State Consumer Disputes Redressal Commission
M/S. Jet Airways (India) Limited, vs Mrs. Urjita Vinayak Damle, on 4 October, 2012
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA Appeal No. 12/12 1. M/s. Jet Airways (India) Limited, The Manager, Jet Airways (India) Limited, Sesa Ghor, Shop No. 7,8 & 9, Patto Plaza, Panjim Goa. 2. The Manager, Jet Airways (India) Limited, Siroya Centre, Sahar Airport Road, Andheri (East), Mumbai, Maharashtra 400 099 ..Appellants/O.Ps V/s. Mrs. Urjita Vinayak Damle, Major of Age, R/o Mc/5, Goa Observatory Quarters, Altinho, Panaji Goa. 403 001 .Respondent/Complainant Appellants/O.Ps are represented by Adv. Shri. A.D. Bhobe. Respondent/Complainant in person. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 04/10/2012 ORDER
[Per Justice Shri. N. A. Britto, President] This appeal is filed under Section 15 of the C.P. Act, 1986 and it is directed against exparte order dated 8/6/12 of the Lr. District Forum, South Goa at Margao by which the complainant has been awarded compensation of Rs. 50,000/- with interest at the rate of 9% p.a.
2. The parties hereto shall hereinafter be referred to in the names as they appear in the cause title of C.C. No. 33/2011.
3. There is hardly any dispute as to facts. The complainant works as Assistant Company Secretary in Smart Link Network Systems Limited, Verna and had been to Mumbai on her Companys work. She returned from Mumbai to Goa on 18/06/11 by O.Ps flight No. 0457 at 01.05 pm minus a check in baggage containing the following articles:
A. Speaker of KENWOOD 1 pair which was in the box of Panasonic CD Player: Worth Rs. 1,700/-
B. The purchase cost of the Travel Bag lost was Rs. 2,000/-
C. Official Documents : which contained the papers as below:
i.
Original Balance Sheet and Profit & Loss A/c of Smartlink Network Systems Limited along with Cash Flow Statement and Schedules and other attachment for the year ending 31st March 2011.
ii.
Original Consolidated Balance Sheet and Profit & Loss A/c of Smartlink Network Systems Limited along with Cash Flow Statement and Schedules for the year ended 31st March, 2011 along with all attachments.
iii.
Copies of appointment Letters given by Schneider India Pvt. Ltd. to its Employees.
iv.
Blank Stamp Papers which was in the name of Smartlink Network Systems Limited worth Rs. 100/- - 4 nos.
v.
Acknowledgement copies of Letters sent to BSE, NSE, NSDL & CDSL.
vi.
Original Demand Draft bearing no. 416974 dated 08/06/2011 of Rs. 5,36,730/- issued in the name of Meena Sharma for payment of Special Interim Dividend for the year 2011-12.
vii.
29 photocopies of Demand Drafts sent to Shareholders for payment of Special Interim Dividend for the year 2011-12.
D. A new Black coloured hand purse which had Pressman written on it.
E. Clothes around 7 sets worth Rs. 12,000/-
F. Cosmetics which contained Spinz Perfume, Ponds Powder, Lotus lip gloss, Lakme compact, Nivea body lotion, etc worth Rs. 2,000/-
G. Cash of Rs. 1,000/-
H. Eatables worth Rs.
500/-
I. One empty Luggage Hand Bag in Navy Blue Colour worth Rs. 500/-.
4. The complainant approached the O.P. authority ground staff and waited for almost an hour to see whether the said bag had got exchanged with any other co-passenger.
Then the complainant filed baggage loss complaint with the O.P. as well as with the police. The complainant was informed that she would be regularly kept informed about the status of her baggage but the complainant has stated that apart from receiving a customary call on the first day, the O.P. never really bothered about the lost baggage. The complainant also filed additional complaint through email but was promised everytime that the O.P would take necessary action for tracing the lost baggage and was asked to wait for 14 days. Complainant stated that whenever she called the O.P. at Dabolim, Airport, Goa, her calls were never attended to and she was being informed that the concerned person was busy and would return the call but the call was never returned.
5. As per the complainant, the baggage was lost due to utter negligence and carelessness in baggage handling operations of the O.P. At the end of the 14 days the complainant was informed that her baggage was declared as lost and was further informed that a claim was forwarded to the claim department and the claim department in turn sent a mail to her offering total compensation of Rs. 450/- per kg i.e Rs. 5400/- (450x10) as total loss. The complainant rejected the said offer by her email dated 23/07/11. According to the complainant, the amount offered to her did not even come to 20% of the actual loss suffered by her. According to her, she has lodged her claim for essential items lost such as clothes, cost of bag, etc and the amount offered by the O.P. was for less than the actual loss suffered by the complainant in addition to the mental torture and problems faced by her since the day of the loss.
According to her, she had suffered the loss of about Rs. 25,000/- but the O.P. was trying to pay her only Rs. 5400/- The complainant therefore approached the Lr. District Forum claiming a sum of Rs. 17,000/- in terms of prayer
(a), Rs. 50,000/- with interest at the rate of 14% in terms of prayer (b), and costs in terms of prayer (c).
6. The complaint proceeded exparte against the O.P. by virtue of order dated 23/02/12. As stated by the complainant in her written submissions, several opportunities were given to the O.P. to contest the complaint and although at one stage the O.P. filed its appearance through an advocate, the O.P. failed to file any written version and contest the complaint.
7. The Lr. District Forum has awarded to the complainant a global compensation of Rs. 50,000/-, as already stated, without mentioning any of the heads under which it was being awarded or for that matter without referring to any of the prayers of the complaint. Such an approach cannot be accepted. Nobody gives anybody money by a random fistful. Compensation had to be assessed and quantified under different heads or at least under different prayers of the complaint.
8. We have heard Shri. A. D. Bhobe, the Lr.
Advocate on behalf of the O.P. and the complainant in person. We have also perused the written submission filed by her. She has also placed reliance on various decided cases. We do not propose to refer to all of them.
9. Shri. A.D. Bhobe , the Lr. Advocate of the O.P., would submit that the offer made to the complainant of Rs. 5400/- would be in accordance with law and in that regard has placed reliance on an order of the National Commission in the case of Helen Wallia vs. Cathay Pacific Airways Ltd. (2002 (1) CPR 162 NC). Lr. Advocate further submits that whatever was asked for by the complainant has been awarded to the complainant by the Lr. District forum and in case the complainant had sought for Rs. 1 lac, the Lr. District Forum might have awarded the same. The Lr. Advocate submits that the complainants claim was hypothetical and the complainant had filed no other affidavit, except her own, in support of the facts stated by her. Lr. Advocate submits that the compensation awarded to the complainant cannot stand the scrutiny of law though Lr. Advocate concedes that the O.P. had not contested the complaint and had not filed any affidavit of their own contesting the affidavit filed by the Complainant.
10. On the other hand, Ms. Damle, the complainant, would submit that she has been awarded a lump sum compensation of Rs. 50,000/- as against Rs. 67,000/- plus cost sought for by her in her complaint. She further submits that she had not asked for compensation for any missing articles.
11. There can be no two opinions that there has been gross deficiency in service on the part of the O.P. in losing the checked in baggage of the complainant due to carelessness or negligence of its employees as defined u/s 2(1)(g) of C.P. Act for which the O.P. is liable to compensate the complainant.
12. In the case of Helen Wallia (supra), Helen Wallia was travelling on a transpacific flight from San Francisco to Hongkong and when she reached Hongkong, her 4th bag was found missing.
She had lodged a complaint at Hongkong and later at Mumbai on her arrival there. She was offered US $ 640 (i.e US $ 20 x 32) as maximum weight of each piece of checked in baggage was 32 kilos. It appears that the said Helen Wallia did not accept the said offer of US $ 640 and the National Commission held as follows:
It was a transpacific flight where the maximum weight of 32 kgs. was allowed. Thus multiplying this with US $ 20 per kg., the amount of US $ 640 was offered which was declined by the complainant. This led to filing of the complaint. If we examine the provisions of Carriage by Air Act, 1972, there is a limit placed on the liability of the carrier where damages can be awarded @ US $ 20 per kg. of the weight of the lost baggage. This limit would not apply if it was done with the intent to cause damage or recklessly and with knowledge that damage would probably result. There is no such plea in spite of assertion by the learned counsel for the complainant that the baggage of the complainant was lost intentionally by the opposite party. We do not find any merit in this complaint. It is dismissed.
13. The complainant has placed reliance on an unreported order of this Commission dated 14/06/12 in C.C. No. 06/10 in the case of Mr. Ethelwald O. Mendes wherein it was held that compensation in terms of Section 14(1) (d) of Consumer Protection Act, 1986 would include both pecuniary and non pecuniary losses caused to the complainant and his family. Pecuniary losses are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non pecuniary losses are those which are incapable of being assessed by arithmetical calculations and the latter would include, inter alia, compensation for inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
13.1. Compensation as a rule can never be assessed with accuracy or mathematical precision. It involves some guesswork more so when it comes to non pecuniary loss. Compensation has got to be just and fair to the complainant. Moderation is the key word whilst doing the assessment. It ought not to be punitive to the O.P. Like cases should receive like compensation. These are some of the basic principles which are to be kept in mind whilst assessing the compensation payable in a given case.
13.2. Shri. Bhobe may be right in contending that the pecuniary loss sustained by the complainant had to be restricted to Rs. 5400/- in terms of prayer clause (a) in light of the judgement of the National Commission in the case of Helen Wallia (supra). It was not the case of the complainant that she had made, at the time the package was handed over to the carrier/O.P., a special declaration of the value at delivery and had paid supplementary sum in case she was required, as required by the Carriage by Air Act, 1972 and the rules framed. It was also not the case of the complainant that loss was caused to her on account of wilful misconduct of the O.P. On facts, the unreported decision of this Commission dated 13/12/2011 in FA Nos. 60 & 61/09 in the case of Station Manager, National Aviation Company of Indian Ltd., vs. Ms. D-Link (India) Ltd., would not be applicable and is of no help to the complainant. To the same effect as the observation of the National Commission in Hellen Wallia, are the observations of the Delhi State Commission in Jet Airways (India) Pvt.
Ltd., vs. Mr. Sandeep Arora (order dated 26/02/08 in Appeal No. A-141/2004) wherein it is stated that:
7. Thus at the most the liability of Jet Airways is to the tune of Rs. 450/- per kg and
13. It is settled law that the parties are governed by terms of contract and in none of the documents there was term of contract that XPS Cargo Services or JET Airways will be liable to indemnify the loss of value of the contents in the Airway Bill. So much so the value of the contents was not declared.
13.3. Again, in Mr. Alok Tandon vs. Scandinavian Airlines System (2009 CTJ 85) the Delhi State Commission has held as follows:-
14.
In identical cases we have taken a view that the liability as propounded by Article 14 or any other provision under the Carriage By Air Act, 1972 or International Carriage of Goods Act or the Warsaw Convention amended till date is a limited liability of a service provider like the Airlines. There is a liability as spelt out under the aforesaid Carriage by Air Act and under the schedule and rule 22, 25, and 31(3) of the International Carriage which relates to compensating the consumer as per weight of the baggage.
15. Liability under Carriage by Air Act is limited liability informally applicable as per weight of the baggage irrespective of valuables.
13.4. Yet again, the Delhi State Commission in Jet Airways v/s. Govinder Kapoor (FA. No. 2009/72 decided on 23/03/09) has held:
4. In identical cases we have taken a view that the remedy under the Carriage by Air Act is limited liability uniformally applicable to all the consumers as per the weight of the baggage and irrespective of the value of the contents etc. contained therein.
13.5. The same view is echoed again by the Delhi State Commission in para 8 of Air India Limited v/s. Mr. Arvind Pandalai (F.A. No. 08/450) d/on 21/05/08).
13.6. We have therefore to restrict the claim of the complainant in terms of prayer (a) to Rs. 5400/- only.
13.7. As regards prayer
(c), the complainant would have been entitled to atleast Rs. 5000/- by way of costs of the complaint. We have been awarding ordinarily, almost as a matter of thumb rule, unless there exceptional circumstances, Rs. 5000/- by way of costs of a complaint before the District Forum. The Complainant therefore would have been entitled to Rs. 5000/- in term of prayer (c).
13.8. That would leave a balance of Rs.
39,600/-. Would that be excessive compensation by way of non pecuniary loss suffered by the complainant for inconvenience, hardship, discomfort, disappointment, frustration and mental stress suffered by the Complainant?
13.9. Again we would refer to para 27 of the case of Ethelwald O. Mendes, wherein we have observed as follows:-
27. His Lordship Justice R. C. Lahoti (as he then was) writing for the Division Bench of Delhi High Court in Klaus Mittelbarchet (deceased by L.Rs) vs. The East India Hotels Ltd., & ors. (1997) IND LAW DEL 402, had observed that in the commercialized world the degree of care would also be determined by reference to the price which is being charged and higher the charges, higher the degree to take care. The Delhi High Court also held that the variation in the degree of care making it heavier co-relating the same with charges fixed and realized in consideration of offering a service, assumes significance in law for two purposes. Firstly, it has a bearing on the degree of care expected, either express or implied. Secondly, it has a bearing on the amount of compensation that would become payable in the event of failure to discharge the expected degree of care. Higher the degree of care, the higher the quantum of compensation, both flowing from rise in charges realized for rendering the services. To illustrate, on breach of duty to take care, a five star hotel would not be heard offering the same quantum of compensation as would have been offered by a charitable organization running a dharmashala where a guest was staying on payment of nominal charges. By now we have followed the said principle atleast in two of our cases. Complaint No. 7/07 of Vinayak Rajkumar Rajpal being one of them, by order dated 25/1/12. An airline could easily be compared with five star hotel.
13.10. The above observations are equally relevant to the case at hand.
14. We are unable to understand why the Lr.
National Commission in the case of Helen Wallia (supra) did not decree the claim of the said Helen Wallia for US 640 $.
The decision of the Apex Court in Lucknow Development authority vs. M.K. Gupta (1994) 1 Supreme Court Case 243 was not brought to the notice of the Hon. National Commission and the decision in Ghaziabad Development Authority vs. Balbir Singh (2004) 5 Supreme Court Cases 65 was not rendered by then by the Hon. Supreme Court.
14.1. In Lucknow Development Authority (supra), the Apex Court stated as follows:
It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant form the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.
14.2. In Ghaziabad Development Authority, the Apex Court has stated as follows:
The word compensation is of a very wide connotation.
It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers.
Such compensation is for vindicating the strength of law.
14.3. Reverting to Jet Airways (India) Pvt. Ltd., vs. Mr. Sandeep Arora (supra), the Delhi State Commission observed that a service provider like Jet Airways (India) Pvt. Ltd., becomes liable to compensate reasonably to the consumer as to the loss or mental agony, harassment, emotional sufferings and physical discomfort suffered by him due to the negligence or the deficiency in service of the opposite party.
14.4. Again, in Mr. Alok Tandon vs. Scandinavian Airlines System (supra) the Delhi State Commission observed that:
So far as liability under the Consumer Protection Act, 1986 is concerned, it is additional liability arising from the charge of deficiency in service as defined by section 2(1)(g) of the Consumer Protection Act under which we have been awarding compensation for the loss, mental agony, harassment, emotional suffering, physical discomfort, mental discomfort or any other sufferings injustice done to the consumer, say for delayed flight, cancelled flight and particularly for the loss of baggage.
15. The liability arising out of deficiency in service viz. non-delivery, mis-delivery or pilfered delivery is in addition to the aforesaid limited remedy and this view of ours have been confirmed by the Honble Supreme Court and in several cases consumers have been awarded compensation upto Rupees one lac though in actuality under the Carriage by Air Act they were only entitle to a few thousands of rupees. This compensation is awarded over and above the limited liability 14.5. In Jet Airways(India)Ltd., vs. Mr. Govinder Kapoor, the Delhi State Commission by order dated 23/03/2009 in FA No. 2009/72 again observed that:
Recently the Supreme Court have awarded compensation of loss of baggage by taking the remedy under C.P. Act as an additional remedy arising from the deficiency in service and not in derogation of any other law for the time being in force, which includes the Carriage by Air Act also.
15. In view of the above discussion and case law on the subject award of Rs. 39,600/- could not be said to be excessive in terms of prayer (b) for the injustice suffered by the complainant. Therefore, we are of the view that the award of Rs. 50,000/- as overall compensation payable to the complainant in terms of the first three prayers of the complaint could not be said to be excessive so as to invite interference from this Commission.
16. The complainant has not filed an appeal for enhancement of compensation. In her written submissions, she claims Rs. 25,000/- for taking legal opinion, etc. Complainant would not be entitled to the said sum. Costs should follow the event. Since we are dismissing the appeal we hold that the complainant would be entitled to the costs of this appeal which are quantified at Rs. 5000/-.
17. For the above said reasons we dismiss the appeal as having no merits and direct the O.P. to pay to the complainant costs of Rs. 5000/- within a period of 30 days.
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto] Member President