JOSE K. THOMAS vs AIR INDIA

THIS appeal is directed against the order passed by the District Forum, Thiruvananthapuram in OP No. 791/94. The complainant is the appellant.

SHORTLY stated, the allegations in the complaint are as follows : On 24.5.1993 the complainant sent by Air Cargo 11 baggages weighing 610 kgs. from Kuwait to Thiruvananthapuram. At the time taking delivery at Thiruvananthapuram, most of the baggages were in wet condition. Complaints to the Air India Authorities were in vain. So they informed the opposite party that suitable legal actions would be taken. The opposite party sent a reply putting forth lame excuses. Hence the complaint for getting Rs. 28,600/- by way of compensation. The opposite party filed a version. While admitting the sending of the cargo by the complainant it is stated that the cargo became outwardly wet since there was rain and all the baggages which arrived on that day were kept outside the cargo complex because of the non availability of space inside it. It is also contended that no damages could have been caused to the articles since admittedly they were sent in iron boxes. It was also contended that no written complaint was made to the authorities within 14 days on receipt of the cargo. It is also averred that the quantum of damages claimed is without any basis and that the complaint has no merit. It was also averred that as per Rule 27 of Chapter 2 of the Carriage by Air Act the complaint should be preferred within 14 days of receipt of same and in the instant case no such complaint was made.

The District Forum took the view that Ext. P4 cannot be treated as a proper complaint for want of particulars and Ext. P3 complaint is dated 5.7.1993 and as the cargo was taken delivery on 11.6.1993 and that complaint is beyond the prescribed period of 14 days. On merits also the District Forum held that the evidence of PW 1 was silent about the details of the damage and Ext. P1 would show that the goods sent were household articles and personal belongings. The complainant stated that the baggages contained electronic goods and T.V. besides household articles and the District Forum observed that the complainant was not in a position to satisfy the Forum that any articles got damaged. It also expressed doubt whether the water could have entered inside iron boxes in which the goods were placed. The District Forum also observed that the complainant did not give any opportunity to the opposite party to verify the baggages which were damaged or cause it be examined by any expert Surveyor and instead complainant fixed an arbitrary amout as compensation without any proper basis. Finally the District Forum held that the complainant has not filed the complaint within 14 days of delivery as prescribed in Sub Rule 3 of Rule 27(3) of Schedule 2 of Carriage by Air Act, and therefore the complaint was not maintainable. In arriving at this conclusion it took the view that Ext. P4 dated 12.6.1993 sent to opposite party cannot be considered to be a complaint for want of details of loss. It further observed that Ext. PI would show that the goods sent were household articles and personal belongings, but however, in Ext. P3 the complainant stated that the T.V. and Air conditioner besides the household articles were damaged. In that view the District Forum dismissed the complaint.

IN this appeal the learned Counsel for the appellant invited our attention to Ext. P4 and also the evidence of PW 1. Ext. P4 is a communication sent by the complainant dated 12.6.1993 to the opposite party. IN that letter he has stated that the water had percolated into the boxes and the articles were got damaged, but he was not in a position to give an exact picture of the loss sustained by him. IN this case the complainant was examined as PW 1 and he has stated that the entire articles were got wet and he has sustained loss on account of damages to electric goods and also he suffered mental agony. He claimed Rs. 28,600/- as compensation. Ext. P2 is the damaged cargo certificate issued by the Deputy General Manager and that shows that the consignment arrived was received in outwardly wet condition and it was handed over in the same condition. Ext. P3 is a letter dated 5.7.1993 sent by the complainant. We have gone through Ext. P4. We are unable to agree with the District Forum that this cannot be considered as complaint as contemplated under the Act. The District Forum has proceeded on the basis that Ext. P4 was received by the opposite party and that communication was received within the prescribed period. The only ground on which the District Forum held that it is not a proper complaint is for want of necessary particulars of damages. However, we may also mention that in cross-examination PW 1 was asked whether any letter was sent prior to Ext. P4. That question appears to have been put on the basis, Ex. P4 is not sent within the stipulated period. Learned Counsel for the respondent submitted that question was put to witness on the basis that Ext. P4 is the communication dated 5.7.1993. The learned Counsel also drew our attention to the fact that ''5.7.1993'' was struck off and initiated in the deposition. However, we do not find any justification to assume like that. No suggestion was also put to PW 1 that Ext. P4 does not satisfy the requirements of a complaint as contemplated under the Act. IN this context we may refer to the decision of the Supreme Court in Bhimappa Basappa Bhusannavar v. Laxman Shivarayappa, 1970 (1) SCC 655, where the Supreme Court observed that the word complaint has a wide meaning since it includes even an oral allegation. Of course this observation was made in the context of definition contained in Section 2(d) of Criminal Procedure Code. We do not consider complaint under the Carriage by Air Act contemplates that full details of damages to each items of cargo must be mentioned and a general complaint that due to percolation of water, damages were caused to the cargo will not suffice. It is only after a proper survey the damages can be fully ascertained. We find that the opposite party has not examined any witness to prove that no letter was received by the opposite party prior to Ext. P3. Opposite party has also no case as can be seen from the cross examination of PW 1. We do not find any reason for the opposite party not to give any oral evidence if they did not receive Ext. P4. IN our view Ext. P4 would amount to complaint and it was sent within the period prescribed in Rules 27(2) and (3) of Schedule I of the Carriage by Air Act. Coming to the merit we may say that it was admitted that the goods were delivered in a wet condition. A certificate also has been issued to this effect. The complainant has alleged in Ext. P3 and Ex. P4 the damage has been sustained by him. In Ext. P3 it is specifically stated that electronic goods were damaged on account of water percolated into the box and he also stated the other household articles were also wet and damage was sustained by him. The District Forum proceeded and found fault with the complainant for not specifying the exact damage sustained to articles and for not giving an opportunity to the opposite party to verify the truth of the complaint or the cause inspection by a Surveyor. Nothing prevented the opposite party from directing the complainant to produce the articles or to depute a Surveyor to examine the articles and assess the damages if any. Having not disputed that the fact that cargo was delivered in a wet condition the burden is on the opposite party to show that no damage was sustained. Immediately on receipt of Ext. P4 the opposite party could have deputed a Surveyor and assessed the damage. The opposite party also could have asked the complainant to produce the damaged articles. However, it is true that the complainant has not adduced sufficient evidence to prove what exactly was the damage sustained by him. At the same time we are satisfied some damages have been sustained by the complainant in view of wet condition of cargo. In the absence of sufficient evidence we can give only a nominal compensation to the complainant. We therefore award a compensation of Rs. 1,000/-.

AN argument has been advanced by the learned Counsel for the respondent that the only grievance of the complainant is that the District Forum has not gone into the merits and dismissed the complaint solely on the basis of want of a complaint as contemplated under Rules 27(2) and (3) of the Carriage by Air Act. However, on going through the memorandum of appeal we find the appellant has raised necessary ground on the question of merit also. In the circumstances, we do not find any merit in this contention. In the result, the appeal is allowed and the order of the District Forum is set aside and the opposite party is directed to pay a compensation of Rs. 1,000/- within one month together with interest at 12% from 5.9.1993. Appeal allowed.