State Consumer Disputes Redressal Commission
The M.D National Aviation Co.Ltd vs Sujogya Kumar Mishra on 7 June, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/11/2393)
Appeal No.112/2011
Instituted on 23.02.11
The Chairman and Managing Director,
National Aviation Co. of India Ltd. (Formerly),
(Now Air India Limited)
113, Gurudwara-Rakabganj Road,
NEW DELHI - 110 001 ... Appellant.
Vs.
1. Sujogya Kumar Mishra,
S/o. Shri Damodar Mishra,
R/o. 37, Moul Shree Vihar,
RAIPUR (C.G.)
2. The Government of India,
Through-The Secretary,
Ministry of Civil Aviation, Rajeev Gandhi Bhawan,
NEW DELHI - 110 001 ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri M. Rajshekhar, for appellant.
Smt. Indira Misra, for respondent No.1.
None for respondent No.2.
ORDER
Dated: 07/06/2011 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 24.01.11, passed by District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short) in complaint case No.451/2009, whereby the appellant Airlines has been directed to pay Rs.40,000/- as compensation for mental agony within a period of one month from the date of order, otherwise to pay the amount along with interest @ 6% // 2 // p.a. from the date of order till the date of payment and also to pay Rs.1,000/- as cost of litigation, on account of deficiency in service committed by it, in handing over the luggage of the respondent No.1 / complainant while he was on tour of United States of America, on the ticket of the appellant Company.
2. Briefly stated the facts of the case are that respondent No.1, Sujogya Kumar Misra at the relevant time was working on the post of Chairman of the Chhattisgarh State Electricity Regulatory Commission under the Government of Chhattisgarh. He purchased an executive class return ticket No.ETXT0983532577702-03 from Vyas Travels, Raipur on payment of Rs.2,54,695/- for his travel by Air India from Delhi to New York and other places in USA and for the return journey in the month of April 2009, which was a roundtrip ticket. The journey being an official journey, the ticket was purchased by the Office of the C.G. State Electricity Regulatory Commission. The complainant traveled by Air India flight from New Delhi to New York and from there to Raleigh within the USA, to attend an important meeting, by American Airlines. His ticket was booked by Air India for the entire journey and it was agreed that the luggage of the complainant would be booked up to Raleigh by the Air India at New Delhi and it was assured by the Officers of the Air India that he would be provided all necessary assistance at New York‟s JFK Air Port for his onwards // 3 // connection to Raleigh and his baggage transfer. However, he was required to collect his baggage at New York airport and hand it over at Air India counter in the airport for onward travel, as per the regular procedure. The complainant traveled on 26.04.09 from New Delhi to New York‟s JFK Airport by Air India flight No.AI 101 in J-class and on arrival at New York JFK Airport, after immigration check, he proceeded to collect his baggage. He found that one of his checked-in baggages, bearing tag No.0058189715 was not traceable. After waiting for a long time, the complainant found a baggage, exactly similar to his, on the conveyor belt and presuming it to be his own he handed over that bag along with other baggage to the Air India officials at the Airport who were booking the same for onward journey to Raleigh by the American Airlines. After arrival at Raleigh, the complainant had the first opportunity to see his baggage closely since booking it in New Delhi. The suitcase, which the complainant believed to be his own, was a suitcase of VIP (Elanza) make, but it was not his. He immediately identified that one of the suitcase was not his baggage and promptly contacted one Mr. Avinash at Air India‟s New York office on phone. Mr. Avinash assured the complainant that his own baggage will be traced shortly and will be sent to him at Raleigh, as it was a case of inadvertent exchange of baggage. On 27.04.09, Mr. Avinash of Air India, conveyed a message that his baggage has been found, but he was unable to open it for checking, so enquired // 4 // combination number of the lock of the suitcase, in order to open it for getting Customs clearance done, before sending it back to Raleigh. It was also asked by him, whether there were any valuable items in the suitcase. Having full faith on Mr. Avinash, being Officer of Air India, it was informed to him that in addition to clothes there were US $ 1600 in cash, in the side pocket of the suitcase and as insisted by him, the combination number to open the lock of the suitcase was also provided to him. However, the complainant‟s baggage was received at Raleigh on the third day, i.e. 28.04.09 in open condition, tied with a sticking tape and the entire cash of US $ 1600 was missing from the side pocket of the suitcase. The complainant immediately contacted Air India at New York once again and lodged a complaint about missing cash of US $ 1600 with Mr. Avinash, who assured that the matter would be taken up with the Officer In-charge of Air India in New York and will be responded soon. However, till his departure from the USA, nothing was heard. After returning to India, written complaint was sent by sending email dated 13.05.09 to Air India Managing Director, which was replied by email dated 09.06.09, expressing inability to do anything in the matter on the plea that the complainant should have followed the advice printed on the ticket jacket and in their website, advising passengers not to place any cash etc. in their checked-in baggage, as these things are best carried in hand bags. The Air India has neglected in providing services availed by the complainant and // 5 // malfunctioning at New York airport both at the time of booking the wrong baggage for Raleigh, and for removal of cash US $ 1600 from the complainant‟s suitcase with obvious mala fide intentions, as the combination number of the lock of the suitcase was intimated to them, relying on their trustworthiness and the credibility of Air India. On the basis of these pleas, the complainant prayed for grant of compensation in lieu of theft of US $ 1600 and for the inconvenience suffered by him, on account of deficiency in service on the part of the appellant company.
3. In reply the appellant company has refuted all the allegations leveled by the complainant and took plea that the complainant does not come in the category of „consumer‟, as defined under Consumer Protection Act 1986, because the ticket was purchased by the State Government of Chhattisgarh and not by the complainant. It has also been averred that the District Forum at Raipur (C.G.) has no territorial jurisdiction to entertain the complaint case. Cause of action, if any arose, then it was at foreign land i.e. in USA. The tickets were booked from New Delhi to New York and then to Raleigh and back, but merely booking of tickets from Raipur (C.G.) does not give rise to a cause of action to the complainant. It has also been averred that there was no deficiency in service on the part of the OP / appellant because the baggage, which was handed over by the complainant to the // 6 // Airport Office of the appellant company at New York, were further transported to Raleigh on the instructions of the complainant. That service of transportation of baggage from New York to Raleigh, was merely a complimentary service, for which no charges were collected from the complainant. It was the mistake of the complainant himself, who identified a wrong baggage as his own and handed it over to the appellant. It has also been averred that there are clear cut instructions on the ticket as well as on the website of the appellant that no cash and valuables are to be kept in the check in luggage, if these instructions have been avoided by the complainant then he himself is responsible for his negligence and cannot claim any compensation from the appellant. On these premises, it has been prayed that the complaint be dismissed.
4. Learned District Forum after having considered the rival contentions raised by both parties, ultimately agreed with the case of the complainant and passed the impugned award against the appellant Company.
5. We have heard arguments advanced by both parties in detail and perused the record of the District Forum very minutely.
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6. The first contention of learned counsel for the appellant is that the respondent No.1 / complainant is not a „consumer‟ of the appellant company within the meaning of Consumer Protection Act, as he had not purchased the tickets, but State Government of Chhattisgarh, for the Official Tour of the respondent No.1 / complainant, had purchased the ticket and therefore the complainant was required to take prior permission of the State Government of Chhattisgarh before filing the complaint.
7. In this connection counsel for the appellant has drawn our attention towards paragraph No.1 of the complaint and submitted that services of the appellant have not been hired by the complainant / respondent No.1 and therefore the complaint preferred by the complainant / respondent No.1 was not required to be entertained by the District Forum and the District Forum has committed a mistake in entertaining such complaint.
8. To counter these arguments, learned counsel for the respondent No.1 / complainant has drawn our attention towards the air-ticket issued by the appellant and submitted that the ticket was issued to Mr. S.K. Misra, the complainant and he was the person who was to avail services of the appellant Company and he is the person who suffered // 8 // on account of negligence committed by the appellant Company and therefore the complaint filed by him is very well maintainable.
9. Record of the District Forum shows that Annexure-1 is the air- ticket containing travel itinerary of the complainant / respondent No.1. This document was issued by NACIL Air India in the name of passenger Mr. S.K. Misra. In the whole of the ticket there is no mention that the amount of the ticket was paid by someone else than the passenger or that the journey of Mr. S.K. Misra was booked by someone else. It is the honesty of the complainant / respondent No.1 that at the very outset he has declared that it was an official tour and the journey was sponsored by C.G. State Electricity Regulatory Commission, so irrespective of the fact that the payment has been made by the Office, the complainant / respondent No.1 was the person who was to travel by Air though the Airlines of the appellant Company and was to avail services provided by the Airlines in connection with the journey. He was the passenger who performed that journey and ticket was purchased for his journey. Baggages, regarding which the complaint has been made, were his own property and were taken by him through the journey for his comfort. As per Section 2 (1) (d) of the Consumer Protection Act 1986, clause (ii), everyone who "hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, // 9 // or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised- - - - - - -". Therefore, this definition not only includes the person who hires services, but it also includes the person who avails services and also those persons who are beneficiary of such services, other than the person who hires or avails of services for consideration. The complainant / respondent No.1 herein, is definitely a person who availed services of the Airlines for which fare was paid by C.G. State Electricity Regulatory Commission, for his benefit and therefore for the purpose of the provisions of the Act, he comes in the category of „consumer‟ and the complaint filed by him is very well maintainable, in view of the provisions of Section 2 (1) (d) (ii) of the Act.
10. Next contention of counsel for the appellant is that no part of cause of action had arisen within the territorial jurisdiction of Raipur District Forum and therefore the Forum below was having no jurisdiction to entertain the complaint for want of cause of action. In this regard submission of learned counsel for the appellant is that the ticket of travel of respondent No.1 was booked through travel agent, Vyas Travels, Raipur and the agent had given a Travel Itinerary, which was filed by the respondent No.1 / complainant as Annexure-1 along with the complaint, which is not the actual ticket but is only a Travel // 10 // Itinerary. It has also been submitted by him that the actual journey of respondent No.1 / complainant was commenced from Delhi Airport, from where the luggage was booked and where the request was made for transport of baggages to American Airlines from New York to Raleigh. It has been submitted that the District Forum was not having any territorial jurisdiction to try and entertain the complaint as no part of cause of action has arisen at Raipur and mere booking of ticket does not provide cause of action, because the tickets are mere entitlement for undertaking journey and in the present case, mere entitlement to board the plane from the destination from where the plane departs. It has been argued that until the passenger reaches and confirms on the particular date and place that he is flying, then his entitlement to board the plane and undertake the journey, completes and from then on the service of the appellant begins. It has also been submitted that tickets can be purchased from any place in this world via internet and they can be booked or purchased while traveling in place, in midair but that does not mean that the learned District Forum shall have territorial jurisdiction to try and entertain the complaint. Heavy reliance has been placed on the pronouncement of Hon‟ble Apex Court in the case of Sonic Surgical Vs. National Insurance Co. Ltd., IV (2009) CPJ 40 (SC) and on the basis of this citation, it has been argued that merely because the Airlines was having Branch Office at Raipur (C.G.), the complaint cannot be entertained by the District Forum Raipur (C.G.), as no part // 11 // of cause of action has arisen at Raipur (C.G.) towards and leveled allegations.
11. We do not agree with the contentions raised by the appellant Company. From the Travel Itinerary, Annexure-1, it is clear that the ticket was booked at Raipur from Vyas Travels, 8 Babla Complex, G.E. Road, Raipur (C.G.), who is agent No.2809 of the appellant Airlines. Total amount of fare Rs.2,54,695/- was also paid here at Raipur for the purpose of purchase of this air-ticket from the agent of the appellant Company. Certificate of Vyas Travels has also been filed, whereby it has been certified that the Travel Agency has been authorized to issue air tickets of any IATA Airlines ticket, including Air India and was the authorized IATA accredited agent since 2004. From the Travel Itinerary, the certificate of travel agent and the description of calculation of amount of total fare, it emerges that the fare was paid in cash to the agent of the appellant Company at Raipur and the tickets were booked from here itself i.e. from Raipur, therefore if we consider this fact then it can very clearly be said that a part of cause of action arose at Raipur also.
12. Appellant has cited the case of Sonic Surgical (supra) in support of its contention, but in that case itself reference has been made to another pronouncement of Hon‟ble Supreme Court in the case of // 12 // Union of India Vs. Adani Exports Ltd, VII (2001) SLT 612, wherein further reference has been made to the decision of ONGC 1994 AIR SCW 3287, in which the concept of cause of action has been explained in para 17 at page 130 of the report and relevant extracts, wherefrom are excerpted below : "it is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court‟s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned".
13. Therefore, as and when it is said that part of cause action has arisen at a particular place, then it is required to be seen whether the facts pleaded are such which have a nexus with the lis that is involved in the case. If we apply this principle in the facts of the present case, then clearly it emerges that paying full fare to the Agent of the appellant Company at Raipur and purchasing ticket for the entire journey including return journey at Raipur are the facts which have got very much relevancy and nexus with the lis between the parties, because after purchase of the ticket here at Raipur and after paying fare, the complainant / respondent No.1 became entitled to perform // 13 // journey as detailed in Travel Itinerary to USA along with his baggage. Thus, we are satisfied that important part of cause of action has arisen at Raipur.
14. Hon‟ble Apex Court in the case referred in Sonic Surgical's (supra) case, has held that "in our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity [ vide G.P. Singh‟s Principles of Statutory Interpretation, Ninth Edition, 2004 P.79]." Therefore, the mandate of Hon‟ble Supreme Court is that merely having Branch Office at any place is not sufficient for the purpose of having jurisdiction to entertain a complaint, but it is further required to see, whether any part of cause of action has also arisen at that particular place. In the present case, it has been contended by the respondent No.1 / complainant that part of cause of action has arisen at Raipur and where the appellant is functioning through its Branch Office and therefore this place has also got jurisdiction to entertain the complaint of the complainant, apart from the Forum at Delhi.
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15. The complainant / respondent No.1 in this regard has placed reliance on the pronouncement of Hon‟ble National Commission in the case of Air India Vs. Dr. Kishore and ors., 1986-2005 Consumer 8540 (NS), which is a four members‟ bench judgement and in that case also flight was to depart from Delhi and the ticket was purchased for travel by Air India through authorized agent at Nagpur. In that case also, when the complainants reported at the counter of Air India, they were directed to go to counter of Asiana Airlines. Complaint was filed before District Forum Nagpur regarding deficiency in service against Air India, which was allowed. State Commission also dismissed the appeal of Air India and ultimately the four members‟ bench of Hon‟ble National Commission has also dismissed the appeal of the Air India. In similar case, the State Commission of Jammu & Kashmir also held that if the ticket was purchased from Jammu for journey to be performed from Delhi, then the District Forum at Jammu has got jurisdiction to entertain the complaint.
16. Thus, after examining the matter from all angles and considering the case referred by the appellant Sonic Surgical (supra), we are satisfied that the appellant Company is not only functioning through its Branch Office at Raipur, but cause of action, having full nexus and relevancy, to the lis has arisen at Raipur and so the District Forum was having jurisdiction to entertain the complaint.
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17. Further contention of counsel for the appellant is that the District Forum has grossly erred in awarding Rs.40,000/- towards mental agony and Rs.1,000/- as costs, while dismissing the complaint on merits and only because the respondent No.1 was a former IAS Officer. It has been submitted that the District Forum, so far as the theft of amount of US $ 1600 from the suitcase of the complainant is concerned, has not agreed with the case of the complainant. But, we find that the District Forum has drawn this conclusion that on the basis of instructions of the Air Lines to the effect that cash and valuables must not be kept in the booked luggage and such goods are to be kept in handbags, as this instruction was not followed by the complainant and therefore he was not found entitled for that amount regarding which allegations of theft have been made. There appears nothing wrong in the conclusions drawn by the District Forum, but at the same time, we cannot shut our eyes towards the fact that the complainant / respondent No.1 was having in all three baggages, which was booked with Air India. Baggage tags of the remaining two articles have been filed by the complainant along with the complaint which shows that the baggages were booked, bearing tag No.0098189714 and 0098189716. These numbers show that obviously the No. of third baggage must be 0098189715 and if the respondent No.1 / complainant inadvertently on account of similarity of make of the baggages, its appearance, look and size etc. and on account of being in hurry of // 16 // catching another flight to Raleigh, picked up a wrong baggage from the conveyor belt for handing over the same to the appellant Airlines along with two other baggages, and when all the three baggages were booked to Air India from Delhi to Raleigh for transportation then primarily it was the duty of the Officer and Officials of the appellant to check tag Nos. of all the three baggages, before their onwards booking to Raleigh. It appears that the Officers of the appellant Airlines were negligent in checking the tag Nos. of all the three baggages. They must also be having a list of baggage of tag Nos. with them, to be shifted to other flights. They were having the list of baggages of the complainant /respondent No.1 also to be shifted to the flight of Raleigh and ultimately when this duty was accepted by the appellant Company that they will shift the baggages from the Air India to another Aircraft for onward journey to Raleigh, then the Officers of the appellant Company were required to check baggage Nos. minutely before transferring them to the flight of Raleigh. It appears that the Officers of the appellant Company were negligent at that time and so, they had not checked the tag Nos. of baggages of respondent No.1. No doubt, up to some extent, the complainant was also negligent as he had picked up a wrong bag from the conveyor belt, but apparently he was in anxiety and in hurry and we can very well understand such state as he was in foreign country, he just arrived there and was to catch another flight for another destination and in the meantime was to // 17 // pickup baggages from conveyor belt for handing over the same to the Officers of the appellant Company. If in this state of anxiety he committed mistake of picking up a wrong baggage of similar look, then this action provides no excuse to the Officers of the appellant Company for not checking the tag Nos. of baggages and transporting a wrong baggage to Raleigh. Ultimately it deprived the respondent No.1 / complainant from use of his own articles, clothes and personal usables, which were required to the respondent No.1 from morning to night. It has been argued by his counsel that he remained in a single dress for a couple days.
18. Apart from it, if a wrong baggage was picked up by the complainant / respondent No.1 from the conveyor belt and it was handed over to the appellant Company, which had also not checked the tag No. of that baggage and transported a wrong baggage to Raleigh, even then when information was sent by the complainant after few hours, then sincere and prompt action should have been taken to trace the baggage of the respondent No.1 / complainant, so that it could be reached to his hands at the earlierst. In this regard also the Company remained negligent and the baggage could be transported after a period of three days, when it was partly opened, which also added in the negligence committed by the appellant Company.
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19. In view of the aforesaid facts and the fact that the respondent No.1 / complainant was Chairman of State Electricity Regulatory Commission, who was attending Official Conference and was facing discomfort on account of missed baggage, if the District Forum has awarded Rs.40,000/- only as compensation for his mental agony, then it cannot be said that the awarded amount is excessive.
20. We do not find any merits in this appeal. The same stands dismissed. No order as to cost.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/06/2011 /06/2011