BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENA KUMARI .A : MEMBER
SMT. S.K. SREELA : MEMBER
O.P. No. 49/2002 Filed on 23/01/2002
Dated: 16..08..2010
Complainant:
K.N. Silvestor, S/o. J .Keleese, Vijaya Sadanam, Uchakkada P.O., Thiruvananthapuram.
(By Adv. K.N. Justin Raj)
Opposite party:
The Manager, Air India Cargo, Airport, Thiruvananthapuram.
(By Adv. S. Reghukumar)
This O.P having been heard on 30..04..2010, the Forum on 16..08..2010 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The case of the complainant is that, complainant had entrusted Air India a consignment as per the Airway bill No.098-71375942 dated 14..05..2000 for transporting the same from Kuwait to Trivandrum, that opposite party accepted the said consignment of 168kg at Kuwait and all articles were perfectly packed taking care all the norms and conditions that are to be followed while sending unaccompanied baggage in an international carrier, that the opposite party received an amount of Kuwait Dinar 117 and Fills 750, that opposite party intimated the complainant with regard to the arrival of consignment at the Air Cargo Complex, Trivandrum, that on 13/6/2000 complainant reached the Air Cargo Complex, Trivandrum to clear and collect the baggage, that on reaching the Cargo Complex building complainant noticed that the consignment packed in the metallic box was kept in the open yard, that when the box was brought before Customs Officer and opened it was found that the entire materials kept inside were in a dilapidated condition and whatever materials that are placed inside were soaked with water, that all the valuable goods were either damaged or unfit for further use, that an instant protest was lodged to the customs clearing officials and complainant was assured adequate compensation by the staff of the opposite party, that subsequently consignment was cleared. Opposite party refused to entertain the grievance of the complainant and later on 16/6/2000 complainant sent a letter by fax demanding claim for damage, that subsequently, complainant was constrained to send a legal notice to the opposite party demanding adequate compensation, that inside the box a Computer PC (of PC 486 of "Discovery") was packed and many valuable information were stored in the Hard Disc of the P C, that the Hard Disc and CD Drive are not functioning properly when the same was put back again into operation, that the super speciality brand TV was packed inside the metallic box, which was also spoiled, many other items like many albums inside the box were also spoiled. It is due to the negligent act of the opposite party such a loss, hardship and irreparable injury were incurred to the complainant. Hence this complaint to direct opposite party to pay an amount of 2.6 lakhs with 12% interest thereon to the complainant.
2. Opposite party filed version contending inter alia that opposite party is not aware of the allegations regarding the packing of the consignment, that complainant was duly informed of the arrival of the cargo, but he turned up for taking delivery of the Cargo on 12/6/2000 only, that complainant took delivery of the consignment on 13/6/2000 without any complaint to the Customs Authorities or to the Air India Cargo Office, that opposite party is liable for damages, only if damage was caused during the Carriage by Air, that when once the consignemnt is brought to the Airport of destination and entrusted with the Cargo complex of the Customs Department, the responsibility and liability of the Carrier comes to an end, that complainant had not met the opposite party on 13/6/2000 or any day thereafter. Complainant had sent a letter dated 16/6/2000 alleging that he must have suffered damages, and that opposite party sent reply to him. It is admitted by the opposite party that Cargo Complex is not under the control of the Air India and it is under the control of the Customs Department, that the Carrier's liability ceases when the Cargo is entrusted with the Cargo Complex, that if complainant had suffered any loss, due to the damages caused to the Cargo while in the custody and control of the Customs Department, that the complainant has to seek his remedies against the Customs and the Carrier cannot be liable for such loss. Hence opposite party prayed for dismissal of the complaint.
The points that arise for consideration are:
Whether there is negligence and deficiency in service on the part of the opposite party?
Whether the complainant is entitled to compensation, If so, at what quantum?
Whether the complainant is entitled to get cost, If so, at what quantum?
In support of the complaint, complainant has filed proof affidavit, and has marked Exts. P1 to P5 and Ext. C1. In rebuttal, opposite party has filed proof affidavit and has marked Ext. D1.
4. Points (i) to (iii) Admittedly, complainant had entrusted the opposite party a consignment as per the Airway bill No.098-71375942 dated 14..05..2000 for transporting the same from Kuwait to Trivandrum. It has been the case of the complainant that opposite party had accepted the said consignment of 168kg at Kuwait and all articles were perfectly packed taking care all the norms and conditions that are to be followed while sending unaccompanied baggage in an international carrier, that the opposite party had received an amount of Kuwait Dinar 117 and Fills 750 as levy for the service of transporting the goods from Kuwait. It has also been the case of the complainant that the opposite party intimated the complainant with regard to the arrival of consignment at the Air Cargo Complex, Trivandrum and on 13/6/2000 the complainant reached the Air Cargo Complex, Trivandrum to clear and collect the baggage that on reaching the Cargo Complex Centre, he noticed the box 123 x 64 x 64cm in size was kept in the open yard, that when the box was brought before the Customs Officer and opened it is found that the materials kept inside were in a dilapidated condition and whatever materials that are placed inside were soaked with water, and that all the valuable goods were either damaged or unfit for further use. An instant protest was lodged to the customs clearing officials who in turn directed the complainant to Air India Cargo Manager, who assured adequate compensation to the damage of the articles. In rebuttal, it has been contended by the opposite party that the complainant was duly informed of the arrival of the Cargo but he turned up for taking delivery of the Cargo on 12/6/2000 only, and that he took delivery of the consignment only on 13/6/2000 without any complaint to the Customs Authority or to the AIR India Cargo Office. It has also been contended by the opposite party that opposite party was not aware whether the consignment was kept in the open yard, that Air carrier is liable for damages only if damage was caused during carriage by air, and that when once the consignment is brought to the Airport of destination, and entrusted with the Cargo complex of the customs department, the responsibility and liability of the carrier comes to an end. Ext. P1 is the service bill issued in the name of the complainant by the G-Square Enterprises for Rs.3,000/- towards service charge and spares of TV model 21 RSC. Ext. P2 is the copy of the letter dated 16/06/2000 sent by the complainant to opposite party informing him that complainant was persuaded to clear the items and advised to lodge an official complaint. Ext. P3 is the reply to Ext. P2 notice sent by the opposite party stating that based on the complaint opposite party checked-up the matter with the customs and found that there was no mention of any damage to TV which is normally done by the customs while valuing the goods for the purpose of levying duty. Ext. P4 is the copy of the Advocate notice dated 20/6/2000. Ext.P5 is the copy of the Air way bill executed on 14th May 2000 at Kuwait. On perusal of Ext. P5 it is seen that the gross weight of the goods consigned is 168kg, total weight charge 105 Kuwait Dinars, total other charges due agent 10 Dinars, total other charges due carrier 2.75 Dinars. Altogether opposite party received an amount of 117.750 Kuwait Dinars, Nature and quantity of goods: Used personal effects and household goods. DIMS: 123 x 64 x 64cm. Ext. C1 is the Commission Report. On inspection of computer and TV
The observations by the Commission are listed hereunder:
The computer, a 486 machine, labeled “discovery” was not booting
The monitor, (Black and White 14” Axon) was working.
The hard disk was replaced in another working computer and it was found that contents of the hard disk were not recoverable.
The above damages can happen due to impact or oozing of water inside the above item.
TV was in working condition, picture and sound quality were satisfactory.
The 486 type computer is not available in the market now, the repairing charges therefore cannot be estimated.
The defects of TV were already rectified and it was not possible to trace the original defects.
Commission has reported that with the above observation it is reasonable to conclude that the computer system is no longer suited for normal use and the data which were originally stored in hard disk were lost irrecoverably. The TV was functioning with satisfactory picture and qualities. Although opposite party has filed objection to Commission Report, no attempt was made by opposite party to examine the expert commission to challenge the validity of the Commission Report. As such the Ext. C1 Report remains uncontroverted. It is pertinent to point out that as per Ext. P5 the articles placed and arranged inside metalic tin box of dimension 123 x 64 x 64cm in size consisted of used personal effects and household goods. Though complainant has furnished a statement showing the particulars and their amount, no documentary evidence has been adduced to substantiate the said claim. Complainant has claimed Rs. 2,60,000/- towards compensation.
It has been contended by the opposite party that the consignment arrived at Thiruvananthapuram Airport on 31/5/2000 and was entrusted with Cargo Complex on that day itself, complainant was duly informed of the arrival of the cargo. There is no material in support of that contention. As per Ext. D1, delivery order issued by the opposite party on 12/6/2000; According to complainant when he reached the Air Cargo Complex on 13/6/2000 to clear and collect the same, he could see the entire things inside the box was soaked with water (rain water) and immediately the same was brought to the notices of Air India and he was persuaded to clear the items and advised to lodge an official complaint and accordingly he lodged the complaint by Ext. P2, while opposite party denied the same by Ext. P3. It is pertinent to point out that immediately after clearing the goods, complainant had lodged the complaint to opposite party by Ext. P2 stating that there were many sophisticated electronic goods in the metal box which were damaged due to rain water being oozed inside the box, which was due to careless handling of the luggage by the opposite party. Complainant alleges that opposite party had negligently left the metallic box outside the shaded area so that the rain water might have oozed inside the metal box and thereby damaged the materials kept inside. It is to be noted that nowhere in the complaint alleges that the damage was caused by willful misconduct of the carrier (Rule 25 of the First Schedule of Warsaw Convention) or that the damage resulted from an act or omission of the carrier with an intent to cause damage or recklessly and with knowledge that damage would probably result (Rule 25 of the second schedule of the Hague Protocol).
It is worthwhile to mention Rule 25 (Warsaw Convention & Hague Protocol)
Rule 25 (Warsaw Convention);
25(1): The carrier shall not be entitled to avail himself of the provisions of this schedule which exclude or limits his liability, if the damage is caused by his willful misconduct or by such default on his part as is in the opinion of the Court equivalent to willful misconduct
(2): Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment.
Rule 25 (Hague Protocol):
25: The limits of liability specified in Rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment”.
In the absence of even allegation in the complaint that there was any willful misconduct or the damage resulted from an act or omission of the Air Carriage (opposite party) done with intent to cause damage or recklessly and with the knowledge of the damage would probably result, it is difficult for us to hold that Rule 25 (either the First schedule or the Second schedule) would apply. In the decision of the Manager, AIR India Ltd and another Vs. India Everbright Shipping & Trading Co. 11(2001) CPJ 32 (NC), the National Consumer Disputes Redressal Commission had occasion to consider a somewhat similar case. Opposite party has also relied on the decision of the Hon'ble High Court of Kerala in Srilankan Airlines Ltd. V. Permanent Loka Adalat, Tvpm 2009 (4) KHC 501; 2009 (4) KLT 625.
At this juncture it will be worthwhile to mention the provisions of Rule 22(2) of Schedule 2 of the Carriage by Air Act 1972.
22.2(a): In the carriage of registered baggage and a cargo, the liability of the carrier is limited to a sum of 250 francs per kg., unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum unless he proves that the sum is greater than the passenger's or consignor's actual interest in delivery at destination.
(b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
As far as Clause 22 is concerned, the complainant could have claimed damages in excess of 20 US Dollars per kg., only if complainant had made at the time when the baggage was handed over to the carrier, a special declaration of interest in delivery at destination and had paid supplementary sum if the case so requires. In this case complainant has averred that opposite party had accepted the cargo and had undertaken the service of transporting the consignment of 168kg from Kuwait to Trivandrum by levying an amount of Kuwait Dinar 117 and Fills 750. Further, it is averred in the complaint that when the box was brought before Customs Officer, and opened it is found that the entire materials kept inside were in a dilapidated condition, and whatever materials that are placed inside were soaked with water. All the valuable goods were either damaged or unfit for further use. As per Ext. P5, the nature of goods is used personal effects and household goods weighing 168kg and freight prepaid. There is no material to show that complainant had declared the value of the items included in the consignment when the same was handed over to the carrier. As per statement of claim for compensation filed along with complaint the items mentioned therein are: damage of wedding coat, children cloths, computer including hard disc, CD drive etc.., TV, eatables, family album etc... As per counter statement filed by opposite party, the loss of particulars mentioned by the complainant would come to less than 10kg: It is pertinent to point out that complainant had collected the consignment on 13/6/2000, whereas expert commissioner submitted its report on 20/10/2003, nowhere in Ext. C1 mentioned the date of inspection by the commission. From evidence available on records it is appeared that the inspection was done after 3 years from the date of taking delivery of consignment from the opposite party. As per Ext. C1, commissioner had inspected the Computer and TV only and on inspection it was found that TV was functioning with satisfactory picture and sound qualities whereas the computer system is no longer suited for formal use and the data which were originally stored in hard disk were lost irrecoverably. There is nothing to show the value of the items alleged to have been damaged by opposite party. It should be noted that opposite party had accepted the cargo on receiving an amount of 117.750 Dinar from the complainant. Complainant is entitled to get the consignment as entrusted by him to opposite party. If the entrusted consignment not returned as such, which would amount to deficiency in service of the opposite party. In view of the foregoing discussion and evidence available on records we are of the view that it is a case which falls under Rule 22 of the First Schedule or the Second Schedule of the Carriage by Air Act. The view of the opposite party that carrier's liability ceases when the cargo is entrusted with cargo complex, cannot be acceptable. Opposite party is liable to return the consignment as entrusted. Taking the overall situation, we think justice will be well met if complaint is allowed an amount of US Dollars 300 towards damage along with a compensation of Rs.5,000/- and cost of Rs.3,000/-.
In the result, complaint is partly allowed. Opposite party is directed to pay the complainant an amount of US $ 300 towards damage (converted into Rupees at the rate of exchange prevailing on the date of this order) along with Rs.5,000/- towards compensation and Rs. 3,000/- as cost.
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 16th day of August, 2010.
G. SIVAPRASAD PRESIDENT.
BEENA KUMARI. A,
MEMBER.
S.K. SREELA,
MEMBER.
ad.
O.P.No. 49/2002
APPENDIX
I. Complainant's witness:
PW1 : NIL
II. Complainant's documents:
P1 : Service bill No. 869
P2 : Copy of letter dated 16/6/2000 from complainant.
P3 : Copy of letter dated 22/6/2000 addressed to complainant.
P4 : Copy of advocate notice dated 20/6/2000
P5 : Airway bill No. 71375942 dt. 14/5/2000
III. Opposite party's witness: NIL
IV. Opposite party's documents:
D1 : Copy of delivery order
V. Court witness : Nil
VI. Court. Ext.
C1 : Commission Report
PRESIDENT.
