1. THE petitioner / opposite party being aggrieved of the order of the dismissal of his first appeal against the order of the District Forum Cuttack has preferred this revision petition.
2. BRIEFLY stated the facts relevant for the disposal of the revision petition are that the respondent / complainant is a Doctor. On 13.03.2007, respondent travelled from New Delhi to Bhubaneshwar by opposite party / airline vide passenger ticket and baggage check no.705 6002273324. The complainant was issued boarding with seat no.32F and luggage ticket number S 2678339 and D 2678340 for two bags. After the passengers had boarded the flight, it was announced that their luggage would be carried by Indian Airlines Flight No.IC 877 and would be handed over to the passengers at Bhubaneshwar Airport. However, on his arrival at Bhubaneshwar Airport, the complainant was handed over only one bag and his bag with tag number S2678339 was found missing. The complainant was thus granted ''Property Irregularity Report". When the opposite party failed to deliver the second missing tag, the respondent / complainant filed consumer complaint claiming a sum of Rs.80,000/ - towards the cost of material lost, Rs.20,000/ - towards litigation expenses and Rs.2,00,000/ - for mental harassment and agony.
3. THE petitioner / opposite party resisted the complaint. In the written statement, the opposite party while admitting the fact that one bag of the complainant booked with the opposite party had gone missing, the opposite party took the plea that the complainant was not entitled to the relief sought because before boarding the flight, he had not given declaration in the prescribed format regarding the nature of valuables contained in the missing bag and also because he did not pay additional charges for the same. The opposite party took the plea that complainant is entitled only for Rs.450/ - per kg as per the provisions of carriage by Air Act 1972. It was claimed that weight of missing bag was 8 kg. The opposite party also pleaded that there was no deficiency of service on its part.
Learned District Forum on consideration of the pleadings and evidence allowed the complaint and directed the petitioner / opposite party to pay to the respondent / complainant a sum of Rs.80,000/ - towards the cost of articles contained in the missing bag, Rs.50,000/ - towards compensation and Rs.2000/ - towards litigation expenses.
4. BEING aggrieved of the order of the District Forum, the opposite party preferred an appeal and the State Commission Orissa Cuttack while concurring with the order of the District Forum dismissed the appeal and directed the petitioner / opposite party to comply with the order of the District Forum. The State Commission also added that the award shall carry interest of 9% p.a. w.e.f. 13.03.2007, though there was no plea of the opposite party for enhancement of the awarded amount by adding the interest to be paid on the amount awarded by the District Forum.
5. SHRI Sanjay Pal, Advocate, learned counsel for the petitioner has contended that the foras below have passed impugned orders in violation of Rule -22 Schedule -II of Carriage by Air Act, 1972 which provides that in the carriage of registered luggage and of goods the liability of the career is limited to a sum of Rs.450/ - per kg. unless the consigner has made a special declaration of value of the luggage/goods and has paid a supplementary sum if required. Learned counsel has contended that admittedly in the instant case the value of the baggage was not declared by the respondent/complainant. Therefore, he is entitled only to a sum of Rs.3,600/ - for his baggage weighing 8 kgs. calculated at the rate of Rs.450/ - per kg.
6. LEARNED Shri R.K. Mehta, Advocate for the respondent on the contrary has argued in support of the impugned order. He has contended that admittedly the baggage of the complainant was offloaded by the petitioner after the complainant has boarded the plane and the passengers were promised that their baggage will be delivered safely to them at Bhubaneshwar airport. Admittedly, the luggage of the complainant was lost while it was in custody of the petitioner. Therefore, it is clear that the loss of luggage has occurred due to recklessness and negligent act on the part of the petitioner and its staff. Therefore, Rule -22 of Schedule -II of Carriage by Air Act, 1972 is not applicable and the case of the petitioner is governed by Rule -25 which is in the nature of exception to Rule -22.
7. WE have considered the rival contentions and perused the record. Undisputedly the respondent/complainant while travelling from Delhi to Bhubaneshwar on 13.3.2007 had booked his baggage with the petitioner airlines. It is also not disputed that part of the baggage went missing. The question is how the liability of the petitioner air career is to be fixed for missing baggage. Rule -22 Schedule -II of the Air Carriage Act, 1972 (2) deals with the liability of the air career in case of loss of baggage, which is reproduced as under: -
"(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 that sum is greater than the passenger''s or consignor''s actual interest in delivery at destination.
(b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier''s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability."
8. ON reading of the above, it is clear that in case of loss of baggage booked by consignee with the air career the liability of the air career is limited only to the extent of Rs.450/ - per k.g. of loss baggage unless at the time of booking the special declaration in interest of delivery was made by the person concerned. It is not the case of the complainant that while booking his baggage with the airlines he made requisite special declaration of the value of the goods contained in the baggage. Thus, in view of the aforesaid specific provision the compensation beyond the amount calculated @ Rs.450/ - per k.g. of loss baggage could not have been awarded by the foras below. Both the foras below have committed grave error in granting compensation in violation of the above -noted statutory Rule. Therefore, the orders of the foras below cannot be sustained.
9. LEARNED counsel for the respondent on the contrary has referred to Rule -25 of Schedule -II of Air Carriage Act, 1972 and submitted that aforesaid Rule provides for an exception to the limited liability rule provided in Rule -22 and the foras below were justified in granting compensation based upon the value of the goods lost by applying such exception particularly when the baggage went missing because of grossly negligent and reckless act on the part of the petitioners airlines. We do not find any merit in this contention. Rule -25 relied upon by the respondent is reproduced as under: -
"25. The limits of liability specified in rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment."
10. ON perusal of the above, it is clear that Rule 25 provides for an exception in the cases of damage caused to the baggage but does not deal with the case pertaining to loss of baggage. The goods in hand relates to loss of baggage. Therefore, Rule 25 is not applicable to the facts of the case.
11. IN view of the discussion above, we are of the opinion that the impugned orders being in violation of Rule -22 Schedule -II of the Air Carriage Act, 1972 cannot be sustained. We accordingly allow the revision petition, set aside the impugned orders and direct the petitioner airlines to pay to the respondent damages for the lost baggage calculated @ Rs.450/ - per k.g. if not already paid with 9% interest thereon from the date of loss i.e. 13.3.2007 till realisation of amount.
12. REVISION petition is disposed of accordingly.
