A travel industry dictionary on the internet describes ‘checked baggage’ as those that a traveller hands over to the ‘care’ of the airline. So obviously, if this baggage gets lost while in the custody of the airline, the passenger has a right to be compensated adequately for the loss.
But thanks to the limitation placed on the compensation amount under the Carriage by Air (Amendment) Act, 2009, the compensation offered by air carriers in such cases is not always adequate.
The CA (Amendment) Act, Third Schedule, (incorporating the Montreal Convention) limits the liability of the carriers in such cases to a maximum of 1000 Special Drawing Rights (SDR) (approximately Rs. 82,000)
This limitation, however, will not apply if passengers have made a special declaration of the value of the baggage at the time of check-in and paid additional charges for it, if required. Or if the consumer or the passenger can prove that the “loss resulted from an act or omission of the carrier, its servants or agents, done with the intent to cause damage or recklessly and with knowledge that damage would probably result”. This is certainly not easy to prove.
So in essence, if your baggage gets lost during international travel, your compensation is limited to a maximum of 1000 SDRs (Only in case of international carriers).
What if the loss suffered by the passenger is far more than the compensation offered by the air carrier? In such a case, one can file a complaint before the consumer court seeking its intervention. After all, the loss of baggage entrusted to the care of the airline constitutes negligence and the Consumer Protection Act provides for compensation to consumers in such cases.
However, even the consumer courts cannot award compensation beyond the limit prescribed under the Carriage by Air (Amendment) Act. Since the Act is a special law and the Supreme Court has held in many cases that a special law prevails over a general law, the National Consumer Disputes Redressal Commission has made it clear that consumer courts cannot award damages exceeding the limitation placed under the CA Act.
In The Manager, Air India Vs India Ever bright Shipping and Trading Company, the apex consumer court looked at this issue in depth and held that the Consumer Protection Act cannot change the substantive law (CA Act) which limits the award of damages. (FA No 451 of 1994)
Similarly, in Egypt Air Vs Smt Sai Leelavathi (RP No 830 of 2005), the national commission set aside the compensation awarded by the lower consumer courts (for loss of baggage) and said it was limited to USD 400 as prescribed under the CA Act (this was before the 2009 amendment) and awarded costs of R10,000. (Under the CA Act, courts can award litigation costs)
So I repeat what I said last week: As far as possible, keep all valuables, particularly cash, jewellery and other expensive items in your cabin bag. I will also suggest that you make a list of things that you keep in your check-in baggage and if you are packing some new purchases, keep their receipts too.
Nisha Sharma: It has been a month since I returned from a trip to North America but the airline is yet to find my missing baggage. Every time I ask, they say they are trying to trace it. What should I do?
Under the CA Act, if the baggage is not delivered to you within 21 days (calculated from the date of your arrival), you are entitled to enforce your right for compensation against the carrier. So make a list of the contents of your baggage and make your claim immediately.