PAKISTAN INTERNATIONAL AIRLINES vs Sanjeev Wadhwa

BOTH these revision petitions arose out of a common order of the Delhi State Consumer Disputes Redressal Commission. The case pertains to Damaged Baggage Report (DBR).

COMPLAINANT Sanjeev Wadhwa (petitioner in R.P. 624/1998) had come to New Delhi from New York by Pakistan International Airlines (PIA). He arrived at the Indira Gandhi International Airport on 15.8.1992. Indian Airlines (IA) are the handling agents of the PIA at the Indira Gandhi International Airport at New Delhi. Complainant on arrival noticed that one of his suitcase of Samsonite make was in a damaged condition. There being a 12" long cut. A DBR was prepared at the airport by the staff of Indian Airlines. According to the complainant he had purchased this bag only a week before in New York for US $ 157. He did not possess any receipt for having purchased the bag. He was paid US $ 157 being the price of the bag by the PIA. Complaint of Sanjeev Wadhwa was regarding his claim for the missing contents of the suitcase which was denied by the PIA.

COMPLAINT filed by Sanjeev Wadhwa was dismissed by District Forum. He went in appeal to the State Commission. He succeeded in appeal to an extent that State Commission awarded him Rs. 10,000/ - as compensation though the claim was of US $ 2150. Complainant has come to the National Commission for enhancement of the compensation while PIA wants the order of the State Commission to be set aside.

RULE 27 of Schedule II to the Carriage by Air Act, 1972 contains provisions relating to discovery of damaged baggage or cargo, as the case may be. This Rule 27 we quote : ''27. (1) Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage. (2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty -one days from the date on which the baggage or cargo have been placed at his disposal. (3) Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the times aforesaid. (4) Failing complaint within the times aforesaid no action shall lie against the carrier, save in the case of fraud on his part.''

Accordingly, as noted above, on arrival of the complainant DBR report was prepared. DBR pertains to suitcase only and not to the contents in the suitcase. There is no description of the items in the suitcase or the value thereof. On 25.8.1992 complainant wrote a letter to PIA stating that his suitcase was not only substantially damaged but there was about 80% pilferage of the costly items contained therein. He said that total loss was about Rs. 60,000/ - to 70,000/ - in Indian currency and that claim of missing items will be separately submitted. He again wrote in this letter the cost of the Samsonite suitcase at US $ 157. He expressed his inability to produce receipts/cash memos. Along with this letter complainant also sent a copy of the DBR. Then there is endorsement on this letter by the complainant as under : ''Since nothing is mentioned at the time of arrival and not mentioned in DBR. As such payment of suitcase is being paid. Sd/ - Sanjeev Wadhwa'' On the DBR there is endorsement by the PIA as under : ''Please pay US $ 157. The total cost of suitcase which is in badly damaged condition.''

Thus as far as PIA was concerned the matter stood closed at that.

HOWEVER , on 25.9.1992 complainant addressed a letter to PIA at New York when he went back there. In this he mentioned the following items which according to him had been pilfered and were of the value of US $ 2150 : Items Lost Value (in US dollars) Approx.Weight Toys $ 340.00 1 lb Textiles $ 750.00 16 lb Perfumes (qty -2) $ 180.00 1 lb Watches (qty -2) $ 400.00 Whisky (4 bottles) $ 400.00 8 lbs Dryfruits $ 80.00 13 lbs Total loss in dollars : $ 2,150.00

THIS letter was replied to by PIA by their letter dated 6.10.1992. They said on investigation it was found that no report was made by the complainant to any PIA representative at Delhi Airport and also that damage to the suitcase was settled by PIA. PIA expressed their inability to entertain the claim for the alleged loss of the articles of the complainants in the suitcase. Complainant then addressed a letter dated 9.11.1992 to PIA office at New Delhi. This time he stated that at the Indira Gandhi International Airport at New Delhi the person who wrote the DBR did not write the loss of the contents and had told him to submit a detailed list though his claim for the suitcase was promptly settled. Complainant said that it was by the officers of the PIA at New Delhi that he was directed to take up the loss of the contents at their office at New York. PIA by their letter dated 15.12.1992 to the complainant repudiated what the complainant had to say and said that at no stage staff of the airport was given to understand of the missing contents of the suitcase. It is also stated that there was no evidence of any tampering of the suitcase except for the cut which had been indicated in the DBR. It was then stated that the weight of the articles allegedly pilfered was 49 pounds (lbs) or little over 22 kgs. which would mean that the suitcase of the complainant would have been almost empty which was not the case at the time of taking delivery. Finally PIA wrote that in view of the fact that no case of pilferage or loss in weight of the damaged suitcase was reported by the complainant at the time of taking delivery of the suitcase, barring the cut on its side, the claim was belated for missing articles and was not justified. Complaint was filed after legal notice was given on 23.12.1992. In this notice it was stated that the complainant did not expect the contents of the suitcase to be stolen en route Delhi. It was only on reaching home that it was found that the contents had been stolen. That being the stand of the complainant himself the DBR rightly did not contain the loss of any contents of the suitcase. There is certainly a contradiction in the stand of the complainant when he himself wrote a letter dated 25.9.1992 that representative of the PIA at the airport did not want to make a list of contents that were stolen. Even in his letter dated 25.8.1992 complainant though said that there was 80% of pilferage of costly items of the value of Rs. 60,000 -70,000 but he did not mention the contents which were allegedly pilfered. He wrote that he would submit a separate claim detailing the missing items. District Forum considered various circumstances of the case to hold that there was no merit in the claim of the complainant regarding alleged loss of the contents of the suitcase. Curiously enough, State Commission sought to draw a distinction between the damaged suitcase and the contents thereof required to be recorded in the DBR. State Commission was of the view that the contents of the missing articles in the DBR was an omission. We cannot accept such an argument particularly when in the legal notice itself complainant wrote that he did not know the contents of the missing articles at the time of arrival.

THAT apart, claim of the complainant was not maintainable even otherwise under Sub -rule (4) of Rule 27 of the Rules which we have quoted above. No action lay against the PIA as no complaint was lodged within the period mentioned in Sub -rule (2) of Rule 27. Suitcase, the contents of which were alleged to have been stolen, was delivered to the complainant on 15.8.1992 itself and his complaint for loss of the contents giving particulars made on 25.9.1992. Once under the law action is barred, provisions of Section 24A of the Consumer Protection Act, 1986 are inapplicable. On this ground as well no claim would lie against the PIA as it would be barred.

WE will accordingly allow the Revision Petition No. 579/98 filed by the PIA and dismiss that filed by the complainant. The order of the State Commission is set aside and that of the District Forum is restored. PIA shall be entitled to cost which we assess at Rs. 5,000/ -. Ordered accordingly.