BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 311/2004 Filed on 06..08..2004

Dated: 30..10..2010

Complainant:

Shyla Musthafa, Kottayude Vadakkethil, Railway Junction, Mavelikkara – P.O., Mavelikkara, Alappuzha.

(By Adv. M. Abdul Hameed)

Opposite party:

The General Manager, M/s. Oman Airlines Ltd., Sasthamangalam, Thiruvananthapuram.

(By Adv. A. Abdul Kharim)

This O.P having been heard on 31..07..2010, the Forum on 30..10..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant availed a flight ticket from Muscat to Thiruvananthapuram on 6/5/2004 in Flight No. WY 815, that the purpose of the journey from Muscat to Thiruvananthapuram was to conduct the marriage of her only daughter, that complainant entrusted her baggage with opposite party Airlines as accompanied baggages, that complainant disclosed the contents in the baggage with opposite party at the time of entrustment and opposite party issued baggage tag No.WY-A-51287, that the value of the articles would come to Rs. 1,10,084/-, that complainant arrived at Thiruvananthapuram by opposite party's flight and waited for the accompanied baggage before the conveyor, that the baggage tag No. WY-A-51287 was not seen placed in the conveyor by the opposite party, that complainant made representation before the opposite party, that as per the directions of the opposite party all the original records with regard to the contents and estimated value thereof was also given by the complainant to them, that complainant was made enquiry twice in a week for about 2½ months and opposite party did not show any response to return the entrusted articles as per the baggage tag, thereafter complainant sent notice to opposite party to return the baggage, opposite party received the notice and had given intimation to the complainant that she should reach with the Airlines for accepting her baggage, and that accordingly complainant went to opposite party's office to receive the baggage. It is submitted by the complainant that opposite party had given only an opened empty baggage cover on 12/07/2004 instead of the articles weighing 40kg, that it was also directed by the opposite party that the value for the articles lost is to be given with the details in separate form. Opposite party has not taken any positive steps to get back the articles. Hence this complaint to direct opposite party to give back the entrusted articles as per the baggage and to pay compensation of Rs.50,000/- for deficiency in service and unfair trade practice and pay cost.

2. Opposite party filed version contending inter alia that the complaint is not maintainable, that complaint is bad for non-joinder of necessary parties, that the alleged exchange or missing of hand baggage took place at the customs area, that the Airport Authority of India and necessarily Mr. Chandra Gopal Nair, who took delivery of the baggage allegedly belonging to the complainant by mistake are necessary parties to the complainant, that complainant was a passenger of the opposite party's Flight from Muscat to Thiruvananthapuram on 6/5/2004, that she claimed that her baggage weighed 40kg, that as a matter of fact she had carried two baggages which exceeded the weight of free baggage allowance permitted in the sector. Complainant checked the same at the Airport Counter and she had attempted to carry one big size baggage to the Aircraft, that since the said baggage was big in size and non-conforming to the overhead passenger cabin of the Aircraft, the Airline staff retrieved the same at the boarding gate due to security reasons and sent the same as a checked in baggage by issuing a limited release tag, that she had reported missing of the baggage on her arrival at Thiruvananthapuram Airport, that opposite party tried to locate the missing baggage, but it was in vain, that opposite party later located an unclaimed black coloured trolley mounted baggage bearing limited release tag No. WAY 60490 at the Airport Customs Area and it was noticed that the said baggage was one arrived in the same Oman Air Flight WY 815 on 6/5/2004, that opposite party was not aware of the details of the owner of unclaimed baggage who left the same with the customs authority, at the instance of the opposite party the customs authority broke opened the unclaimed baggage and on inspection it was noticed that the said baggage belonged to one Mr. G. Chandra Gopal Nair, Vijaya Bhavan, Bhasi Nagar, Ulloor, Medical College, Thiruvananthapuram, that Mr. Chandra Gopal Nair was instructed to contact the opposite party's office at the Airport and complainant was also directed to be present before the Office of the opposite party, that both the parties came to oppostie party's Office on 12/7/2004, that Mr. Chandra Gopal Nair brought complainant's baggage and handed over the same to the complainant and he also made a written declaration regarding the incident of exchange of baggage and its contents. Complainant had accepted the baggage without any complaint, that after receiving the said baggage, complainant raised a claim that she had lost 144 gms of gold ornaments, a mobile phone and some land revenue documents from the baggage, that complainant had not made any special declaration of interest in delivery at destination with respect to items carried in her hand baggage or about its value nor did she pay any supplementary charge as contemplated in the law or the conditions of the ticket, that in BCQ the complainant had claimed a total weight of 40kg for her baggage and stated that she had received only one baggage weighing 35 kgs, which infers that the weight of the missing hand baggage was 5kg. The claim of the complainant that she had carried 144gms of gold ornaments worth Rs. 80,000/-, clothes worth Rs. 20,000/-, Nokia brand Mobile Phone worth Rs. 4,084/- and other articles worth Rs. 6,000/- in the exchange baggage was absolutely false. There is no deficiency in service on the part of the opposite party. Hence opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

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

2. Whether complainant is entitled to get the claim amount?

3. Whether complainant is entitled to get compensation and cost?

In support of the complaint, complainant has filed affidavit in lieu of chief examination and has marked Exts. P1 to P14. In rebuttal, opposite party has filed affidavit and has marked Exts. D1 to D5.

4. Points (i) to (iii): Admittedly, complainant was a passenger of opposite party's Flight from Muscat to Thiruvananthapuram on 6/5/2004. There is no dispute on the point that complainant reported missing of her baggage on her arrival at Thiruvananthapuram Airport. According to complainant the baggage belongs to her was entrusted with opposite party which contained articles worth Rs. 1,10,084/-. According to opposite party she carried two baggages which exceeded the weight of free baggage allowance permitted in the sector, that complainant checked the same at opposite party's Counter and she had attempted to carry one big size baggage to the Aircraft, that since the said baggage was big in size and non-conforming to the overhead passenger cabin of the Aircraft, the same was retrieved by Airline staff and sent the same as a checked in baggage by issuing a limited release tag No. WY-A-51287. It is true that complainant has reported missing of her baggage on her arrival. Ext. P1 is the copy of the letter addressed to the Asstt. Commissioner of Customs by Airport Manager to issue a Landing Certificate to the complainant. In the said Ext. P1 Number of missing baggage mentioned as one and baggage Tag No. WY-A-51287 (L/R). Ext. P2 is the Baggage Claim Questionnaire (BCQ) wherein the Property Description mentioned as unchecked. While in the column of checked pieces, it is seen written No. 1 piece checked in and total weight of checked baggage is 40 kg, estimated weight of missing pieces 5kg. As per Ext. P2 articles consist of 18 Sovereign Gold, Nokia Mobile Phone and important Revenue Documents. Ext. P3 is the copy of Advocate notice addressed to opposite party claiming damages to the tune of Rs. 1,10,084/- and Rs. 25,000/- towards compensation. Ext. P4 is the acknowledgement card. Ext. P5 is the postal receipt, Ext. P6 is the copy of the passport, Ext. P7 is the cash memo dated 29/3/2004 issued by Al-Nafeesa Co., Sultanate of Oman for purchase of Nokia Mobile phone. Ext. P8 is the Sales Invoice issued by Atlas Jewellery, Muscat to the complainant on 11/07/2003 showing sale of Chain (2 Nos.) Rings (2 Nos.). Ext. P9 is the Sales Invoice dated 9/10/2003 issued by Atlas Jewellery to complainant showing sale of Bangle (2 Nos.) and Ring. Ext. P10 is the Sales Invoice dated 4/4/2004 issued by Atlas Jewellery, Muscat to Shyla showing the sale of Chain. Ext. P11 is the Sales Invoice dated 24/1/2004 by Alukkas Jewellery, the name of customer is not seen mentioned in Ext. P11. Ext. P12 is the Sales Invoice issued by Alukkas Jewellery dated 22/3/2004 wherein also the name of the customer is not seen mentioned. Ext. P13 is the Sales Invoice dated 8/12/2003 by Alukkas Jewellery wherein also the name of the customer is not seen mentioned. Ext. P14 is an Sales Invoice issued by Alukkas Jewellery on 8/12/2003, the name of the customer is not mentioned therein. It is pleaded by the opposite party that she has carried 2 baggages and claimed to have her complaint at 40kg, ie 35kg for one bag and 5kg for hand bag, that the complainant clandestinely suppressed the number of baggages carried by her in the journey. It is further pleaded by opposite party that one Mr. Chandra Gopal Nair mistakenly took complainant's baggage leaving his own baggage in the customs area, that complainant's missing baggage was located by opposite party from a co-passenger and exchanged mutually. Mr. Chandra Gopal Nair made declaration regarding the incident of exchange of baggage and its contents and complainant had accepted the baggage without any complaint by issuing letter for the same. Ext. D1 is the Passenger Ticket and Baggage Check. Ext. D2 is the Property Irregularity Report (PIR) to which Limited Release is attached. The Number mentioned in Limited Release is WY-A 51287. Ext. D3 is the letter from the complainant to Airport Officer accepting the exchanged baggage from Mr. Chandra Gopal Nair. Ext. D4 is the specimen copy of Release and Indemnity signed by the complainant. Ext. D5 is the letter from Chandra Gopal Nair to Airport Officer stating the list of contents of the exchanged baggage. Both the complainant and opposite party have been cross examined by opposite party and complainant. Though complainant has deposed that the contents of the baggage were described at the time of handing over the baggage, no material furnished by complainant to show that aspect nor furnished any material to show any supplementary payment. Admittedly on her arrival at Thiruvananthapuram Airport, complainant's baggage was missed. It is argued by opposite party that the same was mistakenly taken by one Mr. Chandra Gopal Nair leaving his baggage in the customs area. From the admission of the opposite party itself it appears that there was deficiency in service on the part of the opposite party to release the baggage entrusted by the complainant. As regards the number of the baggages entrusted by the complainant, she is of the stand that she has carried only one baggage whereas opposite party has pleaded that complainant carried 2 baggages which have weight of 40 kg (35kg + 5kg). According to complainant her baggage contained a weight of 40kg and she carried only one baggage. In Ext. P2 Baggage Claim Questionnaire the number of baggage mentioned is one containing total weight of 40kg. It remains uncertain whether the complainant has paid charge for excess weight whether complainant has carried excess baggage. On perusal of Ext. P2 it is seen that estimated weight of missing piece is 5kg. It is the stand of the complainant that the missing piece contains gold ornaments, Nokia Mobile Phone, important Revenue documents etc.... Complainant has produced Sales Invoices showing the purchase of gold ornaments. As per Ext. D3 complainant has accepted her baggage from the opposite party on 12/7/2004 without any protest. If the baggage contains valuable articles as claimed by the complainant it should be disclosed at the time of handing over the baggage to the opposite party and supplementary payment should be done or value of the article should be insured properly. If the said baggage is checked in baggage that should be supported by substantial material what has been given herein Ext. D2 is Limited Release wherein the weight is not seen mentioned even in Ext. D1 ticket Limited Release attached thereto in which passenger signature is not seen. It is submitted by oppostie party that as per terms of the carriage and as per the norms to be followed by all Airlines it is mandated that no check in baggage which contains cash, Jewellery or any other valuable items is allowed to go to as check in baggage and the passenger is instructed to keep the said tag with him or her as cabin baggage. It is the case of the complainant that her baggage contains costly items including gold ornaments, Nokia Mobile Phone and other documents and she contended that she went to Kerala to conduct her daughter's marriage for which she had bought ornaments which is supported by Sales Invoices as Exts. P7 to P14. It is to be noted that the purchase of goods contained in the baggage was not effectively rebutted by opposite party. It is admitted by the opposite party that the said baggage was mistakenly taken by another passenger which is not due to the fault of the complainant. Had opposite party delivered the baggage immediately on her arrival at Thiruvananthapuram, opposite party could have avoided this type of situation and the dispute regarding the contents of the baggage would not have emerged. As admitted by opposite party, complainant could not retrieve the baggage for around 2 months. Her specific case is that opposite party had given a break opened empty baggage on 12/7/2004 which did not contain the article entrusted by her with the opposite party. As regards, Ext. D3 letter complainant raised no objection in the affidavit. In his cross examination PW1 has deposed that the articles contained in the baggage was lost. In her cross examination complainant has admitted that she had never paid supplementary charge to opposite party. In view of the foregoing discussion and available evidence on records we find there is negligence and deficiency in service on the part of the opposite party. Though the liability of the opposite party is limited to extent specified in carriage by Air Act, opposite party cannot escape from liability to compensate the loss of articles contained in the baggage.

In the result, complaint is allowed. Opposite party is directed to pay Rs.20,000/- on account of loss articles contained in the baggage, Rs. 5,000/- towards compensation and Rs. 2,000/- towards cost within 2 months from the date of receipt of this order, failing which the said amounts together will carry interest at the rate of 12% per year.

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 30^th day of October, 2010.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A,

MEMBER.

S.K. SREELA,

MEMBER.

ad.

O.P.No. 311/2004

APPENDIX

I. Complainant's witness:

PW1 : Shyla Musthafa

II. Complainant's documents:

P1 : Copy of the letter addressed to the Asstt. Commissioner of Customs by Airport Manager to issue a landing certificate to the complainant.

P2 : The Baggage Claim Questionnaire

P3 : Copy of Advocate notice addressed to opp. Party.

P4 : Acknowledgement card

P5 : The postal receipt

P6 : Copy of the passport

P7 : The cash memo dated 29/3/2004

P8 : The Sales Invoice issued by Atlas Jewellary, Muscat to the complainant.

P9 : The sales invoice dated 9/10/2003 issued by Atlas Jewellery to complainant

P10 : The sales invoice dated 4/4/2004 issued by Atlas Jewellery, Muscat to complainant.

P11 : The sales invoice dated 24/01/2004 by Alukkas Jewellery.

P12 : Sales Invoice issued by Alukkas Jewellery dated 22/3/2004.

P13 : The Sales invoice dated 8/12/2003 by Alukkas Jewellery

P14 : Sales Invoice issued by Alukkas Jewellery on 8/12/2003

III. Opposite party's witness:

DW1 : Suresh Kumar C. Pillai

IV. Opposite party's documents:

D1 : The passenger ticket and baggage check

D2 : The Property Irregularity Report

D3 : The letter from the complainant to Airport Officer

D4 : The specimen copy of Release and Indemnify signed by the complainant.

D5 : The letter from Chandra Gopal Nair to Airport Officer stating the list of contents of the exchanged baggage.

PRESIDENT