BEFORE THE   A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD

F.A.No. 220  OF 2013 AGAINST C.C.NO.42 OF 2011 DISTRICT CONSUMER FORUM RANGA REDDY

Between
1.    Pradeep Kumar Mathur S/o late Madan Raj Mathur
        Aged about 54 years, Occ: Business

2.     Rajini Mathur W/o Pradeep Kumar Mathur
        Aged 53 years, Occ: Business

        Both R/o Flat No.5, Harshadham Apts.,
        3-4-862, Barkatpura, Hyderabad-27                                                      
                                                                Appellants/complainants

        A N D

Spicejet Limited,
319, Udyog Vihar, Phase IV
Gurgaon, Haryana -003
rep. by its authorized signatory

                                                                Respondent/opposite party

Counsel for the Appellant              M/s Kishore Rai

Counsel for the Respondent           Mr.Govind Mehrotra, Authorized
                                                Representative 

  QUORUM:        SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                                                &

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

                         THURSDAY THE  FIRST DAY OF AUGUST

TWO THOUSAND THIRTEEN

    Oral Order ( As per R.Lakshminarsimha Rao, Member)
           ***

1.             The unsuccessful complainants are the appellants. Being aggrieved by the order of the District Forum dismissing their complaint, the complainants  have  filed appeal contending that  they refused the offer for a sum of `3,000/- extended by the respondent as the bag which was lost contained articles worth `1,35,190/- and claiming for the same amount they got issued notice dated 24.07.2010.

2.             It is contended that the District Forum has not considered the order of the National Commission in F.A.No. 344 of 2006 which was upheld by the Hon’ble Supreme Court  in SLP No. 9033 of 2009 on 2.08.2010.  Loss of baggage in transit was held to amount to deficiency in service on the part of Airliners which was made liable to pay compensation. It is contended that finding as to the failure of the appellants to prove contents of the baggage as not proved is incorrect and that the District Forum has been carried by the contention of the respondent that the liability of the respondent is limited to `20/- per kg with a maximum of `3,000/-.

3.             As seen from the averments of complaint, the case of the appellants is that on 5.6.2010 the appellants booked tickets and travelled from Jaipur to Hyderabad on 5.7.2010 in flight No.913 of respondent along with their baggage.  After reaching Hyderabad one of the two baggage was found missing.  The appellants intimated the respondent about the missing baggage.  Later,  the respondents informed the appellants that as per their company’s policy they would pay a sum of `3,000/- towards compensation for loss of baggage.  The appellants submitted that they had kept expensive articles worth approximately `1,35,190/-.  On 12.07.2010 the respondents sent a cheque for `3,000/- in compliance with their policy which was not accepted by the appellants. 

4.             The respondent resisted the case contending that the liability of the respondent for loss or damage is limited to `200/- per kilogram and with a maximum of `3,000/- only.  The appellants booked tickets agreeing to the terms and conditions framed in accordance with carriage by Air Act, 1972.  After receiving baggage irregularity report, the respondents sent a letter dated 12.07.2010 to the appellants enclosing a cheque for `3,000/- which was not encashed by the appellants.  The liability of the respondents in the event of any loss to the passenger during the course of carriage by Air is governed by provisions contained in second schedule of Carriage by Air Act, 1972 and as notified in the Government of India, Ministry of Civil Aviation.  Hence, prayed for dismissal of the complaint. 

5.             The appellant no.1 has filed his affidavit and the documents Exs.A1 to A13.  On behalf of the respondent, its Manager(Legal),   filed his affidavit and the respondent had not chosen to file any documents.

6.             The District Forum dismissed the complaint on the premise that the appellants had not mentioned   value of the articles of the baggage in the baggage irregularity report and  that as per the terms and conditions of the ticket as also in view of the provisions of Carriage by Air Act restricting liability of the respondent to a sum of Rs.3,000/- which was sent through cheque to the appellants and as such there was no deficiency in service on the part of the respondent.

7.             The counsel for the appellants have filed written arguments.

8.             The point for consideration is whether the appellant is entitled to the enhancement of the amount as awarded by the District Forum?

9.             There is no disputing the facts that the appellants   had booked tickets on 5.6.2010   for the journey scheduled on 5.7.2010  from Jaipur to Hyderabad   The appellants boarded the flight bearing no.913 of the respondent on  5.7.2010 at Jaipur and landed at Hyderabad. The appellants could receive   one baggage and their another baggage,   American Tourister  Bag   was missing.  The appellants had informed the respondent about the missing baggage. 

10.            The appellants claim that  they kept costly cloths and jewelry   in the baggage which was lost and those articles were taken to Hyderabad on the occasion of get together arranged on the eve of their daughter’s marriage performed on 22.5.2010.  

11.            The appellants contend that the value of the lost articles   is about `1,35,190/-. The respondent would submit that the property irregularity report indicates only cloths   were kept in the lost baggage. In the Baggage Irregularity Report, the appellants had mentioned cloths and valuables as items placed in the missing baggage.  The   appellants got issued notice dated 24.7.2010 claiming that the cost of the lost American Tourister Bag is Rs.3,990/-, jewellary worth Rs.40,700/-, sarees and cloths worth Rs.20,000/-, album of marriage photographs of Rs.19,500/- were kept in the lost baggage. 

12.            We feel it essential to discuss the applicability of Rule 22 or Rule 25 of the Carriage by Air Act. Rule 22 and Rule 25 of the Ac  read as under:

22. (1) In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 1,25,000 francs. Where damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 1,25,000 francs. Nevertheless, by special contract the carrier and the passenger may agree to a higher limit of liability.

(2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, 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 sum is greater than the actual value to the consignor at delivery.

(3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 5,000 francs per passenger.

(4) The sums mentioned in this rule shall be deemed to refer to the French franc consisting of sixty-five and a half milligrams gold of millesimal fineness nine hundred.

25. (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 willful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct.

(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment.

13.             In order to wriggle out of the rigour of Rule 22 of the Carriage by Air Act, the appellants had to specify the value of the items kept in the baggage at the time of handing over it to the respondent which they failed to do.  Therefore, the only option left to the appellants is to submit to the requirement of Rule 22 of the Act. The other provision of law, viz. Rule 25 comes to the aid of the appellants in the circumstances where the appellants could prove recklessness or willful default of the staff of the respondents.

14.            The learned counsel for the respondent has relied upon the notification regarding application of the carriage by Air Act,1972, to carriage by air which is not international and the following decisions before the District Forum:

                1.     The Manager IA Ltd., Vs India Everbripht Shipping and
                        Trading Co. 2001(II) CPJ 32 (NC)

        2.     Gargi Parsai vs K.L.M.Royal Dutch Airlines 
        IV(2007)CPJ117(NC).

        3.     Air Lanka Vs S.Prasannam 1998 (I) CPJ 117 SCER

        4.     Mrs Helen Walia Vs Cathy Pacific Airways Limited, 2002 
        (III) CPJ 190 (NC)

5.     Manager, South India, Air India Vs Smt Visalakshi Subramaniam, 2003(1) CPJ 538 SCIN

6.     Manager, Oma Air Vs K.K.Abdul Aziz and Anr, 2001 (III) CPJ 287 SCKER

15.            The Notification was issued making Sections 4, 5 and 6 of the Carriage by Air Act,1972 and the rules contained in the second schedule of the Act , applicable to all Carriage by Air act not being international carriage by air. Rule 3 in Chapter provides for application of  terms of contract  printed in the jacket of the air way bill. Clause 2 of Rule 22 of the Notification reads as under:

(2) (a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of rupees two hundred per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger’s or consignor’s actual interest in delivery at destination.

16.            In the case of Gargai Parsai, it was held that in absence of special declaration  and payment of extra amount by the consignor, general rule in 22(2) is  held applicable to the case where the baggage of the applicant was lost and could not be traced. The National Commission upheld the order of the State Commission  as under

“The rule of limited liability is statutory in character and is binding on the parties; and lastly that, in any case, carrier's liability being limited was an essential condition of the contract as it was one of the terms printed on the jacket of the ticket. In this context the State Commission observed as under:

There can be no dispute that provisions of rules contained in Section 3 of the Carriage by Air Act, 1972. The validity of these rules cannot be questioned before the agencies created under the Consumer Protection Act, 1986 See V.K. Sharma v. Indian Airlines V-1993 (1) CPR 642. It can also not be disputed that unless the case can be brought under Rule 25, the liability of the carrier is limited in terms of Rule 22(2) as admittedly no declaration regarding contents of the suitcase was made nor any additional amount paid.

17.            As to the applicability of Rule 25 of Carriage by Air Act, the National Commission held:

While deciding the matter the State Commission also adverted to the expression "wilful and wanton misconduct" as defined in Black's Law Dictionary. 6th Edition and the expression "wilful misconduct" as appearing in Stroud's Judicial Dictionary 5th Edition. In this connection the State Commission also relied on the judgment of the Hon'ble Supreme Court delivered in the case of Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehara Rao ; Peggy

Danziger v. Compagnie National Air France, a decision of N.Y. District Judge; Grey v. American Airlines; Olshin v. EI AI Israel Airlines and came to the finding that the rule applicable in the Schedule to the Carriage by Air Act, and the petitioner had failed to establish that her case is covered by Rule 25. The State Commission also observed that the complainant is bound by the terms of the contract, which were printed on the jacket of the ticket and which limits the liability of the carrier. For these reasons the State Commission held that the amount offered by the opposite party was the only amount to which the complainant was entitled to and in view of the said conclusion the State Commission did not find any merit in the complaint and accordingly dismissed leaving the parties to bear their own costs.

18.            In M/s India Ever bright Shipping & Trading Company’s decision, the National Commission has referred to application of Rule 22 or Rule 25 of the carriage by air act,1972 and the change in the provisions of law from Warsaw Convention to The Hague Protocol. In paragraph 6 of the order it was held:

6. The dispute is if Rule 22 applies or if it is Rule 25. Both these Rules have same numbers in Warsaw Convention and the Hague Protocol. Relevant portion of Rules 22 and 25 are as under:

Warsaw Convention (The First Schedule)

22.(1)......

(2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 frances per kilogramme, 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 that sum is greater than the actual value to the consignor at delivery.

(3)......

(4) the sums mentioned in this rule shall be deemed to refer to the French franc consisting of sixty-five and a half milligramme gold of millesimal fineness nine hundred.

As amended by the Hague Protocol (The Second Schedule):

22(1).......

(2)(1) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has a 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 that sum is greater than the passenger's or consignor's actual interest in delivery at the destination.

(b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability"

(3)......

(4) The limits prescribed in this rule shall not prevent the Court form awarding, in accordance with its own law, in addition, the whole or part of the Court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provisions shall not apply if the amount of the damages awarded excluding Court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months form the date of the occurrence causing the damage, or before the commencement of the action, if that is later.

(5) The sums mentioned in francs in this rule shall be deemed to refer to a currency unit consisting of sixty-five and a half milligramme of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment.

Rule 25 (Warsaw Convention):

25.(1): The carrier shall not be entitled to avail himself of the provision 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 to wilful misconduct.

(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment.

Rule 25 (Hague Protocol):

25. The limits of liability specified in rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.  

19.            In paragraphs 9 to 11 of the order, what kind of act would amount to willful conduct and when does the carrier  can be said to have done the act recklessly is dealt as under:

9. As to what is 'wilful' has been described in a simple language in the Black's Law Dictionary. It says a wilful act may be described as one done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The 'wilful' act differs essentially from a negligent act. The one is positive and the other is negative. Wilful misconduct would be such conduct committed with an intentional or reckless disregard for the safety of others or with an intentional disregard of a duty necessary to the safety of another's property.

10. Supreme Court in the case of Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255, has observed that an act is said to be wilful if it is intentional, conscious and deliberate.

11. With regard to the word "recklessly" the Black's Dictionary says, "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that he material element exists or will result form his conduct. This risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation". In Shawinigan Ltd. v. Vokins & Co. Ltd. - (1961) 3 All E.R. 396, this is how Megaw, J. described recklessly:

"In my view, "recklessly" means grossly careless. Recklessness is gross carelessness-the doing of something which in fact involves a risk, whether the doer realises it or not; ad the risk being such having regard to all the circumstances, that the taking of that risk would be described as "reckless". The likelihood or otherwise that damage will follows is one element to be considered, not whether the doer of the act actually realised the likelihood. The extent of the damage which is likely to follow is another element, not the extent which the doer of the at, in his wisdom or folly, happens to foresee. If the risk is slight and the damage which will follow if things go wrong is small, it may to be reckless, however unjustified the doing the act may be. If the risk is great, and the probable damage great, recklessness may readily be a fair description, however much the doer may regard the action as justified and reasonable. Each case has to be viewed on its own particular facts and not by reference to any formula. The only test, in my view, is an objective one. Would a reasonable man, knowing all the facts and circumstances which the doer of the act knew or ought to have known, describe the act as "reckless" in the ordinary meaning of that word in ordinary speech? As I have said, my understanding of the ordinary meaning of that word is a high degree of carelessness. I do not say 'negligence", because "negligence" connotes a legal duty."

11. In the absence of even allegation in the complaint that there was any wilful misconduct or the damage resulted form an act or omission of the Air Carrier (opposite parties) done with intent to cause damage or recklessly and with the knowledge the damage would probably result, it is difficult for us to hold that rule 25 (of either the First Schedule or the Second Schedule) would apply. We may also refer to a few judgment cited at the Bar.

20.            The respondent has stated that the amount of `3,000/- was paid through cheque bearing number 508551 dated 12.07.2010 to the appellants and the cheque was not accepted by the appellants which they filed before the District Forum and got it marked as exhibit.   

21.            The learned counsel for the appellants has relied upon the following decisions:

1.   Indian Airlines Vs Prakrithi Setty IV (2007) CPJ 154 (NC)

2.   R.Jayaprakash, ‘Vijay’ Vs Indian Airlines Ltd., and Anr. 2013 (1) CPR 186 (Ker).

3.   F.A.No.344 of 2006 dated 11.6.2008 of the National Commission. 

22.            In Prakrithi Setty (Supra), the complainant had not disclosed the contents of the baggage while checking in.  The District Forum awarded compensation to the Indian Airlines to an extent of Rs.12,000/- and the State Commission dismissed the appeal preferred by Indian Airlines.  The Hon’ble National Commission held that Indian Airlines staff tampered with suitcase, broken open the lock for which Indian Airlines was held responsible.  The National Commission dismissed the revision filed by the Indian Airlines holding :

14. It is clear from the records that Airlines staff have tampered with suitcase, broken open the lock and one of the baggage was torn which has resulted in pilferage. Citations quoted by the learned Counsel for the revision petitioner are distinguishable as they do not pertain to loss to the consumer due to pilferage or theft and hence these citations/provisions of the Carriage by Air Act, 1972 are not applicable in this case. Law and precedence can only support the rightful actions of the Airlines and their staff. They cannot support the theft and pilferage by their staff for which the management of the Airlines is responsible. We have a sworn affidavit by the complainant and who has also withstood rigorous cross-examination by the learned Counsel for the opposite party before the District Forum. It is necessary to note that the District Forum has not awarded the total claim.

15. Though the complainant has claimed Rs. 50,000 (approx) for the loss of jewellery and other items and she has also produced the receipts for the jewellery etc., as there was some contributory negligence on her part they have awarded a token compensation as mentioned above.

16. The Airlines could have accepted this verdict and paid the same to the beleaguered passenger. But the litigation was continued at State and National level. We do not find any legal infirmity or jurisdictional error in the order passed by the State Commission. Hence, the revision is dismissed with Rs. 10,000 as costs to be paid by the revision petitioner to the complainant.

23.            Jayaprakash’s  case(supra)  is a case where the complainant reported loss of baggage during journey and loss of papers as well as clothing.  The District forum awarded compensation and costs of `10,000/- each.  The State Commission enhanced compensation from `10,000/- to `25,000/- on the premise that loss of baggage contributed to many troubles in his discharge of lecture as also that the opposite party had not preferred appeal.

24.            The counsel for the appellants has not filed copy of decision relied upon by him, in F.A.No.344 of 2006 or SLP No.9033 of 2009.

25.            The learned counsel for the appellants has contended that there is difference between registered baggage and cargo which provides for limited liability  and the baggage entrusted at the time of checking.  He has submitted that check in baggage entrusted could neither be treated as registered baggage nor as cargo and as such Rule 2(a) of Rule 22 of the Carriage air Act, 1972 is not applicable to the appellant’s case as also that the appellants had not only lost baggage and they suffered embarrassment humiliation and harassment on account of deficiency in service on the part of the respondent.  He has invoked application of Sub Rule 4 which specifies that the limits prescribed in Rule would not prevent the court from awarding in according with its own terms of Sub Rule 4 Rule 22.

26.            This Commission held in F.A.No.364 of 2011 decided on 4.07.2012 in between “Capt. Sandeep Sharma and another Vs M/s Spicejet Limited and another” that:

Rule 22 of Carriage by Air Act is applicable to the facts of the case as contained in the present case.  As the application of Rule 22 of the Carriage by Air Act is pressed into service by virtue of failure of the appellants to submit special declaration and for non-payment of extra charges, we do not consider it any more necessary to discuss the number of items and their value that was kept in the lost baggage. The second appellant in her email sent on 29.12.2008 has mentioned that an employee of the respondents informed them that the bag was not loaded  at Delhi and on the same day about 9P.M. she was informed by the respondents that they were not able to trace the bag at Delhi and they would look into the matter. Thereafter, the appellants  made repeated enquires about the baggage and she stated that the respondents made false promise and till 29.12.2008 no employee of the respondents reported the matter honestly.

27.           The appellants had not mentioned the worth of items in the baggage irregularity report.  It is true that the appellants had not made special declaration of the items kept in the baggage at the time of boarding the flight.  However, the endorsement in the baggage irregularity report would show that apart from cloths, the appellants had kept valuable items in the lost baggage.

28.            It is not disputed that one of the items kept in the lost baggage is album of photographs pertaining to the appellants’ daughter’s marriage which is associated with sentiment and the other item essential for the complainant no.1 is the drug for treatment of cancer that he   suffered from.  On account of loss of such items, one can imagine mental tension and hardship that the appellants would suffer and taking into all the circumstances into consideration, we hold the appellants entitled to an amount of Rs.20,000/- towards compensation besides the respondent’s limited liability of Rs.3,000/-. 

29.            In the result the appeal is allowed setting aside the order of the District Forum.  Consequently the complaint is allowed directing the respondent to pay an amount of `23,000/- together with costs of `5,000/-.  Time for compliance four weeks.                       

                                                                        MEMBER

                                                                        MEMBER

                                                                    Dt.01.08.2013

కె.ఎం.కె*