Heard The Learned Counsel For The Appellant And Respondent No.1.
The Case Of The Complainant/Respondent No.1 Is That The Petitioner/Complainant Alongwith Her Husband And Child Travelled From Bhubaneswar To Mumbai On Dtd. 01.01.2011 In Flight No. IC 169 Air India,PNR No. RARDX6 And Luggage Also Booked Vide Bag No.0098361182 In The Said Flight.
It Is Alleged By The Complainant That In The Said Bag The Articles Like Camara-
Digital Video (Kodak)-1 Amounting To Rs.2,000/-,Ring - 5 Grams-1 Amounting To Rs.11,000/-,Pendant Ear Rings, Nose Pin, Chain-1 Jewellery Set Amounting To Rs.87,000/-, Baby Tops - 12 (Gini & Johny, Baby Trousers-10 (Gini Johny Amounting To Rs.8,000/-, Baby Jacket - 1 (Mothers Care) Amounting To Rs.2200/-, Frock - 8 (Mothers Care) Amounting To Rs.9,000/-, Sarees - 2 (Designer) Amounting To Rs.6700/-,Salwar Suit - 6 (Biba) Amounting To Rs.10,800/-,Cosmetics(Revion) Amounting To Rs.6,000/-, Shirt & Paint - 3 Pairs (Blackberry & Arrow) Amounting To Rs.8,300/-,Medicine -1800/-,Gift Items - 3 (Laxmi Ganesh Murti, Pen) Amounting To Rs.3400/-, Estables(Sweets) Amounting To Rs.750/-, House Hold (Towel, Pillow Cover Etc.) Amounting To Rs.3800/-,Trolley - 1 (Suitcase) Amounting To Rs.5350/-, Mobile Charger - 1 (Nokia ) Amounting To Rs.200/-, Feeding Bottle -1 (Mothers Care) Amount To Rs.1200/-, Certificates, Baby Toys- 2 (Barbie Doll & Soft Toys) Amounting To Rs.1500/-, Grand Total Amount Comes To Rs.1,96,000/-. After Arrival At Mumbai Airport, The Petitioner/Complainant Discovered That The Booked Luggage Is Missed And Accordingly A Complaint Was Instantly Lodged Before The Airport Director, Mumbai Airport,Mumbai.
The Airport Authority,Mumbai Assured To Complainant That The Concerned Fight Has Already Left To New Delhi And Soon After Return Within 2 To 3 Days The Missing Luggage Will Be Traced Out And Handed Over The Same To The Petitioner/Complainant On Contact, As No Steps Was Taken Within The Assured Period, The Husband Of The Petitioner/Complainant Sent An E-Mail To The Airport Authority, Mumbai On Dated 06.01.2011 And Claimed An Amount Of Rs.1,96,000/- Towards The Cost Of Missing Articles In The Booked Luggage.
That As OP No.3 Could Not Trace Out The Said Missing Articles And Not Given Any Information To The Complainant, The Complainant Served A Legal Notice Through Her Advocate On 22.01.2011 Addressing To The Ops And Requested Therein To Return The Booked Luggage Containing The Valuable Article Or The Cost Of The Missing Articles To The Petitioner/Complainant With Adequate Compensation Within 15 Days From The Date Of Receipt Of This Legal Notice, But No Response Was Received From The Side Of The Ops. Challenging The Action Of Opp.Parties The Complainant Filed Complaint Case Before Learned Forum Below With A Prayer To Recovered Rs.1,96,000/- Towards Missing Articles, And Rs.50,000/- Towards Compensation And Rs.5,000/- Towards Documentation Cost From Opp.Parties And Same Be Paid To Petitioner.
On Receipt Of The Notice From The Forum Below The OP No.3 Filed Its Written Objection Denying The Allegations Made In The Complaint Petition Against The OP No.3 And Stating That
- The Complaint Was Not Maintainable Either In Law Or In Fact As There Was /Is No Deficiency In Service In View Of Section 2(1)(G) Of The Consumer Protection Act,1986.
- TheRespondent No.1/Complainant Has Failed To Prove Any Deficiency In Service And/Or Intentional/Willful Latches Or Any Willful Negligence On The Part Of The Appellant/Opposite Party No.3 In Respect Of Rendering Service.
- The Appellant/Opposite Party No.3 Has Acted As Per The Terms & Conditions Set Out In The “Conditions Of Contract Relating To Non-International Carriage Of Passengers And Baggage” In Respect Of Rendering Service, Which Is Binding Upon Both The Parties, The Question Of Negligence And/Or Deficiency In Service Does Not And/Or Can Not Arise At All And Further Stating That, As Per The Carriage By Air (Amended) Act 2009 And Baggage Liability Limitations Of Passenger And Clause 5(D) Of The Said Resolution Whose Carriage Is Not International, The Company Is Liable For Damage Sustained In The Event Of Destruction Or Loss Or Of Damage To Any Registered And Unregistered Baggage If The Occurrence Took Place During The Carriage By Air. The Liability Of The Company Shall Be Limited To A Sum Of Rs.450/- Per Kilogram For Registered Luggage And Rs.4000/- In Respect Of Entire Unregistered Baggage Of Which The Passenger Take Charge Of Himself. As Per Amendment Act 2009 And The Conditions Of Contract Relating To Non-International Carriage Of Passengers And Baggage Framed There Under The Liability For Loss, Delay Or Damage Is Limited Unless A Higher Value Is Declared In Advance And Additional Charges Are Paid By The Passenger At The Time Of Registration ( Check In). In The Instant Case The Respondent No.1/Complainant Having Not Declared A Higher Value Of The Baggage, For The Loss Of 21 Kilograms Of Baggage The Respondent No.1/Complainant Was Entitled To An Amount Of Rs.9450.00 (Rupees Nine Thousand Four Hundred Fifty)Only, Which The Appellant Was Willing And Ready To Pay Subject To Certain Formalities.
Learned Counsel For Complainant Cited The Decision Reported In 2010 NCJ-211(NC). Learned Counsel For OP No.3 Cited The Decision Of This Commission Passed In C.D.Appeal No.400 Of 2000 In Case Of Station Manager, Indian Airlines Ltd. -Vrs- Dr. Shailendra Kumar Tamotia & Another.
After Hearing The Matter Learned Forum Below Passed The Order Directing The Opp.Parties To Pay An Amount Of Rs.1,09,000/- Towards The Value Of Missing Articles And Rs.1,000/- Towards Compensation For Mental Agony And Rs.1,000/- Towards The Cost Of Litigation.
Challenging The Said Order The Appellant Has Preferred The Present Appeal.
During The Course Of Hearing The Appellant Cited Different Provisions And Stated That That Whenever A Passenger Books A Ticket For Travel, He Or She Is Bound By The Contracts Of Carriage As Laid Down And Available In The Website Of The Appellant At Www.Airindia.In Which Is A Public Domain. In The Said Website Under The Heading Of “CITIZENS CHARTER” Certain Provisions/Conditions Are Published For The Benefit Of The Passengers Which A Passenger Is Bound To Agree Before He Or She Undertakes The Journey. The OP No.3/Appellant Filed The Written Note Of Argument Stating Different Provisions Of Citizens Charter Which Also Forms A Part Of Contract Between The Carrier And The Passenger And Binding On The Passengers Booking Tickets For Travel,Further Stating That As Per The Notifications Issued From Time To Time Under Carriage By Air(Amended) Act 2009 The Baggage Liability Limitations Of Passengers Whose Carriage Is Not International Is As Follows:-
As Per Clause 5(D) Of The Said Resolution, Subject To The Provision Of Sub-Clause (E) Below, The Company Is Liable For Damage Sustained In The Event Of Destruction Or Loss Or Of Damage To Any Registered And Unregistered Baggage If The Occurrence Which Caused The Damage So Sustained Took Place During The Carriage By Air. The Liability Of The Company Shall Be Limited To A Sum Of Rs.450/- (Four Hundred And Fifty) Per Kilogram For Registered Luggage And Rs.4000/-(Four Thousand ) In Respect Of Entire Unregistered Baggage Of Which The Passenger Takes Charge Of Himself.”
Ultimately The Subject Baggage Despite The Best Efforts Of The Appellant Could Not Be Traced. As Per The Carriage By Air (Amended) Act 2009 And The Conditions Of Contract Relating To Non-International Carriage Of Passengers And Baggage Framed There Under The Liability For Loss, Delay Or Damage Is Limited Unless A Higher Value Is Declared In Advance And Additional Charges Are Paid By The Passenger At The Time Of Registration ( Check In).
In The Instant Case The Respondent No.1/Complainant Having Not Declared A Higher Value Of The Baggage, For The Loss Of 21 Kilograms Of Baggage The Respondent No.1/Complainant Was Entitled To An Amount Of Rs.9450.00 (Rupees Nine Thousand Four Hundred Fifty)Only, Which The Appellant Was Willing And Ready To Pay Subject To Certain Formalities.
The Counsel For The Appellant Brought To Our Notice The General Conditions Of Carriage For Passengers And Baggage Vide Annexure-3 To Written Note Of Argument.
Article -9 - Baggage.
9.1 - Items Unacceptable As Baggage.
9.1.3 The Passenger Shall Not Include In Checked Baggage Fragile Or Perishable Items, Money, Jewellery, Money, Jewellery, Precious Metals, Silverware,Negotiable Papers, Securities Or Other Valuables, Business Documents, Passports And Other Identification Documents Or Samples.
9.7 Excess Value Declaration And Charge
9.7.1 If, In Accordance With Carrier’s Regulations Carrier Offers An Excess Valuation Facility, A Passenger May Declare A Value For Checked Baggage In Excess Of The Applicable Liability Limits. If The Passenger Makes Such A Declaration The Passenger Shall Pay Any Applicable Charges.
17.2 : Carriage Hereunder Which Is Not International Subject To The Rules And Limitations Relating To Liability As Specified By Notifications Issued From Time To Time Under Section 8 Of The Indian Carriage By Air Act,1972:
(1) Pursuant To Notification No. S.O. 3129(E), Dated August 22,2019, Issued By The Ministry Of Civil Aviation, Government Of India, Carrier Hereby Agrees That Its Liability Shall Be As Under: -
17.02(1) (D) In The Carriage Of Baggage, The Liability Of Carrier In The Case Of Destruction, Loss, Damage Or Delay Shall Be Limited To Rupees Twenty-Five Thousand Of Each Passenger Unless The Passenger Has Made, At The Time When The Checked Baggage Was Handed Over To Carrier, A Special Declaration Of Interest In Delivery At Destination And Has Paid A Supplementary Sum, If So Required. In That Case, Carrier Shall Be Liable To Pay A Sum Not Exceeding The Declared Sum, Unless If Proves That The Declared Sum Is Greater Than The Passenger’s Actual Interest.
Counsel For Appellant Cited The Decision Passed By This Commission In Case Of Station Manager, Indian Airlines-Vrs- Dr.Sailendra Kumar Tamotia In C.D.Appeal No. 400 Of 2000 In Support Of His Case Wherein This Commission Has Held That In Case Of Missing/Lost Luggage In Transit The Passenger Is Only Entitled To Compensation On A Weight Loss Basis.
Learned Counsel For The Respondent No.1/Complainant Filed Written Note Of Submission And Vehemently Argued That Clause-5(D) Of Notification Under Carriage By Air (Amendment) Act 2009 Is Not Applicable To Present Case As The Baggage Containing Valuable Articles And The Resolution Of Appellant Can Not Override The Statute. The Counsel For The Respondent No.1/Complainant Submitted That Due To Missing Of Luggage Containing Articles Stated In Above Paragraphs Including Medicine,Feeding Bottle The Complainant Could Not Give Medicine Of The Child, And Feed Her Child After Arrival At Airport,Mumbai For Which Her Child Suffered, Causing Mental Tension And Harassment To Complainant And Due To Loss Of Certificates Complainant Could Not Applied For Job In Time, And Due To Loss Of Camera-Digigal Video(Kodak) Containing The Memories And Entire Marriage Ceremony Photographs Of The Complainant Has Been Lost Which Can Not Be Assessed In Monetary Term. As Such The Complainant Be Awarded Compensation For Such Inconvenience, Harassment And Sufferings. Learned Counsel For The Respondent No.1 Cited The Decision Reported In 2010 NCJ 211(NC) In Case Of Gujurat Urja Vikas Nigam -Vrs-Air India Ltd. In Support Of Respondent No.1 Case, Where The National Commission Has Decided The Matter In Other Aspect, In The Said Case Complainant Had Given The Copies Of Invoices Of The Goods To Be Transported To The Airport Authorities. Learned Counsel For The Respondent Also Cited Decisions Reported In 2000(2) Supreme Court 594, 1996 AIR(SC) 2508, In Support Of Her Case, We Found The Ratio Of The Said Citations Are Not Applicable To The Present Case.
Counsel Of Complainant/ Respondent No.1 Submitted That Due To Loss Of Luggages In Transit, The Complainant Lost The Bag Containing Valuable Articles Including Medicine, Feeding Bottle Of Child, Certificates,Camera-Digital Video(Kodak) For Which She Could Not Give Medicine And Feed Her Child At Mumbai Airport And Suffered From Mental Tension And Harassment Due To Loss Of Certificates She Could Not Apply For The Job In Time And Due To Loss Of Camera-Digital Video(Kodak) Containing The Memories And Photographs Of The Marriage Ceremony Of Complainant The Complainant Has Suffered From Metal Tension And Harassment.
Complainant Has Averred In The Para -6 Of The Complaint Petition That Due To Missing Of Valuable Articles The Complainant Suffered From Mental Tension And Harassment And Has Also Prayed For To Grant Adequate Compensation Vide Para-7 Of The Complaint Petition.
Admittedly, Luggage Could Not Be Traced Out By Appellant, The Appellant Has Agreed To Pay Rs.9450/- Towards The Loss Of Luggage.
Considering The Submission Of Appellant And Respondent No.1 And After Going Through The Complaint Petition And DFR We Hold That Learned Forum Below Without Going Through The Provisions Of Law Have Awarded Rs.1,09,000/- In Favour Of Complainant Towards The Value Of The Missing Articles And Awarded Rs.1000/- Towards Cost And Rs.1000/- Towards Mental Agony Which Is Illegal, And Not Sustainable In The Eye Of Law As Such The Impugned Order Of Learned Forum Below Is Set-Aside.
Considering The Submission Of Learned Counsel Of Complainant/Respondent No.1 Records Of District Forum, Citations Of Both The Counsels And Considering The Sufferings Of Complainant Particularly Due To Missing Of The Luggage Of The Complainant Containing Articles Mentioned In Earlier Paragraphs Including Medicine, Feeding Bottle Of Child For Which She Could Not Give Medicine And Feed Her Child After Arrival At Mumbai Airport And Could Not Apply For Her Job Due To Loss Of Certificates, More Particularly Due To Loss Of Camera-Digital Video(Kodak) Containing The Old Memories And Entire Photographs Of Her Marriage Ceremony Of Which Value Can Not Be Assessed And The Complainant Has Suffered From Mental Tension And Harassment.
In View Of Such Fact, We Hold That There Was Willful Negligence On The Part Of Air India Ltd. And This Is A Clear Case Of Deficiency In Service On The Part Of Appellant/OP No.3.
Hence, We Direct The Appellant To Pay A Sum Of Rs.50,000/- To Complainant Towards Mental Tension, Her Sufferings And Harassment, , Rs.9450/- (Nine Thousand Four Hundred Fifty)Only Towards The Loss Of Luggagewhich She Entitled As Per The Provision Of Law As Admitted By Appellant And Rs.1,000/- Towards Cost Of Litigation. The Above Amount Shall Be Paid By Appellant To Complainant Within A Period Of One Month From The Date Of Receipt Of This Order, Failing Which An Interest @ 12 % Per Annum Shall Be Payable By Appellant Till Realization Of Said Amount.
Hence, The Appeal Is Allowed In Part. No Cost.
