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. 285/2010 Filed on 09/09/2010
Dated: 15..12..2011
Complainant:
Muhammed Anil Abdual Karim Hajira Beevi, S/o Abdual Karim, T.C.8/127(4), Love Nest, Mythri Nagar E.50(5), Valiavila, Thirumala – P.O., Thiruvananthapuram.
(By Adv. S. Roshan)
Opposite party:
M/s. Air Arabia, Airport Office, Thiruvananthapuram International Airport, Shanghumugham, Thiruvananthapuram.
(By Adv. K.G. Mohandas Pai)
This O.P having been heard on 29..11..2011, the Forum on 15..12..2011 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, on 24/04/2010, the complainant along with his wife and his son travelled from Medinah to Sharjah and on 25/04/2010 from Sharjah to Thiruvananthapuram in the flight of the opposite party, that the complainant carried 13 baggages with him while travelling in the said flight, that all those baggages were verified and properly sealed by opposite party's office and all of them were tagged at the check-in counter of the opposite party initially at the Medinah Airport and then at Sharjah Airport before taking them to the flight by the authorities of the opposite party, that when complainant arrived at Thiruvananthapuram Airport on 25/04/2010 one baggage weighing more than 18.5kgs with tag No. 0950006753 was found missing, that immediately the fact was brought to the notice of the opposite party, but opposite party did not pay any heed to the grievance of the complainant, that thereafter opposite party due to continuous request of the opposite party registered a Property Irregularity Report, that the missing baggage contained documented file, new dress material (20 pairs), shoes (2 pairs), stainless steel spoon (1 set), perfumes (14 Nos.), wooden spatula (2 sets) and cosmetics, that complainant visited the opposite party's office several times, but opposite party did not take any effort to trace out the said baggage or to find out its whereabouts, that opposite party offered 340 US Dollars as compensation, that the said offer is only meager as far as the value of the contents, mental agony and other untold difficulties caused to the complainant due to the act of the opposite party. Hence this complaint to direct opposite party to pay an amount of Rs. 61,200/- towards cost of contents in the missing baggage, Rs. 50,000/- as compensation towards mental agony, Rs. 5,000/- towards travelling expenses and Rs. 10,000/- as cost to the complainant.
2. Opposite party filed version contending inter alia that the complaint is not maintainable either in law or on facts, that complainant has not cared to settle the dispute when it was agreed to be settled by the opposite party as per the precedents / conventions / practice, that complainant travelled by G 9176/G 9441 on 24/25 April 2010 sector Madinah – Sharjah – Thiruvananthapuram, that complainant had reported loss of one baggage bearing Tag No: 50006753 and PIR was given, that on verification it was noticed that the passenger boarded the air craft with 13 baggage's weighing a total of 90kg containing undisclosed items, that the contents were not declared or insured, that on his arrival 12 baggages of a total weight of 75kg were handed over to him leaving one baggage of 15kg, that as per the convention the opposite party is liable to pay only 300 US Dollars, that opposite party offered the said amount, but complainant refused to accept the same on the premise that it contains valuable items, which the opposite party is unable to accept, that there is no cause of action for the complaint and complainant is not entitled to any compensation, cost and other expenses. Hence opposite party prayed for dismissal of the complaint.
3.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 get the reliefs sought?
In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P5. In rebuttal, opposite party has filed affidavit and has marked Ext. D1.
4. Points (i) & (ii): Admittedly, complainant travelled from Madinah to Thiruvananthapuram on 24/25 April 2010. There is no point in dispute that complainant carried with him 13 baggages. There is no point in dispute that one baggage was found missing on arrival at Thiruvananthapuram. It has been the case of the complainant that the missing baggage weighed 18.5kg and the said baggage contained several items including documented file, new dress material, shoes, stainless steel spoon, perfumes, wooden spatula and cosmetics. It has also been the case of the complainant that the valuable dress which was given to him by one of his friends at Medinah to hand over the same for the marriage of friend's sister's daughter. According to opposite party the passenger boarded the air craft with 13 baggage's weighing a total of 90kg containing undisclosed items and on his arrival 12 baggages of a total weight of 75kg were handed over to him leaving one baggage of 15kg. It has been the stand of the opposite party that though they took all necessary steps the said baggage could not be traced and the issue regarding such checked baggage is governed by the rules enumerated in the conditions of Carriage for Passengers and Baggage which is followed universally by all the flight operators and as items are not declared by the complainant the liability of the airlines to loss or damages to baggage is limited to 20 US Dollars/kg only, as the missing baggage is having a gross weight of 15kg the opposite party offered 300 US Dollars, but complainant refused to accept the same. Complainant's evidence consisted of his oral testimony of the complainant and Exts. P1 to P5. Ext. P1 is the copy of the Reservation Confirmation issued by opposite party. Ext. P2 is the copy of the Exit Visa. Ext. P3 is the duplicate copy of the Property Irregularity Report for checked baggage issued by opposite party. On perusal of Ext. P3 it is seen recorded that total weight of checked baggage is 13/90 and weight of missing piece is 1/15. In the column of baggages delivered it is mentioned 12/75. Ext. P4 is the copy of the application given by the complainant to opposite party requesting the latter to trace out his baggage or adequate compensation of the lost things stated in the application. Ext. P5 is the copy of the E-mail sent by opposite party. Complainant has been cross examined by the opposite party. In his cross examination complainant has deposed that Ext. P3 PIR has been filled by the staff of the opposite party. Complainant has admitted his signature in Ext. P3. As to the question as to whether the contents of the baggages were declared while starting the journey to the opposite party, complainant said: Opposite party never asked to declare. Complainant has admitted the suggestion that opposite party has offered 300 US Dollars on 8/6/2010. Complainant has admitted Ext. D1 wherein he has endorsed that complainant not at all satisfied 300 US Dollars offered by the opposite party. Complainant has not produced any material to show the contents of the lost baggage. He has admitted that out of the 13 baggages of total weight of 90kg he got 12 baggages. Complainant has not produced any material to show that the missing baggage is weighed 18.5kg. He has admitted in cross examination that as per Ext. P3 the weight of missing piece is 15kg. Complainant never denied the suggestion put by the opposite party that out of 13 baggages of total weight of 90kg, the weight of the delivered (returned) bag when deducted, the balance weight is written in the column of missing baggage. Complainant has deposed that though opposite party offered some amount as compensation they never considered the mental pain and other inconvenience suffered by the complainant. Opposite party has been cross examined by the complainant. In his cross examination opposite party admitted that complainant had informed timely the missing baggage to the opposite party and opposite party had given PIR and the weight of the missing baggage was around 15kg and items of the missing baggage were not declared by the complainant. Had complainant declared items of the baggage he would have remitted money as per procedure. According to opposite party there was no wilful negligence from the part of opposite party in missing the baggage. Opposite party has further deposed that even though there was deficiency in service opposite party is liable to pay compensation as per Carriage by Air Act. Complainant has never pleaded negligence nor proved it, as such Rule 25 of schedule (2) of the Carriage by Air Act is not applicable to the fact of the case. Evidently, as per Ext. P3 weight of the missing baggage is 15kg. Complainant has not produced any material to show that weight of the missing baggage as 18.5kg. As such we fix weight of the missing baggage as 15kg., though complainant claims that the said missing baggage contained valuable articles. Complainant never produced any material to show that such and such items were contained in the missing baggage. As per Rule 22 of the Carriage by Air Act complainant could have claimed damages in excess of 20 US Dollars/kg only if complainant has made at the time when baggage was handed over to the carrier a special declaration of interest in delivery at destination and had paid a supplementary sum if the case so requires. In this case, admittedly, complainant has handed over 13 baggages of total weight of 90kg. On his arrival at Thiruvananthapuram complainant received 12 baggages of 75kg as stated in Ext. P3. The missing baggage could not be traced thereby the inference is that the missing baggage would have a weight of 15kg. Admittedly, opposite party offered 300 US Dollars as compensation. Considering the weight of the missing baggage is 15kg., the amount offered by the opposite party is as per the Rules of the Carriage by Air Act. As complainant had never declared the contents and their value at the time of handing over to the baggage to the opposite party he cannot claim the value of the contents as claimed in the complaint. Admittedly, there is deficiency in service on the part of the opposite party in missing the baggage entrusted by the complainant. Opposite party is bound to return the baggage entrusted by the complainant at destination. Opposite party cannot escape from such liability arising out of deficiency in service. Taking into consideration of the totality of circumstance we are of the considered opinion that complainant is entitled to get an amount equivalent to 300 US Dollars considering the weight of the missed baggage as 15kg and Rs.5,000/- as compensation towards liability arising out of deficiency in service from the side of the opposite party.
In the result, complaint is allowed. Opposite party shall pay the complainant a sum of 300 US Dollars (converted into Rupees at the rate of exchange prevailing on the date of passing this order) Complainant shall also pay a sum of Rs.5,000/- towards liability arising out of deficiency in service. Parties are left to bear and suffer their respective costs.
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 15th day of December, 2011.
G. SIVAPRASAD : PRESIDENT
BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
C.C.No: 285/2010
APPENDIX
I. Complainant's witness:
PW1 : Dr. Mohammed Anil
II. Complainant's documents:
P1 : Copy of the reservation confirmation
P2 : " Exit visa
P3 : " Property Irregularity Report (PIR)
P4 : " application given by the complainant to opp. Party
P5 : " E-mail sent by opposite party
III. Opposite party's witness:
DW1 : Padmanabha Sharma
IV. Opposite party's documents:
D1 : Copy of the letter dated 8/6/2010.
PRESIDENT
