Tamil Nadu

South Chennai

CC/90/2015

M/s.S.Sivakumar - Complainant(s)

Versus

The Manager, The Etihod Airways, - Opp.Party(s)

D.Ravi Kumar

03 Mar 2020

ORDER

Date of filing      : 25.02.2015                                                                                                                            Date of disposal : 03.03.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.90/2015

DATED THIS TUESDAY THE 03^RD DAY OF MARCH 2020

                                 

S. Sivakumar,

S/o. Mr. Sivasankaran,

No.33/16, Kamaraj Road,

Alwarthirunagar,

Chennai – 600 087.                                                       .. Complainant.                                                       

..Versus..

 

The Manager,

The Etihad Airways,

Regus Business Centre,

Level 6, No.10/11, R.K. Salai,

Mylapore,

Chennai – 600 004.                                                    ..  Opposite party.

 

Counsel for the complainant     : M/s. D. Ravikumar & another

Counsel for the opposite party : M/s. Rupa. J. Tharayil

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.1,00,000/- towards loss of TV set and to pay a sum of Rs.1,00,000/- towards compensation for pain with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he has purchased 46 inch Plasma TV and it was airlifted on 15.07.2013 and in the same flight, the complainant also travelled to Chennai. The opposite party as carrier charged 548 US Dollars as freight charge.  The complainant has disclosed the carriage and its value.  The flight reached Chennai on 16.07.2013.  The complainant submits that to his shock and surprise, the complainant noticed that the entire contents of the box was broken and the TV had been totally damaged.  The complainant submits that the complainant lodged a complaint immediately on the website and another complaint was also sent through e-mail on 16.07.2013 at 01.22 p.m. to the opposite party.  The Dubai Office through communication dated:04.09.2013 at 11.45 a.m. contacted the complainant that a dedicated team would visit and assist the complainant along the damaged Cargo but till date, there is no response and all further communication from the complainant remain unanswered  by the opposite party.   The complainant submits that the damage to the TV occurred during transit only.   The inaction on the part of the opposite party comes within the purview of mishandling and negligence and the cargo was mean for the personal use of the complainant.   Therefore, the opposite party is liable to pay compensation for the goods lost by the complainant.  The complainant issued legal notice dated:01.12.2013 demanding compensation for loss of carriage for which, the opposite party has not sent any reply.  The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The opposite party states that the complainant has checked in 11 pieces of baggage and a baby stroller along with TV being excess weight for all the baggage checked in.   The opposite party submits that the complainant and his family were only entitled to check in 6 pieces of baggage weighing up to 30 kgs.  Hence for the additional 5 pieces of baggage, they were charged US$548 for excess baggage.  So, it is false to allege by the complainant that the above charge is made only for TV carriage.  The opposite party submits that the size of the TV and type of the TV was unknown to the opposite party.  The opposite party submits that the TV and baggage tag clearly shows that insufficient packaging and fragility of the item.  The complainant was asked to sign a limited release agreement wherein, the opposite party informed the complainant about the insufficient packaging and fragility of package.  Therefore, during transit the TV could get damage unless it is securely packed.  The opposite party states that at the time of checked in baggage in the tag clearly has been marked as unsuitable, fragile and perishable.   The covenant between the opposite party and the complainant at the end of the baggage tag signed clearly states as follows:-

CARRIERS PARTICIPATING IN TRANSPORTATION OF THE ITEM MAY NOT ACCEPT CLAIMS ARISING FROM THE ABOVE CONDITIONS OF ACCEPTANCE    The opposite party submits that the complainant signed in the damage report.  The damage report shows that the TV was 46 inch Plasma Panasonic and it was purchased 2 years earlier in March 2012 and the value thereof stated is US$ 350.

3.     The conditions of the carriage of this opposite party and the relevant applicable articles contained therein as under:-

“Article 8.3.8:- It is recommended that fragile or perishables should not be included in your checked in baggage.

Article 8.6.5:- You must ensure that your Checked Baggage is sufficiently robust and well secured to withstand the usual and normal rigours of carriage by air without sustaining damage (except for fair wear and tear)

Article 15.2.2:- We will not be liable for Damage to Baggage resulting from the inherent defect, quality or vice of the Baggage.  Likewise, we will not be liable for fair wear and tear of Baggage resulting from the usual and normal rigors of transportation by air”. 

4.     The opposite party states that the damage to the TV could have occurred when the baggage was being transported from the Airport to the complainant’s residence or prior to check in at the Airport or damages could have been occurred prior to arrival at New York Airport or prior to check in for the flight or after landing.  It is a matter of speculation where the damage could have been taken place.  The opposite party states that the TV was never lost is only damaged and as the value declared for the TV was only US$ 350 equalent to approximate Rs.20,000/- as per the statement of the complainant himself.  Therefore claiming of Rs.1,00,000/- for an old used TV is unfair and incorrect.  Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed. 

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A6 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B5 are marked on the side of the opposite party.

6.      The points for consideration is:-

1. Whether the complainant is entitled to get a sum of Rs.1,00,000/- towards of loss of TV set as prayed for?
2. Whether the complainant is entitled to get a sum of Rs.1,00,000/- towards compensation for mental agony, deficiency in service with cost as prayed for?

7.      On point:-

Both parties filed their respective written arguments.  Heard their Counsels also.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that he has purchased 46” plasma TV but no document produced.   He has carried the TV from New York to Chennai through flight on 15.07.2013 while he was travelling to Chennai in the same flight as per Ex.A1 & Ex.A2, the passenger baggage receipts and tickets.  Further the contention of the complainant is that the opposite party has charged 548 USD as freight charge is seen from Ex.A1.   The complainant has disclosed the carriage and its value but no declaration filed.  But it is admitted in the written version para No.3 it reads as follows:

“The damage report states clearly that the TV was 46 inch Plasma Panasonic and it was purchased two years earlier in March 2012 and the value thereof stated is US$ 350”.

8.     Further the contention of the complainant is that when the flight reached Chennai on 16.07.2013 to his shock and surprise, the complainant noticed that the entire content of the box was broken and the TV had been totally damaged.  Further the contention of the complainant is that the complainant lodged a complaint immediately through the website and another complaint was also sent through e-mail on 16.07.2013 at 01.22 p.m. to the opposite party for which, the opposite party has sent a damaged baggage report, Ex.A3 and admitted in the written version para No.5 which reads as follows:-

        “There could have been a possibility that the TV could have been damaged when the baggage was being transported between the airport and the complainant’s residence or prior to checking in at the airport.    This opposite party states that the TV was packed in a box and it may well have been damaged prior to arrival at New York airport prior to check in for the flight or after landing”.

The Dubai Office through communication dated:04.09.2013 at 11.45 a.m. contacted the complainant that a dedicated team would visit and assist the complainant along with the damaged Cargo as per Ex.A4.   But till date, there is no response and all further communication from the complainant remain unanswered by the opposite party.  

9.     Further the contention of the complainant is that no reply from the opposite party with regard to T.V. proves that the damage of TV occurred during transit only.  Further the contention of the complainant is that the inaction and not handling the TV carriage with care is amounts to gross negligence and deficiency in service on the part of the opposite party.   Therefore, the opposite party is liable to pay compensation for the goods lost by the complainant.  Further the contention of the complainant is that the complainant issued legal notice dated:.01.12.2013 as per Ex.A5 demanding compensation for loss of carriage for which, the opposite party has not sent any reply.   Hence, the complainant is constrained to file this case.

10.    The learned Counsel for the opposite party would contend that the complainant had checked in 11 pieces of baggage and a baby stroller along with TV being excess weight for all the baggage checked in.   Further the contention of the opposite party is that the complainant and his family were only entitled to check in 6 pieces of baggage weighing up to 30 kgs.   Hence, for the additional 5 pieces of baggage they were charged US$548 for excess baggage as per Ex.B1, baggage receipt dated:13.07.2013.   So, it is false to allege by the complainant that the above charge is made only for TV carriage.   Further the contention of the opposite party is that the size of the TV and type of the TV all those information were unknown to the opposite party is not acceptable because, the TV is one of the item in the baggage goods.   Further the contention of the opposite party is that the TV and baggage tag clearly shows that insufficient packaging and fragility of the item and the complainant was asked to sign a limited release agreement wherein, the opposite party informed the complainant about the insufficient packaging and fragility of package as per Ex.B2 dated:14.07.2013.  Therefore, during transit the TV could get damage unless it is securely packed.   It is an admitted fact on the side of the opposite party.   Further the contention of the opposite party is that at the time of checked in baggage in the tag clearly has been marked as unsuitable, fragile and perishable.   The covenant between the opposite party and the complainant at the end of the baggage tag signed clearly states as follows:-

CARRIERS PARTICIPATING IN TRANSPORTATION OF THE ITEM MAY NOT ACCEPT CLAIMS ARISING FROM THE ABOVE CONDITIONS OF ACCEPTANCE    Ex.A1 is the copy of baggage tag signed by the complainant at New York.  Further the contention of the opposite party is that the complainant signed in the damaged report Ex.B3 dated:16.07.2013.  The damaged report shows that the TV was 46” Plasma Panasonic and it was purchased 2 years earlier in March 2012 and the value thereof stated is US$ 350.

 11.   The conditions of the carriage of this opposite party and the relevant applicable articles contained therein as under:-

“Article 8.3.8:- It is recommended that fragile or perishables should not be included in your checked in baggage.

Article 8.6.5:- You must ensure that your Checked Baggage is sufficiently robust and well secured to withstand the usual and normal rigours of carriage by air without sustaining damage (except for fair wear and tear)

Article 15.2.2:- We will not be liable for Damage to Baggage resulting from the inherent defect, quality or vice of the Baggage.  Likewise, we will not be liable for fair wear and tear of Baggage resulting from the usual and normal rigors of transportation by air”.  

as per Ex.B4, the copy of conditions of carriage.

12.    Further the contention of the opposite party is that the damage to the TV could have occurred when the baggage was being transported from the Airport to the complainant’s residence or prior to checking in at the Airport or damages could have been occurred on prior to arrival at New York Airport prior to check in for the flight or after landing; is not acceptable because’ the TV was put in checked in baggage.   Further the contention of the opposite party is that the TV was never lost is only damaged and as the value declared for the TV was only US$ 350 equalent to approximate Rs.20,000/- as per the statement of the complainant himself. Therefore, claiming Rs.1,00,000/- for an old used TV is unfair and incorrect on the side of the complainant.   Further the contention of the opposite party is that damages if any, at the time of final judgement be restricted to US$ 350 or Rs.20,000/- as declared by the complainant.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall pay a sum of Rs.20,000/- towards the damaged TV and to pay a sum of Rs.10,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant.

In the result, this complaint is allowed in part.  The opposite party is directed to pay a sum of Rs.20,000/- (Rupees Twenty thousand only) towards the damaged TV and to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Five thousand only) to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 03^rd day of March 2020. 

 

MEMBER                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	13.07.2013	Copy of Passenger receipt for baggage (TV)
Ex.A2	13.07.2013	Copy of passenger receipt for baggage
Ex.A3	16.07.2013	Copy of damaged baggage report
Ex.A4	04.09.2013	Copy of e-mail conversations
Ex.A5	01.12.2013	Copy of legal notice
Ex.A6	04.12.2013	Copy of acknowledgement card

 

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1	13.07.2013	Copy of excess baggage receipt
Ex.B2	14.07.2013	Copy of limited release agreement & baggage tag
Ex.B3	16.07.2013	Copy of damage report
Ex.B4		Copy of conditions of Carriage Article 8.3 & 8.6.5
Ex.B5		Copy of conditions of Carriage Article 15.2.2

 

 

 

MEMBER                                                                                                                                                                                               PRESIDENT