KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 581/2006
JUDGMENT DATED: 2.11.2010
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.M.K.ABDULLA SONA : MEMBER
K.K.Sathian, : APPELLANT
Karappilly House,
Manakulangara.P.O.,
Kodakara,
Thrissur District, rep.by his power of
Attorney holder,
T.V.Valsala, W/o Sathian,
-do-do-
(By Adv.Roy Varghese)
1. The Manager, : RESPONDENTS
Srilankan Airlines Limited,
Kochi International Airport Branch,
Kochi International Airport,
Nedumbasserry,
Ernakulam District.
2. The customer Affairs Manager – India,
Srilankan Airlines Limited,
Nagambrahma Towers,
76 Cathedral Road
Chennai – 600 086.
(By Adv. Biju Hariharan)
JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
The appellant is the complainant in OP.125/06 in the file of CDRF, Ernakulam. The complaint filed stands allowed in part.
2. It is the case of the complainant is that he was a passenger in the Airlines of the opposite party from Abudhabi to Kochi. When he reached Kochi on 11.11.05 his baggage entrusted with the respondents was found missing. The baggage claim was made with the respondents. The value of the lost articles amounted to 11000 dhs which is equal to Rs.1,43,000/-. The opposite parties have expressed their willingness to pay only Rs.6318/- which is highly disproportionate. It is alleged that baggage has been lost on account of the negligence of the opposite parties.
3. The opposite parties have filed version stating that the luggage was retrieved at Abudhabi airport as it was bulky and did not classify as hand baggage. On arrival at Kochi the complainant has filed a Property Irregularity Report. It is pointed out that the hand baggage should not be larger than 18x14x18 inches. Heavy hand baggages are not allowed as if the over head locker is opened the baggage can fall and cause injury to the passengers. The permissible weight of hand baggage is 7kg. It is pointed out the liability of the opposite parties is statutorily restricted to US $ 20 per Kg for 7kgs which is equivalent to Rs.6318/-.
4. The evidence adduced consisted of the testimony of PW1 and Exts.A1 to A6 and B1 to B3.
5. It is seen from the order of the Forum that the complainant had also contented that even as per Rule 22(2) of the 1st schedule of the Carriage by Air Act 1972 the liability is limited to pay a sum of 250 francs per kg. Now the franc is converted into Euro and the value of the Euro is Rs.59/-. The Forum has rejected the above contention relying on precedents and held that complainant is entitled at the rate of 20 US$ per kg and directed the opposite party to settle the matter as per rule 22(2) of 1st schedule of the Act.
6. The appellants has relied on the decision of the High Court of Keala in M/s Indian Airlines vs. Kurian Abraham, 2010 I KHC 758 wherein the High court of Kerala has held that Rule 22(2) is not applicable in instances of Rule 22(5) wherein the damage is caused by willful misconduct of or by such default which in the opinion of the court is equivalent to willful misconduct. The High Court has held that it is for the carrier to show that they have taken all necessary care and caution to ensure the safety of the article undertaken by them for delivery. Hence it follows that the burden is on the Airlines to show that they had followed the prescribed procedure and inspite of their best efforts they could not prevent the loss or damage. It was held that in the absence of such evidence the only conclusion possible is that carrier is guilty of willful misconduct. In the instant case we find that the opposite parties have not adduced any evidence to establish that they have taken adequate care in the matter. PW1 the power of attorney holder/wife of the complainant has testified in support of the case set up by the complainant. Hence we find that the ratio of the decision in M/s Indian Airlines Vs. Kurian Abraham (op.cit) applies. Hence the complainant cannot be tied down to rule 22(2) of the 1st schedule of the Act.
7. So far as the value of the lost articles is concerned Ext.A1 copy of the Property Irregularity Report mentions only liquor bottles and important documents including visa. In Ext.A2 baggage claim form mentions liquor bottles worth 440dhs, wrist watches worth 260 dhs, School certificate and gold ornaments worth 800 dhs, medical reports worth 3500dhs. We find that no bills of purchase or other details were produced. Further the complainant had not declared ornaments etc. It was brought out in the cross examination of PW1 that her knowledge is confined to the information convey to her by her husband.
8. We find that it is the duty of the Airlines to see that the baggage also reach the destination along with the passenger. It is pertinent to note that in the instant case the hand baggage was seized from the custody of the complainant and put in the luggage boot. Once baggage is entrusted into custody of the Airlines the passenger is helpless. Hence it is all the more necessary for the Airlines to convincingly establish that they have taken all care and caution to see that the luggage reached the destination. In the instant case there is no evidence to establish the same. Hence we find that the claim of the complainant cannot be confined to Rule 22(2) of the 1st schedule of the Act. In the circumstances we find that it would be reasonable to award a sum of Rs.50000/- as compensation to the complainant. Hence the order of the forum is set aside. The opposite parties/respondents are directed to pay sum of Rs.50,000/- to the complainant with interest at 12% per annum from the date of complaint ie, 7.3.06. The complainant also would be entitled for costs of Rs.5000/-. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at 18% per annum from the date of this order ie, 2.11.2010. The appeal is allowed in part as above.
Office will forward the LCR along with the copy of this order to the Forum.
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.M.K.ABDULLA SONA : MEMBER
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