AIR ARABIA AIRLINE Vs. DR. ASHOK KATARIA

JUDGEMENT

(1.) This appeal has been filed by the appellant against the order dated 14.1.2015 passed by the learned Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, 'the State Commission') in Complaint No. CC/6/65, Dr. Ashok Kataria v. Air Arabia Airline by which, complaint was partly allowed.

(2.) Brief facts of the case are that a complainant/respondent along with his wife travelled by Air Arabia Flight No. G9-1401 from Sharjah, U.A.E. to Mumbai on 15.7.2005. On landing at Sahar International Airport Mumbai, it was noticed that their luggage containing four bags was not loaded from Sharjah in the said plane. Complainant along with co-passengers tried to inquire with the Airport Management of the opponent about location of the luggage. However, no satisfactory reply ever come forward and therefore, uncertainty was looming large with lot of tension about prospect of losing valuables kept in the luggage. A letter jointly signed by the complainant along with co-passengers was handed over to the Station Manager of the opponent/appellant about location of the luggage. The complainant developed severe chest pain, fluctuations in the Blood Pressure resulting unconsciousness which attributed to deterioration of his health. Therefore, from the Sahar International Airport he was directly taken to Nanawati, Hospital for further medical treatment and management. He was travelling to Cochin via Mumbai for undergoing By-pass Surgery in the AIMS Hospital located at Cochin presumably as it was available at affordable cost at Rs. 1,50,000. The Hospital for surgery was chosen on the advice of Medical Export based in Sharjah. Ultimately, with much persuasion, out of four bags, three bags were located and handed over to the complainant. However, fourth bag was missing and never recovered. Fourth bag contained amongst other important things, medicines and one Rolex Watch with cash of 3,000 DH. As he could not proceed to Cochin as planned, he was forced to undergo surgery at Bombay Hospital on 22.7.2005 due to deteriorating and imminent medical emergency. The complainant spent around Rs. 4 lakh as against estimated amount of Rs. 1,50,000 planned for surgery at AIMS Hospital at Cochin. The complainant has attributed the reason for undergoing By-pass Surgery in Bombay Hospital which was never meant to be carried out by incurring extra expenditure of Rs. 2,50,000. The complainant underwent tremendous mental pain, agony and trauma on account of carelessness and negligence of the opponent. Opponent has admitted dislocation of luggage and loss of fourth bag and offered to settle the claim at 20 US$ per kg. presuming total weight of the bag as 30 kg. The complainant refused the offer as loss was resulted due to act of omission of the opponent. The benefit under the relevant provision covers the offer so made only when as per Rule 25 of the Carriers Rules, the limit of liability in Rule 22 do not apply if it is proved that damage resulted from an act or omission of the Carrier. In view of this provision, the complainant claimed entire expenditure incurred in excess for undergoing By-pass Surgery together with cost of the contents i.e. valuables lost because of negligence of the opponent However, opponent failed to settle the claim as put forth by the complainant and therefore, the complainant has preferred this consumer complaint claiming amount of Rs. 47,32,324 together with interest @ 18% p.a. from the date of incident.

(3.) OP resisted complaint and submitted that maximum liability of the opponent is limited to payment of 20 US $ per Kg. in respect of baggage lost in transit. Maximum weight of single bag allowed to be carried by the passenger in an Airline was 30 Kg. Therefore, opponent made a fair offer of 640 US $ against the claim under the provisions of Carriage by Air Act, 1972. However, complainant did not come forward to accept the offer. Due to bad weather in Mumbai it was decided prior to thirty minutes of take off the flight from Sharjah that additional fuel be loaded in the aircraft in case due to bad weather craft is diverted to some other destination. Therefore, luggage on this craft was off-loaded to accommodate the weight of extra fuel. By another aircraft luggage of the passengers including luggage of the complainant was sent to Sahar International Airport, Mumbai. It was also further averred that it was international practice that not to load the baggage on the same plane in such contingency. It is the practice that in case decision is taken to carry extra fuel due to bad weather or any other reason, luggage from the aircraft is off-loaded and sent by another aircraft. This practice is internationally accepted and therefore, any lapse on the part of the opponent is denied. The complainant never disclosed his travel plan for undergoing By-pass Surgery. Mr. Rohit Ramchandran, Regional Manager of the opponent personally visited Nanawati Hospital as a goodwill gesture to verify the complainants health condition. However, he was told that within two hours, complainant was discharged since there were no major complications. Therefore, contention of the complainant of having critical state of health is baseless. Moreover, under the conditions of Carriage, passenger is not permitted to carry money, jewellery and other precious metals in the checked baggage. The complainant flouted the terms and conditions by carrying 3000 DH and other alleged valuables including Rolex Watch costing Rs. 39,000. Denying any deficiency on their part, prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint partly and directed OP to pay Rs. 67,724 with 12% p.a. interest as cost of medicines and to and fro expenses and further awarded compensation of Rs. 2,00,000 for mental agony and Rs. 50,000 as cost of litigation against which, this appeal has been filed along with application for condonation of delay.