AIR LANKA LTD vs S.PRASANNAN

THESE appeals are directed against the order passed by the District Forum, Thiruvananthapuram, in OP No. 156/95. The opposite party is the appellant in Appeal No. 201 /97 and the complainant is the appellant in Appeal No. 230/ 97.

THE case of the complainant is that on 26.4.1994 the complainant arrived at the Thiruvananthapuram Airport by Air Lanka Flight of the opposite party. On arrival he went to the Customs Authorities to collect the luggage. To his utter shock and dismay, he found that his luggage was tampered resulting in the loss of 3 wrist watches, 150 Oman Riyals, Sun-glass, Powder and cosmetics. THE total weight of the luggage was 5 Kgs. THE pilferage and tampering of the luggage was immediately brought to the notice of the Customs Authorities and the opposite party prepared a property irregularity report on 26.4.1994. THE loss of contents in the luggage is specifically stated in it. In the property irregularity report it is specifically stated that the luggage was pilferred on arrival at Thiruvananthapuram. THE opposite party sent letters dated 27.7.1994 and 22.8.1994 admitting the pilferage of luggage in transit and further stating that they are willing to pay 100 U.S. Dollars in full and final settlement of the claim. To that the complainant sent a reply on 8.8.1994 to the opposite party detailing the loss occasioned with all particulars of the transaction and further stating that the 100 U.S. Dollars offered by the opposite party is very low considering his loss and the offer is rejected. Subsequently the complainant issued suit notice to the opposite party, who on 28.12.1994 replied that they are willing to a compromise. But they did not settle the matter. THErefore the complainant sought a direction to the opposite party to pay 397.5 Oman Riyals and Rs. 25,000/- as compensation for pain, sufferings and mental agony. The opposite party filed a version stating that the complainant has not declared any specific goods or their value before checking in the goods. At the time when the complainant was checked in he had entrusted 5 kgs. of goods with the opposite party without declaring the value of the same. As per regulations the liability for loss or damage to baggage is limited unless a higher value is declared in advance and additional charges were paid. The said liability is printed and stipulated in the ticket issued to the com-plainant also. As per the regulations, the opposite party is liable to pay for the loss of luggage only, 100 U.S. Dollars in total, at the rate of 20 U.S. Dollars per kg.

Pw 1 was examined before the District Forum and Exts. PI to P8 were marked on his side. On behalf of the opposite party DW 1 was examined.

THE District Forum observed that as per Ext. D1 jacket of the ticket that liability or loss, delay or damage to baggage is limited unless a higher value is declared in advance and additional charges are paid. It is also stated that in most international travel including domestic portions of international journeys the liability is approximately U.S.S. 9.07 per pound i.e. 20 Dollars per kg., for checked luggage. THE decisions reported in 1996 (1 ) CPR 2 and 1996 (2) CPR 227 are also cited. However, it was argued by the learned Counsel for the complainant that for invoking limited liability me opposite party should have given a luggage ticket as per the First Schedule, Chapter II Part II Rule 4(1) of the Carriage by Air Act and the opposite party has not issued such luggage ticket and therefore the opposite party is not entitled to invoke provisions relating to limited liability. It was argued that after filing of the complaint the opposite party has offered 250 Riyals and tried to compromise the matter. On the basis of this the District Forum ordered to pay Indian Rupees equivalent to 397.5 Oman Riyals towards value of the articles. In this appeal filed by the opposite party this finding has been challenged. Rule 4, Schedule II to the Carriage by Air Act reads as follows : "(I). In respect of the carriage of registered baggage, the baggage check shall be delivered, which unless combined with or incorporated in a passenger ticket which complies with the provisions of Sub-rule (1) of Rule (3) shall contain- (a) an indication of the places of departure and destination; (b) if me places of departure and destination are within the territory of a single High Contracting Party, one or more agreed Cropping places being within the territory or another State, an indication of at least one such stopping place; (c) a notice to the effect that, if the carriage involves an ultimate destination or stop in a country other I an the country of departure, the amended Convention may be applicable and that a mended convention governs and in most cases limits the liability of carriage in respect of loss of, or damage to, baggage. and Rule 22 (2), II Schedule reads : (a) In the carriage of registered baggage and cargo, the liability of the carrier is limited to a sum of 25U Francs per kilogramme, unless the passenger or consignor has made, at me time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum of not exceeding the declared sum, unless he proves that that sum is greater than the passenger''s or consignor''s actual interest in delivery at destination

THE case of the appellant is that baggage check is incorporated in the ticket issued to the complainant. THE ticket was produced and we find that i t is incorporated in the passenger ticket itself. In the circumstances the provision contained in Rule 22(2) of II Schedule of Carriage by Air Act is applicable and the complainant is entitled to only under that Rule at the rate of 250 Francs per kg., unless the value is declared. Admittedly in this case no such declaration was made. THErefore the liability will be 250 Francs per kg. which is equivalent to 20 U.S. Dollars. However, in this case the opposite party has offered 250 U.S. Dollars. THE Rule provides that exchange rate has to be fixed with reference to the date of delivery. It has already been deposited by the opposite party and the complainant will be entitled to withdraw this amount from the District Forum. Since the amount was with the opposite party the complainant will be entitled to interest at the rate of 12% till date of deposit. Complainant also will be entitled to the costs awarded by the District Forum. Appeal No. 230/97 is dismissed in the light of the above and in Appeal No. 201/97 the order of the District Forum is modified as stated above. Appeal 230/97 dismissed. Appeal 201/97 disposed of.