On 30.11.2013, the complainant / respondent travelled from Raipur to Delhi on a flight operated by the petitioner company being Flight No. 6E454. The complainant was carrying with him a suitcase, alleged to be containing items such as clothes, which according to the complainant were valued about Rs.42,673/- and cash amounting to Rs.25,000/-. The suitcase, which the complainant was carrying with him and had booked with the petitioner company at Raipur Airport could not be found on the conveyor belt at Delhi Airport. The petitioner having not been able to locate the suitcase of the complainant, a complaint was made by him to the petitioner company in this regard. The petitioner offered a compensation of Rs.3,000/- to the complainant for the loss of his belongings. Since the aforesaid amount was not acceptable to the complainant / respondent, he approached the concerned District Forum by way of a consumer complaint, seeking a total sum of Rs.97,673/- which included Rs.25,000/- which he had to spend to purchasing new clothes at Chandigarh.

2. The complaint was resisted by the petitioner company which while admitting the loss of the suitcase of the complainant claimed that as per the conditions of Carriage by Air Act stipulated by it, it was not liable to pay more than Rs.3,000/- to the complainant.

3. The District Forum vide its order dated 10.8.2015 issued the following directions to the petitioner company:

'a) The appellants (Ops) will pay to the respondent (complainant) a sum of Rs.42,673/- (Rupees forty two thousand six hundred seventy three) towards cost of the clothes and Rs.5,000/- (Rupees five thousand), towards cost of suitcase totaling Rs.47,673/- (Rs. Forty seven thousand six hundred and seventy three) along with interest @ 9% p.a. form the date of filing of the complaint i.e. 11.3.2014 till realization.

b) The appellants (Ops) will pay a sum of Rs.10,000/- (Rs. Ten thousand) to the respondent (complainant) towards compensation for mental agony.

c) The appellants (Ops) will pay to the respondent (complainant) a sum of Rs.2,000/- (Rupees two thousand) towards advocate fees and cost of litigation'.

4. Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed, the petitioner is before this Commission by way of this Revision Petition.

5. The only question involved in this petition is whether the liability of the petitioner company for the loss of the belongings of the complainant is to be restricted in terms of Rule 22 of the Schedule 2 of the Carriage by Air Act or the Consumer Forum is competent to award compensation, commensurate with the loss suffered by the complainant, along with additional compensation for the harassment and mental agony suffered by him on account of loss of his essential belongings. Rules 22, 23 and 25 of the Schedule 2 to the Carriage by Air Act, 1972, to the extent they are relevant, read as under:

'22.

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 of 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 way bill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.

3. ………….

4. The limits prescribed in this rule shall not prevent the Court form 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 provisions shall not apply if the amount of 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. …….. …….

23 (1). Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in these rules shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of these rules.

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. This issue came up for consideration of a Five-Members Bench of this Commission in The Manager, Air India Ltd. Vs. M/s. India Everbright Shipping & Trading Co., First Appeal No. 451 of 1994, decided on 20.4.2001. In the above referred matter, 31 cartons were carried by the carrier from Mumbai to Nairobi where the same were handed over to Kenya Airfreight Handling Ltd. for onward carriage from Nairobi to Botswana. However, only 15 cartons were delivered in time at the destination, the remaining 16 cartons having been delivered late. Being aggrieved from the loss suffered by it, on account of the delay in late delivery, the complainant approached the concerned State Commission by way of a consumer complaint. The State Commission awarded compensation, commensurate with the value of the goods, freight charges, interest and damages for loss of business to the complainant. Being aggrieved from the order passed by the State Commission, the carrier approached this Commission by way of an appeal and contended that assuming negligence on its part in not delivering the consignment in time the liability of the carrier could not exceed a sum calculated at US$ 20 per kg. of the weight of the goods, as stipulated in the Carriage by Air Act, 1972. The question which arose before this Commission was as to whether the State Commission could award damages more than what is prescribed under the Carriage by Air Act. Upholding the contention of the carrier, this Commission, inter-alia observed and held as under:

'…..Section 3 of the CPA provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Section 3 only provides for an alternative mode by enforcing the right or obtaining redress for the contravention of any provisions of law and no more. It does not change the sustentative law which law limits the award of damages when there is violation of any obligation or right. If damages are to be awarded it has to be within the four corners of law on the subject. Section 14 (1) (d) of the CPA has to be read with CA Act. When there is law defining the rights and its applications in any particular respect that has to be followed. Viewed from this angle when CA Act limits the liability of an air carrier to an extent that cannot be exceeded by the Forum under the CPA. This is how Section 14 is to be read and understood. Looked from that angle we do not think it can be disputed that CA Act is applicable to the facts of the present case.

In the complaint filed under the CPA, the complainant says loss had occurred to him due to the negligence and lethargic manner of handling of Cargo by the Opposite Parties’. In another place he says 'all this happened due to negligence and cheating attitude of the opposite parties and deficiency in service in wrong handling of the cargo contrary to the terms of bill of lading’. He nowhere alleges if that damage was caused by willful misconduct of the carrier (Rule 25 of the First Schedule of Warsaw Convention) or that the damage resulted from an act or omission of the carrier done with the intent to cause damage or recklessly and with knowledge that damage would probably result (Rule 25 of the Second Schedule of the Hague Protocol). As to what is ‘willful’ has been described in a simple language in the Black’s Law Dictionary. It says a willful act may be described as one done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The ‘willful’ act differs essentially from a negligent act. The one is positive and the other is negative. Willful misconduct would be such conduct committed with an intentional or reckless disregard for the safety of others or with an intentional disregard of a duty necessary to the safety of another’s property.

In the absence of even allegation in the complaint that there was any willful misconduct or the damage resulted from an act or omission of the Air Carrier (opposite parties) done with intent to cause damage or recklessly and with the knowledge the damage would probably result, it is difficult for us to hold that Rule 25 (of either the First Schedule or the Second Schedule) would apply.

Having thus considered the provisions of the Ca Act, CPA and various judgments on the subject, we are of the view that it is a case which fall under Rule 22 of the First Schedule or the Second Schedule of the CA Act. The respondent – complainant would be entitled to relief of US$ 4180 @ US$ 20 per kg. for its weight of 209 kgs of the cargo'.

7. The learned counsel for the complainant / respondent relied upon the decisions of this Commission in Revision Petition No. 1411 of 2015 Spicejet Ltd. & Ors. Vs. Dr. Atanu Ghosh, decided on 03.11.2015 and First Appeal No. 204 of 2008 Emirates Vs. Dr. Rakesh Chopra decided on 11.4.2013, where a contrary view was taken. However, considering the decision of the Larger Bench of this Commission in the Manager, Air India Ltd. (supra), the decisions relied upon by the learned counsel for the complainant/respondent are per incuriam since the binding decision of the Larger Bench was not brought to the notice of the Benches which passed the aforesaid two orders.

8. Vide Notification dated 30.3.1973, S.O. 186 (E), Government of India in exercise of the powers conferred upon it by sub-section (2) of Section 8 of the Carriage by Air Act directed that with effect from 01.4.1973, Sections 4, 5, 6 of the Carriage by Air Act, 1972 and the Rules contained in Second Schedule to that Act shall apply to all carriage by air not being international carriage by air as defined in the said Second Schedule, subject to the exceptions, adaptations and modifications, mentioned in the said notification.

The said Notification inter-alia stipulated the following amendments in Rule 22 and Rule 23 of the Second Schedule:

'In Rule 22 –

1. For sub-rule (I) the following sub-rules shall be substituted, namely -

(I)………..

(IA)……

2. In clause (a) of sub-rule (2) for the figures and words '250 francs', the words 'Rupees one hundred and twenty five ' shall be substituted;

3.

(q) in rule 23, in sub-rule (I) for the words 'any provision' the words 'any provision in a contract of carriage' shall be substituted;

It would thus be seen that the liability of the carrier in case of Carriage by Air which is not an International Carriage by Air was restricted by the said Notification to Rs.125/- per kg. The aforesaid Notification has been amended with effect from 17.01.2014 vide S.O. 142 (E) but since the loss in this case happened prior to 14.1.2014, the amended Notification would not apply. The total weight of the luggage of the complainant which the petitioner lost in this case is stated to be 15 kgs. Calculated as per the rates given in the Notification dated 13.3.1973, the amount of Rs.3,000/- offered to the complainant before he approached the District Forum by way of a consumer complaint was more than the amount calculated in terms of the said Notification.

9. During the course of arguments, the learned counsel for the complainant / respondent relied upon a typed copy of S.O. 659 (E) dated 22.08.1989, whereby the quantum of compensation in case of such a loss was sought to be revised to be Rs.450/- per kg. However, no Gazette Notification incorporating S.O. 659 (E) dated 22.8.1989 was produced by the complainant / respondent. A notice was also issued by this Commission to the Government of India, Ministry of Tourism & Civil Aviation, requiring it to produce the Gazette Notification based upon S.O. 659 (E) but there was no response from the Government of India to the said Notification. Considering that the onus was upon the complainant / respondent to produce the Notification, if any, issued by the Government of India in terms of S.O. 659 (E) dated 22.8.1989 and also considering that the Gazette Notification dated 17.1.2014 issued by the Government of India which is available on record refers only

to the Notification dated 30.03.1973, vide S.O. 186 (E), it was not felt necessary to issue a fresh notice to Government of India, Ministry of Tourism & Civil Aviation in this regard. Had a Notification, in terms of S.O. 659 (E) dated 22.8.1989 been actually issued by the Government of India, the Notification dated 17.1.2014 would have referred to the said Notification instead of referring to the earlier Notification dated 30.3.1973. I am therefore, satisfied that it is the Notification dated 30.3.1973 which applied to the case of the complainant.10. Since the petitioner company had offered more than the amount payable to the complainant in terms of the Notification dated 30.3.1973, before he approached the concerned District Forum by way of a consumer complainant, the complainant is not entitled event to the Court cost and other expenses of litigation incurred by him. 11. It would also be pertinent to note here that there is no evidence of the suitcase of the complainant have been lost due to an act or omission of the petitioner or its servants or agents done with intent to cause damage or recklessly and with knowledge that damage would probably. Therefore, the provisions of Rule 25 of the Schedule 2 would not apply and consequently the limit of liability specified in Rule 22 would be applicable. 12. For the reasons stated hereinabove, the revision petition is allowed and the complaint is consequently dismissed. The amount of Rs.3,000/- unless already paid to the complainant shall be paid within two weeks from today.