National Consumer Disputes Redressal
Air India vs Suganda Ravi Mashelkar on 2 November, 1992
JUDGMENT Y. Krishan, J.
(1) The Revision Petitioner - Air India has come in revision against the order dated 24th of December, 1991 in Appeal No. 32 of 1991 of the State Commission. By its order of 24th December, 1991 the State Commission of Goa bad dismissed. The appeal of the Revision Petitioner against the order of the District Forum, Panaji whereby the District Forum had awarded a compensation of Rs. 75,000.00 to the Respondent - Complainant for loss of her luggage by the Air Carrier.
(2) Briefly the facts are that the Respondent - Complainant had booked certain unaccompanied baggage on the 28th of July, 1990 for transportation from Kuwait to Goa. The Respondent-Complainant herself flew from Kuwait to Goa on the 1st of August, 1990. After arrival in India the Respondent - Complainant could not retrieve her unaccompanied baggage. Eventually, therefore, the District Forum directed the Revision Petitioner to return the goods entrusted to them, or, in the alternative, to pay Rs. 75,000.00 as compensation. Before the State Commission, the Revision Petitioner challenged the order of the District Forum on the ground that the Revision Petitioner - Air India was not responsible for the loss and was absolved from any liability for its failure to deliver the goods by virtue of Section 20 of the Indian Carriage by Air Act, 1972. Section 20 of the said Act reads as under "THEcarrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures."
(3) The State Commission held that the Revision Petitioner, who was the Respondent before the District Forum, bad through letters only asked for extension of time to find out the papers concerning transportation of the baggage which they could not trace out due to Gulf War. The State Commission, therefore, took the view that the Carrier bad not discharged its own proving that he and his servants or agents have. taken all necessary measures to avoid damage etc. to the baggage. The State Commission observed that "In our view, it (Gulf War) cannot be said to be the necessary measure or exhibited any impossibility to avoid loss of the Complainant in tracing out her luggage. The explanation coming from Respondent about the inability to trace the luggage is not satisfactory and convincing. Thus the statutory burden has not been discharged by the Respondent."
(4) The Revision Petitioner has explained in the Revision Petition that Iraq invaded Kuwait on the 2nd of August, 1990 and in fact, it appears, that in anticipation of the then impending invasion of Kuwait by Iraq the Respondent-Complainant herself flew out of Kuwait to Goa on the 1st August, 1990. After the invasion of Kuwait the flights to and from Kuwait of the Respondent Petitioner - Air India were suspended. Their offices in Kuwait were closed down. The Airport Terminal building where all cargo and documentation relating thereto were housed was abandoned. The Revision Petitioner was able to reopen its offices with skeleton staff only on the 1st June, 1991, nearly ten months after the baggage was booked, and by that time all papers and documentation were found to be destroyed or untraceable.
(5) From the perusal of the order of the State Commission, it is evident that the State Commission was apprised of the fact that the Revision Petitioner could not trace the consignment of baggage and the connected papers because of the Gulf War.
(6) There is no doubt whatsoever in our mind that Gulf War constituted force majeure which disabled the Revision Petitioner from carrying out its obligations of carriage and delivery of the booked baggage. We do not think that any more evidence was required to be submitted by the Revision Petitioner that he and his servants or agents have taken all necessary measures to avoid the damage or loss.
(7) There is another important aspect of the letter which appears to have escaped the attention of the State Commission. Under Section 14(d) of the Consumer Protection Act compensation is payable to the consumer for loss or injury suffered by the consumer due to negligence of the Opposite Party. There is no evidence of negligence on the part of Revision Petitioner - Air India in this case. Consequently, whether the Revision Petitioner - Air India was able to discharge its burden under Section 20 of the Indian Carriage by Air Act of 1972 or not, the Consumer Forum was not entitled to grant any compensation under the Consumer Protection Act without proof of negligence on the part of the Carrier resulting in loss or injury to the Respondent complainant. We, therefore, set aside the order of the State Commissioner and allow the Revision Petition. There is no order as to costs.
(8) Before we part with this order, we must point out that the Revision Petitioner Air India could have avoided having to go in for appeal and revision had it prosecuted its case before the District Forum and the State Commissioner properly and adequately.