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. 345/2005 Filed on 15/10/2005

Dated: 30..09..2010

Complainant:

V.K. Bhat, Chief Manager, State Bank of India, Personal Banking Branch, Kesavadasapuram, Thiruvananthapuram.

(By Adv. S. Williams)

Opposite Party:

The Manager, Office of the Srilankan Airlines, Airport, Thiruvananthapuram.

(By Adv. Nair Ajay Krishnan)

This O.P having been heard on 15..06..2010, the Forum on 30..09..2010 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The case of the complainant is that, complainant travelled with his family members consisting of himself, his wife, his son and his daughter from Cochin – Colombo – Singapore/Kaulalumpur – Colombo – Delhi by Flight No. UL.162/UL.312 on 14^th June 2005 and on 15^th June 2005, that at Singapore one of their luggages did not arrive, that since the luggage was not traceable till 19^th June 2005, complainant and his family members left for Kaulalumpur, that at Kaulalumpur opposite party delivered the missed luggage on 19..06..2005, that the entire food in the baggage was spoiled, broken and was found with fungus, that the food in the baggage was meant for the entire trip scheduled to six days, that complainant and his family members are pure vegetarians (Hindu Brahmins) that they have no relatives either in Singapore or at Kaulalumpur, that their visit to the said cities as a tourist was for the first time, that complainant prepared their food as a precaution not to depend on outside food and save on cost and time and to avoid any health problem to the children who are not immune to outside food. Since the entire food items in the baggage was spoiled due to the mishandling of the baggage complainant and his family had to depend on hotel food for six days' trip in Singapore and Kaulalumpur, that they spent heavily on food and taxi to 'Little India/near Mustafa Centre' in Singapore and to similar places in Kaulalumpur for lunch and dinner, that they spent huge amount on food and their valuable time for searching the lost baggage. Complainant and his family members suffered unexplainable mental strain and stress in an unknown foreign country. Hence this complaint claiming Rs. 1,32,080/- towards food expenses, transportation, compensation etc........

2. Opposite party filed version contending inter alia that complainant with his family members travelled in UL.162 on 14^th June 2005 and UL.312 on 15^th June 2005 in the sector Cochin – Colombo – Singapore, that at Singapore one of their bggages did not arrive which was not traceable till 19^th June 2005, that complainant's family left for Kaulalumpur when the said luggage was delivered at their hotel on 19^th June 2005 at 9.00 P.M, that on 19..06..2005 complainant has taken delivery of his luggage without any complaint or demur, that as per Article 27(3) of the second schedule to the Carriage by Air Act, 1972 every complaint must be in writing upon the document of carriage or by a separate notice in writing despatched within the prescribed time. Complainant demanded 5080 Singapore Dollar while opposite party offered 50 US Dollar towards one interim payment for the delay of one bag out of 3 pieces for 4 days in full and final settlement which was not accepted by the complainant, that the said interim payment was offered as a measure of goodwill by the opposite party, that in the light of the notice of Baggage Liability Limitations of the Air ticket as well as Srilankan Airlines Conditions of Carriage for Passengers the complainant is not entitled to the value of the items of luggage which are food stuffs, which are perishable items. Complainant is devoid of merits and hence opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

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

2. Whether complainant is entitled to compensation, If so, at what amount?

In support of the complaint, the Power of Attorney Holder of the complainant has filed proof affidavit and has marked Exts. P1 to P12. In rebuttal, opposite party has filed affidavit and has marked Exts. D1 & D2.

4. Points (i) & (ii): There is no point in dispute that complainant and his family members travelled from Thiruvananthapuram to Singapore by Flight No. UL.162/UL.312 operated by opposite party on 14^th June 2005 and on 15^th June 2005 from Singapore to Kaulalumpur. There is no point in dispute that complainant has entrusted 3 luggages to opposite party and one of their luggages did not arrive. There is no dispute on the point that the lost baggage was traced out and the same was delivered to the complainant on 19^th June 2005 at 9.00 P.M at their hotel in Kaulalumpur. Exts. P1 to P4 are original boarding pass and Baggage Tag. Exts. P5 & P6 are baggage identification tag Nos. 133060 & 133061. Ext. P7 is the Property Irregularity Report. Ext. P8 is the Guest's Message issued by Golden Landmark Hotel dated 18^th June 2005. Ext. P9 is the photographs of spoiled food. Ext. P10 consists of series of bills. Ext. P11 is the letter from Customer Affairs Executive of the opposite party dated August 11, 2005 addressed to the complainant stating that opposite party received a claim letter dated 10/07/2005 received on 8/8/2005 and forwarding the same to their Head office at Colombo for further action. Ext. P12 is the letter given by Customer Affairs Executive of the opposite party dated September 9, 2005 to the complainant. The stand of the opposite party is that, opposite party has taken delivery of the luggage without any complaint on 19^th June, 2005, thereby it is evident that the luggage has been delivered in good condition, in accordance with the document of carriage stipulated as under Article 27(1) of the Second Schedule to the Carriage by Air Act. Further according to opposite party as under Article 27(2) of the Second Schedule to the Carriage by Air Act, the person entitleld to delivery must complain to the carrier forthwith after discovery of the damage and atleast within 7 days from the date in the case of baggage. Further, it is ascertained by opposite party that every complaint must be in writing upon the document of carriage or by a separate notice in writing despatched within the times aforesaid. According to opposite party as under Article 27(4) of the Second Schedule failing within the time aforesaid no action shall lie against the Carrier save in case of fraud on his part. It has been contended by the opposite party that no complaint has been made by the complainant within the time stipulated with the opposite party, as such, the complaint itself is not maintainable. Complainant never produced any document to counter the version of the opposite party. The very case of the complainant is that the bag contained only food stuff and all of them were spoiled when the bag was delivered and since the passengers were vegetarians and in the absence of the packed food from home they necessarily had to eat at hotels, which costed their family by way of purchase of food and transportation to the eating joints at Singapore and Kaulalumpur. Opposite party admitted delay for 4 days in delivering the said baggage and offered 50 US Dollars as a gesture of goodwill to the complainant. It is the settled position that liability for loss, delay or damage to the baggage is limited unless a higher value is declared in advance and additional charges are paid. For most International travel the liability limit is approximately 20 US Dollars/kg for checked baggage and 400 Dollar/passenger for unchecked baggage. The very stand of the opposite party is that carrier assumes no liability for fragile, valuable or perishable articles. It is pertinent to point out that complainant had never declared the contents of the baggage in dispute nor has he furnished any material to show that he has paid additional charges. Nor has he disclosed the weight of the alleged baggage. Complainant has not furnished any cogent and relevant evidence in support of the amount claimed towards compensation, transportation and food expenses. Complainant has not mentioned the weight of the baggage in dispute. Since he has not declared the contents and its value he is not entitled to get the entire amount claimed in the complaint. As per the Conditions of Carriage by Air Act complainant is entitled to get 20 US Dollars/Kg. Opposite party already offered 50 US Dollars which is insufficient in view of the agony suffered by the consignments. Inview of the foregoing discussion and evidence available on records we are of the considered opinion that a payment of Rs. 10,000/- towards compensation along with cost of Rs. 2,000/- would meet the ends of justice.

In the result, complaint is partly allowed. Opposite party shall pay the complainant a sum of Rs. 10,000/- towards compensation along with Rs.2,000/- towards cost of the proceedings, within two months from the date of receipt of this Order.

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 September, 2010.

G. SIVAPRASAD

PRESIDENT.

BEENA KUMARI .A.,

MEMBER.

S.K. SREELA,

ad. MEMBER.

C.C.No.345/2005

APPENDIX

I. Complainant's witness:

PW1 : Jose Alexander

II. Complainant's witness:

P1 : Original Boarding Pass and Baggage Tag

P2 : " "

P3 : " "

P4 : " "

P5 : Baggage Identification Tag No. 133060

P6 : " No.133061

P7 : Property Irregularity Report

P8 : The Guest's Message issued by Golden Landmark Hotel dated 18/6/2005.

P9 : The photographs of spoiled food.

P10 : Consists of series of bills

P11 : The letter from Customer Affairs Executive of the opposite party dated 11/8/2005 addressed to the complainant.

P12 : The letter given by Customer Affairs Executive of the opposite party dated 9/9/2005 to the complainant.

III. Opposite party's witness:

DW1 : R. Allen Vincent

IV. Opposite party's documents:

D1 : Conditions of Carriage for passengers.

D2 : Notice of Baggage liability limitation

PRESIDENT