State Consumer Disputes Redressal Commission
K. Ibrahim,6/35, Azad Street,Madurai. vs Lufthansa German Airlines,Chennai 600 ... on 15 January, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.NO.188/2009 [Against order in C.C.No.121/2006 on the file of the DCDRF, Chennai (South)] DATED THIS THE 15th DAY OF JANUARY 2011 K. Ibrahim, | 6/35, Azad Street, | Appellant / Complainant Thirumangalam 625 706, | Madurai. | Vs. Lufthansa German Airlines, | Respondent / OP 167, Anna Salai, | Chennai 600 002, | Rep. by its Customer Service Manager, | The appellant as complainant filed a complaint before the District Forum against the respondent/opposite party praying for the direction to the opposite party to pay Rs.49,600/- towards the value of the damaged baggage, to pay Rs.50,000/- towards compensation for mental agony and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to enhance the order of the District Forum dt.03.03.2009 in C.C.121/2006.
This appeal coming before us for hearing finally on 30.03.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant /Complainant : Mr.V.Balaji, Advocate.
Counsel for the Respondent/OP : Mr.J.Sivanandaraj, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The complainant is the appellant.
2. Facts leading to this appeal in brief:-
The complainant/appellant along with his wife, traveled from Chicago to Chennai in the opposite partys airlines on 25/26.06.2005, checking in, four suitcases, weighing 129 kgs. In the suitcases, electronic goods, worth about Rs.34,062/-, were inside.
3. On arrival at Chennai Airport, the complainant came to know that two suitcases were totally damaged and the electronic goods and other gift items inside were missing, for which, the complainant lodged a complaint, a report was given, stating damaged baggage was 63 kgs., For the damaged goods, when claim was made, only a sum of Rs.2,025/- was offered towards the missing items instead of offering 20 US $ per kilo, for 62 kgs of Rs.49,600/-. By the deficiency committed by the opposite party, they caused mental agony also, for which, complainant is are entitled to compensation of Rs.50,000/-. Thus claiming, totally a sum of Rs.99,600/-, a consumer complaint came to be filed.
4. The opposite party admitting the travel of the complainant and his wife as well as the luggage carried by them and check-in resisted the complaint inter alia contending that after carrying out weight of the damaged baggages, it was found that only 2 kgs was missing, for which, amount was offered, not willing by the complainant, that as per the conditions of Carriage and under the contractual obligation, they should have declared the value of the goods, which they failed and as such they are not entitled to the value of the goods, that under the Carriers liability, it is limited to the extent of 20 US $ for every kilogram of loss and accordingly for 2 kgs., a sum Rs.2,025/-
was offered, not accepted and there was no deficiency for claiming the value of the goods, thereby praying for the dismissal of the complaint, denying further averments also.
5. The District Forum based upon the admitted facts, as well as based upon the damage Certificate, came to the conclusion that only 3 kgs of the baggage was missing, for which alone, at the rate of 20 US $, the complainant is entitled to claim damage for the goods and for the damage, they are entitled only a sum of Rs.10,000/-. In this view, a direction came to be issued, as per the order dated 3.3.2009, which is under challenge.
6. The admitted facts are, the complainant and his wife traveled from Chicago to Chennai, having four suitcases, weighing 129 kgs., landed at Chennai on 26.06.2005 at 12 p.m. It is also an admitted fact that out of four suitcases, two suitcases weighing 63 kgs were damaged. For the damaged baggage, as per the Carriers Act rule 22 (2), claim was made, accepted, but in fixing the quantum, namely the weight as well as the amount, there is a dispute, resulting this appeal.
7. The learned counsel for the appellant invited our attention to Section 22(2) of the Carriers Act, which reads In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogramme, 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 supplementary sum if the case so requires. In the complaint, though it is stated that they have purchased electronic goods, worth about Rs.34,062/- and they have put in, gift articles in the suitcase, it is not the claim of the complainant, that they should be paid the value of the goods and therefore, we need not unnecessarily go into the question of declaration made or not, regarding the valuable goods.
Admittedly, as per the above rule, as of right, the complainant is entitled to damages at 20 US $ per kilogram.
Therefore, we have to see, what is the weight of the damaged baggage, not the missing items, as incorrectly recorded by the District Forum. In this contest, we have to see the pleadings.
8. As seen from Para 4 of the complaint, it is stated that the opposite party has issued a report, on damage to the checked baggage and according to the said report, damaged baggages are 63 kgs.
In the Written Version in Para 4, the above averments are admitted, unquestionably and it reads That the contents of Paragraph 4 are correct and hence admitted. It is admitted that the weight of damage baggages was 63 Kgs.. It is not only the admission, but also proved by document also. Ex.A1 is the report given by the opposite party on damage to the checked baggage of the complainant, where we find Number and Weight of damaged baggage 02/63 Kgs (31 Kgs + 31 Kgs), then reiterating the total damage 62 Kgs.
It is the specific case of the complainant, two suitcases were damaged, that is admitted and it is the specific case of the complainant, total weight of the damaged baggage was 63 kgs., that is admitted. Therefore, it is crystal clear, from Ex.B1 as well as Ex.A1, that two check in baggage of the complainant were damaged, weighing 63 kgs., and under the rule quoted above, per kilogram, the complainant is entitled to 20 US $ as of right.
This being the position, the opposite party unilaterally entering 2 kgs., missing, offering to pay the amount for 2 kgs., alone should be construed as deficiency in service, we would say, that is against the admitted rule also, which is binding upon the opposite party undoubtedly.
9. The District Forum instead of taking into the account the damaged goods, misdirecting itself, has come to the conclusion, as if, for missing items alone the complainant is entitled to the value, forgetting the damage. The suitcases also damaged and the goods or materials inside are also damaged, and anticipating this kind of damage alone, irrespective of the fact missing or not, while framing rules, a mandatory provision was made to compensate the passenger, to make good the loss per kilolgram that should be honoured, which the District Forum failed and therefore, we should come to the rescue of the complainant, compensating the balance. If it is the question of missing item alone, the matter may be different, and it is the question of damaged checked baggage, which is proved in this case. Therefore, the complainant, is entitled to claim damage for 62 kgs at the rate of 20 US $ per kilogram, as rightly claimed in the complaint, as seen from Para 7 of the complaint. Unfortunately, the District Forum not taking into account the actual damage, in our considered opinion, committed an error, ordering only for 3 kgs., which should be modified as 62 kgs., For these reasons, appeal deserves to be allowed and the order of the District Forum is to be modified.
10. In the result, the appeal is allowed, order of the District Forum is modified, substituting 62 kgs., instead of 3 kgs., otherwise confirming the order of the District Forum as such. No order as to cost in this appeal.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/Bank