Order No. 21 dt. 25/11/2016
The case of the complainant in brief is that the complainant was travelling in flight no.TG 313 on 2.4.13 from Baiyan Internation Airport Gaunaghzou China to Netaji Subhash Chandra Bose Airport, Kolkata. The complainant had two baggage owing approximately 58 kgs in four baggage. Those baggage were duly checked and identification tag was issued by the airport authority. The complainant after reaching Kolkata Airport found that three baggage were there out of four and immediately the complainant lodged a complaint at Kolkata Airport. The complainant also submitted a representation claiming the baggage. When the complainant found that no action was being taken by o.ps. he sent lawyer’s notice. After receiving the lawyer’s notice the complainant was offered Rs.30,000/- approximately to him for his losses which was claimed by the complainant that the suffered by the complainant was much more than that of Rs.30,000/-, on the basis of the said fact the complainant filed this case praying for compensation of Rs.2 lakhs being the value of the lost baggage and Rs.1 lakh for compensation and Rs.1 lakh for damage caused to the complainant for the loss of business and Rs.10,000/- for litigation cost.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that no cause of action exists against the o.ps. to file the complaint under the Act as the airlines and the complainant are bound by the terms and conditions of the carriage by air. The o.ps. are willing to pay compensation for loss of baggage as per terms of contract of carriage by air. It was also stated that as per the provision of terms of contract of carriage by air the liability of o.p. airlines is limited in case of delay, loss and pilferage of baggage, unless the value of the said baggage is declared at the time of check in and the addition al payment has been made against the declaration of the said value of the cheque in baggage at the time of check in. the said conditions of contract of carriage by air each in conformity that the similar provision lf law mentioned in the Carriage By Air Act, 1972. The o.ps. denied that the lost baggage contained valuable clothes, apparels, electronic gadgets, accessories and important business documents as the complainant has not declared the value of the lost baggage at the time of check in. it was stated by o.ps. that as per terms of contract of carriage by air the passengers are not allowed to keep valuable items electronic gadgets in the checked in baggage and the complainant failed to produce any documents in support of his claim. It was also stated that after receiving the complaint the o.p. airlines responded to the claim of the complainant as per the procedure and is willing to pay the compensation as per the terms of contract of carriage by air and no deficiency in service was committed by o.ps. Accordingly o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether there was any loss of baggage during the journey made by the complainant from an airport of China to Kolkata Airport.
- Whether there was any deficiency in service on the part of the o.ps.
- Whether the complainant will be entitled to get the relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant boarded the flight no.TG 313for travelling from Baiyan International Airport, China to NSN Bose International Airport, Kolkata. On arrival of the flight the complainant found that out of four checked in baggage three baggage were received by the complainant and one baggage was found missing. The complainant lodged a complaint and no recovery was made, subsequently the complainant on numerous occasions visited the Kolkata Airport for redressal of his grievances but he was not given any relief. Ultimately the complainant had to send a lawyer’s notice and after receiving the lawyer’s notice o.p. no.1 offered a sum of Rs.30,000/- which was not accepted by the complainant and on the basis of the said fact the complainant had to file this case praying for the loss of the articles contained in the said bag worth of Rs.2 lakhs and compensation, damages, etc.
In support of the said contention ld. lawyer for the complainant filed some documents which has not been disputed by o.ps. regarding the number of checked in baggage of the complainant and the delivery of three baggage from Kolkata Airport. Considering all these aspects ld. lawyer prayed for allowing the complaint case by awarding value of the articles contained in the said baggage as well as compensation.
Ld. lawyer for the o.ps. argued immediately after the receiving of the complaint the ground staff of o.p. airlines immediately prepared a property irregularity report (PIR) and issued the same to the complainant. The complainant reported that the baggage contained clothes /personal effects. The complainant did not report that the missing baggage contains any apparel, electronic gadgets, accessories, etc. On receiving the complaint o.p. airlines took measure to find out the baggage and during the process of tracing the missing baggage the complainant was provided with all sorts of information and even o.p. airlines offered compensation to the complainant without any delay. The o.ps. acted promptly as per the procedure and willing to pay the compensation and the compensation was determined as per contract of carriage by air, the liability of the airlines is limited and the said compensation was offered to the complainant and there was no deficiency in service on the part of the o.p. airlines. The complainant also failed to declare the value of items in the baggage at the time of checking in the baggage or paid any additional premium on the baggage as applicable in case of contract of carriage. The compensation to the complainant as per the provisions as laid down in the Carriage By Air Act, 1972, in order to substantiate the claim of o.ps. ld. lawyer relied on a decision as reported in [3(2002) CPJ 190 (NC)] NCDRC held that the flight where the maximum weight of 32 kg was allowed thus multiplying these with US$ 20 per kg, the amount of US$ 640 was offered which was declared by the complainant and the Hon’ble National Commission held that there is no such plea for the complainant the baggage of the complainant was not lost intentionally by o.ps. and accordingly it was held that there was no merit in the complaint and accordingly it was dismissed.
In Sahara Airlines Ltd. vs. D. Jayant Rath it was held that the lost baggage calculated @ Rs.450/- per kg if not already paid with 9% interest thereon from the date of loss i.e. 13.3.07 till realization of the amount.
On the basis of the facts and circumstances of the case ld. lawyer prayed for dismissal of the case by giving direction upon the complainant to received the compensation offered by o.p. airlines.
Considering the submissions of the respective parties it appears that the complainant travelled from China to Kolkata and it is also an admitted fact that four baggages were checked in and after arrival at Kolkata Airport he received three baggage and one baggage was found lost. Immediately after the said detection of loss the complainant raised objection and lodge a complaint and PIR was issued and the complainant was offered Rs.30,000/- as per Carriage By Air Act, 1972. The complainant did not accept the amount and filed this case making allegation that he was not cooperated with o.ps. and he faced harassment for which he claimed compensation. But on perusal of the materials on record we find that the complainant has not mentioned in the complaint that the airlines i.e. o.ps. had committed any intentional act for which he baggage was lost. The formality as adopted by Hon’ble National Commission regarding the determination of the compensation in respect of the loss of article by allowing the payment of compensation @ Rs.450/- per kg and payment of the higher amount exceeding the said amount determined by Hon’ble National Commission will be not in conformity with the Carriage by Air Act, 1972. The complainant was offered Rs.30,000/- after calculating the damage assessed by o.ps. and he was offered but the complainant did not accept the said amount with the expectation that if he files the case in this Forum he will get higher compensation. But the Forum must work as per the provision as laid down in the Carriage By Air Act for determination of the compensation and since the compensation determined by o.ps. as per the said Act, therefore we do not want to impose further direction upon the o.ps. for payment of damages assessed by o.p. airlines. On the contrary we hold that since the complainant had to file this case for harassment though no substantive materials come before this Forum but the case has proceeded for some years, therefore we hold that the complainant will be entitled to get some damage from the o.ps. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.521/2013 is allowed on contest with cost in part against the o.ps. The o.ps. are jointly and/or severally directed to pay to the complainant the damage of Rs.30,000/- (Rupees thirty thousand) only towards the loss of baggage and also compensation of Rs.10,000/- (Rupees ten thousand) only for harassment and mental agony and litigation cost of Rs.2000/- (Rupees two thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
