State Consumer Disputes Redressal Commission
M/S.Panna Textile Industries Ltd.And ... vs Air India Ltd. And Ors. on 28 December, 2007
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI CONSUMER COMPLAINT NO.216 OF 1998 Date of filing : /1998 Date of order : 28/12/2007 1. M/s.Panna Textile Industries Ltd. 55-A, Queens Road, Sethna Bldg. 3rd floor, Mumbai 400 002 2. Shri Dharampal Poddar Director- M/s.Panna Textile Industries Ltd. Address as above ..Complainants V/s. 1. Air India Ltd. Reg.off.Hansalaya Bldg., 5th floor, 15 Barkhamba Road New Delhi 110 001 2. Air India Ltd. Mumbai Airport, Terminal II Sahar, Mumbai 400 099 3. The Sr.Manager Baggage Services Air India Ltd. Mumbai Airport, Terminal II Sahar, Mumbai 400 099 ..Opposite Parties Corum: Justice Mr.B.B.Vagyani, Honble President Mr.P.N.Kashalkar, Honble Judicial Member
Smt. S.P. Lale, Honble Member Present: Mrs.Anita Marathe-Advocate for the complainant Mr.Firoz Bharucha-Advocate for O.Ps.
: ORDER:
Per Mr.P.N.Kashalkar, Honble Judicial Member
1. This complaint has been filed by the complainant as well as its Director against Air India Ltd. and its officials alleging deficiency in service on their part. According to complainant they are consumers within the meaning of Section 2(1)(d) of Consumer Protection Act, 1986 and their case is that Director of the company had travelled on business class ticket between Bombay-London on Flight no.AI-101J dated 21/6/1997 and he immediately wanted to go to Sao Paulo. Entire ticket routine was BOMBAY/LONDON/SAO PAULO/RIO DE JENARIO/ BUENOS AIRES/SANTIAGO/DE/CHILE/NEW YORK/BOMBAY.
2. O.Ps received consideration for their service.
Complainant was participating in an exhibition at Sao Paulo since it attracted important business decision makers. The complainant had checked in two baggages for destination-Sao Paulo via London at Bombay. On arrival at Sao Paulo one of the checked in bag did not arrive. It was bearing checked in bag no.AI-235313. Second complainant was put to inconvenience and loss because of non-arrival of the checked in baggage. He contacted Bombay office, who informed that baggage would be sent on the next day by Swiss Air flight, but even by that flight baggage did not arrive. According to complainant, he had invested lot of money to take participation in the exhibition at Sao Paulo and he had to display in the exhibition important samples for promoting his business, but had gone useless and he suffered great business loss opportunity because of non-delivery of baggage at the destination in spite of request and reminder made to that effect. Complainant therefore claimed amount of Rs.37,79,396/- under various heads as mentioned in para 3 of the complaint. Complainant claimed compensation by sending letter on 18/7/98 by Air India, but Air India did not give any positive response. They simply offered amount of 640 U.S. Dollars towards compensation for the loss of baggage, which was not acceptable to the complainant and therefore complainant filed complaint claiming Rs.19,99,999/- as compensation inclusive of interest.
3. O.P. filed written statement and pleaded that the complainants baggage was misplaced, but it denied that the said baggage contained valuable samples, which was to be exhibited by second complainant in the business exhibition being held at Sao Paulo.
4. O.Ps pleaded that under the Opposite Parties General Conditions of Carriage, a passenger is not permitted to carry as part of his checked-in baggage any samples. They reproduced Article 9.1.3 a term specifically printed on the Air India ticket issued to the passengers. According to O.P., the second complainant did not disclose that the lost baggage contained samples, which were very valuable to his company. Had he disclosed the valuables he was carrying in checked-in baggage, then they would have charged extra charges for such baggage, but he booked it as normal baggage, which a passenger carries with him. According to O.P., loss of baggage liability is governed by the provisions of Rule 22(2) of Schedule II to the Carriage by Air Act, 1972 and as per that Rule, they had offered an amount of 640 US dollars, since the lost baggage weighed 32 kgs and as per Rule 22, the complainant who was not given baggage was entitled to get 250 francs or US 20 dollars per k.g. depending upon the weight of baggage mentioned in the ticket issued to the passenger. In the circumstances, O.P. sent letter dated 9/3/99 and informed the complainant that it was ready to pay US dollars 640, since the baggage of the passenger, which was lost was weighing 32 kg. But complainant was not ready to accept the same and therefore, they pleaded that complaint should be dismissed with cost.
5. Parties filed affidavits and documents on record. We heard Mrs.Anita Marathe-Advocate for the complainant and Mr.Firoz Bharucha-Advocate for O.Ps.
6. The following point would arise for our consideration:-
Issue No.1 : Whether there was deficiency in service on the part of Air India Ltd. for the loss of baggage of the complainant weighing 32 k.g.?
Finding : NO.
Issue No.2 : What order, if any?
Finding : Complaint stands dismissed.
REASONS Issue nos.1&2:- We are finding that this case is governed by Rule 22(2) of Schedule II to the Carriage by Air Act, 1972. Said rule is based on Warsaw Convention and other international protocols governing the international flights. In Rule 25 of Hague Protocol, it has been mentioned that the limits of liability specified in Rule 22 shall not apply, if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment. So clearly Rule 22 of Warsaw Convention is applicable to the instant case, which is also laid down by Honble National Commission in the case of The Manager, Air India Ltd. and the Manager, Cargo Flight Handling, Air India Ltd. v/s. M/s.India Everbright Shipping & Trading Co. in First Appeal no.451 of 1994 decided on 20/4/2001.
In the instant case, it has been proved by the complainant that he had two checked in baggage and one checked in baggage weighing about 32 k.g. was not delivered by Air India at the destination Airport. He made complaints about it and according to him, he suffered business loss to the extent of Rs.37,79,396/-. But we are not concerned with that loss. In the instant case, complainant had never disclosed to Air India that he was carrying special valuable samples meant for business exhibition being held at Sao Paulo and it was worth some lakhs. In absence of special declaration given by the complainant to that effect, Rule 22 of Schedule II to the Carriage by Air Act, 1972 would apply. So also condition no.9.1.3 also lays down that the passenger shall not include in checked baggage fragile or perishable items, money, jewellery, precious metals, silverware, negotiable papers, securities or other valuables, business documents, passports and other identification documents or samples.
In this view of the matter, we are of the view that complainant is simply entitled to get damages @ 20 US dollars per k.g. as per rule 22 framed under Air by Carriage Act 1972 and since his baggage was weighing 32 k.g., Air India had offered him damages of 640 US dollars, but complainant admittedly refused to take the same and instead filed this complaint unnecessarily. In the circumstances, we are finding that complaint is devoid of any substance. There was no deficiency in service on account of Air India when it had offered to pay 640 US dollars as per rules in force. Under the circumstances, we are inclined to pass following order:-
ORDER
1.
Complaint stands dismissed with no order as to costs.
2. However, as per the stand taken by O.P./Air India, we direct Air India to immediately pay 640 US dollars for the lost baggage to the complainant , in any case within one month from the date of receipt of this order.
3. Copies of the order herein be furnished to the parties.
( S.P.Lale) (P.N.Kashalkar) (B.B.Vagyani) Member Judicial Member President Ms.