IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 14092 of 2007(C) -------------------------- PETITIONER(S): --------------- 1. M/S.SRILANKAN AIRLINES LTD., NAGABRMHA TOWERS,76,CATHEDAL ROAD, CHENNAI-600 086, TAMIL NADU, INDIA,REPRESETNED BY MR.ALLEN VINCENT,CUSTOMER AFFAIRS MANAGER-INDIA. 2. THE AIRPORT MANAGER, M/S.SRILANKAN AIRLINES LTD, TRIVANDRUM INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM,KERALA INDIA. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): --------------- 1. THE PERMANENT LOK ADALAT AT THIRUVANANTHAPURAM, FOR PUBLIC UTILITY SERVICES, REP. BY REGISTRAR, PERMANENT LOK ADALAT, THIRUVANANTHAPURAM. 2. V.SASIDHARAN, POCHAYIL HOUSE, KANJAVELY P.O., KOLLAM 691 602. ADV. SRI.V.JAYAPRADEEP FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 14092/2007 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE COMPLAINT DATED 13.10.2006 BY THE ADALATH. P2. COPY OF THE WRITTEN VERSION OF THE PETITIONERS DATED 7.12.2006. P3. COPY OF THE AWARD DTD.10.1.07 OF THE ADALATH. RESPONDENT(S)'EXHIBITS R2A. COPY OF THE POWER OF ATTORNEY OF R2. “B. COPY OF THE LETTER BY R2 TO THE PETITIONERS DTD.9.9.05. “C. COPY OF THE CERTIFICATE ISSUED BY THE VALIYATHURA POLICE DTD.7.10.05. “D. COPY OF THE CLAIM FORM BY R2. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.14092 of 2007 ================== Dated this the 5th day of August, 2009 J U D G M E N T Srilankan Airlines Ltd., a foreign airline company, doing service in India, and its Airport Manager at Thiruvananthapuram International Airport, are the petitioners in this writ petition. They are challenging Ext.P3 order of the Permanent Lok Adalat for Public Utility Services, Thiruvananthapuram, passed in O.P.No.10/2006 filed by the 2nd respondent herein. The 2nd respondent was a passenger in flight No.UL-228/UL/161 of the 1st respondent from Dubai to Thiruvananthapuram. He booked two baggages in the said flight at Dubai Airport weighing 23 kgs. and 42 kgs. by paying additional baggage fare for excess baggage. At the time of arrival at Thiruvananthapuram Airport, the baggage weighing 42 kgs. was found missing. He immediately reported the matter to the Airlines authorities and demanded compensation from the petitioners for the loss of baggage. The petitioners took the stand that they are liable to pay only compensation at the rate of 20 US Dollars per kg. in accordance with Clause 22 of the Schedule 2 of Carriage By Air Act, 1972, which would come to Rs.30,688/-. Dissatisfied with the same, the 2nd respondent issued a notice through his lawyer, on receipt of which, the petitioners enhanced the compensation to Rs.38,673/-. On the ground that the w.p.c.14092/07 2 compensation offered is grossly insufficient, the 2nd respondent filed O.P.No.10/2006 before the Permanent Lok Adalat claiming Rs.10,00,000/- as compensation for the loss of baggage with interest at the rate of 12 per cent per annum from the date of petition till realisation. Ext.P1 is the petition filed under Section 22 C of the Legal Services Authorities Act, 1987. The petitioners filed Ext.P2 objections. After hearing both parties, Ext.P3 award was passed by the Permanent Lok Adalat directing the petitioners to pay an amount of Rs.1,43,673/- as compensation due to the 2nd respondent with 12 per cent interest per annum from the date of the petition till realisation. This award is under challenge before me on the ground that the law does not permit the Lok Adalat to pass such an award directing payment of compensation to the 2nd respondent in excess of what is prescribed under Clause 22(2) of Schedule 2 of the Carriage by Air Act, 1972. 2. The contention of the petitioners is that Clause 22(2) of Schedule 2 of the Carriage by Air Act specifically prescribes that unless the passenger or consignor has made, at the time when the package was handed over to the carriers, a special declaration of interest in delivery at the destination and has paid a supplementary sum, if the case so requires, the liability of the carrier is limited to a sum of 250 Francs per kg., which, on conversion, would be 20 US Dollars, for the loss of baggage. According to the counsel for the petitioners, for w.p.c.14092/07 3 invoking clause 25, which the Permanent Lok Adalat has done, the 2nd respondent should plead and prove that the petitioners caused damage recklessly with knowledge that their action would probably result in damage, which the 2nd respondent has not chosen to do. Therefore, according to them, the Permanent Lok Adalat was not justified in directing payment of compensation in excess of what has been prescribed in Clause 22(2) of the Act. 3. On the other hand, the 2nd respondent would vehemently contend in support of Ext.P3 order of the Lok Adalat to the extent it is favourable to him. [He himself has filed W.P.(C).No. 22284/2007 which is heard along with this writ petition and disposed of separately, seeking enhanced compensation]. According to him, the entire action of the petitioners is suspect. They have not stated in their written statement that they have taken due care and caution in transporting the baggage and the Permanent Lok Adalat has found that even thereafter, the petitioners were totally indifferent in the matter of tracing the baggage, which itself would go a long way in proving that they were reckless and they had full knowledge that their employees had contributed to the loss of the baggage by reckless handling of the baggage of theft. Therefore, according to the counsel for the 2nd respondent, the Permanent Lok Adalat was right in finding that compensation was payable. The 2nd respondent would further contend w.p.c.14092/07 4 that W.P.(C).No.22284/2007 should be allowed and the entire amount of Rs.10,00,000/- claimed by him should be awarded as compensation to him. 4. I have considered the rival contentions in detail. 5. Clause 22 of Schedule 2 to the Carriage By Act, 1972 reads thus: “22. (1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of Rs.2,50,000 francs. Where, in accordance with the law of the Court seized of the case, damages may be awarded in the form of periodical payments the equivalent capital value of the said payments shall not exceed 2,50,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. (2) (a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger's or consignor's actual interest in delivery at destination. (b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability. (3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 5,000 francs per passenger. (4) The limits prescribed in this rule shall not prevent the Court from awarding in accordance with its own law, in addition, the whole or part of the Court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of w.p.c.14092/07 5 the damages awarded, excluded Court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later. (5) The sums mentioned in francs in this rule shall be deemed to refer to a currency unit consisting of sixty-five and a half miligrammes of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Convention [sic] of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment.” Clause 25 thereof reads thus: “25. The limits of liability specified in rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.” 6. As far as Clause 22 is concerned, the 2nd respondent could have claimed damages in excess of 20 US Dollars per kg, only if the 2nd respondent had made at the time when the baggage was handed over to the carrier, a special declaration of interest in delivery at destination and had paid supplementary sum if the case so requires. Since he has no case that he has done so, the 2nd respondent cannot make any claim for compensation in excess of 20 US Dollars citing Rule 22(2). 7. Even then, the 2nd respondent can certainly invoke clause 25 for claiming compensation in excess of 20 US Dollars per kg. if he pleads and proves the ingredients of Clause 25. According to him, Ext.P1 petition contains sufficient pleadings to that effect. He w.p.c.14092/07 6 particularly refers to paragraph 6 thereof. On a reading of Ext.P3 order, I find that the Lok Adalat proceeded on the basis that the subsequent conduct of the petitioners goes to prove their culpability in the matter under Clause 25. 8. In the decision of The Manager, Air India Ltd. & Ors. v. M/s. India Everbright Shipping & Trading Co. [2001 (2) CPR 5 (NC)] the National Consumer Dispute Redressal Commission had occasion to consider a somewhat similar case, in paragraph 16 thereof, the Commission had held thus: “16. In the case Gargi Parsai v. K.L.M.Royal Dutch Airlines [I (1996) CPJ 2], arising from the Delhi State Commission where the complainant made a claim for US $ 2400 (equivalent to Rs.72000) for loss of one suitcase and damage to the other, Airlines offered only US $ 360 @ US $ 20 per kilogram for 18 kilograms weight of the suitcase on the basis of its limited liability. Reference is made to the provisions of the CA Act. It was submitted that the case was governed by rule 22(2) of the Second Schedule to the CA Act which lays down the general rule applicable in all cases where special declaration is not made and extra payment is not made at the time of checking in. Contentions by the Air Carrier were (1) the case is governed by Rule 22(2) which lays down the general rule applicable in all cases where special declaration is not made and extra payment is not made at the time of checking in; (2) admittedly the complainant made no declaration regarding the contents of the suitcase nor paid any extra amount in terms of Rule 22(2); (3) the burden of proving the exception is on the complainant and the same has not been discharged and therefore rule 25 is not attracted; (4) the rule of Limited Liability is statutory in character and is binding on the parties; (5) in any case carrier's liability being limited was an essential condition of the contract as it was one of the terms of printed on the jacket of the ticket. The State Commission then considered expression 'wilful misconduct' as occurring in Rule 22 which does not find definition in the Act or the rules. It held that it was necessary for the complainant to allege and prove some intentional conscious and deliberate act of omission or commission. State Commission was of the view that the wilful misconduct referred to in Rule 25, in the nature of things, signifies wilful misconduct antecedent to the baggage being lost or damaged and not to any alleged misconduct after the baggage had been lost or damaged. It was only at Los Angeles that ultimately the suitcase of the complainant w.p.c.14092/07 7 was traced and it was delivered to the complainant in the very state. It would be of no consequence that instead of saying that the correct baggage has been traced at Los Angles the person giving the message choose to write that the baggage had been 'retraced'. This mode of description will not tantamount to proof of wilful misconduct within the meaning of Rule 25, State Commission was thus of the view the rule applicable was rule 22(2) of the First Schedule to the CA Act and the petitioner has failed to establish that her case is covered by rule 25.” I am in respectful agreement with that judgment. Therefore, the conduct of the petitioners after it was found that baggage had been lost or damaged alone cannot be a basis for a finding of the ingredients of Clause 25. But that can be relied upon to prove the attitude of the petitioners towards the issue and as an evidence that they were aware of the culpability of their employees in handling the baggage. Therefore, to that extent I do not think that Ext.P3 award has been correctly passed. In the above circumstances, I am of opinion that Ext.P3 is liable to be set aside. I do so. However, I feel that the 2nd respondent who has been fighting for his rights against a mighty airline company should be given another opportunity to plead and prove his case under Clause 25 of Schedule 2 of the Carriage By Air Act. Therefore, I remand the matter to the Permanent Lok Adalat for fresh consideration of the matter, if necessary, by giving the 2nd respondent another opportunity to amend his pleading appropriately and adduce evidence in support of the pleadings. 9. I am taking this course of action because such passengers who lose their baggages are helpless in the matter. Most of the w.p.c.14092/07 8 passengers are totally unaware of the provisions of the Carriage By Air Act. The 2nd respondent himself was prosecuting the matter before the Lok Adalat as a party in person. He would not have been aware of the nuances of law. In Kerala people are so passive that even when gross injustice is done to them by service providers like the petitioners, they suffer the same silently, without complaining. Because of the inaction on the part of such wronged persons, the persons like the petitioners, under the cover of the legal provisions of the Act, get courage not to take appropriate care in carrying baggages of the passengers. Since they are sure that since the handling of baggage is away from the scrutiny of the passengers, they would not be able to prove any culpability on the part of the airlines. The poor passengers are totally helpless in the matter. Therefore, the airlines should be put to prima facie proving that they took adequate and proper care of the baggage and the same was damaged or lost despite proper care. Only few people like the 2nd respondent comes up with such complaints and prosecute the same diligently. The 2nd respondent has to be admired for his tenacity. People like him has to be encouraged to fight for their rights even against adverse circumstances so that people like the petitioners would be more careful. Accordingly, the matter is remanded to the Permanent Lok Adalat for fresh consideration in accordance with law, after affording, if necessary, an opportunity to w.p.c.14092/07 9 the 2nd respondent to amend his pleadings appropriately to plead and prove his case under Clause 25 of the Schedule 2 of the Carriage By Air Act, 1972. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge