Per Shri S.R. Khanzode, Honble Presiding Judicial Member
It is alleged by the complainant that for the shooting at abroad location their unit boarded Opposite Partys flight No.AF-135 which was scheduled to travel from Mumbai to Zurich via Paris on 31st August 1998. At the destination station, one baggage which contained continuing costumes for actress Karishma Kapoor was found missing. The baggage was not found. Since continuing costumes of the actress were lost, the entire shooting schedule got disturbed. The complainant had to pack-up and returned back to India without any shooting. As a result of which it suffered heavy losses. Opposite Party tried to settle the alleged deficiency on their part on account of loss of baggage by offering sum of Rs.22,640/- equivalent to SDR 391 considering Special Drawing Rights 17 (SDR 17) which fixed the liability of O.P. as a carrier i.e. condition of carriage by airline. Consumer complaint was filed claiming compensation of Rs.15 Lakhs and cost of the proceedings at Rs.30,000/-.
This complaint is opposed by the Opposite Party as per their written statement on record and they denied their liability. According to them, lost baggage was booked by one Mr.Prem Pillai, who is identified as their Production Assistant by the complainant, a passenger who traveled by economy class. As per rules, they settled the claim for compensation at Rs.22,640/- equivalent to SDR 391 and also offered additional amount of Rs.3,000/- towards loss of suitcase and showed their willingness to reimburse the loss totaling Rs.25,640/- to Mr.Pillai. Complainant did not accept the said settlement and thus, there being no deficiency in service on their part, complaint deserves to be dismissed as further prayed by the Opposite Party (âO.P. in short).
We heard Mr.Mohan Bir Singh, Advocate for the complainant and Mr.J.M. Baphna, Advocate for the O.P.
It may be pointed out that complainant at the time of argument tried to give more emphasis on the fact that there were special arrangement of all kind of care offered by O.P. and therefore, they had chosen that particular airline. However, what is that special arrangement is not made clear. There is no evidence to spell out the same. In absence of any such evidence, matter of loss of baggage would be governed by Warsaw Convention of 1929 and Haque Protocol Convention of 1955.
Referring to these provisions of standard method of settlement of claim in the case of loss of baggage, O.P. offered Rs.22,640/- equivalent to SDR 391 as compensation and in addition to it, Rs.3,000/- were offered towards cost of loss of suitcase. This claim was settled as per inventory form filled by the passenger Mr.Prem Pillai, who traveled by economy class. The inventory form was filled by Mr.Prem Pillai in his individual capacity. His address is only shown as âN.N. Sippy Productions, 4B, Naaz Building, Lamington Road, Mumbai-400 004â. It is not disputed that either at the time boarding the flight or even in the inventory form in respect of loss of baggage which alleged to have marked for identification as âKarishma Kapoor Big Sizeâ in Exhibit-A i.e. printed message about loss of baggage. The matter printed against the relevant column is only âKarishma Kapoor Big sizeâ. The matter âN.N. Sippy Prod. Mumbai Indiaâ is added subsequently by writing it in hand. Naturally, it is not the part of printed report for checked baggage. Therefore, handwritten matter is to be ignored.
Special liability with relevance to the valuable contents of the lost baggage would arise only in case of proper declaration. No such declaration is made in the instant case. Therefore, for what has been assessed as per the convention or the rules governing loss of baggage and for fixing the amount of compensation, O.P. cannot be blamed and certainly, cannot be held guilty for deficiency in service within the meaning of the Consumer Protection Act, 1986 (hereinafter referred as âthe Act, for brevity) .
On behalf of O.P. it is also argued that the complainant/N.N. Sippy Productions is not properly described. It is not made clear whether it is registered Partnership Firm or a Company incorporated under the Companies Act or otherwise or it is only a business or trade name. Further, as earlier pointed out, as per report of loss of baggage and the inventory form filled by the passenger, it is Mr.Prem Pillai who claimed said baggage. Settled claim amount was offered to Mr.Prem Pillai by O.P. There are certain correspondence entered with N.N. Sippy Productions, but as earlier pointed out, N.N. Sippy, simplicitor, is not shown as an artificial juridic person, who can lodge a consumer complaint as a complainant within the meaning of Section 2(1)(d) of the Act. It is also not shown that the complaint is lodged as per the requirement of Section 12 of the Act. The issue, thus raised, cannot be thrown away as mere technical, but we find that the defect pointed out is material and goes to root of the cause while making consumer complaint and as such grievance made on behalf of O.P. in this respect is sustainable.
For the reasons stated above we find, at the first instance that complainant failed to establish that there is deficiency in service on the part of O.P. and at the second instance that the complainant failed to establish their claim by leading cogent and proper evidence under Section 13 of the Act particularly about contents of lost baggage and resultant circumstances on the basis of which the huge compensation is claimed. Lastly, complainant miserably failed to show that it is a juridic person covered under the definition of âcomplainant within the meaning of the Act and that complaint is filed satisfying the requirements of Section 12 of the Act. Thus, we hold accordingly and pass the following order:-
Order:
1. Complaint stands dismissed.
2. However, in the given circumstances, both parties to bear their own costs.
3. Copies of the order be furnished to the parties.