Delhi District Court
M/S Ajanta Offset & Packagings Ltd vs M/S Lufthansa German Airlines on 24 December, 2007
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
Date of Institution : 15.12.2003.
Date on which the
Judgment has been
Reserved : 17.11.2007.
Date of Judgment : 24.12.2007.
In the matter of: -
Suit No. 261/2003.
M/s Ajanta Offset & Packagings Ltd.
95-B, Wazirpur Industrial Area,
Delhi. ... Plaintiff.
Vs.
M/s Lufthansa German Airlines,
Local Office at New Delhi,
56, Janpath,
New Delhi. ... Defendant.
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- : JUDGMENT : -
1.In this suit for recovery of damages, the plaintiff company through its Legal Adviser Sh. Shanker Karjee has alleged in the plaint the following facts, a resume of which is as under: -
That the plaintiff company is engaged in the business of printing of various materials like books, stationery items, leaflets, calenders, posters, danglers etc. and in rendering other allied services and is having its works at Delhi and Faridabad. The plaintiff is one of the largest printing net works in Northern Indian and is known for the high quality of services rendered buy it both in India and Abroad. The plaintiff's Director Sh. Siddarth Todi boarded on 13.12.2002 from Lufthansa Flight No. LH 4446 at 18.46 GMT from Frankfurt to Amsterdam vide ticket no. 220. At the time of boarding
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of the flight Sh. Siddarth Todi placed all his valuable documents, blueprints of specifications, machine drawing, about 15,000 high quality positives, test reports etc. in a cardboard tube which was booked as passenger luggage vide Luggage Tag No. LH 229161. The above documents/materials related to the machine proposed to be purchased by the plaintiff company for increasing the production capacity of the plaintiff during the meeting to be held in connection with the purchase of the said machine at Amsterdam. At the time of boarding of the flight for Amsterdam, the luggage was checked in and the defendant became the custodian of the baggage which was handed over to it after the necessary formalities relating to checking in of the baggage were completed and the defendant was fully responsible as the custodian of the said baggage for its safe transit. On reaching Amsterdam, Sh. Siddarth Todi, Director of the plaintiff company was
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unable to locate his luggage containing above documents/materials on the luggage belt. On making enquiries from Flight Customer Relations of the defendant, Sh. Siddarth Todi learnt that his luggage had been misplaced by the airline staff and he was asked to lodge a missing luggage report which was lodged vide reference no. SPLLH 38870/13 Dec 02/1846 GMT. Inspite of best efforts made by Sh. Siddarth Todi to locate the luggage, the Customer Relations Officer of the defendant was unable to locate the luggage of Sh. Siddarth Todi. The trip of the Director of the plaintiff company had been fixed more than two months in advance and had been planned for the sole purpose of meeting the officials of M/s Hidlebrej and M/s Man Roland for finalising the purchase of the machines for increasing the production capacity of the plaintiff company. The trip of the Director of the plaintiff company was rendered wholly
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futile as the purpose of finalising the purchase of the machinery was cancelled due to the non-availability of the blueprints of specifications, machine drawing, about 15,000 high quality positives, test reports etc. The expenditure incurred by the Director of the plaintiff company on the trip approximately comes to Rs. 4,70,921/- as detailed in Schedule-1 to the suit.
2.On 17.2.2003, the defendant informed the plaintiff company that the baggage had been located. However, the said baggage has lost its significance and is completely worthless due to the fact that it was not available for the meeting at Amsterdam for which the said baggage was required. The loss of the baggage resulted in the loss of valuable time of the Director of the plaintiff company, loss of efforts, loss of valuable documents in the form of high quality papers and approximately 200 man-hours of technicians. The
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plaintiff company, thus, suffered opportunity, loss in business on account of the said baggage being lost in addition to suffering mental agony and harassment. The damages suffered by the plaintiff company on account of loss of business and opportunity loss cannot be quantified accurately in terms of money and, as such, the plaintiff company has limited its claim to the actual expenditure incurred on the trip i.e. cost of travel, hotel stay etc. which was comes approximately about Rs. 4,70,921/-. The plaintiff has also claiming a notional sum of Rs. 50,000/- as compensation for the loss and injury suffered due to the negligence of the defendant and a sum of Rs. 50,000/- as compensation for mental harassment and agony caused on account of the irresponsible and negligent acts of the defendant/ its staff etc. and the plaintiff has also claimed a sum of Rs. 50,000/- towards punitive damages for the losses suffered by the defendant. Hence, the present suit
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instituted for a sum of Rs. 6,20,921/- towards refund of the charges on account of loss of damages due to negligence and irresponsible attitude of the defendant/ its staff.
3.The defendant contested the suit by filing the written statement wherein they took the preliminary objections that the suit is wrongly filed in the name of M/s Ajanta Offset and Packagings Ltd., whereas as per the Certificate of Incorporation, the plaintiff company is known as M/s Ajanta Offset and Packagings Pvt. Ltd. The conditions of carriage (passenger and baggage) framed by the defendant prohibit keeping of any kind of samples etc. inside baggage. Despite the prohibition, if the passenger/plaintiff kept any kind of samples etc. inside the baggage, then the defendant cannot be held responsible for any loss that may have occurred to the plaintiff. The Article 8 of the Article of Condition of
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Carriage (passenger and baggage) is reproduced as under: -
"Article VIII Checked Baggage
5. (c) The Passenger shall not include in his checked baggage, and carrier may refuse to carry as checked baggage perishable, fragile and highly sensitive articles (computers or other electronic items), money, jewellery, precious metals, negotiable papers, securities or other valuables, business documents or samples."
4.It is further alleged that without admitting any of the claims raised in the plaint, the defendant submits that their liability is limited to the extent provided under the relevant Conditions of Carriage. The following Article of Conditions of Carriage Ex DW1/1 restricts the limit of liability of the defendant: -
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"Article XV Liability of Damage Damage to Baggage
3. (a) The liability of Carrier for delay, damage, destruction or loss of baggage is limited as follows: -
(i) in international carriage and irrespective of whether the convention is applicable or not, (a) to the sum of 250 French gold francs or its equivalent (US equivalent approximately $ 20.00) per kilogram for checked baggage and (b) to the sum of 5,000 French gold francs or its equivalent (US equivalent approximately $ 400.00) for unchecked baggage per passenger."
5.It is further alleged that the plaintiff/passengers were fully aware through Regulations and Conditions of Carriage, copy of the relevant extract is attached as D-2
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to the plaint; that the valuable documents, blueprints of specifications, machine drawing, high quality positives, test reports etc. were not permitted to be kept inside checked in baggage. The defendant traced the missing baggage and informed the plaintiff accordingly but the plaintiff failed to collect the said baggage. Had the samples been so important for the passengers/ plaintiff, then they would have collected them immediately after being intimated by the defendant. The plaintiff in the plaint stated that it did not wish to collect the baggage from the airport which shows that it was not important at all.
6.On merits, all averments in the plaint have been controverted and denied stating that there was no cause of action against the defendant no. 1 and 3; the defendants were not aware about the travelling arrangement that took place between the plaintiff and
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the Travel Agent as mentioned in para no. 5 and 6 in the plaint. It is denied that any valuable documents, as alleged, were checked in as baggage. It is denied that the plaintiff was entitled to any damages or reimbursement of damages for loss of documents/ material, mental agony and harassment as claimed in the suit.
7.In replication, the plaintiff has reiterated and reaffirmed the averments made in the plaint while controverted the averments made in the written statement.
8.From the pleadings of the parties following issues were framed on 17.8.2004: -
1.Whether the plaintiff has not filed the requisite court fees on the plaint? OPD.
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2.Whether the plaint has been filed in the wrong name? OPD.
3.Whether the conditions of Carriage (Passenger & Baggage) framed by the defendants prohibit keeping of any kind of samples, etc. inside baggage? OPD.
4.Whether the plaintiff is entitled to a decree for a sum of Rs. 6,20,921/- as prayed for in para (a) of the prayer of the plaint? OPP.
5.Relief.
9.In support of its case, the plaintiff has examined SH. Shanker Karjee its Legal Officer as PW1 whereas the defendants have examined Ms. Sarika Gandhi working
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General Counsel, South Asia with the defendant as DW1. Both the parties have filed written submissions alongwith citations. I have gone through the written submissions and also heard the oral arguments at length. My findings of the issues is as under: -
10.Issue No. 1: Whether the plaintiff has not filed the requisite court fees on the plaint? OPD. The onus of this issue was upon the defendant. In para no. 17 of the plaint, the plaintiff has stated that the suit has been valued at Rs. 6,20,921/- for the purposes of court fees and jurisdiction on which the requisite court fees of Rs. 8,400/- has been affixed. In reply to the para no. 17 of the plaint in the written statement, it was simply stated that it was a matter of record. In the affidavit of the defendant Ex D-1 nothing is stated to the effect that the suit was not properly
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valued by the plaintiff. In the written arguments of the plaintiff it is argued that no question has been put to PW1 with regard to issue no. 1. The plaintiff has affixed a sum of Rs. 8,405/- court fees as was required on the relief claimed. In view of these averments and arguments the defendant has failed to prove the issue no. 1. The plaintiff on the other hand has succeeded in proving that the requisite court fees has been paid for the relief claimed therein. Issue no. 1 is, accordingly, decided in favour of the plaintiff and against the defendants.
11.Issue No. 2: Whether the plaint has been filed in the wrong name? OPD.
The onus of this issue was upon the defendant. It is argued on behalf of the plaintiff that the nothing has been suggested to PW1 with regard to name of the
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plaintiff and the document Ex PW1/1 therefore remained unrebutted. It is further argued that the defendant could not establish that the plaintiff company or the name in Ex PW1/1 were two different entities. The defendant has not led any evidence in that regard. The evidence led by the plaintiff with regard to the name of the plaintiff being correct as mentioned in Ex PW1/1 is unchallenged and unrebutted. The issue no. 2 is, accordingly, decided in favour of the plaintiff and against the defendant.
12.Issue No. 3: Whether the conditions of Carriage (Passenger & Baggage) framed by the defendants prohibit keeping of any kind of samples, etc. inside baggage? OPD.
The onus of this issue was upon the defendant. The DW1 in her affidavit Ex D-1 in para no. 3, 6 and 7 has
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stated under: -
"3. I state that admittedly Article VIII Para 5(c) of the Conditions of Carriage (Passenger and Baggage) framed by the defendants prohibits keeping of any kind of samples etc. inside the checked in baggage. Despite the prohibition, if the passengers keep any kind of samples etc., inside the baggage, the defendants cannot be held responsible for any loss that may occur due to the misplace of such baggage. The relevant extracts of the Conditions of Carriage (Passenger & Baggage) is quoted hereunder for ready reference: -
"Article VIII Checked Baggage
5. (c) The Passenger shall not include in his checked baggage, and carrier may refuse to carry as checked baggage perishable, fragile and highly sensitive articles (computers or other electronic items), money, jewellery, precious metals, negotiable papers, securities or other valuables,
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business documents or samples."
6. I state that being part of the jacket containing the tickets, these facts were well within the knowledge of the Directors of the plaintiff that valuable documents, blueprints of specifications, machine drawing, high quality positives, test reports etc. were not permitted to be kept inside checked in baggage and even if any passenger keeps such documents in the checked in baggage, that would entirely be at the risk and responsibility of such passenger.
7. I state that the defendants were neither aware of any Travel Plan of the Directors of the plaintiff nor of their arrangements with their Travel Agent. However, it is a matter or record that on 13.12.2003, Mr. Siddarth Todi boarded Flight No. LH 4446 from Frankfurt to Amsterdam and checked in a Baggage in the shape of cardboard tube with Tag No. LH 22916. AT the time of boarding, there was no declaration, of any sort, on behalf of Mr. Todi, as to the contents of such baggage. At the time of lodging the missing baggage complaint also there was no declaration on behalf of Mr. Todi that the baggage contained any blueprints of specifications, machine drawing, high quality positives, test reports etc. It is only from the legal notice dated 20.12.2002 that the defendants got to know that the
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baggage allegedly contained such valuable documents."
13.In cross examination the DW1 deposed that once the baggage is checked in by the passengers, it becomes the carriers responsibility. She further deposed that condition of carriage mentioned in Ex DW1/1 are not issued to the passengers. However, DW1 voluntarily stated that as they are part of ticket issued to the passengers. The whole cross examination of DW1 shows that the learned counsel for defendant did not assail the terms and conditions of the carriage as detailed in the deposition of DW1. The cross examination of DW1 shows that the learned counsel for plaintiff has tried to establish that the terms and conditions of checked in luggage were not brought to the knowledge of the passengers. The stand of the DW1 in para no. 5 of the affidavit is that the provisions of these Regulations and Conditions of Carriers as
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mentioned in Ex DW1/1 were referred to in the ticket jacket issued by the defendant which constituted a binding contract between the passenger and the defendant. It is further deposed that the copy of the relevant extract of condition of contract printed on each jacket containing ticket issued by the defendant has been proved as Ex DW1/2.
14.During arguments, the counsel for plaintiff has referred and relied Rule 25 Sub Rule 1 and 2 of Carriage by Air Act, 1972, which provides as under: -
"25. (1) The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct. (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent
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of the carrier acting within the scope of his employment."
15.It was argued on behalf of the plaintiff that the defendant cannot take benefit of Rule 22 Sub Rule 2 for limiting their liability for $ 20 per kg. The said Rule is reproduced as under: -
"22. (2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of Rs. 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor at delivery."
16.On perusal of the evidence led by the parties, arguments advanced at bar and also going through the written arguments, it is found that the Condition of
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Carriage (Passenger & Baggage) contained in Ex DW/1 reproduced in Ex DW1/2 are neither disputed nor denied by the plaintiff. The plaintiff has disputed the communication of these conditions contained in Ex DW1/2 to the Director of the plaintiff company. The defendant has thus proved that as per the conditions contained in Ex DW1/1 and Ex DW1/2 the passengers were prohibited from putting sensitive documents/ important documents in the checked in luggage without declaring the said thing categorically to the concerned airline/defendant. Whether the said conditions were communicated to the Director of the plaintiff or not shall be decided in the issue no. 4 and 5 with regard to the relief claimed in the suit. The issue no. 3 is, accordingly, decided in favour of the defendant and against the plaintiff.
17.Issue No. 4: Whether the plaintiff is entitled to a
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decree for a sum of Rs. 6,20,921/- as prayed for in para (a) of the prayer of the plaint? OPP. The onus of this issue was upon the plaintiff. As per prayer clause (a) of the plaint, the plaintiff has claimed a sum of Rs. 6,20,921/- towards refund of the charges/price paid towards the air fare, hotel stay etc., compensation for mental pain and agony and damages on account of loss of around 200 man hours caused due to the negligence and the irresponsible attitude of the defendant/its staff and towards punitive damages for the losses suffered by the defendant. In cross examination of PW1 it is stated that "The test trials of the machines were partly conducted because of loss of baggage and the result of the test trials did not come. Sh. Siddarth Todi went to Amsterdam to purchase the printing machine. Some machines were kept in Frankfurt, Germany and some at
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Amsterdam but I am not sure which manufactures machines was kept and where. The baggage was not lost when the test were conducted at Frankfurt, but subsequently. The documents were necessary for deciding the efficiency of the machines. The documents were generated by Engineers from India and aboard. I do not know when and where those documents were received by the plaintiff company. ... ... ... The plaintiff company was prevented from purchasing the machine. Documents were necessary to be produced before the manufactures for taking final decision on the purchase of the machine. The company tried to obtain the copy of the documents which were lost. I do not remember from whom the company tried to obtain the copy of the documents but the company failed to obtain the documents. ... ... ... The personnel of the company again visited Germany after 2 years and purchased
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one machine from Manroland."
18.The above deposition in cross examination of PW1 leads to the conclusion that the plaintiff company is not definite and certain as to what was the importance and value of the documents for finalising the deals for 2 machines. It is not clear as to what prevented the plaintiff company to obtain the copy of the documents. In the written arguments on behalf of the defendant it is argued that as per para no. 3 (a) of Article 15 of the Conditions of Carriage, in the damage to baggage clause it was expressly provided that the liability of carrier (defendant herein) for damage, delay or loss of baggage is limited to $ 20 per kilogram of checked in baggage. The case of the plaintiff is that there is delay in delivery of the baggage, therefore, the case of the defendant is governed by this clause of liability. The learned counsel for defendant has referred and relied
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(1996) 4 SCC 704 in support of above arguments. It is argued that Ex DW1/2 contained the relevant extracts of the Conditions of Contract printed on the jacket of the tickets issued by the defendant to the plaintiff. It is further argued that the air ticket shall be construed as a contractual document and the person receiving the said document/ticket knew the writing or printing in the said ticket. It is further argued that the Carriers Act is not applicable to the defendant because the defendant is not a common carrier within the meaning of Section 2 of the Carriers Act. The international carriage is governed by the WARSAW Convention and India is a signatory thereto. In India the carriage by Air Act, 1972 was brought into force for the purpose of giving effect to the WARSAW Convention to non-
international carriage by air.
19.No evidence was furnished by the plaintiff to prove
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that the Director of the plaintiff has gone to Amsterdam for purchasing some equipments and the said equipments could not be purchased because of the lost baggage and, as such, the plaintiff was entitled to claim a sum of Rs. 6,20,921/- from the defendant. It is argued that the plaintiff has made vague and unsubstantiated assertion to the effect that the documents were essential for the purchase. It is further argued that even if the document were so essential, then it was the duty of the Director of the plaintiff to convey the said fact to the airline so that those sensitive documents might not have been kept in the checked baggage. It is further argued that as per document Ex DW1/3 which is an extract of World Tracer Management File, the defendant has diligently searched the missing baggage of Sh. Todi and was tracked on 17.12.2002 i.e. after a delay of 4 days. Attempt was made to contact Sh. Todi but he could not
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be reached. Thereafter, the baggage was sent to New Delhi on 2.1.2003 and a letter dated 17.2.2003 was written to Sh. Todi mentioning that the baggage was tracked on 17.12.2002. It is argued that Sh. Todi could not be contacted on given telephone numbers in spite of repeated attempts and the baggage remained deposited in customs' warehouse. It is, therefore, argued that the plaintiff has failed to prove its case for claiming the suit amount.
20.The learned counsel for plaintiff in the written arguments on the other hand argued that the DW1 Ms. Sarika Gandhi has admitted in her deposition that once the baggage was checked in, it was then the responsibility of the defendant. It is further argued that the DW1 has failed to prove the conditions of carriage Ex DW1/1 were issued to the passengers and there was no link between the ticket jacket and the
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ticket as per her deposition. It is further argued that later on she contradicted herself and stated that the ticket jacket forms part of the ticket. It is, therefore, argued that the defendant has failed to establish that the alleged terms of the conditions of carriage were ever brought to the knowledge of Sh. Todi either directly or indirectly. It is further argued that the defendant has failed to lead any evidence to establish that it took all reasonable care to ensure that the baggage did not get lost. It is further argued that the negligence of the defendant stands proved and the onus of the plaintiff stands discharged as the defendant has admitted letter dated 17.2.2003 Ex PW1/10 and reply dated 22.3.2003 Ex PW1/11 wherein it is stated that such delays in delivery of baggage occurs routinely. It is further argued that the defendant has no explanation for the negligent act but admitted the fact that such negligence/irregularities occurred from time to time
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and is, therefore, not protected under the Carriage By Air Act, 1972. It is further argued that as per Rule 19 of the said Act "The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods". It is further argued that once it is admitted by the defendant that the baggage got lost, the defendant was liable for the damages occurred due to loss of baggage.
21.The main stress of the learned counsel for defendant was on Rule 22 (2) of the Carriage By Air Act, 1972 reproduced and discussed earlier wherein it was provided that unless and until the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires, the liability of the carrier is limited to a sum of 250 francs per kilogram. In reply to the above
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proposition, the learned counsel for plaintiff has referred and relied Rule 25 of the said Act which provides that the carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as is in the opinion of the Court equivalent to willful misconduct.
22.Thus, it was incumbent upon the plaintiff to prove that the baggage was lost because of gross misconduct of the defendant or its staff. It was further required to be proved that the importance of the lost of baggage was notified to the defendant. On perusal of the evidence and the material on record, I am of the considered opinion that the plaintiff has failed on both the accounts to prove the willful misconduct on behalf of the defendant and the necessary precaution to be
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taken by the plaintiff's Director at the time of handing over the baggage to the airline for checking the same. The baggage of the plaintiff's Director Sh. Siddarth Todi was traced within a reasonable period and the defendant has succeeded in proving that the plaintiff was informed but the plaintiff has failed to take the delivery of the baggage.
23.The damages claimed by the plaintiff on the grounds that the money spent on the visit of its Director, losses allegedly occurred due to non-purchase of machine and other heads does not stands proved. The plaintiff is not entitled to damages on those accounts as they have failed to prove the said alleged loss, if any, though not proved, has occurred because of the gross misconduct and negligence of the defendant. For these reasons, the plaintiff is not entitled to any amount so claimed in para no. (a) of the prayer clause. The issue no. 4 is,
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accordingly, decided in favour of the defendant and against the plaintiff.
24.Issue No. 5: Relief.
In view of my findings on the above issues, the suit of the plaintiff is dismissed. The parties are left to bear their own cost. Decree sheet be prepared, accordingly. File be consigned to the record room after due compliance.
Announced in the open Court on 24.12.2007.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI