BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 16/04/2010

Date of Order : 04/11/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 236/2010

Between

And

O R D E R

Paul Gomez, Member.

The complainant is a child of 10 years who travelled by flight operated by the 1^st opposite party from Abudabi to Kochi on 13/04/2009 along with her family members, she was having baggage weighing 10 Kg. which was numbered by the 1^st opposite party. The said baggage contained some valuable articles including 12 sovereigns. The available purchase bills are produced. Some vital certificate also were kept in the baggage. The baggage was under the full and absolute custody of the opposite parties. When they arrived at Kochi, they realized that the said baggage was lost from the opposite parties. They submitted a complaint before the 1^st opposite party against the loss. When they enquired with the opposite parties regarding the baggage, a lukewarm approach was the response. When a lawyer notice was sent, the 1^st opposite party did not even care to reply. The 2^nd opposite party disowned any responsibility in the matter. It need not be emphasized that the baggage contained many precious articles including certificates pertaining to the academic achievements of the child. Money is not a substitute for the certificates that are lost. Any how, it is urged that the opposite parties may be directed to pay an amount of Rs. 2,22,000/- (Rupees two lakhs twenty two thousand only) towards compensation for the lost goods.

2. The 1^st opposite party filed version contending as follows :

They contend that the complaint ought to have lodged under Section 27 of the 2^nd schedule of the Carriage by Air Act, 1972. Some of the items mentioned in paragraph 4 are forbidden articles as per Clause 8.3 of the Bahrain Air General Conditions of Carriage for Passengers and Baggage. The 1^st opposite party has taken utmost care and caution pertaining to the baggage entrusted with them. The necessary guide lines regarding carriage of baggage have been followed in this particular case. The lost baggage, if at all the allegations were true, could have been retraced if it were notified to them at the earliest. The complaint is without any merit and it is urged upon us to dismiss it with costs.

3. The 2^nd opposite party filed version as follows :

They have taken up the stand of total denial of the allegations raised against them. They have not received any baggage from the complainant passenger at Abudhabi and hence they have no liability to return anything to her at Kochi. Moreover, from the nature of the business conducted by them, the probability of receiving articles for transmission to destination lies beyond their responsibility. They provide only space and amenities for the operation of traffic by air for airline companies.

4. Initially settlement was projected, but failed. The complainant was examined as PW1. Exts. A1 to A9 were marked on her side. No evidence for the opposite parties. Both sides were heard.

5. The following points stand out for settlement :

1. Whether the baggage was entrusted to the 1^st opposite party?

2. What are the contents of the baggage?

3. What is the nature of liability, if any of the opposite parties?

6. Point Nos. i. to iii. :- The parties are at loggerheads in this complaint concerning the loss of baggage which has been in transit from Abudhabi to Kochi Via Bahrain during their flight to their native place. The opposite parties are not disputing the journey of the complainant along with her family from Bahrain to India to carry on her further studies.

7. At the thresh hold, it has to be gathered that the father of the girl who has deposed in the Forum was not quite sure about the facts that are stated in the complaint. The statements made in the lawyer notice caused by him states as follows :

“My client was carrying 10 Kg. baggage with her and she entrusted the baggage to the Bahrain Air at Abu Dhabi Airport when they issued Baggage No. EY 071162 to my client.”

What can be concluded from this statement is that the baggage weighed 10 Kg. and it was entrusted to the 1^st opposite party at Abu Dhabi Airport. In the box PW1 deposed that the bag was weighing 9 Kg. In the proof affidavit, it is stated that the baggage was of 10 Kg. In his deposition he reveals that there were one hand bag each in the possession of each of the family members and the bag that was in the possession of his daughter was the one that was lost. Therefore, it is a contradictory statement. One cannot make out clearly whether the girl was carrying the hand bag herself or it was handed over to the authorities. If at all, it is handed over to the authorities it could be only to the 1^st opposite party because as claimed by the 2^nd opposite party, they have no business to receive such items at a foreign land for its smooth transportation. As rightly contended by the 2^nd opposite party, they are providing only infrastructural facilities to airlines to operate at Cochin. They are providers of various facilities to the passengers and airlines to operate their respective flights. Hence their contention that they deserve absolute absolution in this case is rightly to be sustained. The complainant has raised their claim against the 2^nd opposite party on the false impression that it is the obligation of the 2^nd opposite party to deliver the baggage at the airport.

8. There is absolutely no piece of material evidence to show that the girl was carrying the lost bag or it was entrusted to the 1^st opposite party airlines. No receipt issued at the check-in-point or customs clearance place has been produced. Secondly, regarding the content no material is before us to infer anything about the contents of the bag. The complainant says that it contained some valuable certificates apart from the items specified in Exts. A2, A3, A4 A5 and A6 invoices and bills. In the absence of any declaration forms being handed over to the airlines authorities how come one make them liable for the above articles even if one assumes that the disputed bag in fact was lost in transit. The case of the complainant is further weakened by the fact that no Property Irregularly Report had been submitted from the complainant's side on arrival at Cochin. Ext. A7 is only a blank form that would in no way advance the case of the complainant any further. As contended by the 1^st opposite party, had they been informed in time, they could have traced out the missing bag. Moreover, there is negligence on th part of the parents of the complainant in allowing to carry such a bag containing valuable articles and documents by a child.

9. The facts of the complaint are approximately similar to that of Thai Airways International Vs. Anil Kumar Parolia (2011 CTJ 216 (CP) (SCDRC), where the Stat Consumer Disputes Redressal Commission, West Bengal allowed the contentions of respondent/complainant on the ground that the appellant/opposite party airlines had admitted that the baggage has been misplaced. As in th present complaint, the complainant did not prefer any complaint before the airlines company. Importantly, it has to be noted that in the cited case, the respondent/complainant had informed about the missing baggage to the Airport Authority in writing which issued a Property Irregularity Report. Such an incident did not occur in the present case. Therefore, we cannot take sides with the complainant in his belated effort to salvage the situation by a last minute legal battle. Still, we see some silver lining among these dark clouds. The first point to be reckoned with is that some time the opposite party was projecting a settlement which ultimately failed. Secondly, the complainant is a child of ten years. The probability of her cooking up a false case is remote. Lastly, nowhere the opposite parties have totally denied the facts of the case. What they say is that, they have taken reasonable care and there was no negligence on their part in this case tacitly admitting the fundamental facts.

10. In that view of the matter, we allow the complaint as follows:

1. The 1^st opposite party shall pay an amount equal to US dollars 180 in Indian currency at the current rate of exchange to the complainant.

2. The 1^st opposite party shall also pay Rs. 5,000/- (Rupees five thousand only) as compensation for mental agony and physical distress.

3. The 1^st opposite party shall pay Rs. 1,000/- (Rupees one thousand only) towards costs of litigation.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 4^th day of November 2011.

Forwarded/By Order, Sd/- Paul Gomez, Member. Sd/- A. Rajesh,President.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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