State Consumer Disputes Redressal Commission
Sushil Rajamanikkam, Chennai 600 040. vs M/S.Klm Royal Dutch Airlines, Chennai ... on 16 September, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A. B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.345/2007 [Against order in O.P.758/99 on the file of the DCDRF, Chennai (South)] DATED THIS THE 16th. DAY OF SEPTEMBER 2010 Sushil Rajamanikkam, | S/o. Col. Rajamanickam, | Appellant / Complainant Q-22, 17th Street, Anna Nagar, | Chennai 600 040. | Vs. M/s.KLM Royal Dutch Airlines, | Respondent/Opposite Party TAAS Mahal, 2nd Floor, | No.10, Montieth Road, | Egmore, | Chennai 600 008. | The Appellant as complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to pay the sum of Rs.45,900/- towards the value of the baggage, together with interest at the rate of 24% per annum from 30.01.99 till date of payment, to pay Rs.50,000/- towards damages for mental agony, strain and inconvenience caused to the complainant and with cost. The District Forum allowed the complaint against the first opposite party, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.27.07.2006 in C.C.758/99. This appeal coming before us for hearing finally on 30.08.2010, upon hearing the arguments of the counsels on eitherside, this commission made the following order: Counsel for the Appellant / Complainant : M/s.Menon & Goklaney Associates, Advocate. Counsel for the Respondent/O.P. : Mr.R.Thirunavukarasu, Advocate. M. THANIKACHALAM J, PRESIDENT 1.
The unsuccessful complainant is the appellant.
2. The complainant, who travelled from Amsterdam to Madras in the opposite party's Airlines on 30.01.1999, checked in his baggage at Schipool International Airport at about 19.40 hours. En route, he was put on the Air India Flight, at Dubai, where he was informed on enquiry that his luggage was not received by them, for which, he was requested to give a complaint at Chennai International Airport.
3. As advised by the Airport Authorities at Dubai, he gave a complaint to Air India Baggage Service at Chennai International Airport on 31.01.1999 and at that time, an assurance was given that the baggage would be restored within 20 days. But, unfortunately, the baggage was not restored and therefore, the complainant wrote a letter on 15.02.999, furnishing required particulars, lodging a claim with the opposite party ,as the initial entrustment of the baggage was made with the opposite party, which should be paid by the opposite party, since they have committed deficiency in service and negligence, causing mental agony, for which also, they have to pay a sum of Rs.50,000/-. Hence, the claim.
4. The claim was opposed as follows:-
As per the Warsaw Convention, the last transporting carrier is liable for retrieval of lost baggage, and in the present case, the last transporting carrier is M/s.Air India, which alone is responsible for retrieval of the lost baggage. Hence, the claim against the opposite party is not maintainable and the complaint is liable to be dismissed, for non-joinder of the necessary party.
5. The District Forum has no jurisdiction to grant any compensation under the Consumer Protection Act, without proof of negligence on the part of the Carrier, resulting any loss or injury to the complainant. This opposite party has not committed any negligence or deficiency in service and therefore, question of grant of compensation, or paying the value of the lost luggage does not arise for consideration.
6. As per the "Notice of Baggage Liability Limitations" available in the ticket itself, the liability limit is approximately US $ 9.07 per pound for checked baggage. Without prejudice to the other defence, the complainant cannot claim more than the above amount, from the Carrier since it is limited as per the contract, entered into by the parties. The other averments are denied as false, praying for the dismissal of the complaint.
7. The District Forum based upon the pleadings as well by going through the documents, relied on by the parties, came to the conclusion that the complainant has failed to prove the alleged deficiency or negligence on the part of the opposite party and that, if at all, compensation could be claimed only against Air India and without impleading the Air India as a party, the case filed is not maintainable, for non-joinder and in this view, the complaint came to be dismissed on 27.7.2006, which is under challenge in this appeal.
8. Heard, the learned counsel appearing for either side, perused the documents, written submissions, as well as the order of the District Forum.
9. The learned counsel for the appellant would contend that the complainant had entrusted the luggage, only with the opposite party and for non-delivery of the said checked in luggage, they alone should be held responsible, which was not properly considered by the District Forum, resulting erroneous judgement. It is the further submission of the learned counsel that the Air India is not a necessary party since it is the duty of the opposite party alone to retrieve the goods lost, which they failed, which was not properly considered.
10. Per contra, it is the submission of the learned counsel for the opposite party/respondent, that the complainant had not furnished the property irregularity report in the required format, either with Air India or with the opposite party within 7 days from the date of loss of baggage, that as per the limitation and conditions available in the ticket itself, the last carrier namely Air India alone is answerable for the alleged deficiency, which was properly considered by the District Forum, not required to be disturbed by this Commission.
11. Having heard the arguments of either counsels, by going through the admitted conditions available in the Air Ticket, as well as non-supply of the particulars by the complainant, including material to show that he had lodged the claim before Air India for the lost baggage, we are of the considered opinion, that there is no error in the judgement of the District Forum, warranting our interference.
12. It is the common case of the parties that the complainant travelled from Amsterdam to Dubai, in the opposite party's Airlines on 30.1.99 and that time, he had checked in baggage also, at Schipool International Airport. According to the complainant, he has not received the luggage at Chennai International Airport and though a complaint has been given, it was not retrieved and handed over, which should be construed as deficiency as well negligence on the part of the opposite party.
13. The submission of the learned counsel for the opposite party that as per the Warsaw Convention, the last transporting carrier alone is liable for retrieve of lost baggage, cannot be disputed, and in fact, it is also not disputed. In this case, from Amsterdam to Dubai, the complainant travelled in the opposite party's Airlines and from Dubai to Chennai, he travelled in Air India Flight, thereby, showing the last transporting Carrier is Air India. Therefore, if the luggage checked in or entrusted with the opposite party had not reached Chennai International Airport, then the complainant should have lodged a claim, with Air India Baggage Service at Chennai International Airport. In Para 5 though there is a pleading, that he gave a complaint to the Air India Ltd., Baggage Service at Chennai International Airport, no copy of complaint has been filed except Ex.A1, which is not the complaint, whereas it is a list of articles said to be in the lost baggage, which are valued at Rs.45,900/-.
Thus, it is made out even by the own showing of the complainant, that within 7 days, he has not lodged a complaint, to the proper Authority, thereby, by his own contact, he deprived the duties and liabilities of the Air India to trace out the lost luggage and such a person, is not entitled to accuse the opposite party as if they have committed deficiency in service. As indicated above, the last transporting Carrier alone is answerable, and it is not known, why the complainant has not impleaded Air India as a party to lis. If the Air India, is impleaded as a party, we should have made liable the Air India for non-retrieving the lost baggage, which opportunity was not given to the District Forum. The mere assertion, ignoring Warsaw Convention, that the complainant had entrusted the luggage with the opposite party and the opposite party alone is answerable cannot be accepted, in this case, which was correctly decided by the District Forum, in which finding, we are constrained to concur.
14. Even in the Written Version, an alternative defence has been taken that as per the Notice of Baggage Liability Limitations, the liability limit is approximately US $9.07 per pound, for checked baggage and the complainant cannot claim more than the above amount from the Carrier. Irrespective of the other defence, based upon this liability even we can award compensation, for which also, we do not have the materials.
The liability limitation is based upon the weight of the checked in baggage, in pound. The complainant has not pleaded what is the weight of the checked in baggage. He has also not produced the tag given to the passenger, at the time of check in baggage at Schipool International Airport. In the absence of that tag, as well in the absence of pleadings, what is the weight of the luggage, even we are unable to give the limited liability also, which the Airline is bound to pay. The District Forum considering all these facts that the complainant has not made out a case and failed to implead the proper party, dismissed the case correctly, which deserves acceptance by this Commission also, since we are unable to take any contra view, in the absence of materials. Hence, the appeal is devoid of merits.
15. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Chennai (South), in O.P.758/99, dated 27.07.2006. Under the facts and circumstances of the case, there will be no order as to cost in this appeal.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Ns/mtj/Air/fm