A State Commission held that the company is liable to pay compensation. In this case the complainant purchased airline tickets of two different flights, for the same day and he was charged Rs.1400 twice for extra luggage which was illegal and arbitrary. Complainant suffered mental harassment as he was not given any kind of prior information that the flight will be going via Hyderabad. The complainant wanted to prepone his flights but it was refused but later Kolkata office agreed on this point but they wanted the complainant to pay for the extra luggage by card but he had cash and they refused to take that. Due to this kind of behaviour the complainant was forced to cancel the tickets. This whole matter leads to deficiency in services. The commission held that the airlines service providers are required to pay compensation for the mental harassment and for the deficiency in services.

STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
TRIPURA
Appeal No.F.A.-14/2010
Dr.J.L.Roy,
S/O. Late Satish Chandra Roy,
Resident of Village – 19, Old Thana Road,
Banamalipur, P.O-Agartala,
P.S-East Agartala,
District – West Tripura. .…
… … … Appellant.
Vs
1. The Managing Director,
Deccan Aviation Ltd.,
Now known as King Fisher Airlines Ltd.,
King Fisher House, Western Express
Highway, Vile Parle (East),
Mumbai – 400 099.
2. Hindustan Tours & Travels,
Laxmi Narayan Bari Road,
Agartala, West Tripura.
… … … … Respondents.
PRESENT :
HON’BLE MR.JUSTICE A.B.PAL,
PRESIDENT,
STATE COMMISSION
MR.B.K.SHARMA,IAS (Retd),
MEMBER,
STATE COMMISSION.
MRS.D.BAIDYA KHASNABISH
MEMBER
STATE COMMISSION.
1
For the Appellant : Mr.J.Paul,Adv.
Mr.H.Datta,Adv.
For the Respondents : Mr.T.K.Choudhury,Adv
Mr.S.Chakraborty,Adv.
Date of Hearing : 18-12-2010.
Date of delivery of Judgment : 04-01-2011
J U D G M E N T
PAL, J,
This appeal is directed against the judgment dated 9-7-2010
rendered by the District Forum, West Tripura, Agartala in CC-16 of 2008
dismissing the complaint of the appellant.
2. Dr.J.L.Roy, appellant herein, instituted the proceeding before the
District Forum alleging that he along with to other family members
purchased air tickets from the Deccan Aviation Ltd., the first respondent
herein, for air journey from Agartala to Mumbai via Kolkata. The tickets
were purchased from Hindustan Tours and Travels, the second
respondent herein, the local agent of the Deccan Aviation Ltd.. But the
agent had given two separate tickets for journey from Agartala to Kolkata
and Kolkata to Mumbai by two different flights of the respondent. The
journey commenced on 4-4-2007. The first grievance of the appellant is
that the respondent charged Rs.2100/- for extra luggage of 30 kg @
Rs.70/- per kg for the journey from Agartala to Kolkata and again
Rs.1400/- for journey from Kolkata to Mumbai. As the journey was on the
same day by the same airlines, though by two different flights, the second
time extra luggage charge of Rs.1400/- was illegal and arbitrary.
2
3. The second grievance is that his air tickets were to travel from
Kolkata to Mumbai by direct flight. But it was diverted via Hyderabad
without any prior information causing thereby a delay of more than two
hours at much inconvenience, harassment and mental agony to the
appellant.
4. The schedule return journey of the appellant by the same airlines
was on 16-4-2007 from Ahmadabad to Kolkata and on 18-4-2007 from
Kolkata to Agartala. He wanted to prepone the journey from Kolkata to
Agartala from 18-4-2007 to 17-4-2007. He contacted the second
respondent over telephone with the request for re-schedule of his
journey. But the said respondent regretted due to certain snag in the
computer system. The officials of the airlines at Ahmadabad was then
contacted for the purpose. The same response came from them also that
the computer system was not functional on 16-4-2007. He was, however,
advised to approach the Kolkata office of the airlines on arrival there.
Accordingly, he reached Kolkata on 16-4-2007 and requested the official
of the first respondent to prepone the journey. They agreed on payment
of extra charge by credit card only. The appellant had no credit card. He
offered cash which was, however, refused. This unusual gesture forced
the complainant to cancel the tickets and buy fresh tickets from Indian
Airlines for journey to Agartala on 17-4-2007. The grievance of the
appellant is that refusal to accept Indian currency by the respondent was
illegal and arbitrary causing harassment, inconvenience and monetary loss
as the air tickets from Indian Airlines had to be purchased at a higher
rate.
5. The learned District Forum held that as the appellant traveled from
Agartala to Kolkata and Kolkata to Mumbai by two separate flights and
there was no connecting flight though the journey was on the same day,
3
extra luggage charge for the journey from Kolkata to Mumbai was not
illegal.
As regards the grievance relating to the journey via Hyderabad the
observation of the Forum is that the flight was not suddenly diverted to
Hyderabad. It was the usual route. The petitioner did not properly enquire
or the agent did not provide sufficient information. This alone does not
amount to deficiency in service.
As regards the allegation regarding payment by credit card only,
District Forum is of the view that the Deccan authority being a business
organization may have their own system for which the passengers can not
have any grievance.
Aggrieved by such decision and observation of the District Forum,
aforementioned, the appellant is before us with the present appeal.
6. We have heard learned counsel for the parties.
7. We have noticed that the extra luggage charge of 30 kg was
Rs.2100/- @ Rs.70/- per kg paid by the appellant at Agartala airport.
When at Kolkata again the appellant was asked to pay extra luggage
charge he objected on the ground that he was traveling from Agartala to
Mumbai via Kolkata by same airlines though aircraft was different and
therefore, the luggage could be booked from Agartala to Mumbai instead
of handing over the luggage to the appellant at Kolkata. Presumably
because of his objection the charge was brought down from Rs.2100/- to
Rs.1400/-. There is, thus, an element of arbitrariness. If the rules really
required second time booking of luggage the respondent could not be
taken a lesser amount. The extra luggage should have been Rs.2100/- @
Rs.70/- per k.g.We have no hesitation to hold that Rs. 1400/- was taken
at Kolkata airport arbitrarily for illegal gain. This amounts to deficiency in
4
service. The respondent No-1 is therefore, liable to return Rs.1400/- to
the appellant.
8. As regards the grievance that without any prior notice the flight
from Kolkata to Mumbai was diverted via Hyderabad causing thereby
extra journey of more than to hours to reach Mumbai, we have no
materials to examine this issue in the face of clear contention by the first
respondent that the normal route of the flight was via Hyderabad only.
The appellant could not produce air tickets where the time of arrival at
Mumbai was mentioned. From the time of arrival it could be determined
whether the flight was direct from Kolkata to Mumbai or the normal route
was via Hyderabad only. We, therefore, hold that this grievance remains
unsubstantiated.
9. Learned counsel for the respondent read out the relevant rules of
the first respondent which clearly provide that air fare could be paid by
credit card or by Indian currency. Thus, there was no justification for the
officials of the first respondent to refuse Indian currency from the
appellant for preponing the journey to Agartala on 17-4-2007. The
contention of the said respondent that the appellant did not at all
approach for preponing the journey is not believable. As the appellant
wanted to prepone the journey he had no alternative but to approach the
respondent only. If there was really no refusal by the respondent the
appellant would not have cancelled the tickets and buy fresh tickets from
other airlines for journey on 17-4-2007. This circumstance eloquently says
that there is element of falsehood in the contention of the respondent.
Thus, refusal to accept Indian currency by the respondent at the Kolkata
airport amounted to serious deficiency in service. This no doubt, caused
harassment, mental agony and monetary loss. For this deficiency the
5
respondent is liable to pay compensation to the appellant to the tune of
Rs.25,000/- (twenty five thousand).
10. In the result this appeal is allowed with cost of Rs.5,000/-. The first
respondent shall repay to the appellant Rs.1400/- taken as extra luggage
charge and Rs.25,000/- as compensation. The cost of Rs.5,000/- shall be
paid in the Legal Aid Account of this Commission. The entire amount shall
be paid within a period of one month from today. In default the amount
shall carry interest @ 9% p.a. from the date of expiry of one month till
payment/deposit.
PRESIDENT
MEMBER

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A State Commission held that the company is liable to pay compensation. In this case the complainant was told that her ticket has been cancelled and that too after she had checked in her luggage. She had to stay in the guest house and had to purchase a new ticket and the booking of the ticket was time consuming. Therefore it was held that it would be reasonable to compensate the complainant.

First Appeal No. A/10/495
(Arisen out of Order Dated 15/05/2010 in Case No. CC/06/244 of District Thiruvananthapuram)

1. Mrs Chand Begum
MRA-112,Kamalalayam-2,Madhavan Roads,Kunnukuzhy
Trivandrum
Kerala
2. Khyrunnisa.A
MRA-112,Kamalalayam-2,Madhavan Roads,Kunnukuzhy
Trivandrum
Kerala
3. Rizwana Ghouse
MRA-112,Kamalalayam-2,Madhavan Roads,Kunnukuzhy
Trivandrum
Kerala
………..Appellant(s)
Versus
1. The Airport Manager,Air Deccan
Domestic Terminal I,Trivandrum
Trivandrum
Kerala
2. The Manager,Air Deccan
35/2 Cunningham Road,Opposite Canara Bank,Bangalore
Bangalore
Karnadaka
………..Respondent(s)

BEFORE:
HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT

PRESENT:

ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 495/10
JUDGMENT DATED: 25.1.2011
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER

1. Mrs. Chand Begum, residing at : APPELLANTS
MRA-112, Kamalalayam-2,C.O.
Madhavan Road, Kunnukuzhy.P.O.,
Thiruvananthapuram.

2. Khyrunnisa.A,
-do-do-
3. Rizwana Ghouse,
-do-do-

(By Adv.K.Santhoshkumar)

Vs.

1. AIR DECCAN rep.by the : RESPONDENTS
Area Captain/Airport Manager,
Air Deccan, Domestic TerminalI,
Trivandrum Airport, Trivandrum.

2. Manager, Air Deccan, 35/2,
Cunningham Road, Opposite Canara Bank,
Bangalore 560 052(presently known as
King Fisher Airlines Ltd.)
(By Adv.M.Nizamudeen

JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT

The appellants are the complainants in CC.244/06 in the file of CDRF, Thiruvananthapuram. The complaint was filed seeking compensation for denial on the part of the opposite parties to travel in the flight on 20.6.06 inspite of the fact that the complainants had confirmed tickets, stands dismissed.
2. It is the case of the complainants three in number that they had booked air tickets from Chennai to Thiruvananthapuram on 28.4.06 for traveling on 20.6.06 by Air Deccan Flight No.DN 719. The tickets issued were confirmed tickets with PNR number. The tickets were purchased from the Thiruvananthapuram counter of Air Deccan. It is alleged that on 20th June after the baggage was checked at Chennai Airport the complainants were told that their tickets were cancelled and hence they could not board the flight. They had to take taxi to return to Chennai city and stay in a tourist home and purchase tickets for the next day from Indian Airlines on payment of Rs.7575/-. It is also alleged that one of the passengers was sick. They have altogether claimed Rs.1,15,000/- as compensation.
3. The opposite parties have filed joint version mentioning that the complainants booking was a time hold booking from the call centre on 27.4.046 at 12.10 hours. It is alleged that no payment was made at the time of booking and it is valid only for 24 hours and that the tickets are to be collected from the counter of Airlines before 12.10 hours on 28.4.06. In the absence of payment booking stood automatically cancelled.
4. The evidence adduced consisted of the testimony of PW1,DW1; Exts.P1 to P4 and Exts.D1 and D2.
5. The Forum dismissed the complaint on the ground that there is no objective evidence produced to prove payment.
6. We find that one of the complainants ie, the 2nd complainant has filed proof affidavit and was cross examined. She has reiterated in the cross examination the case that she herself made the payment at the counter of the opposite party at Thiruvananathapuram and obtained Ext.P1 ticket which is in the form of a computer print out. She has admitted that the ticket was booked on 27.4.06 by telephone through the call centre. She has denied the suggestion that no payment was paid. DW1 is the Manager of the opposite parties who has testified in support of the contentions of the opposite parties. On an examination of Ext.P1 the alleged ticket produced by the complainants we find that it can be seen that Ext.P1 has been generated on 28.4.06 as it bears the above date. The status with respect to the three tickets is mentioned as confirmed. On the top of Ext.P1 the booking status is mentioned as on hold till 28th April 12.10 hours. It is also mentioned that the booking is made on 27.4.06 at 12.10.PM. There is no case to the opposite parties that ticket in some other form will be issued on payment. On an perusal of the evidence of PW1 we find nothing has been brought out to disbelieve the testimony that she paid a sum of Rs.3114/- on 28.4.06 and obtained the ticket. There is no case for the opposite parties that on receiving payment a receipt will be issued. The circumstances of the case also would show that it is unlikely that such a false claim is made the complainants. All the three complainants are ladies and that one of then was sick was no disputed. In the circumstances we find that the reasoning of the Forum that the complainant not produced any objective evidence as such to evidence payment appears not correct. Hence the order of the Forum in this regard is set aside.
7. So far as the expenses of the complainants for taxi and stay at Chennai no evidence apart from the testimony of PW1 has been adduced. They had to pay a sum of Rs.7575/- for purchasing fresh tickets as evident from the Indian Airlines tickets produced which is seen in the case bundle. In the circumstances we find that it would be reasonable to award a sum of Rs.15000/- as compensation to the complainant. The opposite parties/respondents are directed to pay Rs.15000/- as compensation to the complainant with interest at 9% per annum from the date of complaint and also to pay a sum of Rs.5000/- towards costs. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at the rate of 15% from 25.1.2011, the date of this order.
The office will forward the LCR to the Forum along with the copy of this order.

JUSTICE K.R.UDAYABHANU : PRESIDENT

S.CHANDRAMOHAN NAIR : MEMBER

ps

[HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU]
PRESIDENT

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A State Commission has ruled that when an airlines company does not deliver the baggage of its travellers at the destination, it amounts to deficiency in service. The complainants booked tickets to travel to Vancouver by British Airways, and took three pieces of baggage with them. On landing at Vancouver, none were found, and later, only one was delivered to the complainants abroad, and later, two were delivered when they were back in Mumbai. Due to the absence of their luggage, the airlines company gave the complainants some money to meet their urgent necessities. A token compensation was allowed.

BEFORE THE HON’BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI

Complaint Case No. CC/08/19

1. DR.H.J.DHRUVA AND MRS NIRA H.DHRUVA
RAJKOT GUJRAT,360001
GUJRAT
Maharastra

………..Complainant(s)
Versus
1. BRITISH AIRWAYS
NUTAN PLAZA,5TH FLOOR,TURNAR ROAD,BANDRA (W) MUMBAI
MUMBAI 400 050
Maharastra

…………Opp.Party(s)

BEFORE:

Hon’ble Mr.Justice S.B.Mhase PRESIDENT

Hon’ble Mr. S.R. Khanzode Judicial Member

Hon’ble Mr. Dhanraj Khamatkar Member

PRESENT:
Mr.A.V.PATWARDHAN, Advocate for the Complainants

Mr.M.Shirazi-Advocate for O.P.

ORDER
Per Mr.S.R.Khanzode, Judicial Member
This consumer complaint pertains to compensation for alleged deficiency in service on part of the airliens for not delivering the baggage at the destination airport and to claim compensation for mental agony/anxiety suffered by the complainants, etc.
Undisputed facts are that complainants who are senior citizens had booked tickets for going to Vancouver by O.P. –British Airways. Complainants had with them three baggages which were handed over to the O.P. at starting destination at Chhatrapati Shivaji Terminal at Mumbai. However, at the destination station there baggages did not arrive and were not delivered to them. Only one baggage out of three could be delivered to the complainants when they were on cruise at Ketchikan on 10/7/2007. Other two baggages were delivered to the complainants on their return on 13/8/2007 at Mumbai airport. Since the baggages could not be delivered on arrival at the destination station at Vancouver, the O.P. took care of the situation and handed over Canadian dollar 160 to the complainants to meet their urgent necessities.
It is the grievance of the complainants that due to such loss of baggages, they deprived of the pleasure of their holidays and had to spent time in worry and to make immediate arrangement to purchase essential goods and articles. They had to incur expenditure of US 2100 dollars as mentioned in the annexure of the complaint. They claimed compensation at 50,000/- US dollars for each one of the complainants as under:-
“Resultant illness for a week and medical expenses 10000
Physical hardship and agony 15000
Mental agony – Torture 15000
Loss of vacation/pleasure days 10000
Total ….. 50000
It is also not disputed that complainants have received compensation equivalent to INR 1,26,870/- as spelt out by the O.P. in its letter dated 25/09/2007.
In this consumer complaint total claim of 102100 US dollars equivalent to Indian rupees after adjusting amount of `1,26,870/- (already received) by way of compensation, is made.
O.P. denied any deficiency in service on their part, submitted that they have already taken care of the situation and paid much more than what is due from them under the Montreal convention. They also submitted that claim made is exorbitant and, ultimately, asked to dismiss the consumer complaint.
Heard both the parties. Perused the record.
In the instant case, complainants failed to adduce any evidence except for producing the correspondence and particulars of their flight. They particularly failed to adduce any evidence to substantiate their claim made for the expenditure. Correspondence between the parties is not in dispute. O.P. on its part adduced the evidence in form of affidavit of their Airport Manager Mr.Vivek Anand, which affirms the statements made in the written version.
The temporary loss of two baggages is not in dispute. It is also not disputed that out of three baggages only one was delivered to the complainants while they were on cruise, supra. It also remained undisputed that to meet the exigency, immediate monetary help was given to the complainants and from which they could purchase and buy the necessary cloths and articles.
The O.P. without going into the particulars of the articles purchased, out of the help given by letter dated 25/9/2007 (annexure 4 Exhibit E) which is not in dispute, submitted as under:-
“However, we know that during busy times our service to our customers may not always reflect the usual levels of customer service we pride ourselves on. I recognize this has been the case for you. Therefore we would like to try to settle your particular claim now rather than to ask you to wait any longer or to ask you to send in receipts at this time to prove your loss.

In order to seek to bring this matter to a close now I am arranging to send you a cheque for GBP1563/- in the equivalent INR to cover all of your expenses. This will arrive shortly.”

Accordingly, amount in INR `1,26,870/- Canadian dollars 160 have been paid. This letter makes it clear that the amount reimbursed of `126,870/- is towards to cover all the expenditure of the complainants which they had to incur on urgent basis. The bags which were temporarily lost, were subsequently actually delivered to them, but since to meet eventuality, the complainants were required to purchase articles of their necessity, therefore, we find that such payment do take care of the compensation which could have been claimed and awarded to the complainants on that count. However, it does not cover any compensation for the mental agony, stress and anxiety which the complainants a their age had to suffer. Finding that no baggage at the start of the cruise tour, certainly complainants who are senior citizens had to undergo mental anxieties, they had to live under shadow of such loss of baggages through out their trip. To the credit of O.P./airline, they immediately offered financial help to the complainants to buy necessities but nevertheless degree of anxieties suffered vis-à-vis loss of pleasure of the trip on part of the complainants can be well imagined. Since amount compensated does not cover any compensation on this count, we find it just and proper to award token compensation of `10,000/- to each one of the complainants (since there is no evidence led by the complainants on this issue). Further, we find it just and proper to award cost of `5000/- of this consumer complaint to the complainants.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
1. Complaint is partly allowed.
2. O.P. is directed to pay `20,000/- as compensation for mental agony and the anxieties suffered by both the complainants.
3. O.P. shall bear its own cost and to pay `5000/- as cost to the complainants.
4. Copies of the order be furnished to the parties.
Pronounced

Dated 6th January 2011

[Hon'ble Mr.Justice S.B.Mhase]
PRESIDENT

[Hon'ble Mr. S.R. Khanzode]
Judicial Member

[Hon'ble Mr. Dhanraj Khamatkar]
Member

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A State Commission has ruled that where luggage and contents in the luggage are damaged, an airlines service is liable to compensate. The complainant travelled from Chicago to Chennai and had four suitcases. On arrival, two suitcases were totally damaged and goods inside were missing. A complaint was lodged and claim was made, but a paltry sum was offered as compensation to the massive monetary loss. Compensation was awarded.

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

Present Hon’ble Thiru Justice M. THANIKACHALAM PRESIDENT
Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II

F.A.NO.188/2009

[Against order in C.C.No.121/2006 on the file of the DCDRF, Chennai (South)]

DATED THIS THE 15th DAY OF JANUARY 2011

K. Ibrahim, |
6/35, Azad Street, | Appellant / Complainant
Thirumangalam 625 706, |
Madurai. |

Vs.
Lufthansa German Airlines, | Respondent / OP
167, Anna Salai, |
Chennai 600 002, |
Rep. by its Customer Service Manager, |

The appellant as complainant filed a complaint before the District Forum against the respondent/opposite party praying for the direction to the opposite party to pay Rs.49,600/- towards the value of the damaged baggage, to pay Rs.50,000/- towards compensation for mental agony and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to enhance the order of the District Forum dt.03.03.2009 in C.C.121/2006.

This appeal coming before us for hearing finally on 30.03.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:

Counsel for the Appellant /Complainant : Mr.V.Balaji, Advocate.
Counsel for the Respondent/OP : Mr.J.Sivanandaraj, Advocate.

M. THANIKACHALAM J, PRESIDENT

1. The complainant is the appellant.

2. Facts leading to this appeal in brief:-

The complainant/appellant along with his wife, traveled from Chicago to Chennai in the opposite party’s airlines on 25/26.06.2005, checking in, four suitcases, weighing 129 kgs. In the suitcases, electronic goods, worth about Rs.34,062/-, were inside.
3. On arrival at Chennai Airport, the complainant came to know that two suitcases were totally damaged and the electronic goods and other gift items inside were missing, for which, the complainant lodged a complaint, a report was given, stating damaged baggage was 63 kgs., For the damaged goods, when claim was made, only a sum of Rs.2,025/- was offered towards the missing items instead of offering 20 US $ per kilo, for 62 kgs of Rs.49,600/-. By the deficiency committed by the opposite party, they caused mental agony also, for which, complainant is are entitled to compensation of Rs.50,000/-. Thus claiming, totally a sum of Rs.99,600/-, a consumer complaint came to be filed.

4. The opposite party admitting the travel of the complainant and his wife as well as the luggage carried by them and check-in resisted the complaint inter alia contending that after carrying out weight of the damaged baggages, it was found that only 2 kgs was missing, for which, amount was offered, not willing by the complainant, that as per the conditions of Carriage and under the contractual obligation, they should have declared the value of the goods, which they failed and as such they are not entitled to the value of the goods, that under the Carriers liability, it is limited to the extent of 20 US $ for every kilogram of loss and accordingly for 2 kgs., a sum Rs.2,025/- was offered, not accepted and there was no deficiency for claiming the value of the goods, thereby praying for the dismissal of the complaint, denying further averments also.

5. The District Forum based upon the admitted facts, as well as based upon the damage Certificate, came to the conclusion that only 3 kgs of the baggage was missing, for which alone, at the rate of 20 US $, the complainant is entitled to claim damage for the goods and for the damage, they are entitled only a sum of Rs.10,000/-. In this view, a direction came to be issued, as per the order dated 3.3.2009, which is under challenge.

6. The admitted facts are, the complainant and his wife traveled from Chicago to Chennai, having four suitcases, weighing 129 kgs., landed at Chennai on 26.06.2005 at 12 p.m. It is also an admitted fact that out of four suitcases, two suitcases weighing 63 kgs were damaged. For the damaged baggage, as per the Carriers Act rule 22 (2), claim was made, accepted, but in fixing the quantum, namely the weight as well as the amount, there is a dispute, resulting this appeal.

7. The learned counsel for the appellant invited our attention to Section 22(2) of the Carriers Act, which reads “In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid supplementary sum if the case so requires”. In the complaint, though it is stated that they have purchased electronic goods, worth about Rs.34,062/- and they have put in, gift articles in the suitcase, it is not the claim of the complainant, that they should be paid the value of the goods and therefore, we need not unnecessarily go into the question of declaration made or not, regarding the valuable goods. Admittedly, as per the above rule, as of right, the complainant is entitled to damages at 20 US $ per kilogram. Therefore, we have to see, what is the weight of the damaged baggage, not the missing items, as incorrectly recorded by the District Forum. In this contest, we have to see the pleadings.

8. As seen from Para 4 of the complaint, it is stated that the opposite party has issued a report, on damage to the checked baggage and according to the said report, damaged baggages are 63 kgs. In the Written Version in Para 4, the above averments are admitted, unquestionably and it reads “That the contents of Paragraph 4 are correct and hence admitted. It is admitted that the weight of damage baggages was 63 Kgs.”. It is not only the admission, but also proved by document also. Ex.A1 is the report given by the opposite party on damage to the checked baggage of the complainant, where we find “Number and Weight of damaged baggage” – “02/63 Kgs (31 Kgs + 31 Kgs)”, then reiterating the total damage – 62 Kgs. It is the specific case of the complainant, two suitcases were damaged, that is admitted and it is the specific case of the complainant, total weight of the damaged baggage was 63 kgs., that is admitted. Therefore, it is crystal clear, from Ex.B1 as well as Ex.A1, that two check in baggage of the complainant were damaged, weighing 63 kgs., and under the rule quoted above, per kilogram, the complainant is entitled to 20 US $ as of right. This being the position, the opposite party unilaterally entering 2 kgs., missing, offering to pay the amount for 2 kgs., alone should be construed as deficiency in service, we would say, that is against the admitted rule also, which is binding upon the opposite party undoubtedly.

9. The District Forum instead of taking into the account the damaged goods, misdirecting itself, has come to the conclusion, as if, for missing items alone the complainant is entitled to the value, forgetting the damage. The suitcases also damaged and the goods or materials inside are also damaged, and anticipating this kind of damage alone, irrespective of the fact missing or not, while framing rules, a mandatory provision was made to compensate the passenger, to make good the loss per kilolgram that should be honoured, which the District Forum failed and therefore, we should come to the rescue of the complainant, compensating the balance. If it is the question of missing item alone, the matter may be different, and it is the question of damaged checked baggage, which is proved in this case. Therefore, the complainant, is entitled to claim damage for 62 kgs at the rate of 20 US $ per kilogram, as rightly claimed in the complaint, as seen from Para 7 of the complaint. Unfortunately, the District Forum not taking into account the actual damage, in our considered opinion, committed an error, ordering only for 3 kgs., which should be modified as 62 kgs., For these reasons, appeal deserves to be allowed and the order of the District Forum is to be modified.

10. In the result, the appeal is allowed, order of the District Forum is modified, substituting 62 kgs., instead of 3 kgs., otherwise confirming the order of the District Forum as such. No order as to cost in this appeal.

S. SAMBANDAM J. JAYARAM M.THANIKACHALAM
MEMBER II JUDICIAL MEMBER PRESIDENT

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