ORDER
P.D. Shenoy, Member
1. The case of the complainant Mrs. Prakrithi Shetty, in brief, is that on 10.4.1992 she travelled from Bangalore to Bombay by Indian Airlines Fit. No. IC 110. On arrival at Bombay she was astonished to find that her two pieces of registered baggage had not arrived. Immediately, she lodged a complaint at the Bombay Airport. The two pieces of baggage arrived only on 11.4.1992. While identifying the luggage in the presence of employees of Airlines she was shocked to find that they had been tampered with. The suitcase has been unlocked and the zip of the sky bag has been torn off. A gold necklace, 2 ear rings, a finger ring, a bracelet, a Mangalsutra chain, two sarees, two T shirts, a canon camera and a pair of sandals were found missing. She gave a handwritten complaint mentioning all these which was received by an officer of the Indian Airlines.
2. Six months later she received a reply from the Airlines expressing their inability to pay compensation. It was also stated that though the checked in baggage at Bangalore weighed 20 kgs. when it was delivered at Bombay it was found to be 25 kgs. and, therefore, there was no loss of luggage.
3. Before the District Forum it was contended by the Indian Airlines that complainant failed to indentify her baggage before being loaded in the air craft and, therefore, to avoid delay, the flight took off, sans two baggages.
4. It was also alleged that the complainant had either disclosed the contents of the baggage while checking-in, nor had she taken precautions to insure the contents, and if ever any liability comes to be fastened on the Airlines it would be limited to Rs. 300 per kg. for baggage lost or damaged. The District Forum after due consideration of the facts of the case came to the conclusion that there was deficiency in service and consequently ordered the Indian Airlines to pay compensation of Rs. 12,000 within two months of its order, failing which to pay 18% interest from the date of the expiry of the said two months till payment. Rs. 500 was also awarded as costs.
5. The State Commission after hearing the learned Counsel for the parties dismissed the appeal.
6. The learned Counsel for the revision petitioner Mr. Lalit Bhasin submitted that Airlines Authorities are not responsible for the alleged loss of any items kept in the registered baggage for the following reasons:
(a) The passenger had not identified her baggage before departure. Hence, the baggage was not loaded in the air craft.
(b) The weight of the suitcase recorded at the destination i.e., at Bombay was not less than that which was at the time of checking in at Bangalore.
(c) The passenger has neither insured the baggage nor revealed the contents of the baggage at the time of checking in.
(d) As pilferage of checked in baggage is not uncommon and passengers were asked to carry valuables in hand luggage.
7. The learned Counsel for the revision petitioner submitted that under Section 45(2)(g) of the Air Corporation Amendment Act, 1971 and Regulation 5(e) of the Damages Non-International Carriage [Passage and Baggage) Regulations, 1980, airlines is not liable for damage occasioned by delay in the carriage by Air of passengers or baggage. This condition forms an essential part of the contract of Carriage of Indian Airlines with its passengers, as it is printed on the jacket of the tickets, issued to them. This point has been upheld by the National Commission in Indian Airlines v. Rajesh Kumar Upadhyay I (1991) CPJ 2006.
8. Learned Counsel for the petitioner brought to our notice the judgment of Supreme Court of India in Bharathi Knitting Co. v. DHL Worldwide Express Courier Division of Airfreight Ltd. II , wherein it is held that “the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding amount for deficiency in service to the extent of the liability undertaken by the respondent. But in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts.”
Findings:
9. This case is not a simple case wherein there was delay in transporting luggage, or there was simple reduction in the weight of the goods while reaching the destination or the goods were lost in transit. The baggage was transported on the day after the day of which the passenger travelled. The baggage was opened in the presence of the Airline Authorities and they were found to be tampered i.e., one bag was unlocked and of another one the hook was broken so the zip could be opened easily and the jewel box was found missing and the complaint was lodged on the same day.
10. The State Commission has observed in para 4 of its order as follows:
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.
11. Now let us see what the District Forum has to say about this affidavit and the cross-examination:
The parties having been called upon to adduce affidavit evidence, the complainant has filed the same and she has been cross-examined. The Counsel for the O.P. reported no affidavit evidence on his side. He and the Counsel for the complainant have filed their written arguments.
This is an unfortunate instance where the complainant is stated to have lost her valuables and we find that she has also contributed for such an instance by keeping her jewelleries in that suitcase. But we cannot absolve the O.P. for the tempering that had resulted in. respect of that suitcase which is MO 1. It is also not in dispute that the suitcase and the skybag i.e., MO 2 were also part of her registered luggage and that when they were received at Bombay Airport there were found to have been tempered with. On a careful consideration of the averment, in the affidavit of the complainant and the replies given by her in the course of her cross-examination, we have no reasons to doubt her testimony that in MO 1 she had kept the jewellery box MO 3 and in that jewellery box she had kept her gold Mangalsutra chain, necklace, a pair of ear rings, a finger ring and a bracelet. We have also no reasons to doubt her testimony that in that skybag M02 she had kept a canon camera and a pair of sandals, apart from two sarees, and two T shirts. It is also not in dispute that MOs 1 and 2 did not arrive along with the complainant in the flight in the question at Bombay but only subsequently and at her instance a mis-handling baggage report came to be prepared on 10.4.1992 as per the original of Ex. C2 at Bombay Airport. In it, it has been shown that the light colour suitcase contained her personal goods and jewellery (certified as baggage No. 1) and the black sky bag contained a personal goods (identified as baggage No. 2). It is also not disputed that the complainant received those baggages which are admitted on both sides as MOs 1 and 2 only on 11.5.1992.
12. It is also pertinent to note from the analysis of the District Forum that the letter addressed by the Indian Airlines to the complainant on 15.10.1992 states that the baggage was kept duly sealed before they were loaded in flight IC 106 on 11.4.1992.
13. If that is true it was for the Indian Airlines to explain as to how they were damaged and tampered with, when they arrived at Bombay Airport. Hence, the District Forum found no reasons to disbelieve the sworn averment of the complainant that the suitcase was unlocked and sky bag was opened by tearing of the zip.
14. It is clear from the records that Airlines staff have tampered with suitcase, broken open the lock and one of the baggage was torn which has resulted in pilferage. Citations quoted by the learned Counsel for the revision petitioner are distinguishable as they do not pertain to loss to the consumer due to pilferage or theft and hence these citations/provisions of the Carriage by Air Act, 1972 are not applicable in this case. Law and precedence can only support the rightful actions of the Airlines and their staff. They cannot support the theft and pilferage by their staff for which the management of the Airlines is responsible. We have a sworn affidavit by the complainant and who has also withstood rigorous cross-examination by the learned Counsel for the opposite party before the District Forum. It is necessary to note that the District Forum has not awarded the total claim.
15. Though the complainant has claimed Rs. 50,000 (approx) for the loss of jewellery and other items and she has also produced the receipts for the jewellery etc., as there was some contributory negligence on her part they have awarded a token compensation as mentioned above.
16. The Airlines could have accepted this verdict and paid the same to the beleaguered passenger. But the litigation was continued at State and National level. We do not find any legal infirmity or jurisdictional error in the order passed by the State Commission. Hence, the revision is dismissed with Rs. 10,000 as costs to be paid by the revision petitioner to the complainant.