Malaysian Airlines vs ANITHA SURI

THE opposite party in C.O.P. No. 132/2000 on the file of the District Consumer Disputes Redressal Forum, Chengalpattu, is the appellant herein. THE case of the complainant was as follows: (a) She had travelled on United Airlines flight UA-2075 on 6.6.2000 from San Francisco to Los Angeles to connect the opposite party''s flight MH-095 on 7.6.2000 from Los Angeles to Kuala Lumpur which in turn connected the opposite party''s flight MH-182 on 8.6.2000 from Kuala Lumpur to Chennai. She had checked in 4 items of baggage with United Airlines at San Francisco on 6.6.2000. Out of the 4 items, 3 were handed over by United Airlines to the opposite party only after the departure of their flight MH-095 from Los Angeles to Kuala Lumpur. THE one item of bagage received by the opposite party from United Airlines travelled with the passenger on the same flights she boarded and was collected by her on arival at Chennai on 8.6.2000. She reported the non-receipt of her 3 items of baggage at Chennai on 8.6.2000. In the ordinary course, these 3 items of baggage which were delivered to the opposite party by United Airlines after the departure of the opposite party''s flight MH-095 on 7.6.2000 from Los Angeles to Kuala Lumpur were flown in on the next available flights on 8.6.2000. THE said 3 items were handed over to the passenger on 10.6.2000 under her acknowledgement of receiving the same in good order and condition. However, after receiving the same on 10.6.2000, the complainant wrote to the opposite party on 13.6.2000 that the bagages were broken and some of the personal and valuable articles kept in the missed suitcases were found missing. She gave a list and the value of the items found missing.

THE opposite party admitted the loss of the articles under their custody but denied their liability for compensation of missing baggages by stating that the carrier was not liable for damages. When the 3 items of baggage were restored to the complainant at Chennai on 10.6.2000 she had acknowledged the receipt of the same in good condition. Later, she lodged a report on 13.6.2000 alleging that the 3 items of baggages were broken into and some items of value were missing. In good faith, the opposite party offered to compensate the complainant for the alleged loss with payment of 220 US $ which was the maximum compensation payable in such cases to an economy class passenger whose maximum free baggage weight allowance was 20 kilos. THE opposite party had also sent to the complainant a discharge voucher for being completed and returned by her against receipt of which the compensation would be disbursed. The District Forum on the materials placed found that there was no sufficient evidence to prove as to what were the actual articles inside the baggage and what were the articles which were damaged, what were the articles missing and what actually was the value of the damages and missing articles and that in the absence of such clear evidence, it was not in a position to arrive at the exact loss sustained by the complainant. The District Forum also found that even otherwise when she received 3 baggages on 10.6.2000 she should have checked the package or the locks before issuing the good condition certificate Ex. B3. After having given the acknowledgement for receipt of the three missing baggages in good condition, she could not come with a new case after 3 days saying that the articles worth 4100 US $ were either damaged or missing. After observing that and after further stating that "though, at this juncture, we do not have any legal basis to arrive at a compensation, considering the offer of 220 US $ to the complainant, by the opposite party themselves, we consider that a higher compensation namely the equivalent of 500 US $ will meet the ends of justice. So holding, by order date 12.3.2001 it directed payment of rupees equivalent to 500 US $ to the complainant within 2 months from the date of receipt of the order. It is as against that the present appeal has been filed.

The learned Counsel for the opposite party submitted that having rightly held on facts that the 3 items not handed over to the passenger on 8.6.2000 had been handed over to her on 10.6.2000 under her acknowledgement of receipt of the same in good condition and that there was no evidence to show that the articles claimed to be in her bag by the complainant were actually there and that no evidence was available to establish that articles were damaged, missing, their alleged value, etc., the District Forum was in error in directing the opposite party in an arbitrary manner to pay US $ 500. This according to Counsel was not warranted by the discussion of material facts and documents by the District Forum. The District Forum ought to have dismissed the complaint as vexatious.

PER contra, the learned Counsel for the complainant submitted that mere admission of negligence on the part of the opposite party would not absolve the opposite party of their liability to pay damages and compensation for mental agony caused. Schedule I of Section 22 of the Carriage by Air Act restricting their liability was not absolute is that in Rule 25 it was clearly stated that the liability could not be excluded or limited with the damages caused by wilful misconduct or as per the opinion of the Court. The Counsel relied on the judgment in V.K. Sharma v. Indian Airlines, 1993 (1) CPR Page 642, where it is stated that liability of Airlines for loss of luggage during carriage by air is limited to Rs. 300 per kg., unless negligence alleged was such as to prove higher compensation. The learned Counsel further submitted that even conceding that 220 US $ the amount was payable, there were two passengers and each passenger would be entitled to be paid US $ 220. There is no material substantiating this stand of the complainant. There is only one complainant. Further this case was not put forward before the District Forum. As regards the actual damage caused to the complainant, the District Forum had observed that there was absolutely no material to prove the value. Further the complaint was not made immediately. Only after 3 days this was done. In such circumstances, in our view, the District Forum ought to have restricted the amount of compensation to what was provided in Schedule I of Section 22 of the Carriage by Air Act at U.S. $ 220 and there was absolutely no justification on the part of the District Forum to have fixed an arbitrary amount of US $ 500 merely because the opposite party had as a gesture of goodwill committed themselves to pay 220 US $., the maximum payable to the complainant. The order of the District Forum cannot, therefore, be sustained. The amount offered includes the amount payable for mental agony also. There could not be any separate payment for mental agony in the circumstances.

CONSEQUENTLY, the appeal is allowed in part; the order of the District Forum is modified and instead of US $ 500, the opposite party is directed to pay US $ 220. There will be no order as to costs. Appeal partly allowed. ---------------