INDIAN AIRLINES LIMITED vs PRAKRITHI SHETTY

THIS appeal is directed against the order of the District Forum, Bangalore (Urban) in Complaint No. 3024/92 finding fault with the opposite party-Indian Airlines for deficiency in service.

THE case of the complainant is that on 10.4.1992 when she reached Bombay, having travelled from Bangalore in Flight No. IC-110, her two pieces of registered baggages bearing tag Nos. 820751 and 820752 had not arrived. She, therefore, lodged a complaint at Bombay Airport and despite promises from the authorities that the baggages will arrive by the next flight, they arrived on 11.4.1992; but then it was noticed at once that the baggages had been tampered with, and when they were opened in the presence of Airport Authorities, it was found that certain articles including gold ornaments of the approximate value of Rs. 50,000/- were missing. A written complaint was therefore filed before the Airport Authorities the same day, calling for payment of compensation for the loss sustained, but according to the complainant, her request fell on deaf ears till 15.10.1992, on which date she received a reply from the opposite party denying any pilferage of articles while the baggages were in their custody. This was followed by a further communication dated 29.10.1992 stating that as there was no weight loss in the baggages when delivered at Bombay, the complainant is not entitled for any compensation. Aggrieved by such a stand, the complainant approached the District Forum for the redressal of her grievances. This is the long and short of the allegations against the opposite party in the complaint filed before the District Forum. In the statement of objections filed before the District Forum, the opposite party has denied the allegations stoutly. According to the opposite party, in spite of best efforts made by the Airpot staff at Bangalore, the complainant failed to identify her baggages before being loaded in the aircraft and, therefore, to avoid delay, the flight took off, sans two baggages. However, they were sent in good condition in the next day''s flight, after being kept in safe custody till they were loaded. It is alleged that the complainant was responsible for creation of such a situation by failing to identify her baggages, before boarding. It is also alleged that the complainant has neither disclosed the contents of the baggages while checking-in, nor has she taken precautions to insure the contents, and having failed in both, she has no cause of action to claim any compensation for items which were never lost. It is also contended at the same breath that if ever any liability comes to be fastened on the opposite party, their liability is limited to Rs. 300/- per kilo of baggage lost or damaged, but in this case, despite the allegation of loss of articles including sarees, shirts, sandals and a ''Canon'' Camera, the weight of the baggage on arrival at Bombay was 25 kilos, as against the declared weight of 20 kgs. at Bangalore Airport and, therefore, according to the conditions of carriage printed on the Air Ticket jacket, there is no liability whatsoever on the opposite party to pay any compensation to the complainant. It was also contended that the complainant had violated the instructions prominently displayed in all Airports that the passengers should carry cash, jewellery and other valuables in their hand-bags as cabin luggage and hence she has no cause of action to cry foul when something went wrong.

Before the District Forum, the complainant filed her affidavit evidence and was cross-examined. The opposite party filed its version, but no affidavit as such was filed in support of it.

THE District Forum, after due consideration of the facts of the case, came to the conclusion that there was deficiency of service and consequently ordered that the opposite party shall pay compensation of Rs. 12,000/- to the complainant within 2 months of the order, failing which the amount shall carry interest @ 18% p.a. from the date of expiry of the said 2 months, till payment. THE District Forum also awarded costs of Rs. 500/- to the complainant in the proceedings. It is this order which is targeted in the instant appeal. In the appeal memo, the opposite party came out mainly with the following contentions. (1) When there is a clear condition mentioned in the Air Ticket that valuables should be carried as cabin baggages, the complainant should not have booked them as registered baggages. (2) The District Forum has erred in awarding compensation despite holding that no reliance can be placed on the receipts produced by the complainant towards the cost of some of the items which were alleged as missing. (3) In the event of any liability being fastened on the opposite party, the compensation as provided in the Carriage by Air Act only is applicable in this case.

WE have heard Mr. K. Kasturi, learned Counsel for the appellant and Mr. R. Narendra, the learned Counsel for the respondent. WE have also gone through the records in minute detail to come to a conclusion from a proper perspective. Mr. Kasturi, learned Counsel invited our attention to the specific stipulation in the Air Ticket that passengers should carry jewellery and other valuable articles as cabin baggages and not as registered baggages. He contended that the complainant had moreover failed to disclose the contents of the baggages while booking them as registered baggages and, therefore, the opposite party cannot be held responsible even if the contents of the baggages were found missing later on. He also argued that in the absence of examining the person who gave the estimate of the cost of the items alleged to have been lost, the District Forum should not have proceeded to accept such estimate for the purpose of determining the quantum of compensation. He also invited our attention to a decision of the Hon''ble Supreme Court in Bharathi Knitting Co. v. DHL Worldwide Express Courier Division of Airfreight Ltd., reported in II (1996) CPJ 25 (SC)=(1996) 4 SCC 704, holding, inter alia, that in case of acute dispute of facts, the State/National Commission should not go behind the terms of the contract. The learned Counsel contended that in the instant case, having contracted to abide by the provisions of the Carriage by Air Act, the complainant is not entitled to the compensation awarded by the District Forum. The learned Counsel for the respondent however, contended that the appeal should be dismissed in limine on the preliminary issue of inordinate delay in filing it, despite the C.P. Act providing a specific time-frame to file appeals which has been followed by the opposite party in the breach for no valid reason. In this connection he invited our attention to a decision of the Hon''ble Supreme Court in Bikram Dass v. Financial Commissioner & Ors., reported in AIR 1977 SC 2221, holding, inter alia, that a litigant who is not vigilant about his rights must explain every day''s delay for the reason that he ought not easily take away a right which has accrued to the other party by lapse of time. Without prejudice to the contention that the appeal should be dismissed on the grounds of delay alone, the learned Counsel also contended that the opposite party has not come out with any evidence that the items mentioned in the complaint have not been missing when the bags were opened at Bombay Airport. He also asserted that once the baggages were entrusted to the opposite party and a baggage tag is issued, the opposite party assumes the role of a bailee, thereby rendering itself liable for any loss which the complainant may sustain when the baggages are in the custody of the opposite party. He, therefore, supported the order of the District Forum as just and proper and prayed that it may be confirmed.

WE have gone through the affidavit filed in support of the application for condonation of delay in filing the appeal. Even though the respondent has termed the explanation furnished therein as cryptic and bald, we do not find any element of nengligence, inaction or want of bona fides in the averment and, therefore, taking due cognisance of the bureaucratic setup and the administrative procedure involved, we consider that it would be just and proper to condone the delay in filing this appeal.

WE have gone through the order of the District Forum between the lines and are convinced that the District Forum has viewed the whole issue from a proper perspective, based on the material placed on record. Once when the District Forum comes to a conclusion based on appreciation of evidence that the opposite party is guilty of deficiency of service, we have no good ground to take a different view. WE support the conclusion arrived at by the District Forum that the contention of the complainant with regard to the loss of articles mentioned in the complaint remains uncontroverted. WE also subscribe to the view of the District Forum that under the principles of bailment, the opposite party has to bear responsibility for loss sustained by the complainant. WE, therefore, come to the conclusion that the District Forum was justified in holding that the opposite party was guilty of deficiency of service in not delivering the registered baggage without loss of articles contained in them. The learned Counsel for the appellant again invited our attention to Bharathi Knitting Company''s case alluded to earlier, pointing out that when the parties contracted their liabilities, the redressal agencies cannot give relief for damages in excess of the limits prescribed under the contract. In the said case, the parties had a specific contract for sending certain export documents under a cover to a foreign buyer within a specific time-frame which the carrier had botched up. The consignment containing the documents sent in the cover had been accepted by the appellant and was subject to the terms and conditions mentioned in the consignment note. The complainant had signed the said note at the time of entrusting the consignment and had agreed to and accepted the terms and conditions mentioned therein. Therefore, the Hon''ble Supreme Court has held that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. In the instant case however, there is no contract of the type referred to in the judgment where both the parties have signed a consignment note or something equivalent to it. The position is different with regard to notice of a printed clause in the Air Ticket which has not been signed by the complainant, but only delivered to her. The position of law governing such a situation has been explained in Anson''s Law of Contract, 24th Edition, at Pages 153 to 154, in the following words. The meaning of notice : "We have now to consider in what circumstances a party receiving a ticket, receipt or common form document at the time he enters into a contract will be bound by the conditions contained in it. In order that a contract should come into existence, according to the normal rules of offer and acceptance, the terms of the contract should be communicated to the offeree, that is to say, he should be made subjectively aware of their nature and extent. But the exigencies of modern conditions have introduced a more objective idea of consensus where such standard form constracts are concerned, and notice must here be reconsidered from this stand-point." Let us take the example of a railway or cloakroom ticket, which the person receiving it puts into his pocket unread. Three general rules have been laid down by the Courts to determine whether the traveller or depositor will be bound by the terms contained in the ticket. 1. If the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditons. 2. If he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions. 3. If he knew that there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he will be bound if the delivering of the ticket to him in such a manner that he could see there was writing upon it, is reasonable notice that the writing contained conditions."

From the situations mentioned above, it is reasonable to presume that the instant case falls within situation No. 3, considering the facts of the case. The passenger who buys an air ticket generally knows that there are writings on the ticket, but it is not as if every passenger knows that such writings contain certain conditions governing loss of articles, etc. Nevertheless, according to the position mentioned above, he will be bound by the condition if the delivery of the ticket is made in such a manner that he could see there is a writing upon it and in such an event it would constitute a reasonable notice. We have no hesitation to suppose that the complainant in this case was aware of some writings in the inner pages of the ticket but it cannot be said for certain that the complainant believed that such writings related to certain conditions governing loss of articles, etc. To what extent a person is liable in a situation in which the complainant was placed is explained in the following words at Page 155 of Anson''s Law of Contract. "Moreover, it is the practice, for example, always to refer on the face of the ticket to the fact that there are conditions printed on the back. If this is not done, then following the case of Hunderson v. Stevenson, in 1875, the Courts have consistently held that such a notification is defective. Strictly, of course, the issue is one of fact in each particular case, but this requirement may now fairly be said to be one of law."

WE do not find any such note or indication on the face of the passenger ticket issued to the complainant by the opposite party-Indian Airlines. In other words, the face sheet of the Air Ticket issued to the complainant does not invite her attention to any condition mentioned on the jacket or in the inner pages of the ticket. In the absence of such indication on the face of the ticket, we do not think it proper to construe that any privity of contract existed between the parties. In the view that we have taken above, we hold that the opposite party has not established that the complainant has a privity of contract to be governed by the provisions of the Carriage by Air Act, 1972. Consequently, we are not in a position to countenance the argument of the opposite party that the District Forum was sans jurisdiction to award damages beyond what is prescribed by the Carriage by Air Act, 1972.

IN the circumstance, the appeal is liable to be dismissed. Hence, we pass the following Order The appeal is dismissed. We make no order as to costs in this appeal. Appeal dismissed.