MANAGER, SOUTH INDIA, AIR INDIA vs VISALAKSHI SUBRAMANIAM

THIS appeal is directed against the order dated 20th day of February, 1998 in O.P. No. 178/1997 on the file of the District Consumer Disputes Redressal Forum, Chennai (South).

THE appellant is the opposite party namely THE Manager, Southern India, Air India, No. 19, Rukmani Lakshmipathi Road, Egmore, Chennai-600 008 while the respondent is the complainant namely Smt. Visalakshi Subramaniam, w/o G.A. Subramaniam, 22 Mayura Flat, No.43, Kalakshethra Road, Thiruvanmiyur, Chennai-600 041. Succinct facts, may be related for understanding the crux of the issue arising for consideration in this action.

The complainant, it appears, has a son by name S.A. Swamy. The complainant and her son purchased the necessary air ticket from the opposite party air lines for the return journey from Jakarta (Indonesia) bound for Madras via Singapore on 24.7.1996 by Flight A1 405. It was to commence its journey from Jakarta on that day at 1455 hours. Before boarding to the aircraft, they entrusted with the personnel of the opposite party 5 pieces of baggage and thus 5 pieces of baggage were checked in. The 5 pieces of baggage weighed 118 kgs. On arrival at the destination namely at Madras, 4 pieces of baggage were returned to the complainant and one piece of baggage was found to be missing as not traceable. The weight of the 4 pieces of baggage delivered to the complainant on arrival at Madras 100 kgs. The one piece of baggage which was not delivered weighing 18 kgs.

THE complainant would claim that the missing baggage contained articles like silk sarees, camera, etc. all valuing Rs. 21,000/-. She would also claim that the non-delivery of one piece of luggage on the part of the Air India would tantamount to deficiency in service on their part. She would further claim damages for such deficiency in service, which caused mental agony and anguish. Alleging the factors as above, she knoked at the doors of the Forum below for certain reliefs as prayed for in the complaint.

THE opposite party Air India in pith and substance would contend that there was no deficiency in service on their part. What is further contended is that the complainant and her son checked in 5 pieces of luggage weighing 118 kgs.and out of 5 pieces of baggage, 4 pieces weighing 100 kgs. had been delivered to the complainant and her son on the arrival of the flight at Madras. What they would further contend is that free baggage allowance for the two passengers would be 40 kgs. THE complainant and her son paid excess baggage charges for another 30 kgs. only. Such being the case, the opposite party is not liable to pay any amount towards the missing baggage. THE opposite party has no knowledge about the contents and the value of the contents in the missing baggage. As such the complaint is liable to be dismissed. The Forum below after taking into consideration the materials placed on recored, recorded a finding that the failure on the part of the opposite party in collecting the necessary excess baggage charges at the time of booking of the luggage is not a ground for them to escape from liability for the missing luggage and what is further found is once the luggages are checked in, the opposite party is bound to deliver the checked in luggages at the destination point and the non-delivery of any of the luggages at the destination point would tantamount to deficiency in services on their part. The Forum below further recorded a finding that the value of the contents of the missing luggage is Rs. 21,000/- as claimed by the complainant. The Forum below also awarded compensation quantified in a sum of Rs. 4,000/- for the mental agony and anguish suffered by the complainant as a consequence of deficiency in service on the part of the opposite party. Thus the Forum below directed the opposite party to pay to the complainant Rs. 25,000/- representing the value of the contents missing luggage fixed at Rs. 21,000/- and compensation qantified in a sum of Rs. 4,000/- for mental agony and anguish suffered by the complainant. This apart, the Forum below also awarded costs quantified in a sum of Rs.1,000/- to be paid by the opposite party to the complainant. The further direction issued was that the amount of the award must have to be paid by the opposite party within a month from the date of its order to the complainant. Aggrieved by the order as above, the opposite party Air India resorted to the present action.

THE process was served on the respondent/complainant and despite service, she virtually remained absent and did not engage a Counsel of her choice.

WHEN the matter came up for hearing before us today, neither the complainant nor anyone on her behalf was present to project her hues of views. The fact that none is present in Court for respondent/complainant does not mean that we cannot dispose of the matter on merits, of course, after hearing Mr. A. Baskar representing M/s. King and Partridge appearing for the appellant/opposite party Air India and on perusal of the materials placed on record and that is exactly what we have done in this case. Learned Counsel Mr. A. Baskar appearing for the appellant/opposite party Air India with all force and vehemence would contend that the Forum below did not approach the factual matrix of the case in the proper perspective in the light of the legal provisions as available in the Carriage by Air Act, 1972 (for short, "the Act 1972") and that perhaps was the reason, he would say, for the Forum below to pass on erroneous order now impugned in this action. By saying so, the said learned Counsel was rather cautious in making such submission that the order of the Forum below in its entirety cannot be thrown lock, stock and barrel and what he would say is that if the relevant Rule namely Rule 22(2)(a) of Chapter III, Schedule II appended to the Act, 1972 or the Conditions of the Contract of Carriage as evidenced by the Air Ticket issued for the complainant by the opposite party are applied to the factual matrix of the case, the liability to be mulcted on the part of the opposite party Air India could considerably reduce even on the assumption that there was deficiency in service on the part of the opposite party Air India. The arguments so projected by the said learned Counsel cannot at all be slightly brushed aside on the facts and in the circumstances of the case. A perusal of the order of the Forum below does not at all indicate its application of mind to the relevant statutory rules appended to the Act, 1972 and it simply accepted the word of the complainant for the value of the contents of gospel truth and came to the conclusion that the value of the contents of the missing luggage is to the tune of Rs. 21,000/-. Such sort of a feat as has been done by the Forum below is altogether untenable on the face of the relevant rule as cited above, or on the face of the conditions contained in the Flight Ticket given to the passenger like the complainant.

Even according to the opposite party Air India, the weight of the checked in luggage is to the extent of 118 Kgs. Admittedly free allowance is available to the complainant and her son to the extent of 40 kgs. The opposite party Air India itself would categorically state in the version filed by them that they collected excess baggage charges only to the tune of 30 kgs. But unfortunately the total checked in luggage is to the extent of 118 kgs. Normally for all the 5 pieces of luggage to be checked in weighing 118 kgs. the opposite party Air India sought to have collected excess luggage charges to the extent of 78 kgs. Apparently, they have not done so. They have admittedly collected excess luggage charges only for 30 kg. and allowed the complainant and her son to have the luggage to the extent of 48 kgs. to be checked in without payment of excess baggage charges. This sort of an act on the part of the opposite party Air India officials demonstrates in no uncertain terms that excess luggage had been checked in without collection of necessary and requisite excess baggage charges for some extraneous consideration or other influence. Having allowed such a excess luggage to be checked in, it shall not be open to the opposite party Air India to say that since excess luggage charges had not been collected, they were not liable for the value of the contents of the missing luggage. Once the luggages are checked in the opposite party Air India is bound to effect delivery of the checked in luggages at the destination point and the non-delivery of anyone of the checked in luggages at the destination point would definitely tantamount to deficiency in service on their part, irrespective of the payment of the necessary and requisite charges for the excess baggage. If the officials of the opposite party failed to collect while allowing the baggage to be checked in, the opposite party Air India is to take action against the erring officials. At times, allowing of excess luggage without notice to anyone resulting in excess load to the aircraft beyond a bearable limit, which will have the effect of causing accidents by the aircraft falling on the ground not being in a position to have the necessary and requisite power to carry such a load. Whatever it is, as already indicated, once the luggages are checked in, it is for the opposite party Air India to effect delivery of the luggage at the destination point and non-delivery of the same would definitely tantamount to deficiency in service. The Forum below, of course, recorded a finding that the non-delivery of one piece of checked in luggage would definitely tantamount to deficiency in service on the part of the opposite party Air India and we are completely in agreement with the Forum below in regard to such a finding.

WITH regard to the value of the contents of the missing luggage, the Forum below ought to have taken into consideration Rule 22(2)(a) of Chapter III, Schedule II appended to the Act, 1972 or the Conditions of Contract. The said Rule reads as under : 22(2)(a). In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination 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 the sum is greater than the passenger''s or consignor''s actual interest in delivery at destination. A perusal of the rule indicates in unequivocal terms that in respect of the missing checked in luggage, the opposite party Air India is liable to pay 250 francs per kilogramme of the lost baggage. Section 6 of the Act, 1972 contains relevant provisions for the convresion of the francs into Indian currency as contemplated in the said rule and the section reads as under : "6. Conversion of francs-Any sum in francs mentioned in Rule 22 of the First Schedule or of the Second Schedule, as the case may be, shall, for the purpose of any action against a carrier, be converted into rupees at the rate of exchange prevailing on the date on which the amount of damages to be paid by the carrier is ascertained by the Court."

THE section as extracted above needs no further elucidation and, therefore, we left it as it is without adding any explanation. Xerox copy of a portion of air ticket had been marked as Ex. A1. Xerox copy of the entirety of the ticket had not at all been marked. The xerox copy of a portion of the ticket had been marked to indicate journey on the relevant date by the complainant from Indonesia to Madras. Consequently, we directed learned Counsel appearing for the complainant/opposite party Air India to produce a specimen air ticket containing Baggage Liability Limitations, etc. He did produce a specimen ticket for our perusal. In the said ticket, the baggage liability limitations are given under the caption "Notice of Baggage Liability Limitations" and they read as under: "Liablity for loss, delay, or damage to baggage is limited as follows, unless a higher value is declared in advance and additional charges are paid : (1) for most international travel (including domestic portions of international journeys) to approximately U.S. $ 9.07 per pound (U.S. $ 20.00 per kilo) for checked baggage and U.S. $ 400 per passenger for unchecked baggage; (2) for travel wholly between U.S. points, Federal rules require any limit on an airline''s baggage liability to be at least U.S. $ 1,250 per passenger."

From what has been extracted above, it is crystal clear that the liability of the air carriage like the opposite party Air India is limited to US $ 20 per kilogramme for the missing checked in baggage.

NORMALLY the liability of the carriage will be determined by the Rule 22(2)(a) of Chapter III, Schedule II appended to the Act, 1972 in the absence of the baggage liability limitations having been contained in the ticket issued to the passenger. In the case on hand, the baggage liability limitations are indicated in the ticket itself and, therefore, we follow the baggage liability limitations as contained in the ticket. The missing checked in luggage even according to the opposite party Air India was to the tune of 18 kgs. and for the 18 kgs. they are bound to pay at US $ 20 per kg. The total value of missing baggage weighing 18 kgs. is to the extent of US $ 360. We may roughly say that US $ 1 costs Rs. 47/-. The value of the lost checked in luggage, therefore, would come to 360 x Rs.47 = Rs. 16,920/-. The Forum below awarded for the value of the missing luggage Rs. 21,000/-. We, therefore, set aside the order of the Forum below as respects the value of the missing luggage and instead we direct the opposite party Air India to pay to the complainant Rs. 16,920/- for the missing checked in luggage. The Forum below also awarded compensation quantified in a sum of Rs. 4,000/- for the mental agony and anguish suffered which we rather feel on the facts and in the circumstances of the case is quite reasonable not calling for interference and we, therefore, confirm such part of the award. The Forum below awarded costs quantified in a sum of Rs. 1,000/-, which we feel quite reasonable not calling for interference. We also confirm that part of the award.

BEFORE parting with this matter, we want to say that it would be better on the part of the opposite party Air India to initiate disciplinary proceedings against the officer-in-charge on the relevant date in allowing excess luggage of the complainant and her son to the extent of 48 kgs. without collecting the necessary and requisite excess baggage charges. Not that we say that the non-collection of the excess luggage charges would cause so much of loss to the Air India and such a loss even if happened, it is going to affect the financial position of the Air India alone. Such acts on the part of officials of Air India, if allowed to go unchecked, there is every likelihood of overloading the aircraft beyond its capacity to carry, resulting in the fall of the aircraft on the ground, taking away the precious lives of many a passenger, causing agonising situation to their families. We also trust and hope that the action so taken against the erring official is to be reported to this Commission within a period of 2 months from the date of receipt of this order. Subject to the observation as above and except to the extent of the modification as we have made in the order of the Forum below, the appeal shall stand dismissed in other respects. We, however, make no order as to costs on the facts and in the circumstances of the case. Appeal disposed of.