By S.S. Selvanayagam
The Commercial High Court issued an order to Kuwait Airways to pay Rs. 2,000,000 as compensation for a baggage delay.
Colombo Commercial High Court Judge Mahinda Samayawardana issued this order granting compensation to two lawyers, Mahinda Jayawardana and his spouse, for the immense hardships they suffered during a trip to Egypt in 2010 due to the alleged negligence on the part of the Defendant, Kuwait Airways, attributed to baggage delay. Plaintiff the Jayawardanas cited World Travel Center Colombo Ltd., South Asian Travels Ltd. and Kuwait Airways Corporation as Defendants.
Plaintiffs who are Attorneys-at-Law and husband and wife instituted this action against the three Defendants to recover damages in a sum of Rs. 10 million for the suffering they had to undergo in the air travel relating to the holiday package.
The case against the 1st and 2nd Defendants was taken up ex parte (on or from one side or party only) and 3rd Defendant inter partes (between the parties).
The 3rd Defendant admitted the alleged flight delay and the baggage delay although they took up the position that they took all necessary measures to mitigate the inconveniences and damage caused to the Plaintiffs.
It has also made efforts to exonerate itself from any liability relying on the IATA General Conditions of Carriage (Passenger and Baggage) and Kuwait Airways General Conditions.
The Court held that these are inapplicable to the instant matter as they are obviously not part of the contract as at least the attention of the Plaintiffs has not been drawn to the said terms and conditions when the contract was formed.
The Court held that though the delay may have occurred as the hands of Egypt Air, the 3rd Defendant Kuwait Airways is jointly liable as Article 30(3) of the Schedule to the said Act.
The said Act states: in the case of carriage to be performed by various successive carriers as regards luggage or goods, the passenger or consignor will have a right of action against the first carrier, and the passenger of consignee who is entitled to delivery will have a right of action against the last carrier and further, each may take action against the carrier who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly liable to the passenger or to the consignor or consignee.
Court also held that the plaintiffs succeed in tort (a wrongful act other than a breach of contract for which relief may be obtained in the form of damages or an injunction) for breach of duty of care especially in relation to handling baggage and resulting grave inconveniences caused to the plaintiffs and justice will be met by awarding a sum of Rs. 2,000,000 for both Plaintiffs as damages along with taxed cost of the action.
Chandaka Jayasundere PC instructed by G.G. Arulpragasam appeared for the Plaintiffs. Avindra Rodrigo instructed by F.J. & G De Saram appeared for the 3rd Defendant.