Date of filing : 17.08.2009<br /> Date of Order: 30.04.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 30TH DAY OF APRIL 2010<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 1984 OF 2009<br /> <br /> 1. Dr. Kokrady Sathish Chandra Hegde<br /> S/o. A.H. Hegde<br /> <br /> 2. Dr. Prajwal Hegde <br /> Gynaecologist<br /> W/o. Dr. Kokrady Sathish Chandra Hegde<br /> <br /> ‘Sanjith Clinic’, No. 6, Ejipura<br /> Main Road, Bangalore 560 047 Complainants<br /> <br /> V/S<br /> <br /> Cargo Sales Manager<br /> Air India, National Aviation Co. of India<br /> Unity Building, J.C. Road<br /> Bangalore 560 002<br /> Having Reg. Office at<br /> National Aviation Company of India Ltd.<br /> Air Lines House, 113, Gurudwara<br /> Rakab Ganj Road, New Delhi 110 001 Opposite party<br /> <br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act.<br /> The facts of the case are that complainants travelled by Air India Express on 05.06.2008 from Dhmam K.S.A. (Kingdom of Saudi Arabia) to Bangalore. They had also booked their luggage at Dhamam through agency called Trans Peninsula Travel & Cargo. Luggage was weighing 240 KG. Complainants reached India on 05.06.2008. But they did not receive any intimation of arrival of cargo till 06.08.2008. After several enquiries they came to know that cargo was arrived in damaged condition. They protested and demanded the concerned officials to replace the damaged items or payment of compensation. They have been advised to file complaint. The complainants lodged complaint over phone to the concerned official. Complainant taken photographs of all the damaged good in front of the concerned officials and thereafter, lodged complaint. Nobody bothered to look in to the complaint. Opposite party has not rendered proper service. There is deficiency in service. Complainants were subjected to mental agony. The cost of the damaged items comes to Rs. 5,00,000/-. Medical books would itself cost more than Rs. 2,50,000/-. Complainants caused legal notice on 06.10.2008 to the Chief Executive Officer, Air India Cargo. Opposite party on 04.12.2008 served copy of reply notice to the counsel of the complainants personally. In reply notice complainant produced documents required by the opposite party. But, so far the opposite party not complied the demand of the complainants. Complainants engaged service of surveyor in order to assess the loss. Surveyor has submitted detailed report. It is obligatory and incumbent on the part of opposite party to deliver goods immediately without any delay. Since, there was deficiency in service on the part of opposite party complainants are legally entitled to file the complaint. Hence, complainants have filed this complaint praying that opposite party be directed to pay Rs. 10,00,000/- as compensation.<br /> 2. The opposite party filed defence version stating that complaint is not maintainable. Goods were delivered in a damaged condition is denied. It is submitted that goods of 11 pieces weighing 240 kgs which were booked were delivered to the complainant and they were handed over to the opposite party. The complainant while booking cargo has neither disclosed the contents of the luggage nor has disclosed the value of the same. Hence, opposite party is liable to pay compensation is denied. Opposite party has not committed any act of negligence. Complainant had booked the cargo subject to the conditions of Air Way Bill. Clause 4 printed on the reverse of the Air Way Bill reads as follows:<br /> “4. Except as otherwise provided in carriers tariffs or conditions of carriage, in carriage to which the Warsaw Convention does not apply Carrier’s liability shall not exceed USD 20.00 or the equivalent per Kilogram of goods lost, damaged or delayed, unless a higher value is declared by the Shipper and a supplementary charge paid.”<br /> 3. In the instance case cargo was booked on weight basis and freight was not paid on the value basis. For all these reasons stated above the opposite party prayed to dismiss the complaint.<br /> 4. Respective parties have filed affidavit evidence and documents.<br /> 5. I have gone through the affidavit evidence and documents very minutely.<br /> 6. The points for consideration are:<br /> 1. Whether the complainants have proved deficiency of service on the part of opposite party?<br /> 2. Whether the complainants are entitled for compensation? If so, what would be the quantum of compensation?<br /> 7. The fact that complainants travelled by Air India Express on 05.06.2008 from Dammam, K.S.A. (Kingdom of Saudi Arabia) to Bangalore is admitted fact. The fact that the complainants booked luggage weighing 240 kgs containing 11 pieces at Dammam is also admitted fact. The complainant submitted that cargo reached Bangalore on 06.08.2008. This fact is also admitted by the opposite party because they never denied the averment made by the complainants. It is the case of the complainants that to their surprise and shock their belongings were badly damaged and they protested for that and demanded concerned officials to replace the damaged items or to pay compensation. The complainants lodged complaint to the opposite party. The complainants several time requested the opposite party for settlement of the claim but opposite party did not take any steps for early settlement of the claim. Thereafter, complainants caused legal notice dated 06.10.2008. The copy of legal notice was produced. In pursuance of the legal notice sent by the complainants the opposite party through Cargo Sales Manager sent reply on 24.10.2008 to the advocate of complainants. It is better to reproduced entire letter of the opposite party.<br /> “24 October, 2008<br /> Mr. G.N. Narendra<br /> Advocate<br /> 7 First Floor, Swastik Complex<br /> Seshadripuram Police Station<br /> SC Road, Bangalore<br /> <br /> Dear Sir,<br /> Sub: Claim–AWB No. 098/84379234 – Dammam / Bangalore<br /> We refer to your Notice/letter dated 6th October, 2008 received by us on 23OCT08.<br /> We noted from your letter that your client was inconvenienced by our staff, for which we sincerely apologise.<br /> We are investigating the matter with our handling agents and we will revert to you.<br /> Kindly be advised if there is a damage to the contents of the baggage, you may please put up the claim which will be settled as per Conditions of Contract, which is printed on the reverse of the Air Waybill.<br /> We do understand the mental agony that client has gone through in clearing the baggage, but unfortunately, the airline will not be able to entertain claims made on behalf of mental agony that your client may have endured.<br /> In the meantime, please arrange to forward the following documents for our investigation and proceed further in the matter.<br /> 1. Copy of the Air Waybill<br /> 2. Copy of the Delviery Order<br /> 3. Survey Report by an authorised Surveyor<br /> 4. Original Bills of the Damaged contents<br /> <br /> Yours faithfully,<br /> AIR INDIA LIMITED<br /> <br /> Sd/- <br /> (VEENA V. ARYA)<br /> CARGO SALES MANAGER”<br /> 8. It is the case of the complainant that after receipt of the letter of the opposite party dated 24.10.2008 marked as Ex. C1 the complainant has sent reply through his advocate Mr. M. Aswathanarayana Reddy dated 19.03.2009. In this notice it is submitted that copy of the Air way bill, copy of delivery order, survey report by an authorized surveyor, original bills of the damaged contents have been forwarded and requested the opposite party to settle the amount claimed. The copy of legal notice dated 19.03.2009 is also produced marked as Ex. C2. The complainant has produced survey report marked as EX C3. As per the survey report submitted by the authorised surveyor Byraiah, he has inspected the damaged goods and given his detailed report mentioning the description of goods and nature of damages. Surveyor totally assessed the loss of damaged goods as Rs. 68,933/-. Out of this amount he has deducted Rs. 6,833/- towards depreciation and net loss recommended by surveyor is Rs. 62,100/- and he has also given note that insured may be indemnified with the cost of 50 numbers damaged medical books. The complainant himself has taken service of surveyor and the surveyor assessed the loss suffered by the complainant in the presence of the complainant and surveyor submitted report to the complainant and complainant in turn submitted survey report along with other documents to opposite party for settlement of claim. Inspite of submission of all the documents demanded by the opposite party in their letter dated 24.10.2008, opposite party has not taken any positive steps in settlement of the claim. Therefore, it amounts to deficiency of service on the part of opposite party in not settling the claim of the complainants for a long period even after submission of all the required documents. The only contention taken by the opposite party is that the goods were booked on weight basis and freight was not paid on value basis. The opposite party has relied upon Clause 4 of Air Waybill which assess the carriers liability shall not exceed USD 20 or equivalent per kilogram of goods lost, damaged or delayed, unless a higher value is declared by the shipper and a supplementary charge paid. Admittedly, the complainant had booked 240 Kgs of baggage. For damage of the baggage and for delayed arrival opposite party has to pay US $ 20 per k.g. of goods. If we calculate claim on the basis of this clause 4 of Air way bill the amount may exceed. But, however, the surveyor appointed by the complainants themselves has looked into the baggage items and submitted his survey report and assessed the damage to Rs. 62,100/- after depreciation. Therefore, it is just, fair and reasonable to direct the opposite party to pay Rs. 62,100/- as per the surveyors loss of assessment. As regards medical books are concerned the complainant claimed Rs. 2,50,000/- as compensation. This amount cannot be allowed. First of all complainants have not proved the damage caused to the books. He has not produced any evidence either documentary or oral to prove that medical books have been damaged in the transit. Complainants have not produced original bills of medical books to show the cost of the books. Complainants have not produced the damaged books for the inspection of forum. There is absolutely no iota of evidence to establish and prove that medical books have been damaged in transit. In the absence of any proof of damage to the medical books it is very difficult to award compensation. Therefore, taking into consideration of all the facts and circumstances of the case it is just, fair and reasonable to direct the opposite party to pay Rs. 62,100/- as compensation to the complainants. In the result I proceed to pass the following:<br /> ORDER<br /> 9. The complaint is partly allowed. The opposite party is directed to pay Rs. 62,100/- as compensation within 30 days from the date of this order. In the event of non-compliance of the order the above amount carries interest at 9% p.a. from the date of filing of this complaint till payment / realisation. <br /> 10. The complainants are also entitled for Rs. 3,000/- as costs of the present proceedings from the opposite party.<br /> 11. Send the copy of this Order to both the parties free of costs immediately. <br /> 12. Pronounced in the Open Forum on this 30TH DAY OF APRIL 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br />