BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 547/2002 Filed on 26.12.2002

Dated : 31.07.2009

Complainant:

Abdulla Moosa, residing at Asarimoola House, Hosangadi, Bangramanjeswar, Hosabettu Village, Kasargodu District.

(By adv. Nemom V. Sanjeev)

Opposite party:

M/s Oman Air, Thiruvananthapuram International Airport, Thiruvananthapuram represented by its Station Supervisor.

(By adv. A. Abdul Kharim & Associates)

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 28.12.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 30.06.2009, the Forum on 31.07.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant was a passenger of opposite party's flight from Dubai to Thiruvananthapuram on 01.01.2001, that the baggage weighing 43 kg was entrusted to the opposite party, that on reaching Thiruvananthapuram when the baggage reached the clearing point it was found that the contents of the baggage were damaged, that complainant reported the damage to the opposite party on the same day itself and that the opposite party clarified the damage and issued a property irregularity report. The value of the goods in baggage was Rs. 3,28,000/-, that complainant produced all the records and bills towards the value of the goods in the baggage, that the complainant purchased the goods in the baggage for 21050 dirhams equivalent to Rs. 3,28,000/-. Even after several requests opposite party had not given the value of goods nor taken any steps to compensate the complainant. Complainant issued legal notice claiming compensation to the opposite party. But opposite party sent a reply raising false and frivolous contentions. Hence this complaint to direct the opposite party to pay an amount of Rs. 3,88,000/- to the complainant with interest at the rate of 18% and cost of Rs. 3,000/-.

Opposite party entered appearance and filed version contending that the complainant had not issued the statutory notice contemplated under Article 27(2) of the 2^nd schedule to the Carriage by Air Act within the stipulated period of 7 days of alleged occurrence of damage. Complainant had checked in two baggages weighing 50 kg on his journey from Dubai to Thiruvananthapuram on 01.01.2001 in opposite party's flight. The permissible free baggage allowance in the said sector was only 20 kg per passenger and the complainant failed to pay the excess baggage charges, that in the lawyer's notice dated 23.07.2001 sent by the complainant it was stated that the baggage was torn to pieces in the conveyor belt itself, thereby it is clear that the mishap occasioned in the airport after unloading and entrusting the baggage by the Airlines to the destination, that Airport Authority of India is a necessary party to the complaint and therefore complaint is bad for non-joinder of necessary party. Complainant had not made any declaration of interest in delivery at destination as contemplated under Article 22 of the 2^nd schedule. Without admitting or acquiescing with any liability by the opposite party it is pointed out by the opposite party that the maximum liability of the opposite party for loss or damage of baggage is 20 US Dollar per kg only as per law. Hence opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complainant has entrusted the baggage weighing 43 kg to opposite party?

2. Whether the contents of the said baggage and its value were declared?

3. Whether the articles in the said baggage was destroyed?

4. Whether there is deficiency in service and negligence on the part of opposite party?

5. Whether opposite party is liable to pay the amount claimed by the complainant?

In support of the complaint, complainant has filed proof affidavit and Exts. P1 to P5 were marked. In rebuttal, opposite party has filed proof affidavit and Exts. D1 to D3 were marked.

Points (i) to (v):- Admittedly, complainant was a passenger of the opposite party's flight from Dubai to Thiruvananthapuram on 01.01.2001. It has been the case of the complainant that the baggage weighing 43 kg was entrusted to the opposite party, and that when the baggage reached the clearing point it was found that the contents of the baggage were damaged and that the value of the contents was Rs. 3,28,000/-. It has also been the case of the complainant that opposite party weighted the said baggage having 43 kg and clarified the damage and issued a Property Irregularity Report (PIR), that even after several requests opposite party has not paid the value of goods nor taken steps to compensate the complainant. Ext. P1 is the copy of PIR. Ext. P2 is the copy of the bill issued by Flower Tailoring & Embroidery, New Pardha Shop, Dubai. Ext. P3 is the copy of acknowledgement card. Ext. P4 is the copy of the advocate notice addressed to opposite party. Ext. P5 is the postal receipt. Complainant did not furnish air ticket. According to opposite party, complainant had checked two baggages weighing 50 kg on his journey from Dubai-Thiruvananthapuram on 01.01.2001 in opposite party's flight, that the permissible free baggage allowances in the said sector was only 20 kg per passenger and the complainant failed to pay the excess baggage charges, and that complainant himself had admitted in paragraph 2 of the complaint that the baggage was torn to pieces in the conveyor belt itself, that the same was happened after unloading and entrusting the baggage by the opposite party to the destination and that the Airport Authority of India is a necessary party to the complainant. Opposite party submits, complainant had not made any special declaration of interest in delivery at destination as contemplated in Article 22 of the 2^nd schedule to the Carriage by Air Act. Ext. D3 is the copy of the Baggage Claim Questionnaire. As per Ext. D3 Estimated weight of damaged baggage is 43 kg. It is to be pointed that as per Ext. D3 complainant himself admitted that he was not charged for excess baggage. Submission by the opposite party is that complainant has not made any special declaration with respect to the items carried in the damaged baggage or its value nor paid any supplementary charge as contemplated under the Carriage by Air Act. As per Ext. D3 with respect to the claim, complainant has mentioned three articles- i) 250 Yard material, ii) 24 pieces Scarpes and iii) 20 pieces Barka and the value of the said articles mentioned is 21050 Dhs. Ext. D2 is the original cash bill dated 31.12.2000 issued by the Flower Tailoring and Embroidery New Pardha Shop. As per Ext. D2 there are three claim amounts to 21050 Dhs. Ext. D1 is the letter of the complainant. As per Ext. D1, the articles were brought for orphans. Main thrust of argument advanced by opposite party was to the effect that the Ext. D2 bill itself is bogus when read along with Ext. D1 letter that the items were brought for the orphans and it is beyond the imagination and expectation that such costly materials were brought for the orphans. It is pertinent to point out that the complainant has not made any special declaration with respect to items carried in the baggage or its value nor paid any supplementary charge as contemplated under the Carriage by Air Act or conditions of ticket. Complainant has not furnished the Air Ticket. The complainant therefore is entitled for compensation subject to the maximum liability limitation as per law. A case is pleaded by the complainant for claiming compensation exceeding the limited liability of carrier, but the same is not proved by the complainant with cogent and clinching evidence. Though a case of negligence is pleaded, complainant has not proved that the baggage damaged was due to the wilful conduct of the opposite party. Hence Rule 25 of the Carriage by Air Act is not applicable here. Since there is plea of deficiency, the relevant rule which we have to consider is Rule 22 of the Act. 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 contents of the baggage, the value of the contents or paid any supplementary charge as comparable in the Carriage by Air Act. Taking into consideration of totality of circumstance, we are of the considered opinion that justice will be well met if complainant is granted the value of 20 kg, the permissible free baggage allowance. So complainant is entitled to only 20 US Dollars per kg as compensation.

In the result, complaint is partly allowed. Opposite party is directed to pay to the complainant 400 US dollars (20 dollars x 20 kg) converted into rupee at the rate of exchange prevailing on the date of passing of this order. Opposite party shall also pay Rs. 1,000/- as cost. The said amounts will carry interest at the rate of 12% if not paid within two months from the date of receipt of this order.

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 31^st day of July 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 547/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of Property Irregularity Report

P2 - Copy of bill dated 31.12.2000 issued by Flower Tailoring & Embroidery, Dubai.

P3 - Copy of acknowledgement card.

P4 - Copy of advocate notice dated 23.07.2001 addressed to opposite party.

P5 - Copy of postal receipt.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of letter of the complainant.

D2 - Original cash bill dated 31.12.2000 issued by Flower Tailoring & Embroidery, Dubai.

D3 - Copy of Baggage Claim Questionnaire.

PRESIDENT