National Consumer Disputes Redressal
Emirates vs Dr. Rakesh Chopra on 11 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 204 OF 2008 (Against the order dated 17.03.2008 in Complaint Case No. C-85/1999 of the Delhi State Consumer Disputes Redressal Commission) Emirates P.O. Box 686 Dubai, UAE Also at M/s Emirates Airlines 7th Floor, DLF Building Parliament Street New Delhi-110001 (Address for service) Appellant Versus Dr. Rakesh Chopra R/o 3b/4, NEA, Rajinder Nagar Sir Ganga Ram Hospital Road New Delhi-110060 Respondent BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Appellant : Ms. Ritu Singh Mann, Advocate For Respondent : Mr. Rishi Manchanda, Advocate with Mr. Siddhartha Jain, Advocate Pronounced on 11th April, 2013 ORDER
PER VINEETA RAI, MEMBER
1. This First Appeal has been filed by M/s Emirates, Opposite Party before the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) and Appellant herein being aggrieved by the order of the State Commission, which had allowed the complaint of negligence and deficiency in service filed against it by Dr. Rakesh Chopra, Original Complainant before the State Commission and Respondent herein.
2. FACTS :
In his complaint before the State Commission, the Respondent, who is a doctor by profession, had stated that in his capacity as Executive Member of the International Affairs Committee of the American Society of Clinical Oncology he had been invited to attend a conference at Athens, Greece from 6th to 10th of November, 1998 as also some other professional meetings and functions there during this period. He alongwith his wife purchased tickets from Appellant Airlines and left from Delhi on 4th of November, 1998. On arrival at Athens Airport, Respondent was shocked to note that one of his two checked-in baggages containing personal clothing, small gift items as also papers pertaining to the said conference were missing and he, therefore, made a complaint in this connection to the Appellant Airlines with frantic requests to locate the missing baggage. Appellant Airlines office in Athens in a disdainful manner offered him 50 US Dollar as interim relief, which Respondent refused to accept.
Subsequently, 150 Dollars were offered to the Respondent to enable him to purchase some essential items for daily use.
Because of the misplaced baggage containing important documents, which has not been traced till date, Respondent could not attend the conference, which caused him a great deal of anguish.
Since the Respondent had to honour some appointments with other experts in the field of Oncology, he had to spend 200 Dollars trying to reconstruct some of the documents. This was, however, not the end of his problems vis--vis the Appellant Airlines because on the return journey when he and his wife arrived in Dubai, he found that the locks of the remaining checked-in baggage had been tampered with and papers were missing. Respondent had no option but to purchase a new suitcase to carry his belongings, which cost him another 200 Dollars. Being aggrieved by the callous and negligent behavior of the Appellant Airlines on account of which the Respondent and his wife suffered harassment and acute mental tension throughout their tour, he brought these facts to the notice of the Appellant Airlines vide letter dated 03.12.1998 and asked it to restore him his misplaced baggage and also pay him 10000 Dollars as compensation, including for the goods and articles worth Rs.75,000/-, which he had lost in addition to other expenses. Appellant Airlines without expressing any regret for their negligence offered to pay 130 US Dollars i.e. the total of 280 Dollars after deducting 150 Dollars paid as interim relief to the Respondent at Athens. Being aggrieved, Respondent filed a complaint before the State Commission seeking a total compensation of Rs.5,24,350/- with interest @ 24% per annum as per following details :
a) Value of goods/suitcase lost in Athens Rs.75,000/-
b) Amount spent in Athens on typing, phones etc. to restructure important paper work USD 200
c) Amount spent in purchasing new clothes etc. in Athens USD 200
d) Amount spent in Dubai in purchase of new Suitcase in Dubai USD 200
e) Damages for mental loss and loss opportunity of meeting various specialists in Athens USD 10000 Total of (b) to (e) USD 10600 Less Interim relief received USD 150 Amount recoverable from Respondent USD 10450 (USD 10450 @ Rs.43.00 per 1 USD) Rs,4,49,350/-
TOTAL CLAIM Rs.5,24,350/-
3. Appellant Airlines on being served filed a written rejoinder in which they denied the allegation of misbehavior and stated that on receipt of Respondents complaint regarding his missing luggage, steps were immediately taken to trace the same and it was regretted that despite their best efforts, they were not successful.
Therefore, as per the terms and conditions of the air tickets based on the Carrier Laws for the luggage at the rate of 20 US Dollars per kilogram of lost luggage (in this case 14 kilogram), compensation of 280 Dollars was found payable as also 80 Dollars for the damage caused to the second suitcase. As a passenger, Respondent was also bound by the terms and conditions of the air tickets and there was no deficiency in service.
4. The State Commission after hearing the parties and on the basis of evidence produced before it allowed the complaint by concluding that the loss of baggage per se amounted to deficiency in service as provided under Section 2(1)(g) of the Consumer Protection Act, 1986 and directed the Appellant Airlines to pay a lump sum compensation of Rs.2 Lakhs to the Respondent. The relevant part of the order of State Commission is reproduced:
13. The quality and standard of service has to be tested on the anvil of definition provided by section 2(1)(g) which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
14. The circumstance of not delivering baggage at all or short delivery or late delivery itself amounts to deficiency in service for which consumer is entitled for compensation.
5. Being aggrieved by the order of the State Commission, the present first appeal has been filed.
6. Learned Counsel for both parties made oral submissions.
7. Learned Counsel for the Appellant Airlines while reiterating the facts stated in their written rejoinder before the State Commission contended that the State Commission erred in holding Appellant guilty of deficiency in service and asking it to pay the Respondent enhanced compensation of Rs.2.00 Lakhs. It was stated that despite the best intentions, occasionally baggages do get misplaced and lost and it was to cover such eventualities that the Carriage By Air Act, 1972, on which the terms and conditions of the air tickets were based, clearly spelt out the compensation in respect of such cases. It was also stated that all passengers, including the Respondent, to whom air tickets were issued, were bound by the terms and conditions listed in the air tickets.
Appellant Airlines in accordance with the statutory provisions did not delay settlement of claim pertaining to the lost baggage and also promptly paid compensation of 80 Dollars for the damaged baggage. Further, it was the Respondent who was to blame for packing his important documents required for the conference in his checked-in baggage when there was a specific advisory in the ticket that such items as also valuables should not be put in checked-in baggages. Counsel for the Appellant Airlines stated that the State Commission by awarding enhanced compensation failed to appreciate that the terms and conditions of the Appellant Airlines as also the provisions of Carrier Laws would be negated and lead to prolonged litigation if Courts start awarding compensation far more than laid down in the statutory provisions pertaining to Carriage by Air Act, 1972. Under the circumstances, the order of the State Commission is liable to be set aside.
8. Counsel for the Respondent reiterated that right from the time when the luggage was lost, the Appellant Airlines was impolite and indifferent to them. This is borne out by the fact that in the first instance only a very meager interim relief of 50 US Dollars was offered and it was increased only the next day after Respondents vehement protests.
Apart from this, no plausible explanation has been given for the luggage still not being traced and also for the other luggage being ripped open and damaged, which is an admitted fact before the State Commission. The State Commission in its order had rightly observed that apart from the compensation given to the Respondent as per the terms and conditions of the tickets issued, the Appellant Airlines is liable to pay the amount of Rs.2.00 Lakhs for deficiency in service as per the provisions of the Consumer Protection Act, 1986, to which a consumer is entitled.
9. We have carefully considered the submissions of learned Counsel for both parties and have also gone through the evidence on record. The fact that the Respondent and his wife travelled by Appellant Airlines to Athens for a business conference where one of the baggages was misplaced and was not found till date is an admitted fact. It is also a fact that on the return journey, their second luggage was ripped open and some papers removed. We have also seen the terms and conditions regarding settlement of claims in case of lost luggage as also the relevant provisions of the Carriage by Air Act, 1972. There is, of course, no doubt that based on these provisions of Carriage by Air Act, 1972 the Appellant Airlines had offered to pay the loss, which has been calculated as being 280 US Dollars since these claims are settled on the basis of weight and not on the value of the goods that have been lost. The State Commission while taking note of this fact has directed the Appellant Airlines to pay compensation of Rs.2.00 Lakhs for the deficiency in service as well as for harassment, agony and mental tension caused to the Respondent, which is admittedly not taken into account for settlement of such claims under the Carriage by Air Act, 1972 as also the terms and conditions of the Appellant-Airlines. We find substance in this finding of the State Commission. In the instant case, due to the negligence and deficiency in service, the Appellant Airlines who was entrusted with the safe custody and delivery of the passengers luggage admittedly failed to do so causing the Respondent, who is a well-known Oncologist, to undergo mental tension, harassment, loss of professional face, apart from the monetary loss. The Consumer Protection Act, 1986 has been enacted to give relief to consumers for deficiency in service, unfair trade practice etc. by service providers, traders, manufacturers etc. and the Honble Supreme Court in The Consumer & Citizens Forum v. Karnataka Power Corporation [1994 (1) CPR 130] has laid down that the provisions of this Act give the consumer an additional remedy besides those that may be available under other existing laws. In the instant case, no doubt the Appellant Airlines had sought to settle the consumers grievance purely in terms of the notional monetary loss suffered by him as per the relevant provisions of Carriage by Air Act, 1972. However, as discussed earlier, because there was deficiency in service on the part of Appellant Airlines in losing and mishandling the Respondents luggage, which caused him harassment, agony, mental tension and loss of professional face apart from monetary loss, he is entitled to compensation for this deficiency in service on Appellants part as per the provisions of the Consumer Protection Act, 1986. Keeping in view these facts, the State Commission has awarded a compensation of Rs.2.00 Lakhs. We see no reason to disagree with the compensation awarded, which, we feel, is fully justified under the circumstances.
10. We, therefore, uphold the order of the State Commission and dismiss the present First Appeal. Appellant Airlines is directed to pay the Respondent a sum of Rs.2.00 Lakhs within a period of 8 weeks, failing which the amount will carry interest @ 9% per annum for the period of default. This is in addition to the settlement of the claim as per the terms and conditions of the Carriage by Air Act, 1972.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh