VYAKTHIGATA THRAGUNEERU KULAYILA SANGAM REP.BY ITS SECRETARY V/S CONFEDERATION OF E.G.DIST.,CONSUMER ORGANISATION REP.BY ITS MEMBER, PALAKURTHY VEERABHAVANNARAYANA - Consumer Court Case

Andhra Pradesh

StateCommission

FA/536/09

CONFEDERATION OF E.G.DIST.,CONSUMER ORGANISATION REP.BY ITS MEMBER, PALAKURTHY VEERABHAVANNARAYANA - Complainant(s)

Versus

VYAKTHIGATA THRAGUNEERU KULAYILA SANGAM REP.BY ITS SECRETARY - Opp.Party(s)

M/S V.GOURI SANKARA RAO

17 Sep 2010

ORDER

First Appeal No. FA/536/09

(Arisen out of Order Dated null in Case No. of District Kurnool)

1. CONFEDERATION OF E.G.DIST.,CONSUMER ORGANISATION REP.BY ITS MEMBER, PALAKURTHY VEERABHAVANNARAYANA

D.NO.11-1-1/1, VYASA KUTIR, RAMA RAO PET, KAKINADA, E.G.DIST.

BEFORE:
	HONABLE MR. SRI R. LAXMI NARASIMHA RAO PRESIDING MEMBER
	HONABLE MR. SYED ABDULLAH Member

PRESENT:

ORDER

BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.

F.A.No. 536 OF 2009 AGAINST C.D.NO.480 OF 2007 DISTRICT CONSUMER FORUM-I HYDERABAD

Between

Deccan Aviation Ltd

Presently known as Kingfisher Air Lines

Kinghfisher House, Western Express Highway

Vile Parle (E), Mumbai

Through: its authorized representative

Appellant/opposite party no.1

A N D

1. Shri U.V.Bhandari S/o Soorajmal Bhandari

Aged about 62 years, Occ: Business

R/o 1-7-27, United Building Complex

Paradise Circle, Secunderabad

Respondent/complainant

2. K.Samuel Srikant, Mishandle
Baggage Department M/s Air Deccan

Hyderabad Air Port, Hyderabad

Respondents/opposite party no.2

Counsel for the Appellant Ms Vijaya Sagi

Counsel for the Respondent no.1 Sri MVS Prasad

QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

THURSDAY THE NINETH DAY OF FEBRUARY

TWO THOUSAND TWELVE

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

***

1. The Respondent filed complaint seeking direction to the appellants to pay an amount of `76,000/- towards compensation and `24,000/- towards interest on the value of the jewels said to have been kept in the bag.

2. The averments of the complaint are that the respondent has purchased a ticket to travel from Hyderabad to Ahmadabad in flight no. DN 673 of the respondents on 01.07.2006. The respondent with his family members boarded the flight at Hyderabad along with his three bags At Ahmadabad the found two bags and the third bag bearing tag No.126930 had gone missing. The bag which was missing contained saris, bangles, gold rings, bracelet and suit case worth of `76,000/- The respondent lodged complaint with the appellants and property irregularity report on 1-07-2006. The appellant on 13-07-2006 informed the respondent that the bag could not be traced and as per the norms they would pay an amount of `450/- per Kg.

3. The appellants resisted the claim contending that the respondent traveled from Hyderabad to Ahmadabad in flight No. DN 673 of the respondents on 01 .07.2006 with three checked-in baggage. The staff of the appellants, prior to taking the baggage, requested the respondent along with other passengers to remove all their important personal and precious belongings. The respondent has not declared the contents of his baggage to the appellants. The respondent has not declared the value of the contents of the missing bag in the property irregularity report.

4. The respondent has filed his affidavit and the documents, ExA1 to A5.No documents had been filed on behalf of the appellant airlines.

5. The District Forum allowed the complaint on the premise that the appellants did not produce screening report which would show the contents of the baggage. The District Forum allowed the complaint directing the appellants to pay an amount of `920/- per kg @ `46/- per kg of 15kgs with interest @9%p.a thereon and compensation of `30,000/- besides costs.

6. Aggrieved by the order of the District Forum, the opposite party airlines filed the appeal contending that a passenger is not entitled to carry total baggage weighing not more than 15kg. The weight of the missing baggage cannot be more than 5 kg. The respondent has not mentioned the weight of the bag and its contents as also their value. As per the provisions of the Carriage Act the respondent is entitled to a total sum of `10kg x`300= `3,000/- which the respondent refused to accept and filed the complaint.

7. The points for consideration are:

1) Whether there was negligence on the part of the opposite parties in handling the baggage of the respondent?

2) Whether the respondent is entitled to the compensation `25 lakhs?

3) To what relief?

8. POINT NO.1: The respondent traveled travel from Hyderabad to Ahmadabad in flight no. DN 673 of the respondents on 01 .07.2006. On his arrival at Ahmadabad, the respondent came to know that one of his baggage i..e., the third bag bearing tag no.126930 had gone missing. The bag which was missing contained saris, bangles, gold rings, bracelet and suit case worth of `76,000/- The duty officer had issued certificate of property irregularity report. It appears, there was no response from the side of the opposite parties to the complaints of the respondent . Te respondent has got issued notice dated 23.07.2006 through his advocate to the appellants.

9. The notice evoked response from the appellants whereof they expressed their readiness to pay `450/- per kg. provisions under Carriage by Air Act 1972 was stated to have been extended to Non-International Carriage by notification of Govt. of India and second schedule of Carriage by Air Act was invoked for limiting the liability of the opposite parties. It has been stated that the respondent had not made any special declaration as to the value of the articles in the baggage or did he pay any additional charge for the baggage. The opposite parties expressed their readiness restricting their liability at `450/- per kg which comes to `4500/- as the respondent’s bag assessed to have weighed 8 kgs.

10. Having issued the property irregularity report on 28.6.2007 The opposite parties by their reply to the notice of the respondent claim that despite their best efforts the misplaced luggage could not be traced. The opposite party had offered an amount of `3600/- towards full and final settlement of the respondent with a rider that the offer was without prejudice to theor and their conditions and it was a matter of good will and courtesy.

11. The appellants contended that their liability is restricted, for the respondent has not declared the contents of his baggage. The appellants relied upon the provisions of Carriage by Air Act 1972 and the subsequent notification regarding application of Carriage by Air to non-international flights.

12. The Ministry of Civil Aviation issued the notification on 31.1.1998 whereby amendment in the notification of the Govt. of India in the then Ministry of Tourism and Civil Aviation No.SO 186(L) dated 30.3.1973. Rule 22 of Second Schedule to the Carriage by Air Act was amended.

13. Rule 22 of Carriage by Air Act reads as under:

22. (1) In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 1,25,000 francs. Where damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 1,25,000 francs. Nevertheless, by special contract the carrier and the passenger may agree to a higher limit of liability.

(2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum it 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 sum is greater than the actual value to the consignor at delivery.

(3) As regards objects of which the passenger takes charge himself theliability of the carrier is limited to 5000 francs per passenger.

(4) The sums mentioned in this rule shall be deemed to refer to the French franc consisting of sixty-five and a half milligrams gold of illesimal fineness nine hundred.

14. The learned counsel for the appellants has contended that as per the terms and conditions mentioned in the ticket , passengers are required to carry valuable articles with them in the cabin. Valuable articles “currency, precious metals, jewels, negotiable instruments securities, personal identification, documents and other items of value, are best carried with the passengers in the cabin”.

15. The provisions of Carrier by Air Act, 1972 had been extended to non-international carriage by the aforementioned notifications issued by the Government of India. Rule 22 (2)(a) of the Carriage by Air Act deals with the statutory limitation of liability of the carrier to a sum of `450/- per kilogram which, however, is not applicable if the consignor has made, at the time when the package was handed over the carrier, a special declaration of interest in delivery at destination and has paid supplementary sum if so requires and in such event the carrier is liable to be pay the declared sum. 16. The appellants have stated that the respondent has not made any special declaration of value nor did he pay additional charge while check in his luggage. It was stated that in terms of statutory limitation of liability, the liability of the opposite parties cannot exceed 300/- per kilogram. The respondent’s baggage stated to have been weighed 10 kilograms for which the their maximum liability to the extent of `3000/-.

17. The assessment of compensation on account of deficiency in service rendered by opposite party was considered by the Hon’ble National Commission in Nagara Palika Nigam, Bhilai Vs Rajesh Kumar Shukla, reported in 2010 CTJ 894 held that the consumer fora has to assess the gravity of deficiency and thereafter calculate the loss/mental harassment that the respondent had undergone. It was held “Insofar as the award of compensation on the basis of market value of the plot is concerned, we do find merit in this argument. A consumer forum in arriving at the assessment of compensation has to first assess the gravity of deficiency and thereafter calculate the loss/mental harassment that a respondent may have undergone as a direct consequence of the said deficiency”.

18. The respondent had lost his baggage on 01-07-2006 and on the same day he lodged the complaint giving particulars of the items kept in the missing bag. The appellants had not taken any pains to inform the respondent about the status of the lost baggage. The respondent had to wait for a for a long time to receive reply from the appellants as to whether any enquiry was held into the matter of the missing baggage or the status of the enquiry thereof. The respondent had to issue notice through his advocate on 23.7.2006 to the appellants and the notice could only evoke some response from them.

19. In the light of the regulations and Rule 22(2)(a) of the Carriage by Air Act, the liability of the opposite parties for the loss of baggage of the respondent would be restricted to `3600/-. However, the respondents admitted to pay `450/- per kg and also admitted the weight of the bag is 10kg. The amount payable would be `10x450=`4,500/-.The appellants are guilty of rendering deficient service whereby they had subjected the respondent to mental agony.

20. In “Air France Vs Sonali Arora & Anr.”, reported 2008 NCJ 695 (NC), the National Commission held that in view of the gravity or deficiency in service an amount of `50,000/- awarded as compensation and `50,000/- as damages by the State Commission was justified.

21. Taking into consideration of the circumstances of the case we are inclined to award compensation besides the admitted amount of `4,500/- in favour of the respondent. The District Forum awarded an amount of `30,000/- which we feel on the higher side considering the failure of the respondent to disclose the contents and the value of the items of the missing baggage. The reasonable amount would be `10,000/- towards compensation.

22. In the result the appeal is allowed. The opposite parties no.1 and 2 directed to pay an amount of `14,500/- with interest @9% p.a. from the date of filing of the complaint. No costs. Time for compliance four weeks.