State Consumer Disputes Redressal Commission
Spicejet Ltd. vs Chander Mohan Ahuja And Anr. on 15 July, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.315 of 2020
Date of institution : 22.12.2020
Reserved on : 04.07.2022
Date of decision : 15.07.2022
Spicejet Ltd., 319, Udyog Vihar, Phase-IV, Gurugram, Haryana, through
Senior Executive-Customer Experience.
.......Appellant/Opposite Party No.2
Versus
1. Chander Mohan Ahuja, S/o Kundan Lal Ahuja R/o 76, Basant Vihar,
Jawadi Road, Dugri, Phase-I, Ludhiana.
.......Respondent No.1/Complainant
2. Diamond Communication, Booth No.64-C, Dugri Main Market, Ludhiana
(through Authorized Signatory).
....Respondent No.2/Opposite Party No.1
First Appeal U/S 41 of the Consumer Protection
Act, 2019 against the Order dated 15.10.2020
passed by the District Consumer Disputes
Redressal Commission, Ludhiana.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Urvashi Agnihotri, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By:-
For the appellant : Sh.Amit Punj, Advocate
For the respondents : None
URVASHI AGNIHOTRI, MEMBER
Spicejet Ltd.-Appellant- has filed the present appeal being aggrieved by the impugned Order dated 15.10.2020 passed by District Consumer Disputes Redressal Commission Ludhiana (in short "the District Commission"), whereby the complaint filed by Chander Mohan Ahuja- F.A.No.315 of 2021 2 complainant has been allowed by directing the appellant/Opposite party No.2 to pay a sum of Rs.50,000/- on account of loss of baggage as compensation to the complainant alongwith "transaction charges" of Rs.11,266/- and also to pay Rs.10,000/- as litigation expenses.
2. Briefly, the facts of the case as made out in the complaint are that one Damandeep Singh resident of Abu Dhabi, a friend of the complainant invited the complainant at Abu Dhabi, whereupon, the complainant along with another friend Pawandeep Singh visited Abu Dhabi on 18.05.2017 on tourist visa through Etihad Airways Abu Dhabi. He along with his friends stayed there from 18.05.2017 to 25.05.2017 and purchased gold ornaments worth Rs.1,13,000/- alongwith other items amounting to Rs.40,000/-, through receipt number Ex.C-3 & 4. On 25.05.2017, the complainant alongwith his friend went to Bangkok through Etihad Airways Abu Dhabi and stayed there for two days. They purchased Jewelry worth Rs.2000/-, Dry fruit - Rs.10,000/-, Perfume-Rs.4500/-, Clothes-Rs.48,000/-, Toys-Rs.12,000/- and Watches of Rs.5000/-. All these purchased items were duly packed in the luggage, before leaving for India. Complainant had already booked two air tickets through opposite party no.1 from Bangkok to Delhi, for scheduled departure from Bangkok on 27.05.2017 at 03.50 a.m., arriving at Delhi on 27.05.2017 at 06.25 a.m. For this journey, he had paid Rs.28,641/- on 10.05.2017 for economy ticket, consisting air fare Rs.11,784/- plus Rs.16,857/- as taxes, surcharges and fees. Before leaving Bangkok, his luggage was duly checked and scanned against inventory for the materials/goods with weight of 21 kg. Said luggage was kept in the custody of officials of opposite party No.2. On arriving at Delhi Airport at 07.00 a.m. on 27.05.2017, his luggage was not delivered to him. The F.A.No.315 of 2021 3 complainant registered a complaint with opposite party No.2 and officials recorded the description of luggage as per their practice, under 'BAGGAGE IRREGULARITY REPORT- bearing No.58076 consisting of contents therein, such as clothes, toys, perfume, dry fruit, watches, 2 gold chain, pendent, ring, etc. All these items were perhaps not written in such inventory intentionally or due to paucity of space. The complainant signed the same under compelling circumstances. Opposite party No.2 apologized for the inconvenience caused to the complainant through email dated 18.06.2017 and also informed that baggage was not traced. However, an amount of Rs.26,943/- was offered to the complainant through email dated 19.06.2017, in full and final settlement of the claim. This was refused by the complainant through email dated 23.06.2017. Opposite party no.2 had also charged transaction charges of Rs.11,266/- which was against Office Order dated 17.12.2012 issued by Director General of Civil Aviation (DGCA). Against these unfair trade practice and deficiency in service, the complainant approached the District Commission, Ludhiana by filing the complaint seeking directions to opposite party No.2 to pay Rs.2 lakhs alongwith interest @12% p.a. for loss of luggage, to refund Rs.11,266/- charged against transaction charges, alongwith interest @12% p.a., till realization and to pay Rs.15,000/- as litigation expenses.
3. Upon notice, opposite parties appeared and filed separate written replies. OP No.1 stated that all the amount received by opposite party no.1 was directly transferred in the account of OP No.2 at the time of booking the tickets and all the services were provided to the complainant by OP No.2. Therefore, OP No.1 had nothing to do with the loss of luggage of the complainant.
F.A.No.315 of 20214
4. Appellant/OP No.2 filed its separate written statement contested the complaint by denying deficiency in service. It was pleaded that its liability in case of loss or damage to the baggage was limited only to Rs.200/- per Kg. for domestic travel and such liability was limited to Rs.1800/- US$ per passenger in respect of international travel as per the Montreal Convention 1999 or Warsaw Convention of 1929. It was further claimed that as per the terms and conditions of the travel ticket of the complainant and clause 13.4.4, OP-2 had no liability for damage to the articles not permitted to be contained in checked baggage, which included money, Jewelry, perishable items, computers, personal electronic devices, negotiable papers, securities or other valuables, and the liability of Airlines in case of loss of baggage was 20US$ per Kg. Hence, the complainant/respondent No.1 was entitled only to a compensation of 420 US$ against the baggage of 21 Kg, amounting to Rs.26,943/-. It was further pleaded that appellant/OP No.2 had already offered the aforesaid amount of Rs.26,943/- to the complainant, which was not accepted by him as he was demanding an exorbitant compensation. It has also been denied by OP No.2 that any unfair trade practice was adopted by it while charging Rs.11,266/- or that the same are prohibited vide order dated 17.12.2012. According to OP No.2, it has charged only ticket amount amounting to Rs.24,818/- and nothing extra and breakup of all charges contained in the ticket stands mentioned on the ticket itself and the charges are neither illegal nor invalid. Therefore, the complainant/respondent No.1 is not entitled to any amount whatsoever, either on account of compensation, or refund of other charges of Rs.11,266/-. However, the District Commission after considering the pleadings of the parties and hearing the arguments, F.A.No.315 of 2021 5 allowed the complaint vide Order dated 15.10.2020 by granted the aforesaid relief.
5. Being aggrieved by the impugned order dated 15.10.2020, opposite party No.2 has come up in appeal before us. Despite notice issued to the respondents on 17.03.2021, neither the respondent nor their counsel has appeared before us till today. The appellant has not filed written submissions, despite number of opportunities afforded to them.
6. We have ourselves gone through the entire record and heard the learned counsel for the appellant/OP No.2. Regarding the preliminary objection, about of the maintainability of complaint before the District Commission, Ludhiana is concerned it is evident from the record that the complainant had got the ticket booked through OP No.1, which is stationed at Ludhiana itself. Therefore, the District Commission, Ludhiana fully possessed the territorial jurisdiction to entertain the complaint, hence, the objection is without any merit.
7. Learned counsel for the appellant/OP No.2 has mainly contended, that the District Commission has allowed the complaint without appreciating the facts on the record. The complainant was aware and conversant about the terms and conditions contained in the e-ticket and as per condition 8.3.4., the passenger must not include in checked Baggage money, currency, jewellery, precious metals, computers, personal electronic devices, negotiable papers or instruments, securities or other valuables business documents, passports and other identification documents or samples. To the extent that it is necessary to carry such items (at the Passenger's risk), they should be carried in the Passenger's Hand Baggage in the cabin. Further, as per condition 8.3.6, if, despite F.A.No.315 of 2021 6 being prohibited, any items referred to in Articles 8.3.1, 8.3.2 and 8.3.4 are included in the Passenger's Baggage, Spicejet shall not be responsible for any loss or damage to such items.
8. Moreover, the appellant/OP No.2 had offered compensation to the complainant in terms of aforesaid stipulation, which was refused by the complainant, even though the loss was suffered by the complainant due to his own negligent and careless conduct. Further, the District Commission without getting the jewelry bills translated which were in Arabic language, accepted the same to be correct and allowed the claim without any legal justification.
9. We find merit in the contention of the learned counsel for the appellant/OP No.2 as it is fully substantiated by the relevant Clauses of the Terms and Conditions, reproduced as under:-
8.3.4.
The passenger must not include in checked baggage money, currency, jewelry, precious metals, computers, personal electronic devices, negotiable papers or instruments, securities or other valuables business documents, passports and other identification documents or samples. To the extent that it is necessary to carry such items (at the Passenger's risk), they should be carried in the Passenger's Hand Baggage in the cabin.
8.3.5 Medicines and toiletries may be carried in limited quantities, which are necessary or appropriate during the Passenger's journey( to the extent that carriage is permitted by the appropriate regulations). Otherwise, many of these items can be carried as air cargo provided they are packet in accordance with cargo regulations. 8.3.6 F.A.No.315 of 2021 7 If, despite being prohibited, any article, referred to in Articles 8.3.1. 8.3.2 and 8.3.4 are included in the passengers baggage, Spicejet shall not be responsible any loss or damage to such items. BAGGAGE 13.4.1 Except in the case of an act or omission done with intent to cause damage or recklessly and with knowledge that damage would probably result, SpiceJet's liability in the case of damage of Baggage shall be limited to INR 200 per Kg up to a maximum of INR 3000 only during domestic travel.
"The liability for loss, delay or damage to baggage is limited by the Montreal Convention 1999 or Warsaw Convention 1929 (as may be applicable). Where or Warsaw Convention 1999 applies, such liability is limited to a maximum of 1,131 SDRs (approximately) US$1,800) per passenger for both checked and unchecked baggage. Under the Warsaw Convention 1929, liability for loss, delay or damage to baggage is limited unless a higher value is declared in advance and additional charges are paid. For most international travel under Warsaw Convention 1929 (including domestic portion of international journeys), the liability limit is approximately US$9.07 per pound (US$20.00 per kg) for checked baggage and US$400.00 per passenger for cabin baggage.
If Spicejet proves that the damage was caused by or contributed to by the negligence of the injured person. SpiceJet may be exonerated wholly or partly from its his liability. If the weight of the Passenger's Checked Baggage is not recorded on the baggage check, it is presumed that the total weight of the Checked Baggage does not exceed the applicable free baggage allowance."
13.4.2 SpiceJet will not liable for damage to Hand Baggage unless such damage is caused by SpiceJet's negligence.
13.4.3 SpiceJet is not liable for any damage caused by the Passenger's Baggage. The Passenger shall be responsible for any damage caused by the Passenger's Baggage to other persons or property including SpiceJet's property.
13.4.4 F.A.No.315 of 2021 8 SpiceJet shall have no liability whatsoever for damage to articles not permitted to be contained in Checked Baggage under Article 8.3, including fragile or perishable items, items having a special value, such as money, jewelry, precious metals, computers , personal electronic devices, negotiable papers, securities or other valuables, business documents, passports and other identification documents, or samples. 15.1 SpiceJet is not liable for any loss or damage occasioned by delay in the carriage by air or Passengers or Baggage. Receipt without complaint of registered baggage on the termination of the journey shall be prima facie evidence that the baggage has been delivered correctly and in good condition.
10. In view of the above legal position and contractual stipulation between the parties as accepted by the International Convention, we give the following findings;-
i. Respondent No.1/complainant was having luggage of 21 Kg and by calculating @20US$ per Kg total amounting to Rs.26,943/-, which was offered but it was not accepted.
ii. As per the stand of respondent No.1/complainant some more amount stating to be charged as transaction charges by the appellant separately vide Invoice dated 10.05.2017. However, it was not proved by any document/evidence by respondent No.1/complainant. The District Commission has not dealt with this issue properly and has awarded compensation as well as some amount against invoice dated 10.05.2017, whereas it was not payable. This finding recorded by the District Commission is contrary to the fact and evidence. The respondent No.1/complainant was entitled only for an amount of Rs.26,943/- which was offered by the appellant/OP No.2. F.A.No.315 of 2021 9
11. The issue of providing compensation on account of loss/damage of baggage was also subject matter of case before the Hon'ble National Commission in case titled as "Spicejet Ltd. Vs Rajender Kaur", Revision Petition No.3215/2014, decided on 22.08.2016, wherein it was held as under:-
"During the course of hearing, the counsel for Airlines brought to our attention clause No.14 and 19 of the Spice Jet Regulations governing terms of carriage and baggage. Clause 14 provides that "Spice Jet highly recommends that you remove all valuables (cameras, jewellery, money, electronics, perishable etc.) and medication from your check-in luggage and place them in your carry-on. Spice Jet will not accept responsibilities for these items. In case, the passenger decides to carry any valuable in their checked-in baggage against the above advice, they will do this at their own risk and shall not hold Spice Jet responsible for any pilferage/damage etc. to such valuables. They shall lay no claim against Spice Jet, its employees, agents, successors etc. in this regard". Further, Clause 19 provides that "the carrier's liability for loss or damage to baggage is limited to Rs.200 per kg with a maximum of Rs.3,000/-. The carrier assumes no liability for fragile or perishable articles".
12. In view of aforesaid factual and legal position, we partly allow the appeal and modify the order dated 15.10.2020 passed by the District Commission to the extent that respondent No.1/complainant is held entitled to Rs.26,943/- instead of Rs.50,000/- on account of loss of baggage as awarded by the District Commission. The respondent No.1/complainant is not entitled to the amount of Rs.11,266/- as transaction charges. The amount of Rs.10,000/- as litigation expenses awarded by the District Commission is upheld with the above referred F.A.No.315 of 2021 10 modification. Accordingly, the appellant/OP No.2 is directed to pay the following amounts to the respondent No.1/complainant:-
i) to pay Rs.26,943/- to respondent No.1/complainant on account of loss of baggage; and
iii) to pay Rs.10,000/- as litigation expenses.
The order shall be complied with by the appellant/OP No.2 within a period of 45 days from the date of receipt of certified copy of the order.
13. The appellant had deposited an amount of Rs.25,000/- and Rs.11,140/- at the time of filing of the appeal with this Commission. Said amounts, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The appellant/OP No.2 and respondent No.1/complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
14. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(Justice Daya Chaudhary) President (Rajinder Kumar Goyal) Member (Urvashi Agnihotri) Member July 15, 2022 Rupinder 2