DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO.146/2016
Date of Filing: Date of Admission Date of Disposal:
08.03.2016 16.03.2016 06.07.2017
Complainant = Vs. = O.P.
1.Shri Tapas Samanta, 1. Air India Ltd,
S/o. Shri Bimalendu Samanta, represented by
3C/2, Anupama Housing Complex, Shri P.S. Bandyopadhyay,
Mandal Ganthi, Asstt. General Manager
P.S. Baguiati, (Commercial),
Pin- 700052, Smt. Jhumur Mukherjee,
Kolkata. 2.Smt. Manimekhala MaitiSamanta, Manager, VC/CS and
D/o. Shri Haripada Maiti, Shri Sukumar Banerjee,
3C/2, Anupama Housing Complex, ER Customer Service,
Mandal Ganthi, Air India Ltd,
P.S. Baguiati, Airlines House,
Pin-700052, Kolkata. 39, Chittaranjan Avenue,
3.Master Urjjossan Samanta Kolkata- 700012.
(represented by Shri Tapas Samanta),
S/o. Tapas Samanta,
3C/2, Anupama Housing Complex,
Mandal Ganthi,
P.S. Baguiati,
Pin- 700052,
Kolkata.
P R E S E N T :- Siddhartha Ganguli……..……………..President –in-Charge
:- Smt. Kabita Acharjee(Goswami)……Member
J U D G E M E N T
The gist case of the complainants is that they were the bonafide passengers of the Air India flight No. AI-248 from Kathmandu to Kolkata dated 23.10.2014.
It is the contention of the complainants that the luggage, weighing about 18kg bearing tag No. AI68415 went missing (Air India AHL No. CCUAI21771) due to dereliction of duty and negligence of the O.P. No.1.
On 18.11.2014 the O.Ps informed the complainants that they were unable to trace out the luggage and offered compensation to the tune of 20USD/kg as per Warsaw convention norms.
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The complainants disagreed with the offered compensation. It is the contention of the complainants that the O.P mis-lead the complainants by providing information by stating that compensation related to the said flight was to be governed by the Warsaw Convention but not by the Montreal Convention as Nepal was a non signatory state. The complainants wanted to get information from the O.Ps that under what convention the compensation was offered. But the O.Ps kept silent over a long period of time and did not respond over the telephone. No clarification was given to the complainants. The complainants stated in their complaint petition that the O.Ps were insisting to take maximum compensation for the lost luggage as per the Montreal convention and to accept the offered compensation at the rate of 17SDR/kg for the missing checked in luggage. One Mrs. Jhumur Mukherjee, Manager, VC/CS sent the discharged receipt form on 02.12.2014 along with a covering letter requesting to sign the form and to agree to the compensation offered along with a claim letter without any confirmation of the query. In reply the complainants did not accept the offered compensation ‘in full satisfaction and liquidation’ as mentioned in the discharged receipt form. The complainants thereafter visited the O.Ps’ office on several dates and informed the matter to their Delhi office but got no fruitful result.
It is again contended that on the contrary they all, on behalf of the O.P. No.1, insisted the complainants to sign on the discharged receipts form and to accept the offered compensation of 17SDR/kg which is stipulated for missing Cargo Luggage but not for missing checked in luggage as per Montreal Convention.
Further on 06.01.2015, the O.Ps ‘ Customer Service office sent a mail to the complainants to sign the claim form and sent them back signed form along with a list of missing items with original bills. The O.Ps further stated that in absence of such they were unable to take any further necessary action in that regard. The complainants before filing this case approached the Assistant Director, C.A and FBP, North 24 Parganas for amicable settlement but no settlement was done. The complainants, therefore, file this petition for getting proper reliefs according to their claim. The value of the lost property is estimated at Rs. 98,500/- which according to their calculation is much more than the offered compensation amount of 17SDR/kg.
Finding no other alternative the complainants were constrained to file this case before this Forum for getting proper reliefs which are as follows:-
1. Compensation at the rate of 1000 SDR /passenger as per Air India Ltd liability described in their official documents available at the international for the
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missing checking luggage with due interest for replacement of the lost itmes and compensation of equal amount for the harassment and mental agony which the complainants had to undergo. Further, they pray for recovery of the award by deducting salaries of the Air India faulty staff.
The complainants filed the following documents in order to substantiate their claim.
i).Xerox copies of all the air tickets, boarding passes of all three complainants for the flight No. AI-248.
ii). Xerox copies of the relevant Property Irregularity Report (PIR) issued by the O.P. No.1.
iii). Xerox copies of letter from Mrs. Jhumur Mukherjee on behalf of the O.P. No.1 to the complainant No.3.
iv). Xerox copies of all the e-mail correspondences between the complainant No.1 and the O.P. No.1.
v). Xerox copies of all the written correspondences between the Consumer Affairs Department, 11A Mirza Galib Street, Kol-87 and O.P. No.1.
vi). Xerox copies of the discharge receipt form sent by O.P. No.1.
vii). Xerox copies of white document describing its liabilities with respect to air travel using their flight which is available at the official web site of the O.P. No.1
The O.Ps filed written version against the complaint petition.
The O.Ps stated that the lost baggage was booked in the name of complainant No.3. It is admitted by the O.Ps that the complainants had travelled from Kathmandu to Kolkata by their Air India flight AI248 on 23rd October, 2015. On arrival at Kolkata one package owing about 18kgs booked under package tag No.AI680415 could not be located. The O.Ps were unable to trace out the missing luggage of the complainants. The O.Ps had offered to settle on weight loss basis, which according to the O.Ps the compensation would be Rs. 27,828/- which is equivalent to SDR 17 /kg but the complainants did not accept the offer. The O.Ps stated that the complainants were entitled to get compensation for the weight loss of 18 kgs at the rate of SDR 17 /kg, total of SDR 306, which is equivalent to INR 27828 and the Airlines liability for the claim of this nature is limited to SDR 17/kg for travelling on any International Sector which is based on actual loss basis but not on the value of the items, unless it is declared in advance at the time of check-in.
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The O.Ps further stated that the complainants did not declare the value of the goods in advance and did not disclose the articles contained in their package
at the time of check-in. He further submitted that the liability for international carriage is subject to the rules as empowered in the Carriage by Air Act, 1972 as amended by the Carriage by Air( Amendment Act, 2009). The aforesaid Act also laid down the effects and benefits of the Montreal Convention 1999 and not the Warsaw Convention 1929 since the passengers had travelled on an International Sector from Kathmandu to Kolkata. The O.Ps offered compensation as per the Montreal Convention wherein the liability of the Airline for a claim is related to SDR 17/kg which is based on actual weight loss basis and not the value of items, unless it is declared at the time of check-in- payment thereof.
The O.Ps denied the other parts of the complaint petition.
From the pleadings of the parties the following points have been framed for decision:-
1). Is the complainant consumer?
2). Are the O.Ps deficient in service?
4). What relief the complainant is entitled to get?
During hearing the complainants to prove their case filed written affidavit-in-chief along with copy of documents by way of firisti.
Reasoned Decision
All the points are taken up together for the sake of brevity and convenience.
We have gone through the case record and the evidence adduced by the complainants. It is found that the dispute of this case is mainly for the loss of baggage of the complainants in the Air India flight, who travelled from Kathmandu to Kolkata. The said baggage could not be traced out and therefore, the complainants pray for compensation which according to them would be 20USD/kg as per the Warsaw Convention.
The O.Ps on the other hand argued that the damage to the baggage would be as per the Montreal Convention and the O.Ps stated that the complainants are entitled to get maximum compensation at the rate of SDR 17/kg which is equivalent to Rs. 27,828/- for the loss in view of Montreal Convention and the allied laws in force.
It is seen from the document by the complainants that the liability of the Airlines for a claim of this nature is limited to SDR 17/kg for travel on any International Sector which is based on actual weight loss basis and not on the value of the items unless it is declared advance at the time of check-in.
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The document vide reference No. CCU/GM/C/4-1/claim -21-22 dated 02.12.2014 reflects that the O.Ps were ready to settle the claim for a weight loss basis according to Montreal Convention which the complainants denied to accept and urged to get more compensation by insisting that the claim should be as per the rate based on value based claim but not weight loss basis.
We have perused the materials on record. It is admitted position that the weight of the loss baggage was 18 kgs. The complainants did not disclose the items kept in the baggage and the value of the baggage before check-in. In absence of such, we hold the view that the complainants would be entitled to get damage for the baggage to the tune of Rs. 27,828/- as per the Montreal Convention. As the complainants suffered mental agony, pain etc. we further hold that the complainants are entitled to get compensation which is quantified at Rs. 10,000/- and litigation cost of Rs. 5,000/-.
Hence
Ordered,
that the complaint be and the same is allowed in part against the O.Ps.
The O.Ps are jointly and severally directed to pay Rs. 27,828/- for the loss of baggage to the complainants within one month from the date of this order.
The O.Ps are further directed jointly and severally to pay Rs. 10,000/- as compensation and Rs. 5,000/- as litigation cost to the complainants within the aforesaid period, in default, the entire amount shall carry an interest at the rate of 6% till realization.
Copy be delivered to the parties free of cost.
