1. -THIS appeal arises out of the order of the State Consumer Disputes Redressal Commission, New Delhi whereby the State Commission dismissed the complaint.
2. THE facts in brief which led the complainant to approach the State Commission are as follows: the complainant, Principal Correspondent of the Hindustan Times, at the material time, went to the U. S. A. for a six months training programme at Seattle Times, Washington. She travelled by KLM Royal Dutch Flight to U. S. A. via Europe. In the first lap, she travelled from New Delhi to Amsterdam on 3/4th June, 1990. On the 13th June, 1990, she travelled from Milan (Italy) to Amsterdam by KLM Flight No. KL 342 and from there to New York by Flight KL 641. She booked two pieces of accompanied baggage vide Ticket No. XH-226592 and XH-226593. On reaching New York, she found that only one baggage had reached there and the same had a duplicate tag attached to it viz. , No. 040055. It was also in damaged condition. The other baggage which was the main suitcase was not delivered. The said suitcase contained personal effects and apparels, 22 ct. gold and diamond jewellery estimated at US Dollars 2,400 (equivalent to Rs. 72,000 ). She filed Property Irregularity Report No. 708-709 on 26. 9. 1990. Ultimately she was informed on 26. 6. 1990 that the suitcase has been traced at Amsterdam and shall be delivered to her on 28. 6. 1990.
The suitcase was, however, not delivered. Instead the complainant was informed on 29. 6. 1990 that the baggage had been retraced at KLM Office at Los Angles. On Saturday, the 30th June, 1990, which was the holiday the said baggage was delivered in the office of the Seattle Times through the respondent''s agent Federal Express in the absence of the complainant. The suitcase was found in near broken condition with locks broken and the aforesaid valuables missing. The complainant as well as her father wrote several letters and ultimately lodged a claim on 3. 7. 1990. The opposite party offered only US $ 360, i. e. , @ 20 US dollars per kilogram for 18 kilograms of weight of the suitcase on 17. 7. 1990 on the basis of their limited liability. The complainant served a legal notice dated 11. 11. 1990 and filed complaint before the State Commission on 29. 6. 1992 claiming US $ 9,600 equivalent to Rs. 2,88,000 along with interest thereon at the rate of 24% p. a. on account of damages and compensation.
On notice being issued the opposite party filed its written version wherein it had taken the stand that the complainant had not declared value of the contents of the baggage and in its absence, the complainant is entitled to only US $ 20 per kilogram and hence the complainant was offered US $ 360 out of which US $ 300 had already been paid. The opposite party had also contended before the State Commission that the complainant did not declare the value of the contents of the baggage and paid the additional charges as has been mentioned in the jacket of the ticket. The complainant in her rejoinder pleaded that this was a case of wilful misconduct and deliberate theft which had been committed with the knowledge and connivance of the employees of the KLM. The State Commission had gone through the affidavits filed by both sides but found that the complainant had failed to discharge the onus of proving wilful misconduct by the (opposite party) respondent as has been noticed hereinafter.
3. THE learned Counsel for the complainant argued that the wilful misconduct is governed by Rule 25 of the Schedule I of the Act and the complainant is entitled to the amount claimed in this case. In response to this argument the learned Counsel for the opposite party argued that the case is governed by Rule 22 (2) which lays down the general rule applicable in all cases where special declaration is not made and extra payment is not made at the time of checking in ; admittedly the complainant made no declaration regarding the contents of the suitcase nor paid any extra amount in terms of Rule 22 (2); the burden of proving the expenditure is on the complainant and the same has not been discharged. The rule of limited liability is statutory in character and is binding on the parties; and lastly that, in any case, carrier''s liability being limited was an essential condition of the contract as it was one of the terms printed on the jacket of the ticket. In this context the State Commission observed as under:
"there can be no dispute that provisions of rules contained in Section 3 of the Carriage by Air Act, 1972. The validity of these rules cannot be questioned before the agencies created under the Consumer Protection Act, 1986 (See V. K. Sharma v. Indian Airlines, V-1993 (1) CPR 642. It can also not be disputed that unless the case can be brought under Rule 25, the liability of the carrier is limited in terms of Rule 22 (2) as admittedly no declaration regarding contents of the suitcase was made nor any additional amount paid. "
While deciding the matter the State Commission also adverted to the expression "wilful and wanton misconduct" as defined in Black''s Law Dictionary. 6th Edition and the expression "wilful misconduct'' as appearing in Stroud''s Judicial Dictionary 5th Edition. In this connection the State Commission also relied on the judgment of the Hon''ble Supreme Court delivered in the case of Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehara Rao, (1989) 4 SCC 255; Peggy Danziger v. Compagnie National Air France, a decision of N. Y. District Judge; Grey v. American Airlines; Olshin v. EI AI Israel Airlines and came to the finding that the rule applicable in the Schedule to the Carriage by Air Act, and the petitioner had failed to establish that her case is covered by Rule 25. The State Commission also observed that the complainant is bound by the terms of the contract, which were printed on the jacket of the ticket and which limits the liability of the carrier. For these reasons the State Commission held that the amount offered by the opposite party was the only amount to which the complainant was entitled to and in view of the said conclusion the State Commission did not find any merit in the complaint and accordingly dismissed leaving the parties to bear their own costs.Feeling aggrieved by the order of the State Commission, the complainant had come in appeal before us.
4. WE have heard the learned Counsel for the parties. We have also gone through the order of the State Commission and the written submissions filed by the parties. After having heard the parties and gone through the papers as aforesaid we find no reason to interfere with the order of the State Commission and dismiss the appeal. In the facts and circumstances of the case, there will be no order as to costs. Appeal dismissed.
