was asked to check the bag in at the gate and collect it at the destination. The inventory form would assist in tracing the baggage in case the tags are missing and does not make the appellants liable . The carrier cannot be liable for loss or damage to fragile items, gold, currency, important documents etc., All valuable items should be carried on person. The appellant had not informed the respondent that the baggage would be delivered to him at Hyderabad. The respondent had flown on another carrier from SFO to JKF and subsequently the hand baggage was retrieved at the boarding gate and checked in as it was bulky. Emirates Airlines is not made party to the proceedings.
5. The respondent has filed his affidavit and the documents,Exa1 to A11 and on behalf of the appellants, ExB1 was marked.
6. The District Forum has allowed the complaint on the premise that the appellants promised to hand over baggage to the respondent at Hyderabad and they did not keep their promise as also that the appellants did not adduce evidence in support of their plea that the hand baggage was carried as check in baggage.
7. The opposite parties have filed the appeal contending that the respondent failed to establish that the bag short landed contained cash and valuables and that the District Forum failed to follow the law laid down for delay/missing baggage as per the provisions of the Carriage by Air Act, 1972 and that the baggage tags were given to the respondents at New York Airport before getting on the flight as also that the respondent had putforth inconsistent claims.
8. The point for consideration are:
i) Whether the appellants are liable to pay the amount as awarded by the District Forum?
ii) To what relief?
9. POINT NO. 1: The travel made by the respondent and his wife is discussed at length by the District Form and in fact there is no dispute between the parties as to the journey and the destination. In para 22 of the order the District Forum discussed the journey undertaken by the respondent as under:
It is the simple case of the complainant that he has booked two air tickets bearing Nos. SFO (SANFRANSISCO) to NYC (NEW YORK) 2010590913 & 210590912, NYC to DXB (DUBAI) 1762101590912-2 & 17612101590913-2 and Dubai to Hyderabad 1762101590912-3 & 1762101590913-3, one for his self and the other for wife to have a voyage from Sanfransisco to Hyderabad. The said tickets were issued by United Airways from SFO to NYC and Emirates from NYC to DXB and DBX to Hyderabad. The complainant and his wife travelled the first lap of journey from Sanfransisco to New York along with their luggage of four suitcases at 0016 UA-952160, 951427, 951426 and 951875 checked in at Sanfransisco and they also carried two hand baggages with them under their care. The flight in which they traveled from Sanfransisco to New York arrived at 22.20 hrs at New York. The flight from New York to Dubai was scheduled to depart at 22:40 hours and so the complainant and his wife were in hurry to board the flight through the tube, but the staff of the Airlines stopped them and stated that there is no room to accommodate the said two hand baggages into the cabin and requested to leave it with them, so that, it could be carried in the flight rack. The complainant insisted on carrying the same along with them, as they were through passengers to Hyderabad, but the staff did not heed to the request of the complainant and assured that they would hand over the same as soon as, they got down from the flight, at Dubai. In token of receipt of the said two hand baggages, the staff of the Airlines issued receipt Nos. EK 335683 & EK 335684. On arrival of the flight at Dubai, the complainant asked the staff of the Airlines to handover the said two hand baggages by showing the receipt Nos. EK 335683 & EK 335684, as the said baggages are through passengers, the staff of the Airlines stated that the said two hand baggages would be sent to Hyderabad in the same flight but on arrival at Hyderabad, the said two hand baggages were not handed over the complainant.
10. Admittedly, the provisions of Carriage by Air Act prescribing limit on liability of the appellants would govern the situation where the property was lost or damaged. The loss of two bags is also not disputed. In Property Irregularity report for checked baggage, the following items are stated to have been placed in the lost baggage.
11 tulas of gold worth (US$3000)
Cash of INR 2000
Camera worth Rs.16,000/-
11. When it came to Damage Baggage Report the following items are stated as missing;
11 tulas of gold worth (US$3000)
Cash of INR 2000
Motorolo Cellphone
AT&T Cellphone
Quartz Watch
12. The District Forum accepted the plea that the tags of the baggage was found missing and the appellants promised the respondent that the baggage would be delivered to him at Hyderabad. The learned counsel for the appellants would contend that the respondent in 5th para of the complaint admitted that he was shown baggage tags bearing nos. EK 335683 and EK 335684 which were given to them at New York Airport.
13. The District Forum had not considered the property and its value mentioned in the Property Irregularity report wherein the US dollars, mobile phones and watch do not find any mention. The respondent subsequently added these items to show as if they had been lost.. What is mentioned in the property irregularity report would form the basis to award compensation and not the items mentioned in the Damaged Property Report which is subsequent in time to the property irregularity report. In the mails, the respondent has taken precaution to mention the items that he mentioned in the damaged property report.
14. For awarding compensation, the District Forum has referred to the failure of the appellants in following the procedure and the failure of the appellants to prove the carriage of the baggage as check in baggage as also the failure of the appellants to inform the respondent to remove the valuable items from the baggage in the following terms:
To sum up all the above, it is clear that the opposite parties have not followed the procedure to send the two hand baggages to Hyderabad after retrieving them from the complainant in the same flight. As per the version of the opposite parties, the baggage is check-in baggage and the compensation offered as per the Carriage by Air Act, 1972. To support their version they have not filed any document to show that the hand baggage of complainant is a check-in-baggage. If at all the hand baggage is check-in-baggage, the opposite parties must have issued tags and mentioned in the check-in-baggage list. The said document is not filed by the Opposite parties. Further the opposite parties have not informed the complainant and his wife to remove the valuables at the time of retrieval of hand baggage and also not sealed the baggage on taking from the complainant and his wife. Hence, we are of the opinion that the two hand baggages are not check-in baggages and there is deficiency of service on the part of the opposite parties in not allowing the complainant and his wife to board the flight along with two hand baggages which are normal in size and also for non-delivery of the said two hand baggages at Hyderabad along with check-in baggage.
15. The Hon’ble Supreme Court “State of Gujarath vs Shantilal Mangaldas” AIR 1969 SC 634. Held the compensation to mean”…..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression ‘paid’ would have been more appropriate”.
16.. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In “Charan Singh vs Healing Touch Hospital and others” 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held “While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge”.
17. For the foregoing reasons, we modify the relief for US$ 3700, US$ 300 and INR 2000 and award US$ 1100 for the loss of baggage and `10,,000/- towards compensation.
18. In the result, the appeal is allowed by modifying the order of the District Forum. The opposite parties are directed to pay US$1100 together with compensation of `10,000/-. There shall be no order as to costs in the appeal.
MEMBER
MEMBER
Dt.27.04.2012
KMK*
