CAPT. SATISH CHANDRA SHARMA vs K.L.M. ROYAL DUTCH AIRLINES

BRIEF facts of the case are that Capt. Satish Chandra Sharma and his wife Smt. Promil Sharma, complainants, travelled by KLM Royal Dutch Airlines from Kano (Nigeria) to New Delhi. They had checked in baggages weighing 89 kgs. And this fact was duly recorded in their ticket. They arrived at New Delhi on 15.3.1994. Their baggage was missing. The matter was reported to the concerned authorities of the opposite party. On 17.3.1994, the complainants received information on telephone regarding the arrival of their baggage. They were delivered the baggage in a damaged condition on 18.3.1994 by the Customs Warehouse Authority to whom the baggage was delivered by the Customs. On their request the opposite party prepared Damaged Baggage Report (DBR). One sky bag had been ripped- open, made half empty and stitched back with iron wires. The second air bag was ripped open from the side and the ripped portion closed with a tape at two places. The third bag was apparently intact but its lock had been broken open and about 25% of its contents pilfered. Apart from the above, quite a number of articles found in the bags were broken or nearly completely damaged so as to be rendered useless. The opposite party by its letter dated 5.4.1994 offered to settle the claim for 12 kgs. by weight @ $ 20 Dollars per kg. which were then equivalent to Rs. 7,440/- in Indian currency. The reason for such an offer was that the permissible baggage per passenger of the concerned class was 30 kgs. and the complainants being two in number their total baggage was taken as 60 kgs. As no excess baggage charges had been paid, the total weight of the baggage could not be taken beyond 60 kgs. The weight of the baggage delivered by the Customs Warehouse was 48 kgs. and thus the complainants were offered compensation for the balance 12 kgs. The complainants wrote back by their letter dated April 18, 1994 to opposite party to reconsider their decision. This was, however, regretted by opposite party by its letter dated 10.5.1994. The complainants thereafter got served Legal Notice dated 31.3.1994 which was replied by opposite party by letter dated 9.9.1994 regretting any further relief to the complainants. This is how the present complaint was filed claiming compensation for the loss of 61 kgs. of baggage besides claim of other accounts as detailed in Sub-paras (b) to (e) of the prayer clause of the complaint.

IN the written statement filed by the opposite party, it was stated that according to the terms and conditions printed on the jacket of the ticket, a passenger of the business class was allowed maximum 30 kgs. of luggage free of charge. The complainants did not pay for the excess baggage and the liability of the opposite party was thus limited to the maximum baggage allowance permitted by the terms and conditions of the ticket. It was further stated that the complainants having admittedly received baggage weighing 48 kgs., the opposite party had rightly offered payment for the remaining 12 kgs. at the prescribed rate. They were not liable to pay anything more on any other account. The complainants filed a rejoinder highlighting that the opposite party could not possibly contest that the checked-in baggage was in fact, 89 kgs. as noted in the ticket. Both the complainants filed their respective affidavits. Mr. K.S. Chopra, Sr. Manager, Accounts, filed his affidavit on behalf of opposite party. The complainants also placed on record the DBR as well as the copy of the correspondence exchanged between the parties including copy of the Legal Notice. We have heard learned Counsel for the parties and have carefully gone through the record.

In their letter dated March 18, 1994 prepared immediately on receipt of the damaged baggage, the complainants gave certain details of various articles contained in the baggage.

THESE included ivory decoration pieces badly damaged and cracked. Cut glass decoration tray, electric kettle apart from several items which were missing. The offer made by the opposite party does not take notice of the articles which were damaged and rendered useless and were included in the gross weight of 48 kgs. When it was expressly admitted in the ticket itself that the weight of checked in ticket was 89 kgs., we fail to understand how the opposite party can take benefit of the normal limit of 60 kgs. of baggage allowed free of charge. The admitted facts clearly show that the parties by their conduct revised the term fixing the limit of 60 kgs. when the complainants checked in 89 kgs. luggage which was received by the opposite party without insisting on payment of excess baggage charges. The irresistible inference is that the opposite parties undertook to carry 89 kgs of baggage. 48 kgs. of luggage was delivered including items which were partly or wholly damaged so as to be rendered useless. Neither any statutory provision nor any term of the agreement has been brought to our notice that irrespective of the actual baggage carried by a passenger and permitted to be carried by the opposite party, the liability of opposite party would be limited to the free of charge-limit of 30 kgs. per passenger. For these reasons, we are clearly of the view that the opposite party was liable to pay @ $ 20 for 61 kgs. In addition the opposite party is also liable to pay for replacement of the two bags which were totally rendered useless at the rate offered by them earlier. We, therefore, partly allow this complaint and direct the opposite party to pay: (i) Compensation for 61 kgs. of baggage calculated @ $ 20 per kg. The Indian equivalent according to the rate of exchange prevalent on 18.3.1994 shall be taken besides interest thereon @ 18% per annum from 18.3.1994 till date of payment. (ii) The cost of the two bags/suitcases amounting to Rs. 3,000/- together with interest thereon for the period stated in respect of item (i) above. Costs amounting to Rs. 5,000/-. The payment shall be made within four weeks of the receipt of a copy of this order. Copy of the order be conveyed to the parties. Complaint partly allowed.