Gulf Air Company vs NIRANJAN SINGH

THIS appeal has been filed by Gulf Air Company against the order of the District Forum No. II in Case No. 679/91 (D.F.I)/90(D.F.II) dated 18.1.93.

BRIEFLY the facts of the case are that the respondents traveled from London to New Delhi by Gulf Air Flight vide passenger ticket No. 0724405486827-C and 0724405286827-5. On arrival at New Delhi, on 9-7-90 one of the baggages of the respondents was found missing. A report was lodged with the appellant together with a list of the contents of the lost baggage which were valued at USD 2,394.08 equivalent to Rs. 83,790/-. The respondents having not receive the baggage''s had to stay in a Hotel of Delhi for 4 days. Having failed to get the lost baggage they filed a regular claim for the aforesaid amount with the appellant. However, after examining the claim the appellant offered to pay an amount of USD 293.40 only in full and final settlement of the claim which was declined by the respondents. Subsequently on a legal notice from the respondents the appellant offered to enhance the amount to USD 400 to close the chapter. This was also not acceptable to the complainant and he filed the complaint on 7.5.91 before the District Forum, In addition to the claim amount of USD 2,394.08 for the loss of baggage''s, the respondent- complainant further demanded Rs.1,600/- as expenses incurred towards stay in a Hotel in Delhi which became unavoidable due to non- receipt of the baggage and have further prayed for granting any other amount as compensation, that may be deemed appropriate.

The learned Counsel for the appellant has argued that, since the total weight of the three checked baggages was 44 Kg. as per their calculations the weight of the missing baggages was assessed at 14.67 Kg. and as per Warsaw Convention the Airlines was liable to pay a compensation at the rate of USD 12.00 per Kg. which was offered to the respondents and further that the same was in accordance with the Schedule under Carriage by Air Act 1972 which incorporates the Warsaw Convention and hence their liability was restricted to its provisions. The appellant, however, in order to settle the claim offered USD 293.40 in full and final settlement of the claim. Since this amount was not acceptable to the complainant they agreed to further raise the amount to USD 400 to finally settle the claim but this was also refused by the appellant. The respondent''s Counsel has pleaded that the missing baggages was 34 Kg. in weight and that they were entitled to a compensation of USD 20 per Kg. and the claim should therefore, be fixed at USD 680.00. That only baggage weighing more than 20 Kg. are marked ''Heavy'' and since the baggage lost was marked ''Heavy'' which fact has not been rebutted by the appellant the weight of the baggage was 34 Kg. The other two baggages were hand-bags and they contained only petty items. It is further pleaded that the respondent''s Counsel being un-educated were put to lot of inconvenience at the hands of Air Carrier''s staff and were forced to stay for several days in Delhi to get the lost baggage.

THE learned District Forum examined the claim of the complainant at considerable length and awarded a compensation of USD 680, for the loss of baggages weighing 34 Kg. at USD 20 per Kg. payable in rupees as per the exchange value operating on the date of payment. In view of the aforesaid reasons we can''t accept appellant''s contention that the weight of the lost baggage was only 14.67 Kg. We therefore, reject the appellant''s contention and accept the view taken by the District Forum in awarding USD 680, towards the cost of lost baggage.

THE other two issues contested by the appellant are (a) the claim of Rs.1,600/- towards, total expenses incurred by the respondents towards their stay in Delhi and (b) compensation of Rs.10,000/- awarded by the District Forum towards the hardship suffered by the respondents. With regard to the hotel expenses of Rs.1,600/- claimed by the respondent, we have to observe that the respondent have not produced any documents or evidence in support of this claim. We therefore, disallow this claim of Rs.1,600/- with interest @18% p.a., as awarded by the District Forum. With regard to the second issue of compensation of Rs. 10,000/- awarded by the District Forum, we must observe that the respondents were put to unavoidable hardship as well as mental and physical agony and inconvenience. We have further to observe that the respondents had filed the complaint on 12.11.90 with the appellant and they offered USD 400 only on 4.4.91. If this delay had not taken place the hardship including mental and physical tension (torture) could have been avoided. We have duly considered the hardship and agony caused to the respondent. However, taking into account the value of the claim, we consider that the amount of compensation of Rs. 5,000/- is adequate and justified in the circumstances of the case. In taking this view we are fortified by the judgment of the National Commission in Distt. Mahanagar, Telephones, Patna & Another v. Dr. Tarun Bhatnagar & Another, I (1992) CPJ 47 (NC). In consequence the appeal is partly accepted, and the order of the District Forum is modified to the extent that the appellant is not liable to pay the amount of Rs.1,600/- with interest @ 18% p.a. towards Hotel expenses. The amount of compensation of Rs.10,000/- as awarded by the District Forum is reduced to Rs.5,000/-. In view of the partial success of the case, the parties are left to bear their own costs.

THE order be complied within 2 months from the date of the order failing which action shall be taken under Section 27 of the Consumer Protection Act, 1986. Appeal partly allowed. _______________