E.N. SREENATHAN vs AIR INDIA

THE complaint is filed seeking the following reliefs. To pass an order directing the opposite parties to pay a sum of Rs. 10,00,000/- to the complainant with interest at the rate of 12% per annum from 14.7.2000 till the date of payment. Further relief sought for is for awarding compensation and also for awarding costs.

BEFORE proceeding to state the respective cases put forth by the parties it is worthwhile to reproduce here the relevant Rules 22 and 25 contained in Chapter 3 of the Carriage by Air Act, 1972 (for short the Act). Rule 22 Sub-rule 2 reads thus: "In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilograme, unless the consignor had made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the actual value to the consignor at delivery."

Rule 25 reads as under: "(1) The carrier shall not be entitled to avail himself of the provisions of this schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent or wilful misconduct.

(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment."

We may also state at this juncture itself that no case is pleaded or proved by the complainant for claiming compensation exceeding the limit of liability of carrier provided under Sub-rule 22(2). The allegation made in the complaint is that the entire incident happened only due to the negligent act of the respondent carrier and no case is pleaded that there is wilful misconduct or such default on the part of the carrier as in the opinion of the Commission equivalent to wilful misconduct. No such case is also pleaded or proved that the damage is caused by the wilful misconduct of any agent of the carrier acting within the scope of his employment. So the relevant rule which we have to consider is Sub-rule (2) of Rule 22 contained in Chapter 3 of the Act. The facts remained undisputed. As the ticket of the complainant was not confirmed (complainant had booked a seat in Air India Flight No. 922 for the journey from Dubai to Calicut on 14.7.2000) he was accommodated in Air India Flight No. 708 OXB from Dubai on 14.7.2000 evening. The flight took off at 7. p.m. on 14.7.2000. The route of the said flight was Dubai-Madras-Bombay-Calicut.

Though the complainant has sworn to the facts in his affidavit which he asserted in the paragraphs 3 and 4 of his complaint we need not consider those facts asserted for the disposal of this case i.e., whether the facts asserted by the complainant are true or correct on the ground that it is not the case of the complainant himself that at the time of handing over the baggage to the carrier, a special declaration of the value at delivery was made nor has he put forth a case that he had paid a supplementary sum as required in Sub-rule (2) for claiming more than 250 francs per kilogram. As the complainant had not made a special declaration as provided in Sub-rule (2) of Rule 22 nor had paid any supplementary sum, liability of the carrier is limited to 10 U.S. dollars per kilogram.

THE case set up by the carrier in its version that the passenger is permitted only to carry hand baggage of cabin size i.e., total diamension should not exceed 115 cms (45 inches) and should not weigh more than 8 kilograms is to be accepted. It is the common case of the parties that the baggage was carried as checked in baggage and it is also the common case of the parties that the complainant was not allowed to carry the baggage as hand baggage (opposite parties case is that the weight of the complainant''s baggage was 10 kgs. and he was not allowed to take the baggage as hand baggage). THE case of the complainant is that baggage weighed approximately 10 kgs. Complainant''s assertion that carrier could have allowed him to carry it as a hand baggage cannot be accepted. In the absence of any material we are not in a position to hold that carrier was not justified in allowing the complainant to carry as a hand baggage. There is no dispute between the parties regarding the fact that the flight took off from Madras and landed at Bombay Airport. The petitioner had to travel from Bombay to Calicut by another air craft of Air India and he checked out at Bombay Airport at 2 p.m. on 15.7.2000. The flight landed at Calicut Airport at 8.30 p.m. on 15.7.2000. The baggage was missing and it is the assertion of complainant that he made written complaints to the office of the Assistant Commissioner. Air Customs and at the office of Air India. We need not consider the documents produced by the complainant on the ground that carrier''s liability is limited. Even if the baggage contained 10,000/- American Dollars or other documents, etc. as asserted by the complainant he is not entitled to compensation of more than 200 US dollars. We may also point out that liability would be the same, even if the complaint was allowed the baggage to be kept with himself.

WE have pointed out earlier that the complainant has not made any special declaration and had not paid any supplementary sum. So complainant is entitled to only 20 US dollars per kg. as compensation. It is admitted in the written version that complainant is entitled to a compensation of 200 US dollars (20 per kilogram for a maximum of 10 kgs). Therefore, we hold on the basis of the evidence available that the complainant is entitled to only 200 US dollors. In the result, the complaint is allowed. Opposite party/carrier is directed to pay to the complainant 200 US dollars (converted into rupees at the rate of exchange prevailing on the date of passing of this order) within one month from the date of this order. The parties are directed to bear and suffer their cost. Complaint allowed.