National Consumer Disputes Redressal
Air India Ltd. & Anr. vs Tushar Kothari on 7 February, 2023
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1179 OF 2018 (Against the Order dated 25/01/2018 in Appeal No. 815/2017 of the State Commission Chhattisgarh) 1. AIR INDIA LTD. & ANR. AIRLINES HOUSE, 113, GURUDWARA RAKAB GANJ ROAD, NEW DELHI-110001 2. THE GENERAL MANAGER(COMMERCIAL) AIR INDIA LTD. AIRLINES HOUSE, 113, GURUDWARA RAKAB GANJ ROAD, NEW DELHI-110001 ...........Petitioner(s) Versus 1. TUSHAR KOTHARI S/O. SH. SHRIPAL KOTHARI, GROUP MIG-2, OPP. HOUSING BOARD OFFICE, PADMANAPUR, CHATTISGARH.-491001 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER For the Petitioner : For the Petitioners : Mr. Dhanesh Relan, Advocate For the Respondent :
Dated : 07 Feb 2023 ORDER
1. Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), by the Petitioner Airlines, is to the Order dated 25.01.2018, passed by the Chhattisgarh State Consumer Disputes Redressal Commission (for short "the State Commission") in First Appeal No. 815/2017. By the Impugned Order, the State Commission has partly allowed the Appeal preferred by the Petitioners, while affirming the direction given by the District Consumer Disputes Redressal Forum, Durg (for short "the District Forum") vide Order dated 05.09.2017 passed in Complaint No.16/11 to the Petitioner Airlines to pay a sum of ₹2,03,785/- towards cost of articles lost during the course of travel but reduced the Compensation and cost of litigation awarded by the District Forum to ₹25,000/- and ₹5,000/- respectively.
2. Succinctly put, the facts giving rise to the present Revision Petition, as culled out from the Complaint, are that the Complainant alongwith his family members had purchased tickets from Air India (hereinafter referred to as 'Petitioner Airlines') to travel from Nagpur to Goa via Mumbai for attending a wedding ceremony. After examining 16 bags of the Complainant and his family members, boarding passes were issued, however, upon reaching the destined location, only 15 bags were received by the Complainant. Unfortunately, one bag had been misplaced. Written complaint was lodged at the Airport and it was assured by the Petitioner Airlines that after due investigation the bag will be recovered soon. However, the missing bag could not be recovered and the Complainant was offered compensation to the tune of ₹3,600/- at the rate of ₹450/- per kg in accordance with provisions of Citizens Charter/Contract of Carriage Rule 1972 on Domestic Travel & Bureau of Civil Aviation Security (Ministry of Civil Aviation). Alleging deficiency in service on the part of the Petitioner Airlines, the complainant filed a consumer complaint before the District Forum seeking compensation of ₹2,03,785/- alongwith ₹1,00,000/- towards mental agony and litigation expense.
3. Upon notice, the Complaint was contested by the Petitioner Airlines on the ground that the Complainant had not declared value of the articles in accordance with the provisions of Citizens Charter/Contract of Carriage Rule 1972 on Domestic Travel & Bureau of Civil Aviation Security (Ministry of Civil Aviation), wherein the valuable articles such as currency, precious metals, jewelry, negotiable instruments, securities, personal identification documents and other items of value are advised to be best carried with the guests in the cabin.
4. On appraisal of the evidence adduced before it, the District Forum allowed the Complaint holding that the Petitioner Airlines is liable for deficiency in service in taking proper care of the baggage of the Complainant, which was lost during the course of travel due to which the Complainant has to suffer a loss of articles worth ₹2,03,785/-. The compensation of ₹3,600/- as offered by the Petitioner Airlines deemed insufficient as the articles kept in the luggage were evidently costly and directed the Petitioner Airlines to pay a sum of ₹2,03,785/- towards costs of articles alongwith compensation of ₹1,00,000/- and cost of litigation ₹10,000/-.
5. Feeling aggrieved, the Petitioner Airlines preferred an Appeal before the State Commission on the ground that they had duly complied with the provisions of Citizens Charter/Contract of Carriage Rule 1972 on Domestic Travel & Bureau of Civil Aviation Security (Ministry of Civil Aviation) and thus compensation offered to the tune of ₹3,600/- was legally apt. It was also contended by the Petitioner Airlines that the evidences relied upon by the District Forum had been duly objected by them and thus the presumption drawn was bad at law. The Complainant however objected to the contentions of the Appeal stating that the District Forum awarded the cost of articles on the basis of the bills of the articles purchased and that the Complainant alongwith his family members were going to a wedding ceremony, therefore, were carrying expensive articles.
6. After hearing both the parties and material and evidence produced before it, the State Commission had affirmed the view taken by the District Forum that the there was deficiency in service on the part of the Petitioner Airline in taking proper care of the baggage of the Respondent/Complainant, which was lost during the course of travel due to which the Complainant has to suffer a loss of ₹2,03,785/-. However, keeping in view the facts and circumstances of the case, it reduced the compensation of ₹1,00,000/- and ₹10,000/- towards cost as awarded by the District Forum to ₹25,000/- and ₹5,000/- respectively. English translation of the relevant para of the Impugned Order passed by the State Commission is reproduced as under:-
"We perused the documents and evidence. It is proved by perusing these documents that the appellants / non applicants have lost the bag of the answering Respondent/Complainant. The appellants/non applicants have taken the defence that as per the provisions of Carriage by Air Act 1972, the answering Respondent/Complainant is entitled for compensation of ₹3,600/- only. The defence of the appellants/non applicants is not acceptable.
The Answering Respondent/complainant produced the bill of the articles purchased for the marriage, which were contained in the baggage which had been lost by the appellants/non applicants. As per bill, the cost of the lost articles was ₹2,03,785/- which has been purchased by the answering Respondent/complainant from Siya Boutique and Siya Pure Fashion. the bills are filed in the case. As per these bills the cost of the lost articles is ₹ 2,03,785/-. The answering respondent did not accept the cheque given by the appellant / non applicant for ₹3,600/- only and the original cheque is enclosed herewith (Documents is annexed as annexures.). In these circumstances in our opinion, the direction given by the District Forum for awarding compensation of ₹2,03,785/- to the Respondent/Complainant is as per law and needs no interference.
The District Forum awarding ₹1,00,000/- to the answering Respondent/complaint towards compensation for mental agony, in our opinion, keeping view the facts and circumstances of the case, is excessive, which is reduced to ₹25,000/- and similarly, the amount of ₹10,000/- awarded towards cost of litigation is excessive on seeing the circumstances of the case. It will be appropriate to award cost of ₹5,000/- towards cost of litigation instead of ₹10,000/-.
On the basis of aforesaid arguments the appeal of the appellant/non applicants are admitted partly. The order passed by District Forum in para No.15(3) and 15(4) of Order is modified. And it is ordered that the appellant /non applicants/Air India Ltd. shall pay ₹25,000/- instead of ₹1,00,000/- for the mental agony jointly or severally to the answering Respondent /complainant and the appellant /non applicants/Air India Ltd. shall pay ₹5,000/- instead of ₹.10,000/- towards cost of litigation jointly or severally to the answering Respondent/complainant."
7. Feeling aggrieved against the Order dated 25.01.2018 passed by the State Commission, the Opposite Party Airlines has filed the present Revision Petition before us.
8. Mr. Dhanesh Relan, learned Counsel for the Petitioners submitted that the Complainant had not declared the valuation of the articles in accordance with the provisions of Citizens Charter / Contract of Carriage Rule 1972 on Domestic Travel & Bureau of Civil Aviation Security. Despite their best possible efforts, the subject piece baggage remained untraced and they had offered compensation of ₹3600/- at the rate of ₹450/- per kilogram in accordance with the provisions of Citizens Charter / Contract of Carriage Rule 1972. There is no deficiency in service on their part and prayed that the Consumer Complaint be dismissed and the Order passed by the Fora below be set aside.
9. We have heard Mr. Dhanesh Relan, learned Counsel for the Petitioners, perused the Impugned Orders passed by the District Forum and State Commission, the Complaint, the Written Statement and all the documents on record.
10. From the perusal of the material available on record and having given thoughtful consideration to the pleas raised by the learned Counsel for the Petitioner, we are of the considered opinion that the submissions made by the learned Counsel for the Petitioner are not acceptable for the simple reason that there is concurrent finding of the fact that there was deficiency in service on the part of the Petitioner Airline in taking proper care of the baggage of the Respondent/Complainant, which was lost during the course of travel due to which the Complainant has to suffer a loss of ₹2,03,785/-. The State Commission vide its well-reasoned Order dated 25.01.2018 has rightly affirmed the findings recorded by the District Forum that there was deficiency in service on the part of the Petitioner Airline in taking proper care of the baggage of the Respondent/Complainant, which was lost during the course of travel. While passing the Impugned Order dated 25.01.2018, the State Commission had considered all the material evidence on record and we do not find any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission.
11. It is well settled by the Hon'ble Supreme Court in 'Sunil Kumar Maity vs. State Bank of India & Anr.' [Civil Appeal No. 432 / 2022 Order dated 21.01.2022] that the Revisional Jurisdiction of this Commission under section 21(b) of the Consumer Protection Act, 1986 is extremely limited and this Commission cannot set aside the Order passed by the State Commission in Revisional Jurisdiction until and unless there is any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission. For ready reference, relevant paragraph of the Judgment passed by the Hon'ble Supreme Court in 'Sunil Kumar Maity vs. State Bank of India & Anr.' [supra] is reproduced as under:-
"9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. ....."
12. Recently, the Hon'ble Supreme Court in the case of "Rajiv Shukla vs. Gold Rush Sales and Services Ltd. and Ors. [MANU/SC/1120/2022 : (2022) 9 SCC 31] while affirming its earlier view taken in the case of "Rubi (Chandra) Dutta Vs. United India Insurance Company - (2011) 11 SCC 269" that the National Commission has no right to interfere with the concurrent finding of facts of the Fora below in its Revisional Jurisdiction, has held as under:-
"7.1 At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act."
13. In view of the law laid down by the Hon'ble Supreme Court in afore-noted Judgments, we do not find any good ground to interfere with the well-reasoned Order passed by the State Commission and the Impugned Order dated 25.01.2018 passed by the State Commission is upheld. Consequently, the present Revision Petition fails and is hereby dismissed. Keeping in view the facts and circumstances of the case, there shall be no Order as to costs.
14. Vide Order, dated 04.02.2019, while granting the stay this Commission has directed the Petitioner Airlines to deposit 50% of the amount payable in terms of the Order passed by Fora below with the District Forum as pre-condition of Stay. If any amount is deposited with the District Forum in compliance of the said Order, we direct the District Forum to release the said amount alongwith accrued interest, if any, in favour of the Respondent/Complainant within four weeks from today. The Petitioners are directed to pay the remaining balance amount in terms of the Impugned Order dated 25.01.2018 to the Respondent/Complainant within four weeks from today.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER