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. 354/2003 Filed on 04.09.2003

Dated : 15.11.2008

Complainant:

Dr. Balachandran, House No. 9, “Madhavam”, T.C 25/48, Devi Lane, Gandhari Amman Kovil Road, Thiruvananthapuram -01.

(By adv. K.S. Gopinathan Nair)

Opposite party:

The Cargo Manager, Indian Airlines, Cargo Section, Airport, Thiruvananthapuram.

(By adv. V.K. Mohan Kumar)

This O.P having been heard on 15.10.2008, the Forum on 15.11.2008 delivered the following:

ORDER

SRI.G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant is a doctor by profession and he was working in Maldives as a Medical Officer in Point Medical Centre, Male, and he left his service in Male on 18.12.2002 with his family. He had entrusted 29 cartons of his personal and other luggages weighing in total 429 kg with the opposite party to transport the same from Male airport to Trivandrum International Airport. An Airway bill bearing No. 058-3884 2591 has been issued to the complainant by the opposite party. At the time of delivery of the cargo, the opposite party revealed that one of the cartons was seen missing from the total cartons. As such the complainant issued a notice on 21.03.2003 through his lawyer about the short-landing of one piece of carton under the way bill. Opposite party did not take any positive action even though they had acknowledged the loss of one piece of carton through their letter. The missing carton contains Sony Handy Cam, Canon Camera, Voice Recorder, Mini Timepiece, Arrow Shirts, CD Cassettes, Curtain cloth, French plates and soft toys. The value of the contents of the missed carton is 10735 Maldives Rufiya equivalent to Rs. 39264/-. Opposite party was not ready for settlement. There is a clear deficiency in service on the part of the opposite party towards the complainant and the conduct of the opposite party will amount of unfair trade practice in its cargo business. Hence this complaint claiming Rs. 39264/- towards the value of the contents of the missing carton and Rs. 20000/- towards compensation and costs of the proceedings.

Opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. The Managing Director and the Manager, Indian Airlines are not proper parties to the complaint. The subject matter of the above complaint is against Indian Airlines Limited. Hence this complaint is liable to be dismissed for misjoinder of parties. Complainant is not a consumer as defined in the Consumer Protection Act. The averment in first para of the complainant is not known to the opposite party. It is true that on 19.12.2002 complainant had entrusted the opposite party 428.5 kg of cargo to be transported from Male to Thiruvananthapuram. The contents of the luggage were not declared in advance. The luggages were not insured for any higher value. Opposite party has issued a proper airway bill to the complainant stating all the details. At the time of delivery of cargo, one carton was found missing. Opposite party has sent messages to all stations to trace out the lost one piece of carton. All the best efforts to trace out the lost baggage proved futile. The allegation that the missing carton contained 9 items having a total value of Rs. 39,264/- are not correct and hence denied. The contents of the items contained in the lost carton are not known to the opposite party, since these details were not declared at the time of booking. The weight of missing carton is calculated as 14 kgs. Opposite party is ready and willing to settle the claim as per law. Complainant is entitled to only 20 US $ per kg. Thus the total claim of the complainant can be ascertained to be 280 US $ or equivalent Indian rupees. Opposite party is ready to pay this amount to the complainant. There is absolutely no deficiency in service by the opposite party. Complainant is not entitled to any compensation because the liability of opposite party is fixed under law. Hence opposite party prayed for dismissal of the complaint.

The points that would arise for consideration are:-

1. Whether the complainant has entrusted the opposite party 29 cartons weighing 429 kg?

2. Whether the complainant has lost one of the cartons?

3. Whether the complainant has declared the weight of the lost carton or value of its contents?

4. Whether there has been deficiency in service on the part of opposite party?

5. Reliefs and costs.

To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and marked Exts. P1 to P3. To support the contention in the version, opposite party did not file proof affidavit and documents.

Points (i) to (v):- It has been the case of the complainant that complainant has entrusted the opposite party 29 cartons of his personal and other luggages weighing 429 kg to transport the same from Male airport to Trivandrum International Airport. Ext. P1 is the copy of Airway bill issued by the opposite party to the complainant. As per Ext. P1 consignee's name is Dr. Balachandran, number of pieces RCP is 29, gross weight is 428.50 and chargeable weight is 429. In the column of nature and quantity of goods, it is typed as 'personal effect'. It has been admitted by the opposite party that complainant had entrusted the opposite party 428.5 kg of cargo to be transported from Male to Trivandrum. In view of the above we find complainant has entrusted the opposite party 428.5 kg of carton. Next point requiring consideration is whether the complainant has lost one of the cartons. The case of the complainant is that at the time of delivery of the cargo, it is revealed by the opposite party that one of the cartons was seen missing from the total of 29 cartons. Opposite party has admitted in its version that at the time of delivery of cargo one carton was found missing. The admitted fact need not be proved. Hence we came to the conclusion that complainant has lost one of the cartons. Another point requiring consideration is whether the complainant has declared the weight of the lost carton or value of its contents. A perusal of Ext. P1 would reveal that complainant has not declared the weight of the lost baggage nor did the complainant declare the value of its contents. As per Ext. P1 the gross weight of 29 cartons comes to Rs. 428.50 from which the average weight of the carton will be 428.5 kg/29= 14.7 kg. Since weight of each carton is undeclared, we fix the weight of the lost carton as 15 kg. Ext. P2 is the copy of the letter dated 13.02.2003 issued by the cargo manager to counsel of the complainant. A perusal of Ext. P2 would reveal that opposite party acknowledged the receipt of notice dated 29.01.2003 with respect to the short-landing of one piece of cargo from the said consignment. Submission by the opposite party was to the effect that at the time of delivery of cargo one carton was found missing and that opposite party had sent messages to all stations to trace out the lost one piece of carton and that all the best efforts to trace out the lost baggage proved futile. Ext. P3 is the copy of another letter dated 21.03.2003 issued by the counsel of the complainant to the opposite party. The case of the complainant is that the missing carton contains several items such as Sony Handy Cam, Canon Camera, Voice Recorder, Mini Timepiece, Arrow Shirts(10 Nos.), CD Cassettes(5 Nos.), Curtain cloth(10 yard), French plates and soft toys. Complainant did not furnish any documents to substantiate the contents of missing carton. In his version opposite party calculated the weight of the missing carton as 14 kg and that opposite party was ready and willing to settle the claim of the complainant as per law. We fixed the weight of the lost carton as 15 kg. The relevant rule which we have to consider is Sub Rule 2 of Rule 22 of the Carriage by Air Act. Rule 22(2) of the said Act reads as under: “In the carriage of registered luggage and of goods the liability of the carrier is limited to a sum of 250 Francs per kg, 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 required. In that case the carrier will be liable to pay a sum not exceeding the declared sum unless he proved the sum is greater than the actual value to the consignor at delivery”. At this juncture, it is pertinent to note that the complainant while entrusting the cartons the opposite party had not made any special declaration regarding the value of contents of the baggage or paid any supplementary charge as comparable in the Carriage by Air Act 1972. The complainant therefore is entitled for compensation subject to the liability limitation as per law. We have considered the weight of the lost carton as 15 kg. Complainant is entitled to only 20 US $ per kg as compensation. For 15 kg, the complainant is entitled to get 15x20 US $= 300 US $ or equivalent Indian rupees. We need not consider other claims of the complainant on the ground that carrier's liability is limited.

In the result, complaint is allowed. The opposite party is directed to pay the complainant 300 US $ (converted into rupee at the rate of exchange prevailing on the date of passing of this order) within two months from the date of this order. Opposite party shall also pay the complainant a sum of Rs. 1000/-(Rupees one thousand only) as cost. The above amounts shall carry interest at the rate of 12% if not paid within the said period.

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 day of 15^th November 2008.

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

jb

O.P. No. 354/2003

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of Airway Bill No. 058-3884 2591 of Indian

Airlines.

P2 - Photocopy of notice dated 13.02.2003.

P3 - Photocopy of advocate notice dated 21.03.2003 issued to the

Cargo Manager, Indian Airlines, Tvpm.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT