By Smt. C. S. Sulekha Beevi, President,

1. Complainant is aggrieved by the delay in delivering his baggages.

It is the say of the complainant that he is occupied in construction and contract business at Qatar under his sponsors. He travelled to India on 28-5-2007 for a short visit of 7 days along with this sponsor. They boarded the flight IC 998 from Doha and landed at Calicut airport on the same day. But the three checked baggages, B5/580868, B5/580869 and B5/580870 did not reach Calicut airport in the said flight. Inspite of hours of waiting they could not collect their baggages. These baggages contained important business documents needed for the business discussions and meetings they intended to attend. Opposite parties informed that the baggages would reach the next day by another flight. But on the next day also the baggages were not delivered to him and he was asked to come on 30-5-2007. Complainant contacted 2^nd opposite party and desperately requested to deliver the baggage and he was given a delivery order dated, 30-5-2007 to 3^rd opposite party. Though the complainant waited for hours at the counter of 3^rd opposite party he was send back asking him to come later. The baggages were delivered only on 03-6-2007. It is averred that due to the delay in delivering the baggages the purpose of their visit to India became futile. The Qatar citizen returned to his country on 03-6-2007 without achieving the aim of their visit. The baggages besides containing valuable business documents also contained necessary clothings and medicines of the Qatar Citizen. The arrangements for their stay in India and expenses for meetings during their visit were arranged by the complainant by spending huge amount including the booking of luxurious room at Kadavu resort. All the expenses for travel and accommodation of the Qatar Citizen also was met by the complainant and he had spend more than 4 lakhs for such arrangements. Due to the non-delivery of the baggages within time their visit became purposeless and the complainant incurred monetary loss of Rs.25 lakhs. That they had come to India leaving their business centres abroad and due to their absence at their centre he had suffered loss of 30 lakhs. Due to this incident the relationship between his sponsor, the Qatar citizen and the complainant was strained and complainant fears that this will affect his sponsorship dealings in future and will cause further business loss. That such loss can never be quantified. That he and the Qatar Citizen suffered a lot of mental strain also. Complainant alleges deficiency in service. It is stated that though the monetary loss suffered is still being continued he is limiting his claim to Rs.20 lakh.

2. First and second opposite parties filed a combined version. Opposite parties admit that complainant and Mr. Saed had travelled by flight IC 998 on 28-5-2007 from Doha to Calicut/Karipur Airport. It is submitted that on account of extra fuel to be taken in the said flight there was a decrease in pay load by one tonne and that all checked baggages could not be taken in the said flight. 58 pieces of registered baggage of IC 998 of 28-5-2007 were offloaded at Doha airport. The extra fuel was taken due to the adverse weather conditions prevailing at the destination, Calicut Airport. That on some occasions, due to operational reasons like enroute weather or destination weather, the pilot is required to take more fuel, which directly affects the payload. On such occasions cargo, mail, baggages, and sometimes even passengers are offloaded to meet operational requirements. The above case was one such instance. The safety of the passengers and aircraft is of paramount importance. That there are printed conditions on the ticket jacket and conditions Nos.1 and 2 which the complainant and co-passenger had accepted states that airlines reserves the right to offload articles or passengers when the flight is overloaded. The baggages of the complainant were offloaded at Doha due to these operational reasons stated above. The complainant’s luggage was rushed to Calicut in flight IC 998 on 29-5-2007 under ’rush tag’ and delivery order was issued on 30-5-2007. There was no latches on the part of airlines or it’s officials. That if the complainant could not receive the baggage on 30-5-2007 even after receiving the delivery order, the complainant ought to have intimated the airlines then and there but he has not done so. He has collected the baggage only on 03-6-2007 when he had to come to the airport, probably to see off his co-passenger Saeed, who was flying back on the Indian Airlines flight on 03-6-2007. The very fact that complainant did not bother to collect the baggage either on 01-6-2007 or 02-6-2007 after receiving the delivery order on 30-5-2007 would show that the complainant was not in a hurry to take delivery of the baggage. That there is no negligence or deficiency in service on the part of opposite parties. The other averments that the complainant is doing business, that the baggages contained valuable business documents, that they had come for business meeting, that all expenses were met by the complainant, that complainant incurred monetary loss and suffered mental strain etc. are denied by opposite parties as false. That complainant is not entitled to any relief from opposite parties.

3. Third opposite party who is the Collector of Air Customs, Calicut airport has filed version disputing the complainant to be a consumer. That third opposite party is a government servant and has no occasion to render any service to the complainant by collecting any consideration. That customs department is set up by the central Government to discharge the duty of customs scrutiny of passenger’s baggage and goods. That there is no consumer relationship between complainant and third opposite party. That third opposite party is unaware of the averments regarding the business of complainant, his visit to India along with Qatar Citizen that the baggages contained valuable documents and article etc. Third opposite party is not aware of the non-delivery by first and 2^nd opposite parties at the destination. That complainant had approached third opposite party only on 03-6-2007 and the baggage was delivered after customs scrutiny on the same day itself. That no delay was caused at the desk of third opposite party. That there was no negligence on the part of third opposite party and that third opposite party is not liable to compensate the complainant in any manner.

4. Evidence consists of the oral evidence of complainant who was examined as PW1 and Exts.A1 to A10 marked for him. The Area Marketing Manager of National Aviation Company Ltd. was examined as DW1 and a witness also was examined on the side of first and second opposite parties. Ext.B1 and B2 marked for them. Ext.B3 marked for third opposite party.

5. Points for consideration:-

(i) Whether complainant is a consumer as against third opposite party?.

(ii) Whether opposite parties are deficient in service.

(iii) If so, reliefs and costs.

6. Point (i):-

It is averred and affirmed by third opposite party that the complainant has neither hired or availed any services from third opposite party by payment of charges. It is submitted that being a government department third opposite party discharges official function of scrutiny of baggages. The complainant alleges that the baggages was not delivered to him on 30-5-2007 from the desk of third opposite party though delivery order was issued to him on 30-5-2007 by 1^st and 2^nd opposite parties. Hence he alleges latches and deficiency on the part of third opposite party. The complainant has no case that he hired or availed any services from third opposite party by payment of charges. Third opposite party is a government office designated for customs checking and clearance. On such score the complainant is not a consumer vis-a-vis third opposite party. He is definitely a consumer as against first and 2^nd opposite parties. Point found in favour of third opposite party.

7. Point (ii):-

As we have already held that the complainant is not a consumer vis-a-vis third opposite party, this point is being analysed as against first and second opposite parties only. The mention of opposite parties hereafter does not include third opposite party unless specifically stated by us.

8. Complainant alleges deficiency on three counts (i) His baggage was snot delivered to him at the destination airport (ii) Being a passenger travelling with business class ticket, and as part of the privileges given to business class passengers his baggage with V.I.P. Tag ought to have been loaded in the aircraft overlooking the priority of other baggages of economy class passengers. (iii) Though delivery order was issued to him by opposite parties on 30-5-2007, on this day also he was not able to receive the baggages.

9. It is not disputed that the baggages were checked baggages of the complainant. Ext.A2 property irregularity report has been issued by opposite parties to the complainant for the undelivered 3 pieces of baggages.

10. Undeniably the baggages ought to have been delivered to the complainant on his arrival at Calicut airport. The complaint is resisted by opposite parties raising the following defenses.

(i) That 58 pieces of checked baggages including the 3 baggages of the complainant were offloaded at Doha to meet flight operational requirement. That the aircraft had to take extra fuel due to adverse weather conditions at destination airport/Calicut airport. That due to this all the checked baggages could not be taken in the said flight.

(ii) That conditions of contract are printed on the ticket jacket, and conditions 1 and 2 states that the airlines reserves the right to offload articles or passengers when the flight is overloaded. That complainant and co-passenger have accepted these conditions.

(iii) That the complainant’s baggages were rushed to Calicut on the next day by another flight under ’rush tag’ and delivery order was issued to complainant on 30-5-2007. That complainant could have received the baggage from customs on the very same day. That the complainant delayed for his own reasons and did not collect the baggages on 01-6-2007 and 02-6-2007. He has collected the baggages only on 03-6-2007 when he came to see off the Qatar Citizen on the latter’s return journey.

11. To substantiate these contentions opposite parties relied upon Ext.B1 which is a Load/Trim sheet and the oral evidence of DW1 and DW2. The schedule of the flight was Baharian—Doha—Calicut—Kochi. Admittedly complainant and the Qatar Citizen had boarded the plane from Doha and had their baggages checked in, at Doha. But opposite parties contend that the baggages were offloaded at Doha itself. Ext.B1 Trim sheet produced by opposite party dated, 28-5-2007 is for the flight operation from Doha to Calicut. It is submitted by opposite parties that Ext.B1 contains the details of the weight carried by the aircraft. The evidence of DW1 explaining the importance of Trim sheet is as follows:

"1. Ext.B1 is the vital document to prove the number of passengers and baggages carried. As per Ext.B1 73500kgs is the maximum permissible take off weight. The take off weight of the flight 73500 and the entire available payload was utilized and there was no under load available. Ext.B1 is approved by DGCA (Director General of Civil Aviation). The number is printed on the left extreme bottom of ext.B1. Ext.B1 is signed by the person who prepared it the loading supervisor, and also by the Commander of Aircraft. The security stamp of the security of Boarding passengers is also affixed in Ext.B1. As per Ext.B1 there are three compartments for carrying baggages out of which two compartments were utilised. Ext.B1 shows total weight of passengers, baggages and the laden/dry weight of aircraft."

2. "The extra fuel taken in flight is more than one ton on that day which was the reason for delay. There is no document to show this. I can say the total weight of baggage carried by looking Ext.B1."

The evidence of DW2 is as under:

3. "Ext.B1 is normally prepared before the take off at each point. It is a mandatory requirement under Indian Air Craft Rules, 1937. It is approved by DGCA which is Apex body. In Ext.B1 the diagram on the right bottom side indicates the balance of the aircraft whether in the safe limits of maximum allowed weights. Ext.B1 ensures the safety of aircraft, its crew and passengers. The requirements shown in the diagram has to be complied for safe operation of the aircraft. The take off weight includes the aircraft weight, passengers, cargo, mail, baggage and fuel also."

 

12. On the side of opposite parties it was vehemently argued that Ext.B1 would prove that the baggages were offloaded due to technical reasons.

13. Percontra, it was submitted on behalf of complainant that the contention of opposite parties that baggages were offloaded due to the necessity to take extra fuel because of the inclement weather at Calicut airport is false and is only put forward as a guise to take refuge of the conditions printed on the ticket jacket and to thus escape liability. It was further submitted that in May there is no chance of rain in Kerala. That there is no weather report produced by opposite parties to show that there was inclement weather at Calicut on 28-5-2007. It was also argued that it is the usual practice of airlines to blame the weather and thus escape liability raising technical reasons.

14. We have given our anxious consideration to both these rival submissions and perused the documents in details. It is correct that opposite parties have not placed any reliable evidence to prove that the weather at Calicut on 28-5-2007 was not favourable. Ext.B1 is the document relied by opposite party to say that extra fuel was taken in the aircraft. On perusal we see that Ext.B1 is a loose single sheet with printed columns to be filled up. It also contains a balance diagram to be filled up by drawing lines and making some markings. Though it is purported to be signed by several officers like the person who prepared it, the load supervisor, and the Commander, none of these persons were examined nor their affidavit filed to support Ext.B1. No records are placed to show that these persons whose name roughly appear in Ext.B1 were on duty on that day. Ext.B1 does not bear any seal, either personal or office seal. We cannot withhold from saying that on the face of it, Ext.B1 does not have the appearance of such an important original document maintained for the operation of a flight. This together with the absence of evidence to prove the contention of bad weather, we have to say that the case of opposite parties that the baggages were offloaded for technical reasons does not inspire much confidence in us.

15. The complainant deposed that the baggages belonging to several other passengers were also offloaded due to overload. According to him the overload was not caused due to any technical reasons but because of the act on the part of opposite parties in loading more of excess baggages of passengers by collecting charges over and above the free baggages carried by them. His (PW1) evidence in this regard is as under:

"അന്ന് 58 piece baggage എന്‍േത‍് ഉള്‍പ്പെടെ delay ആയിട്ടുണ്ട്. കാരണം ഞാന്‍ അന്വേഷിച്ചു. എതൃകക്ഷി പറഞ്ഞത് flight overload ആയത് കൊണ്ട് baggage എടുക്കാന്‍ പറ്റിയില്ല എന്നു പറഞ്ഞു. എന്‍െറ കൂടെയുളളവരുടെ baggage എപ്പോഴാണ് പിന്നീട് വന്നത് എന്ന് ഞാന്‍ അന്വേഷിച്ചിട്ടില്ല. അവര്‍ കേസ് കൊടുത്തിട്ടുണ്ടോ എന്ന് ഞാന്‍‍ അന്വേഷിച്ചിട്ടില്ലാത്തതിനാല്‍ അറിയില്ല. അവര്‍ ആരും business class ticket എടുത്തല്ല യാത്ര ചെയ്തത്. business class ticket എടുത്തവരുടെ ആരുടെയും baggage അന്ന് വരാതിരുന്നിട്ടില്ല.

"അന്നേ ദിവസം baggage വരാതിരിക്കാന്‍ കാരണം technical reasons ആണെന്നു പറഞ്ഞാല്‍ ശരിയല്ല. Overload കൊണ്ടാണ് . Overload എന്നു പറഞ്ഞാല്‍ നിങ്ങള്‍ ഉദ്ദേശിക്കുന്നത് എന്താണ്.(Q) 20% ആ‍ള്‍ക്കാരുടെ baggage ആണ് അന്ന് flight-ല്‍ വരാതിരുന്നത്. ഞാന്‍ V.I.P. Ticket എടുത്താണ് യാത്ര ചെയ്തത്. കൂടുതല്‍ യാത്രക്കാര്‍ യാത്ര ചെയ്തൂവെന്നല്ല dditional charge കൊടുത്തുളള luggage ഉണ്ടായതാണ് overload വരാന്‍ കാരണം എന്നാണ് ഞാന്‍ മനസ്സിലാക്കുന്നത്(A) രേഖയൊന്നും ഞാന്‍ കണ്ടിട്ടില്ല. എനിക്ക് flight-ന്‍െറ technical operation-നെക്കുറിച്ച് qualificationsഇല്ല."

16. Whatever be the reasons, the checked baggages of the complainant and several other passengers were not carried in the same flight. Opposite parties do not have a case that they informed the passengers before offloading their baggages. The core question that then poses for analysation is whether opposite parties can unilaterally decide to offload the baggage of a passenger without even informing him? The answer is in the negative.

17. When a passenger checks his baggage and boards the aircraft there is an implied contract that the baggage will travel along with the passenger and that it will be delivered to him at the destination. Any change, in this assurance, in our opinion, must be informed tot he passenger. In the instant case, the complainant checked the baggages and boarded the aircraft from Doha. But opposite parties offloaded his baggages at Doha itself. Had the opposite parties informed the complainant and the Qatar citizen about the offloading they could have rethinked about their travel or made immediate alternate arrangements. Counsel for opposite parties submitted that the total transit time available for aircraft at Doha was only 40 minutes and the decision to offload was taken at the last minute. In Ext.B1 there is a specific column to enter last minute changes. This column is left blank, and is not filled up which shows that there were no last minute changes. It indicates that opposite parties had sufficient time to inform the passengers about the offloading of their baggages and assure them about the alternate arrangement adopted by opposite parties to carry their baggage and to deliver to them at the earliest. Ext.B1 does not specifically show anything as to what was the weight of the aircraft prior to offloading and what was the weight after offloading of baggages and what was the weight after filling up fuel. No document is placed before us in corroboration to Ext.B1 that extra fuel was taken by the aircraft at Doha. We do not think that opposite parties can unilaterally decide to offload the baggages without informing the passengers. If any such decision is taken for valid technical reasons, the opposite parties should explain and inform the passengers about the situation, rather than put them to surprise after they reach the destination. In case a passenger is travelling abroad for the first time or for that matter, if he is travelling for a short visit for specific purpose, the inconveniences caused to such passengers by not delivering their baggage at the destination is profuse. So also if a passenger intends to travel to another country on the same day of arrival, after completing his business at the destination, the non-delivery of his baggage at the destination and asking him to wait a day or two for his luggage would result in havoc to him. In this era of speed and high-tech commerce it is time that airlines stopped offloading passengers and baggages on the pretension of unbridled powers.

18. Another grievance of the complainant is that after having paid higher fare for business class ticket he was deprived of the privileges of business class passenger by not loading his baggage overlooking the priority of other economy class passengers. DW1 has testified that altogether 15 business class passengers travelled in the flight. That only complainant and the Qatar citizen had boarded from Doha to Calicut as business class passengers. Opposite parties do not have a case that the baggages of any other business class passenger was offloaded or delayed. It is admitted that a priority tag is fixed to the baggages of business class passengers. It is contended by opposite party that such priority is only for speedy delivery and that there is no priority in loading the baggages into the aircraft. It is submitted by opposite party that the business class passenger does not have any privilege of overlooking priority at the time of loading the baggages but that priority is given for delivery of the bag. The evidence of DW1 in this regard is as under:

"I agree that there are two classes of passengers in the plane such as economy and business class. I do not agree that the charges of business class is double. Witness adds. It is 25% - 40% higher. I agree that certain privileges are allowed to business class travellers. I agree that certain privileges are given to business class travellers in carrying baggages. Witness adds. Business class passenger can carry 50kg when economy passenger can carry 40kg. I cannot specifically say whether the baggages of any other business class traveller was offloaded. On that day only these two persons/complainant and other were passengers from Doha to Calicut. Witness adds. Doha to Cochin there were two business class passengers. Altogether there were 15 business class passengers. On the baggages of business class people we usually fix priority tag. I agree that priority tag is affixed in the baggages of business class passenger for speedy delivery on arrival."

"The intention of priority tag is to deliver the baggage to a business class passenger outlooking the economy class passenger. There is no priority in loading the baggages of economy and business class passenger."

19. We are unable to appreciate this contention raised by opposite parties. When priority tag is fixed to a baggage such priority cannot be said to be confined only to the delivery of the baggage after it’s arrival at destination. Affixing such a priority tag would become totally purposeless if the baggage arrives at the destination after delay of one or two days and then it is delivered with ’speed’ tot he passenger. In our view from the moment of checking of baggage upto the delivery of the baggage the priority has to be given to the baggage of business class passenger if opposite parties fix such priority tags. Any deprivation of such privileges, after collecting higher revenue is deficiency in service. In our opinion, opposite parties ought to have avoided offloading of a baggage to which priority tag is affixed.

20. From the upshot of the above discussions we are able to reach the inevitable conclusion that offloading of the complainants baggage which had a priority tag, and the act of opposite parties in not informing the complainant that his baggage has been offloaded amounts to deficiency in service. We find opposite parties deficient in service.

21. Point (iii):-

We have now come to the quantification of compensation. Complainant claims for a compensation of Rs.20 lakh. It is sworn by the complainant that he is working as General Manager of Al-Able Trading and Contracting Company at Qatar and he is drawing a salary of Rs.1,29,700/- per month along with commission and other perks. It is his case that the visit was for short day of 7 days along with his sponsor for attending business discussions. The travel and accommodation expenses of the Qatar citizen also was borne by him. As the baggages were delivered with delay their visit became purposeless. That all his business plans were topsyturveyed and that he incurred huge monetary loss besides the mental and physical hardships suffered by him.

22. In support of these contentions the complainant has placed before us Ext.A5 which is the employment contract evidencing that he is employed as General Manager of AL-ABLE Trading and Contracting Company. Ext.A1 is the account statement of the current account of the complainant held with Doha Bank. This shows that he is drawing a monthly salary of 1.2970 Qatari Riyals. Ext.A6 is a bill issued for the stay at Kadavu resort. These document along with his evidence sufficiently prove his consistent case that he came along with the Qatar citizen to hold business meetings and for business purpose to be probable and believable.

23. Opposite parties have raised another contention that delivery order was issued to the complainant on 30-5-2007, but that the complainant has collected the baggages only on 03-6-2007 to his own convenience. Against this it is submitted on behalf of the complainant that though he approached third opposite party with the delivery order on 30-5-2007 he was snot able to collect the baggages on the same day because third opposite party told him that the baggages of the passengers of the previous flight have to be cleared. Ext.A7 series is the taxi fare reimbursement voucher which shows that complainant had come tot he airport on 30-5-2007. It establishes that he did not get the baggages on 30-5-2007. He (PW1) has also testified that on 30-5-2007 he saw the baggages in the custody of third opposite party. Ext.B3 register shows that the baggages were delivered by third opposite party only on 03-6-2007. It is contended by third opposite party that as soon as the complainant approached them with the delivery order the baggage was delivered. If opposite parties had issued the delivery order on 30-5-2007 they had a duty to take reasonable care to see that the baggage of the complainant which had a priority tag, being a business class passenger, was delivered to him with priority. Ext.A4 is the delivery order issued to the complainant by opposite parties. Had the opposite parties made some endorsement upon Ext.A4 indicating the priority it would have helped the complainant to collect his baggages from third opposite party on 30-5-2007 itself. We have to say that the complainant has been totally deprived of the privilege of speedy delivery assured by opposite parties even after collecting charges of a business class ticket from him. It is contended by opposite parties that complainant did not collect the baggages on 01-6-2007 and 02-6-2007 and has collected the baggages on 03-6-2007 only to his own convenience. The complainant has deposed that he did not go to collect the baggages on 01-6-2007 and 02-6-2007 because he had some personal urgencies. But we do not consider this to be serious latches on the part of the complainant. If no purpose would be served by getting the baggage after the delay of 2 days, the complainant cannot be expected to go to the airport every day and wait for the undelivered baggages. The delay caused in delivering the baggages is definitely shortcoming in the quality of service undertaken by opposite parties to be performed in a particular manner. Ext.A8 to Ext.A10 are newspaper reports produced on the side of complainant. These reports show repeated incidents of delay in delivering baggages caused by airlines.

24. In similar cases the higher Commissions have decided in favour of the aggrieved complainants as in Air Deccan (Decan Aviation Ltd.) and another Vs. Jyoti Swaroop Sharma and others 2009 CTJ 666 (CP) SCDRC Rajasthan and British Airways Vs. Nand Gopal Gandhan 2007 CTJ 102 (CP) SCDRC Delhi. However we hold that the claim of the complainant is on the higher side. Taking into consideration the deficiency met by him inconveniences and mental strain undergone by the complainant, we are of the view that complainant is entitled to compensation of Rs.20,000/- together with costs of Rs.2,000/-. We consider that such compensation will also serve as a deterrent to opposite parties so as not to be in different and in sensitive to consumers in future. Third opposite party is exonerated from liability.

25. In the result we allow the complaint and order that first and second opposite parties shall jointly and severally pay to the complainant an amount of Rs.20,000/- (Rupees Twenty thousand only) as compensation together with costs of Rs.2,000/- (Rupees Two thousand only) within one month from the date of receipt of copy of this order.

Dated this 14th day of January, 2010.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : Najmudheen, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A10

Ext.A1 : On line statement from Doha Bank to complainant.

Ext.A2 : Property irregularity report issued by opposite parties to the complainant.

Ext.A3 : Passenger ticket & baggage check issued by Indian airlines.

Ext.A4 : Photo copy of the delivery order issued to the complainant by opposite parties.

Ext.A5 : Form of permit granted under Chapter IV See Rule 13(2)

Ext.A6 : Bill issued for the stay at Kadavu resort.

Ext.A7 : Taxi fare reimbursement voucher.

Ext.A8 : Newspaper report dated, 07-7-2009.

Ext.A9 : Newspaper report dated, 12-7-2009.

Ext.A10 : Newspaper report dated, 12-7-2009.

Witness examined on the side of the opposite parties : DW1

DW1 : N. Kannan, Area Marketing Manager of National Aviation Company Ltd.

DW2 : C.P. Arunkumar, Assistant Manager (Commercial) Indian Airlines, Chennai.

Documents marked on the side of the opposite parties : Ext.B1 to B3

Ext.B1 : A 320 Load/Trim Sheet.

Ext.B2 : Passenger ticket and baggage check from opposite party.

Ext.B3 : Baggage delivery register.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER