PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed to grant total gross loss of Rs.48,000/- for missing baggages by Opposite Party No.1 & 2, compensation of Rs.2,25,000/- from each Opposite Party No.1 & 2 towards mental agony and physical harassment caused to the Complainant and Rs.25,000/- towards cost of litigation. 

2)        According to the Complainant, the Opposite Party No.1 gives facility of travels by Air to its consumers.  The Opposite Party No.2 is connected to Opposite Party No.1 to take care baggage service of the consumers of Opposite Party No.1.  The Complainant is resident of Parbhani.  On 27/01/2010, the Complainant had arrived at Bangkok airport through flight No.10693 from Mumbai to Bangkok of Opposite Party No.1.  The copy of ticket issued by Opposite Party No.1 and the copy of the passport of the Complainant is annexed with the complaint. 

 3)        It is alleged that the baggage of the Complainant was submitted to Opposite Party No.1 for safe placement having tag No.IC 533443.  The responsibility to take care of the Complainant’s baggage was totally of Opposite Party No.2.  The copy of baggage receipt is also annexed with the complaint. It is the case of the Complainant that on arrival at Bangkok Airport he approached to collect his baggage to Opposite Party No.2.  The Opposite Party No.2 informed the Complainant that his baggage was missing.  The Complainant has alleged that in the said baggage he kept cash of Rs.23,230/- alongwith the personal articles worth of Rs.24,770/- which totally cost an amount of Rs.48,000/-.  It is alleged that the Complainant was carrying besides the cash of Rs.23,230/- Rado Watch, clothes, travelling dry foods and important documents.

 4)        It is alleged that after due enquiry at THAI Air port authority which was connected to Opposite Party No.1 about his missing baggage the Opposite Party No.2 neglected and ignored the complaint of the Complainant and the Opposite Party No.2 directed the Complainant to proceed to his destination and asked him to give his contact number and told the Complainant that whenever the Opposite Party No.2 will find the baggage of the Complainant the said party will inform the Complainant on his contact number. 

 5)        The Complainant alleged that it was mandatory on the part of the Opposite Parties to give proper service to their passengers as well as to take care of the baggages as they are far away from their residential place.  However, the Opposite Parties failed to give proper service to the Complainant and failed to take care of baggage of Complainant.  The said act on the part of the Opposite Parties thus, comes under the definition of deficiency in service. 

 6)        It is alleged that the Complainant after completing the meeting held at Bangkok, he again approached to Opposite Parties to collect the baggage.  However, they directed the Complainant to contact them after completion of work at Bangkok.  The Opposite Parties refused to search and handover the baggage to the Complainant.  Thereafter, even after due correspondence and telephonic communication nothing was come out in favour of Complainant.  The Complainant then issued legal notice on 15/02/2010 to the Opposite Parties by Regd. Post A/D. The copies of which are enclosed with the complaint.  The Opposite Party No.2 replied to the notice of the Complainant but did not give any heed to the claim made in the notice.  The notice issued to Opposite Party No.1 was returned without accepting.  It is alleged that the Complainant had suffered mental agony and physical harassment.  The Complainant was required to buy new clothes and needed articles at Bangkok.  He was also required to ask money from his family members. It is submitted that the entire approach of the Opposite Parties was malafide, arbitrary.  Thereby the Complainant was required to suffer unnecessary hardship.  It is submitted that the Opposite Parties neglected the Complainant without proper service though he being consumer of the Opposite Parties.  The Complainant has therefore, prayed that the reliefs as claimed in para 1 of this order may be granted against the Opposite Parties. 

 7)          The Opposite Party No.1 contested the claim by way of written statement and denied the allegations made by the Complainant.  It is contended that the Complainant travelled Mumbai to Bangkok on 27/01/2010 alongwith two passengers namely; Mr. Azim and M. J. Pathan Mohd. Sheikh and checked in 3 pieces of baggages total weight of 30 kgs. Out of 3 pieces of baggage one is under tag No.1C 533443 being 10 kgs. was reported short landed at Bangkok and property irregularity report was filed  at Bangkok. The baggage reported short landed contend food and clothes as per Complainants declaration. Complainant thereafter was not in contact and subsequently he travelled from Bangkok to Mumbai on 01/02/2010 by Flight No.IC 694. It is contended that the Opposite Party had made efforts to trace the missing baggage and the same remained untraced.

 8)        According to the Opposite Party No.1, if the Complainant would have contacted them at Mumbai necessary settlement action would have been initiated.  However, the Complainant filed the present complaint. It is contended that the Complainant’s case is governed by Rules & Regulations of Air Carriage. As per revised condition of contract based on kgs. loss basis with respect to alleged loss of currency while on carriage, the Air Carriage Regulations exempt airlines from any liability and Complainant is entitled for SDR 17 (Special Drawing Rights) per Kg. for actual and estimated loss.  SDR is unit of currency issued by International Monetary Fund (IMF) based on basket currencies.  The value of 1 SDR changes daily and this can be trapped on IMF Website.  It is contended that accordingly the Complainant is entitled for number of SDR multiplied by total kg. loss suffered by the Complainant declared in property irregularity report.  Any demand made other than the applicable International Air Carriage Rules & Regulations is not maintainable under the conditions of contract of International Carriage loss. Hence complaint filed is misconceived and devoid of any merit and deserves to be dismissed with cost.  The Opposite Party No.1 relied the letter addressed by the Opposite Party No.2 dtd.06/10/02010 alongwith extract of relevant air carriage lodged applicable in Complainant’s case and another letter dtd.25/05/2010 of Opposite Party No.1 to the Dy. General Manager, describing guidelines to settle mishandled baggage claims as per Monitorial conventions marked as Exh.‘B’ collectively with the written statement.  It is thus, submitted that the complaint filed is false, baseless and deserves to be dismissed with cost.  

 9)        The Opposite Party No.2 has also contested the claim of the Complainant by written statement.  It is contended that the Complainant is not a consumer of Opposite Party No.2 as defined under Sec.2(d) of the Consumer Protection Act, 1986.  The Complainant neither hired the service of the Opposite Party No.2 nor paid any consideration towards the same.  It is therefore prayed that the complaint against Opposite Party No.2 is liable to be dismissed on this ground alone.  It is contended that the Complainant utilized services of Opposite Party No.1 to travel from Mumbai to Bangkok on 27/01/2010.  The Complainant did not check his bag in Mumbai with Opposite Party No.2.  His luggage was checked with the carrier i.e. Indian Airlines.  It is contended that the Opposite Party No.1 has the sole responsibility to its passengers for the carriage of checked baggage.  The contractual relationship between Opposite Party No.1 & Opposite Party No.2 for the provision of baggage and ground handling services in Bangkok is pursuant to an IATA in Standard Ground Handling Agreement (SGHA).  The Opposite Party No.1 and the Complainant were strictly bound by the contract of carriage existing between them. The Opposite Party No.2 is the ground handling agency for the Opposite Party No.1 and it was having strictly limited liability to collection of all pieces and baggage handed over to it by Opposite Party No.1 and their subsequent offload at Bangkok.  It is submitted that the Opposite Party No.2 has no nexus or relation with the above mentioned travel of the Complainant and has been unnecessary dragged into present litigation.  It is thus, submitted that in view of absence of any contract or consumer relationship between the Complainant and Opposite Party No.2, the complaint filed by the Complainant against the Opposite Party No.2 is liable to be dismissed.  It is denied that the Opposite Party No.2 had flatly refused to search for the lost baggages of the Complainant.  It is submitted that it initiated intensive tracing action and undertook all necessary measures to locate the baggage, however, despite the best efforts of Opposite Party No.2 the baggages could not be traced or located.  It is contended that when the Complainant contacted the Opposite Party No.2, they offered complete assistance and asked him to file property irregularity report.  The information as received by the Opposite Party No.2 was sent to Opposite Party No.1 to investigation and review action.  Further investigation was the responsibility of Opposite Party No.1.  It is submitted that there is no cause of action against Opposite Party No.2.  The other allegations alleged by the Complainant have been denied.  Lastly it is contended that the claim against the Opposite Party No.2 be dismissed. 

 10)      The Complainant has filed his evidence by way of affidavit and later on affidavit by way of rejoinder to the written statement of the Opposite Party No.1 & 2.  The Opposite Party No.1 filed affidavit of evidence of its authorized officer, Madhu Patel.  The Opposite Party No.2 filed affidavit of one Woolen Bunbhuratna i.e. General Manager of Opposite Party No.2.  All the parties submitted their written arguments.  We heard the oral arguments of Ld.Advocate Smt. Rupali Kamlapurkar, for the Complainant and Ld.Advocates Shri. S. Husain, for Opposite Party No.1 and Smt. Vandana Mishra, for Opposite Party No.2.

 11)      While considering the entitlement as claimed by the Complainant it is necessary to be considered that it is not in dispute that when the Complainant reached after Air travel on the ticket of Opposite Party No.1 as a ‘Consumer’ of it, the baggage which he had delivered to Opposite Party No.1 for safe placement having tag No.IC235340 was not handed over to him and the Opposite Party No.2 had issued loss of baggage receipt after obtaining property irregularity report from the Complainant.

 12)      While considering the entitlement of the claim against Opposite Party No.2 by the Complainant, it is necessary to be considered that the contention raised by the Opposite Party No.2 that there was no contractual relationship between the Complainant and Opposite Party No.2 as defined under Sec.2(d) of the Consumer Protection Act, 1986 can be said just and proper.  The submission therefore, made by the Advocate for the Opposite Party No.2 that in the instant case the Complainant neither hired the services of the Opposite Party No.2 nor paid any consideration towards the same and therefore, the Opposite Party No.2 has no liability in respect of the Complainant can be said legal and proper.  We therefore, hold that though the Opposite Party No.2 handled the case of the Complainant at Bangkok regarding the loss of baggage of him it was not handled by the Opposite Party No.2 as a consumer of Opposite Party No.2.  It was handled by the Opposite Party No.2 in pursuant to IATA  Standard Ground Handling Agreement between the Opposite Party No.1 & 2.  We therefore, hold that the claim against Opposite Party No.1 is liable to be rejected.

 13)      The Complainant has come out with the case that in the baggage which was lost during his travel at Bangkok he has kept cash Rs.23,230/- alongwith personal articles worth of Rs.24,770/- totaling costing of Rs.48,000/- and on that count Opposite Parties be directed to indemnify the said loss.  While considering this claim made by the Complainant the Advocate for the Complainant submitted that the Complainant had made the said statement on affidavit.  The Complainant had also issued notice to that effect to the Opposite Parties immediately on returning to India and therefore, the said claim may be granted.  The advocate for the Opposite Party No.1 made submission that in property irregularity report submitted by the Complainant at Bangkok which is filed on record shows that the bag was containing food and clothes and thus, the case made out by the Complainant that it was having cash of Rs.23,230/- cannot be believed.  He submitted that in the declaration filed by the Complainant at Bangkok there is no mention of having cash of Rs.23,230/- and therefore, the claim made by the Complainant cannot be allowed. He further submitted that as per the Air Carrier Regulations the Complainant is entitled to get SDR 17 per kg for actual and estimated loss.  He submitted that as per the record of Opposite Party No.1 Tag No.1C 533443 weighing 10 Kgs was reported short landed at Bangkok and therefore, the Complainant could be entitled for SDR 17 per kilo in view of the loss of baggages of 10 Kg.  He therefore, submitted that the Complainant could be entitled for number of SDR multiplied by total Kgs. loss suffered by the Complainant declared in property irregularity report only and no other demand can be granted. In view of the submissions of both sides and considering the provisions of Carriage of Air Act, there is limited liability of carrier which presently can be awarded as contended by the Opposite Party No.1 SDR 17 per kilo.  In the present case the bag which was lost while handling in travel by Opposite Party No.1 was of the weight of 10 Kg. as per the record of Opposite Party No.1 and therefore, we hold that the Complainant would be entitled to 170 SDR i.e. @ SDR 17 per Kg. of the weight of the lost baggage.  The case made out by the Complainant that the bag was containing net cash of Rs.23,230/- cannot be accepted in view of the observations in the case of Ms. Gargi Parsi V/s. KLM Royal Dutch Airlines, 2003 CTJ 673, wherein the National Commission held that when the passenger failed to disclose value of contents of baggage and pay extra amount in terms of Rule 22(2) of I Schedule of Carriage by Air Act and there was no “Willful misconduct” proved against airlines for loss of damage to baggage.  Then the Complainant was bound by contractual terms limiting liability of Airlines of 170 SDR. The rate per SDR in terms of Rupees on 27/01/2010 as reported by the Opposite Party No.1 was Rs.72.264800.  Therefore in the present case as the Complainant has not disclosed value of contents of baggage and paid extra amount and there was no willful misconduct on the part of Opposite Party No.1 for loss or damage to baggage so we hold that the Complainant is bound by contractual term limiting liability of Opposite Party No.1 of 170 SDR as per the above provisions which comes in terms of Rs.12,285/- alongwith interest @ 9% p.a. from 27/01/2010 till its realization from Opposite Party No.1.                       

 14)      The Complainant has claimed compensation of Rs.2,25,000/- against each Opposite Party towards mental agony and harassment and inconvenience caused to him. In our view the said compensation claimed by the Complainant against the Opposite Party No.2 is not at all maintainable in view of the aforesaid findings.  In our view the said claim of compensation against Opposite Party No.1 is much exorbitant and excessive.  It appears from the contention of the Opposite Party No.1 that the Complainant traveled on 27/01/2010 and again travelled from Bangkok to Mumbai on 01/02/2010.  So he was there about five to six days, during that time due to loss of his clothes he must have suffered hardship and inconvenience for not taking the care of baggage of Complainant. Taking these facts in consideration in our view that awarding a sum of Rs.10,000/- as compensation towards mental agony and inconvenience caused to the Complainant would meet the ends of justice. We hold that the cost of Rs.3,000/- towards this litigation are required to be directed to be paid by the Opposite Party No.1.  The case laws relied by the Complainant of Ashok Kumar Bhailalbhai Thakkar V/s. AIR India 2011(I) CPR 51 and of Dr. R.Govind Reddy V/s. M/s. Indian Airlines Ltd. by Opposite Party No.1 in our view are not appropriately applicable to the facts of the present case. In the result the following order is passed -       

O R D E R

i.                 Complaint No.238/2010 is partly allowed against Opposite Party No.1 and dismissed against Opposite Party No.2 with no order as to cost.  

ii.              Opposite Party No.1 is directed to pay 170 SDR @ Rs.72.264800/- of 27/01/2010 per SDR i.e. an amount of Rs.12,285/- (Rs. Twelve Thousand Two Hundred Eighty Five Only) to the Complainant alongwith interest @ 9% p.m. from 27/01/2010 till its realization.

iii.             The Opposite Party No.1 is directed to pay Rs.10,000/- (Rs. Ten  Thousand Only) to the Complainant towards the mental agony and inconvenience caused to the Complainant due to loss of his baggage

iv.               The Opposite Party No.1 do pay cost of Rs.3,000/- (Rs. Three Thousand Only) to the complainant towards this proceeding.

v.                  The Opposite Party No.1 is directed to comply with the above order  within one month from the date of service of this order.  

vi.               Certified copies of this order be furnished to the parties.