BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.NO. 145/2002 Dated: 30..12..2008
Complainant:
James Mathew, Kandirickal House, Vengalloor – P.O., Thodupuzha, Idukki.
(By adv. P.S. Micheal)
Opposite party:
Sri Lankan Airlines, represented by the Station Officer, Sri Lankan Airlines Ltd., Thiruvananthapuram Air Port – 695 008. (By adv. F. Eugine Fernandez)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 08..03..2006 the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..11..2008, the Forum on 30..12..2008 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT The facts leading to the filing of the complaint are that the complainant was a passenger in Sri Lankan Air Lines on 24..01..2001 from Bangkok to Colombo in flight No.UL 430 and on 25..01..2001 he continued his journey from Colombo to Thiruvananthapuram in flight No. UL 161. Both flights were owned and operated by the opposite party. At the time of boarding, the complainant had entrusted his baggage with the employees of the opposite party had issued baggage Tag No. 0217 TG 259125 in token for the acceptance of the baggage. The baggage contained different items of dresses, imitation ornaments and other valuables, it has got a value of Rs. 59,720/-. On arrival at Thiruvananthapuram complainant presented the baggage tag at the terminal of the opposite party and claimed his baggages. After a prolonged search and verification the opposite party was able to find out the baggage, but it was totally damaged during the course of transit. Thereafter a property irregularity report was prepared on the same, a baggage claim form was submitted. Opposite party promised to settle the damage claim on 31..01..2001 at the Office of the opposite party at Thiruvananthapuram Airport. On 31..01..2001 when complainant went to the opposite party's office, on the request of the opposite party complainant has signed a blank release and indemnity receipt by affixing a 2 rupees court fee stamp without receiving any amount of the opposite party. Complainant had entrusted the originals of baggage tag, PIR, baggage claim form, release and indemnity letter and other relevant records as demanded by the opposite party. On submitting the same, the opposite party pleaded more time and the complainant believed that opposite party would settle the claim. On 31..03..2001 and 18..04..2001 the complainant met the opposite party office, but opposite party was not ready to settle the claim. Complainant had spent an amount of Rs.10,800/- by way of taxi fare alone. Thereafter complainant caused the issuance of lawyer's notice to the opposite party. Opposite party replied to the notice denying their liability to pay any damages to the complainant. Opposite party is responsible for the loss. Hence this complaint claiming an amount of Rs. 77,575/- towards damages.
2. Opposite party entered appearance and filed version contending that the complaint is misconceived and unsustainable in law or on facts. Complainant purchased a ticket for travel for the sector from Bangkok/Kaulalumpur/Thiruvananthapuram. Complainant travelled in opposite party's flight. At the time of check in the passenger handed over one bag to the opposite party. But did not inform the opposite party about the valuable items inside the bag, complainant did not declared the value of the contents of the bag. On arrival at Thiruvananthapuram the complainant brought to the notice of the opposite party the missing item. Complainant received the bag weighing 12 kgs. Therefore he sustained no weight loss. Even then as a gesture of good will, opposite party paid Rs.3,600/- towards taxi fare on 31..01..2001 in full and final settlement of all claims of whatsoever arising out of the aforesaid incident, which the complainant has duly acknowledged. Under Article 27(1) of the second schedule to the Carriage by Air Act the complainant has to make a complaint in writing within 7 days from the receipt of the hand baggage. In the instant case no complaint has been made by the complainant within the time specified. The baggage did not contain any valuable articles as alleged in the complaint. The opposite party has not committed any latches or carelessness or lack of service to the complainant. Hence opposite party prayed for dismissal of the complaint with cost to the opposite party.
3. The points that would arise for consideration are:
(i) Whether the complainant has entrusted his baggage with opposite party? (ii Whether the complaint has declared the weight of the baggage or value of its contents? (iii) Whether there has been deficiency in service on the part of opposite party? (iv) Reliefs and costs?
4. In support of the complaint, complainant has filed affidavit and marked Exts.P1 to P10. In rebuttal, opposite party has filed affidavit and marked Exts.D1 & D2.
5. Points (i) to (iv): It has been the case of the complainant that complainant was a passenger in Sri Lankan Airlines from Bangkok/Colombo/Thiruvananthapuram in flight No.UL 430/161 on 24..01..2001 and 25..01..2001, that at the time of boarding, complainant had entrusted baggage weighing 12 kgs and containing different items of dresses, imitation ornaments and other valuables, with opposite party that on arrival at Thiruvananthapuram it was found that the said baggage was totally damaged, that complainant prepared a property irregularity report on the same day and that the said baggage got a value of Rs.59,720/-. Submission by the complainant was that opposite party promised to settle the damage claim on 31..01..2001 and on the request of the opposite party, complainant had signed a blank release and indemnity receipt by affixing a two rupee court fee stamp without receiving any amount from the opposite party and handed over the originals of baggage tag, PIR, baggage claim form, release and indemnity letter and other relevant records and even after repeated requests opposite party did not settle the claim. It has been resisted by the opposite party by submitting that at the time of checking, the passenger handed over one bag weighing 12kgs and the same was collected by the crew of the opposite party from the complainant because of inadequate packing or oversized bag which could not be put inside the baggage hold inside the aircraft, and that complainant did not declare the contents of the briefcase, and the value thereof to the opposite party at the time of boarding the aircraft. Submission by the opposite party was that complainant received the baggage containing 12kgs. entrusted with the opposite party, and that even as a gesture of goodwill opposite party paid Rs.3,600/- towards taxi fare on 31..01..2001 in full and final settlement of all claims of whatsoever arising out of the said incident, which the complainant had duly acknowledged. Ext.P1 is the copy of passenger ticket issued by the opposite party. From Ext.P1, the ticket No.is 3461033124.3 but other details are not available from the photocopy of the ticket. Ext.P2 is the copy of PIR. As per Ext.P2, number and weight of checked baggage is 1/12. Ext.P2 consists of two copies of PIR- the- reporting date in one PIR is 25..01..2001 while the reporting date in another PIR is 30..01..2001. Ext.P3 is the copy of the baggage claim Form dated 31..01..2001, wherein the amount of different articles claimed is Rs.59,720/-. Ext.P4 is the copy of release and indemnity wherein the claimant and witness put their signature and the date of signature is 31..01..2001. It is pertinent to note that the upper portion of the release and indemnity paper (settlement portion) is kept blank, while in Ext.B1 (the original of Ext.P4) it is seen written that James Mathew has accepted from the opposite party a sum of Rs.3,600/- in full, and final and complete settlement of all claims of whatsoever nature arising out of or in connection with Taxi fare and in consideration of the said payment complainant has agreed to indemnify opposite party, its servants and agents from and against all further claims by whomsoever made in respect of the said loss and/or damage. It is further mentioned in Ext.D1that James Mathew has accepted that the said payament is made without prejudice and without any admission of liability. On perusal of Ext.P1, it is found that the handwriting seen in Ext.D1 and Ext.P4 is one and the same, except the handwriting regarding the amount and taxi fare. While in Ext.P4 there is no writing regarding the amount and taxi fare. At this juncture, it should be mentioned that the specific case of the complainant is that as per the request of the officers of the opposite party complainant has given signed a blank release and indemnity receipt without receiving any amount from the opposite party. It should be pertinent to point out that in both Ext.D1 and P4 there is a witness namely George Thomas Kappil, Thodupuzha, whose signatures is seen in both Ext.D1 and P4. Opposite party's specific contention is that since nothing was missing from the baggage, the complainant is not entitled to any claim under the head the loss of baggage but as an act of good gesture opposite party gave Rs.3,600/- as taxi fare to the complainant as full and final settlement in this regard which the complainant received and acknowledged his full satisfaction thereto. Ext.D2 is the cash voucher dated 31..01..2001 issued by K.V. Travels, Jyothi Bazar, Thodupuzha showing the receipt of Rs.3,600/- towards the trip from Thodupuzha to Thiruvananthapuram and return to Thodupuzha. On behalf of opposite party, Sales Manager has filed affidavit stating that the opposite party paid Rs.3,600/- towards taxi fare on 31..01..2001 in full and final settlement of all claims of whatsoever arising out of the aforesaid incident which the complainant has duly acknowledged. Since the opposite party has adduced evidence by way of affidavit and Exts.D1 & D2 and complainant has admitted the signature seen in Ext.D1 and P4, the onus of proving the veracity of Ext.D1, would lie on the complainant. No attempts were made by the complainant to examine the witness of Ext.P4/D1. On going through the contentions in the complaint, version, affidavits of both the parties, Exts. P1 to P10 and D1 & D2 and hearing the parties we are of the considered opinion that since the value of the contents of the baggage was not declared and nothing was missing from the said baggage and the said baggage has been received by the complainant from the opposite party, complainant could not claim under the head, loss of baggage, thereby no negligence/deficiency could be attributed to the opposite party. By Ext.D1 release and indemnity letter executed by the complainant, complainant is estopped from maintaining any complaint after having full and final settlement of claims. Complainant has no merits at all which deserves to be dismissed.
In the result complaint is dismissed. Both the parties will bear and suffer their costs.
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.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of December, 2008.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No. 145/2002 APPENDIX I.Complainant's witness:
PW1 : NIL II. Complainant's documents:
P1 : Copy of passenger coupen dated 12..12..2000 P2 : " the Property Irregularity Report (PIR) dated 25.01.2001 P3 : " Baggage claim form dated 30..01..2001
P4 : " release and indemnity letter dated 31.01.2001
P5 : " lawyer's notice dated 15.06.2001 P6 : Postal receipt No. 1563
P7 : Postal acknowledgement card No-1563 dated 16.06.2001 P8 : Reply letter send by the opp. Party dated 19.06.01
P9 : Copy of letter dated 31.01.2001 send by the complainant P10 : Copies of trip sheet for contract carriages dated 31..03..2001.
III. Opposite party's witness: NIL
IV. Opposite party's documents: NIL
PRESIDENT
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.NO. 145/2002 Dated: 30..12..2008
Complainant:
James Mathew, Kandirickal House, Vengalloor – P.O., Thodupuzha, Idukki.
(By adv. P.S. Micheal)
Opposite party:
Sri Lankan Airlines, represented by the Station Officer, Sri Lankan Airlines Ltd., Thiruvananthapuram Air Port – 695 008. (By adv. F. Eugine Fernandez)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 08..03..2006 the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..11..2008, the Forum on 30..12..2008 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT The facts leading to the filing of the complaint are that the complainant was a passenger in Sri Lankan Air Lines on 24..01..2001 from Bangkok to Colombo in flight No.UL 430 and on 25..01..2001 he continued his journey from Colombo to Thiruvananthapuram in flight No. UL 161. Both flights were owned and operated by the opposite party. At the time of boarding, the complainant had entrusted his baggage with the employees of the opposite party had issued baggage Tag No. 0217 TG 259125 in token for the acceptance of the baggage. The baggage contained different items of dresses, imitation ornaments and other valuables, it has got a value of Rs. 59,720/-. On arrival at Thiruvananthapuram complainant presented the baggage tag at the terminal of the opposite party and claimed his baggages. After a prolonged search and verification the opposite party was able to find out the baggage, but it was totally damaged during the course of transit. Thereafter a property irregularity report was prepared on the same, a baggage claim form was submitted. Opposite party promised to settle the damage claim on 31..01..2001 at the Office of the opposite party at Thiruvananthapuram Airport. On 31..01..2001 when complainant went to the opposite party's office, on the request of the opposite party complainant has signed a blank release and indemnity receipt by affixing a 2 rupees court fee stamp without receiving any amount of the opposite party. Complainant had entrusted the originals of baggage tag, PIR, baggage claim form, release and indemnity letter and other relevant records as demanded by the opposite party. On submitting the same, the opposite party pleaded more time and the complainant believed that opposite party would settle the claim. On 31..03..2001 and 18..04..2001 the complainant met the opposite party office, but opposite party was not ready to settle the claim. Complainant had spent an amount of Rs.10,800/- by way of taxi fare alone. Thereafter complainant caused the issuance of lawyer's notice to the opposite party. Opposite party replied to the notice denying their liability to pay any damages to the complainant. Opposite party is responsible for the loss. Hence this complaint claiming an amount of Rs. 77,575/- towards damages.
2. Opposite party entered appearance and filed version contending that the complaint is misconceived and unsustainable in law or on facts. Complainant purchased a ticket for travel for the sector from Bangkok/Kaulalumpur/Thiruvananthapuram. Complainant travelled in opposite party's flight. At the time of check in the passenger handed over one bag to the opposite party. But did not inform the opposite party about the valuable items inside the bag, complainant did not declared the value of the contents of the bag. On arrival at Thiruvananthapuram the complainant brought to the notice of the opposite party the missing item. Complainant received the bag weighing 12 kgs. Therefore he sustained no weight loss. Even then as a gesture of good will, opposite party paid Rs.3,600/- towards taxi fare on 31..01..2001 in full and final settlement of all claims of whatsoever arising out of the aforesaid incident, which the complainant has duly acknowledged. Under Article 27(1) of the second schedule to the Carriage by Air Act the complainant has to make a complaint in writing within 7 days from the receipt of the hand baggage. In the instant case no complaint has been made by the complainant within the time specified. The baggage did not contain any valuable articles as alleged in the complaint. The opposite party has not committed any latches or carelessness or lack of service to the complainant. Hence opposite party prayed for dismissal of the complaint with cost to the opposite party.
3. The points that would arise for consideration are:
(i) Whether the complainant has entrusted his baggage with opposite party? (ii Whether the complaint has declared the weight of the baggage or value of its contents? (iii) Whether there has been deficiency in service on the part of opposite party? (iv) Reliefs and costs?
4. In support of the complaint, complainant has filed affidavit and marked Exts.P1 to P10. In rebuttal, opposite party has filed affidavit and marked Exts.D1 & D2.
5. Points (i) to (iv): It has been the case of the complainant that complainant was a passenger in Sri Lankan Airlines from Bangkok/Colombo/Thiruvananthapuram in flight No.UL 430/161 on 24..01..2001 and 25..01..2001, that at the time of boarding, complainant had entrusted baggage weighing 12 kgs and containing different items of dresses, imitation ornaments and other valuables, with opposite party that on arrival at Thiruvananthapuram it was found that the said baggage was totally damaged, that complainant prepared a property irregularity report on the same day and that the said baggage got a value of Rs.59,720/-. Submission by the complainant was that opposite party promised to settle the damage claim on 31..01..2001 and on the request of the opposite party, complainant had signed a blank release and indemnity receipt by affixing a two rupee court fee stamp without receiving any amount from the opposite party and handed over the originals of baggage tag, PIR, baggage claim form, release and indemnity letter and other relevant records and even after repeated requests opposite party did not settle the claim. It has been resisted by the opposite party by submitting that at the time of checking, the passenger handed over one bag weighing 12kgs and the same was collected by the crew of the opposite party from the complainant because of inadequate packing or oversized bag which could not be put inside the baggage hold inside the aircraft, and that complainant did not declare the contents of the briefcase, and the value thereof to the opposite party at the time of boarding the aircraft. Submission by the opposite party was that complainant received the baggage containing 12kgs. entrusted with the opposite party, and that even as a gesture of goodwill opposite party paid Rs.3,600/- towards taxi fare on 31..01..2001 in full and final settlement of all claims of whatsoever arising out of the said incident, which the complainant had duly acknowledged. Ext.P1 is the copy of passenger ticket issued by the opposite party. From Ext.P1, the ticket No.is 3461033124.3 but other details are not available from the photocopy of the ticket. Ext.P2 is the copy of PIR. As per Ext.P2, number and weight of checked baggage is 1/12. Ext.P2 consists of two copies of PIR- the- reporting date in one PIR is 25..01..2001 while the reporting date in another PIR is 30..01..2001. Ext.P3 is the copy of the baggage claim Form dated 31..01..2001, wherein the amount of different articles claimed is Rs.59,720/-. Ext.P4 is the copy of release and indemnity wherein the claimant and witness put their signature and the date of signature is 31..01..2001. It is pertinent to note that the upper portion of the release and indemnity paper (settlement portion) is kept blank, while in Ext.B1 (the original of Ext.P4) it is seen written that James Mathew has accepted from the opposite party a sum of Rs.3,600/- in full, and final and complete settlement of all claims of whatsoever nature arising out of or in connection with Taxi fare and in consideration of the said payment complainant has agreed to indemnify opposite party, its servants and agents from and against all further claims by whomsoever made in respect of the said loss and/or damage. It is further mentioned in Ext.D1that James Mathew has accepted that the said payament is made without prejudice and without any admission of liability. On perusal of Ext.P1, it is found that the handwriting seen in Ext.D1 and Ext.P4 is one and the same, except the handwriting regarding the amount and taxi fare. While in Ext.P4 there is no writing regarding the amount and taxi fare. At this juncture, it should be mentioned that the specific case of the complainant is that as per the request of the officers of the opposite party complainant has given signed a blank release and indemnity receipt without receiving any amount from the opposite party. It should be pertinent to point out that in both Ext.D1 and P4 there is a witness namely George Thomas Kappil, Thodupuzha, whose signatures is seen in both Ext.D1 and P4. Opposite party's specific contention is that since nothing was missing from the baggage, the complainant is not entitled to any claim under the head the loss of baggage but as an act of good gesture opposite party gave Rs.3,600/- as taxi fare to the complainant as full and final settlement in this regard which the complainant received and acknowledged his full satisfaction thereto. Ext.D2 is the cash voucher dated 31..01..2001 issued by K.V. Travels, Jyothi Bazar, Thodupuzha showing the receipt of Rs.3,600/- towards the trip from Thodupuzha to Thiruvananthapuram and return to Thodupuzha. On behalf of opposite party, Sales Manager has filed affidavit stating that the opposite party paid Rs.3,600/- towards taxi fare on 31..01..2001 in full and final settlement of all claims of whatsoever arising out of the aforesaid incident which the complainant has duly acknowledged. Since the opposite party has adduced evidence by way of affidavit and Exts.D1 & D2 and complainant has admitted the signature seen in Ext.D1 and P4, the onus of proving the veracity of Ext.D1, would lie on the complainant. No attempts were made by the complainant to examine the witness of Ext.P4/D1. On going through the contentions in the complaint, version, affidavits of both the parties, Exts. P1 to P10 and D1 & D2 and hearing the parties we are of the considered opinion that since the value of the contents of the baggage was not declared and nothing was missing from the said baggage and the said baggage has been received by the complainant from the opposite party, complainant could not claim under the head, loss of baggage, thereby no negligence/deficiency could be attributed to the opposite party. By Ext.D1 release and indemnity letter executed by the complainant, complainant is estopped from maintaining any complaint after having full and final settlement of claims. Complainant has no merits at all which deserves to be dismissed.
In the result complaint is dismissed. Both the parties will bear and suffer their costs.
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.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of December, 2008.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No. 145/2002 APPENDIX I.Complainant's witness:
PW1 : NIL II. Complainant's documents:
P1 : Copy of passenger coupen dated 12..12..2000 P2 : " the Property Irregularity Report (PIR) dated 25.01.2001 P3 : " Baggage claim form dated 30..01..2001
P4 : " release and indemnity letter dated 31.01.2001
P5 : " lawyer's notice dated 15.06.2001 P6 : Postal receipt No. 1563
P7 : Postal acknowledgement card No-1563 dated 16.06.2001 P8 : Reply letter send by the opp. Party dated 19.06.01
P9 : Copy of letter dated 31.01.2001 send by the complainant P10 : Copies of trip sheet for contract carriages dated 31..03..2001.
III. Opposite party's witness: NIL
IV. Opposite party's documents: NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
