CONSUMER RIGHTS
Baggage trouble
Pushpa Girimaji

Going abroad? Whether you are travelling on business or going on a holiday, I would suggest that you keep all your valuables in your cabin baggage and certainly not in your check-in baggage. Because, if your checked-in baggage happens to get lost and the airline is unable to trace it, then the compensation that they pay may not be adequate to cover your losses.

Take the case of Ms Sai Leelavathi, decided by the apex consumer court last month. She travelled from London to Cairo by Egypt Air. On reaching her destination, she found her checked-in baggage missing. After assessing the value of the contents, she demanded nearly Rs 2 lakh from the airline, which, however, offered to pay only $400, calculated at the rate of $20 per kilogram of baggage weight (her baggage weighed 20 kg). The apex consumer court expressed its inability to help her in view of the Carriage by Air Act, which limited the liability of a carrier. (Egypt Air Vs Smt Sai Leelavathi, RP no 830 of 2005)

Under the Carriage by Air Act, 1972, applicable to international carriage of passengers and goods, the liability of the airline is limited to $20 for every kilogram of weight. Often, this amount is too inadequate to compensate the passenger for the loss suffered. So consumers have sought the help of the consumer courts for justice on the ground that the Consumer Protection Act provides for compensation caused to the consumer on account of deficient service.

However, since the Carriage by Air Act is a special law and the Supreme Court has held in many cases that a special law prevails over a general law, consumer courts have gone by the provisions of the Act while deciding cases filed on this issue.

Under the Carriage by Air Act, this limitation of liability will not apply if the consumer has made a special declaration of the value of the baggage at the time of delivery and paid a supplementary sum towards it, if the case so required. Or if the consumer or the passenger proves that the baggage loss was caused on account of "wilful misconduct" of the carrier.

So in many cases, the consumers have also tried, unsuccessfully, to prove that the baggage loss or damage was caused on account of such a willful misconduct. In the case of The Manager, Air India Vs India Everbright Shipping and Trading Company, the National Consumer Disputes Redressal Commission looked at the definition of the word "wilful" in Black’s Law Dictionary and held that in order to escape the limited liability clause, the consumer has to prove that the loss or damage was caused intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly or inadvertently. And if the consumer is unable to prove this, then she or he has no option but to accept the limited liability, the court said. (FA no 451 of 1994, decided in 2001)

So here are a few things that you need to remember during air travel:

a) Never keep valuables in check-in baggage. If you are carrying cash, jewellery and other valuables, keep them in your cabin baggage.

b) If you are transporting some valuable goods which are either heavy or too large to carry as cabin baggage, then make a special declaration of its value at the time of handing over the baggage and if necessary, pay any supplementary fare or charge that may be required. That way, if the baggage is lost or damaged, the airline is liable to pay the declared value of the goods. Otherwise, the liability of the carrier in case of loss, damage or delay is limited to $ 20 per kg. (in case of domestic flights, it is calculated at the rate of Rs 450 per kg )

c) Of course if you can prove that the loss of baggage or damage to the baggage was the result of "wilful misconduct" on the part of the airline, its servants or agents, then the liability limit does not apply. But that is not easy to prove.

d) At the time of travel, when your baggage is weighed, make sure that the correct weight is specified on the baggage ticket.

f) In case your checked-in baggage is damaged or is in an open condition at the end of the journey, check the contents immediately and register a "Property irregularity" report listing out the missing articles (if any) and their value. Or if it is a case of damaged baggage, register a "damaged baggage" report and collect a receipt or a copy before leaving the airport.

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