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DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
Hon’ble Mr. Justice A.P. Chowdhri, President &
Ms. S. Brar, Member
GARGI PARSAI—Complainant
versus
K.L.M. ROYAL DUTCH AIRLINES—Opp. Party
Case No. C-234 of 1992—Decided on 15.6.1995
Counsel for the Parties :
For the Complainant :Mr. Shyam Moorjanu, Advocate.
For the Opp. Party :Mr. Rakesh Aggarwal, Advocate.
Headnote:Consumer Protection Act, 1986-Sections 12 and 17-Complainant-appellant travelled from Delhi to USA by air and booked two bags to be delivered in USA-One baggage suit case, delivered late and was in broken condition and valuables including jewellary missing-Opp. party offered to settle claim for US $ 360 i.e., 20 US dollars per kg. for 18 kg. of weight of suit case-Complaint claiming compensation for loss-State commission found complainant failing to prove wilful and wanton mis-conduct and held that case covered by Rule 22(2) of Ist schedule to Carriage by Air Act and not by Rule 25-Complainant was found bound by terms of contract printed on the Jacket which limited the liability of carrier-State Commission found that amount offered by opp. party was the only amount complainant was entitled and dismissed complaint-Appeal-No reason to interfere.
While deciding the matter the state commission also adverted to the expression "willful and wanton misconduct" as defined in Blacks Law Dictionary, 6th Edition and the expression "willful misconduct" as appearing in Strouds Judicial Dictionary, 5th Edition. In this connection the state commission also relied on the judgment of the Honble 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 Israeal Airlines and came to the finding that the rule applicable in the circumstances of the case is 22 (2) of Ist 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.
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.
Mr. Justice A.P. Chowdhri, President— Brief facts giving rise to this complaint are that Miss Gargi Parsai, the complainant, was a Principal Correspondent of the Hindustan Times at the material time. She went to U.S.A. for six months’ training programme at the 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, 90. On 13th June, 90 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 accompanied baggages 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 toitnamely 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 2400 (equivalent to Rs. 72,000/-) namely gold chain with gold pendent, diamond & gold ring, diamond & gold eartOPs. She filed Property Irregularity Report (PIR) No. 708-79 on 20.6.90. Ultimately, she was informed on 26.6.90 that the suitcase has been traced at Amsterdam and shall be delivered to her on 28.6.90. The suitcase was, however, not delivered. Instead, the complainant was informed on 29.6.90 that the baggage had been retraced at KLM Office at Los Angeles. On Saturday, 30th June 1990, which was a holiday the said baggage was delivered in the office of the Seattle Times through respondent’s agent Federal Express in the absence of the complainant. The suitcase was found in a 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 3.7.90. The O.P. offered only 360 US dollars i.e. @ 20 US dollars per kilogram for 18 kilograms weight of the suitcase on 17.7.90 on the basis of their limited liability. The complainant served a legal notice dated 11.11.90 and filed the present complaint on 29.6.92 before this Commission claiming US dollars 9,600 equivalent of Rs. 2,88,000/- alongwith interest thereon @ 24% p.a. on account of damages and compensation.
2. In the written statement it was stated that nothing had been lost in the baggage delivered to the complainant, in that, she did not make any complaint on that score. It was further stated that the duplicate tag on that baggage was of no consequence. The complainant, it was stated, had been given 300 US dollars to her immediate requirements and was also offered a new suitcase. The complainant accepted 300 US dollars but returned the suitcase. The total weight of two pieces of luggage which were checked in was 33 Kgs. and 18 Kgs. was the weight of the second baggage which was not delivered intact. The O.P. pleaded that in the absence of a declaration regarding the contents of the baggage their liability was limited in view of the provisions of Carriage By Air Act, 1972 to 20 US dollars per kilogram for 18 kilograms and the amount of 360 US dollars was offered to the complainant without seeking to adjust 300 US dollars which had already been given to her.
3. It was also pleaded that at the time of purchasing the ticket the complainant entered into a binding contract regarding the terms of her travel. One of the terms which is printed on the jacket of the ticket is regarding limited liability in respect of baggage. A copy of the said Liability Limitation has been enclosed as Annexure ‘A’ to the written statement. According to the said stipulation the liability is limited to US dollars 20 per kilogram of booked baggage unless a higher value is declared in advance and additional charges are paid. The case of the O.P. is that neither higher value was declared nor additional charges paid and therefore the liability in regard to baggage was limited in terms of the said condition.
4. In the rejoinder file
