State Consumer Disputes Redressal Commission
Indigo Inter Globe Aviation Ltd. & Anr. vs Mr.Manish Nagpal on 8 April, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/2015/511
Instituted on : 20.10.2015
1. Indigo, Inter Globe Aviation Limited,
Global Business Park,
Gurgaon, Haryana
2. Indigo Inter Globe Aviation Limited,
Mana Airport,
Raipur (C.G.) ... Appellants.
Vs.
Mr. Manish Nagpal, S/o Mr. A.D. Nagpal,
R/o : Flat No.C-2/402, V.I.P. Karishma Apartment,
Khamhardih, Post Shankar Nagar,
Raipur (C.G.) 492001 ... Respondent
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Ankit Jain, for the appellants.
Shri Narendra Sahu, for the respondent.
ORDER
Dated : 08/04/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 10.08.2015, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), in Complaint Case No.129/2014. By the impugned order, the complaint of the respondent (complainant) has been allowed and the District Forum has directed the appellants (OPs) to //2 // jointly and severally pay within a period of a month from the date of order as under :-
(a) The appellants (OPs) will pay to the respondent (complainant) a sum of Rs.42,673/- (Rupees Forty Two Thousand Six Hundred Seventy Three) towards cost of the clothes and Rs.5,000/- (Rupees Five Thousand), towards cost of suitcase totalling Rs.47,673/- (Rs. Forty Seven Thousand Six Hundred and Seventy Three) along with interest @ 9% p.a. from the date of filing of the complaint i.e. 11.03.2014 till realisation.
(b) The appellants (OPs) will pay a sum of Rs.10,000/- (Rs. Ten Thousand) to the respondent (complainant) towards compensation for mental agony.
(c) The appellants (OPs) will pay to the respondent (complainant) a sum of Rs.2,000/- (Rupees Two Thousand) towards advocate fees and cost of litigation.
2. Briefly stated the facts of the complaint of the respondent (complainant) are that for discharging family liability he decided to go to Chandigarh from Raipur via Delhi on 30.11.2013. The respondent (complainant) purchased a ticket of Indigo Air Lines for flight no.6 E 454 time 7.25 P.M. from Raipur to New Delhi at the cost of Rs.5,097/-. After purchasing ticket from the appellant No.1 (O.P.No.1) for the purpose of starting journey, the respondent (complainant) appeared before the appellant No.2 (O.P.No.2) after showing ticket, the respondent (complainant) was allowed to enter. The respondent (complainant) was //3 // carrying with him a suitcase in which daily use items like clothes and woollen clothes valuing Rs.42,673/- and cash amounting to Rs.25,000/- totalling Rs.67,673/- were kept, which were accepted and a boarding pass and luggage tag no.0312987968 was allotted to the respondent (complainant) and seat No.20A was issued and the weight of the above suitcase was mentioned 15 kg. The respondent (complainant) completed the journey of Raipur to Delhi from the above flight and after departing in the Delhi Air Port he was waiting in Conveyor Belt which is established in the prescribed place for obtaining his suitcase from the appellant No.2 (O.P.No.2). The respondent (complainant) was waiting in the Conveyor Belt for obtaining above suitcase, but he could not receive suitcase. The respondent (complainant) waited for stipulated time but even then he could not receive suitcase. Thereafter the respondent (complainant) contacted to the office which is established in the air port and gave information regarding not receiving the suitcase and the appellants (OPs) tried their level best to search the suitcase through luggage tag but they were unsuccessful. Due to deficiency in service committed by the appellants (OPs), the authorized employee of the appellants (OPs) on being complaint made by the respondent (complainant) registered a Property Irregularity Report (Schedule 2) and provided the copy thereof to the respondent (complainant) in which the respondent (complainant) and the employee of the appellants (OPs) put their signatures. The articles to the tune of Rs.67,673/- and cash amounting to Rs.5,000/- which were kept in the suitcase have not been //4 // received . The respondent (complainant) was required to go to Chandigarh for the family purpose and after lodging complaint he had incurred Rs.25,000/- in purchasing daily use items and new cloths for which the appellants (OPs) are responsible and liable. After returning the respondent (complainant) contacted the appellant (complainant) through telephone and e-mail and sought information in this regard and the appellants (OPs) replied that the suit case has not been received and the appellants (OPs) are agreed to pay compensation to the tune of Rs.3,000/- to the respondent (complainant). The respondent (complainant) has clearly told the appellants (OPs) that due to deficiency in service committed by them and non receipt of the suitcase the respondent (complainant) suffered loss of Rs.72,673/- and a sum of Rs.25,000/- was spent by the respondent (complainant) for purchasing articles for performing journey, thus he suffered loss of total amount of Rs.97,673/-. The respondent (complainant) gave information regarding the loss suffered by him to the appellants (OPs) but even then the appellants (OPs) did not give satisfactory reply and also did not pay the amount of Rs.97,673/- to the respondent (complainant). The appellants (OPs) are liable to pay amount of 97,673/- because the loss was suffered by the respondent (complainant) due to deficiency in service committed by the appellants (OPs) and the appellants (OPs) have failed to make avail the suitcase of the respondent (complainant) to him. Hence the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
//5 //
3. The appellants (OPs) filed their joint written statement and averred that the respondent (complainant) has filed the present complaint against IndiGo Airlines, whereas there is no corporate entity by such name. Hence, the complaint is bad for misjoinder / non-joinder and is liable to be dismissed as such. The Indigo Airlines which is owned, managed and operated by InterGlobe Aviation Ltd., a company duly registered under the Indian Companies Act, 1956 having its registered office at Central Wing, Ground Floor, Thaper House, 124 Janpath, New Delhi 110001. Hence, the complaint is not maintainable in its present form and the complaint ought to be dismissed for this reason alone. The complaint is not maintainable in as much as the District Forum has no jurisdiction to entertain the present disputed. As per the "Conditions of Carriage" of Indigo, which constitute a valid and binding contract between the complainant and the opposite parties, all disputes are subject to the jurisdiction of Delhi High Court only. The complainant giving acceded to the said conditions of carriage prior to making booking, ought not to be permitted to avoid his binding contractual obligations by resorting to a vexatious litigation by way of present complaint. As such the District Forum ought to refrain from entertaining the instant complaint and dismiss the same with exemplary costs. The relevant extract of the conditions of carriage of Indigo is reproduced hereunder :-
//6 // "Other conditions"
".... All disputes shall be subject to the jurisdiction of the Courts of Delhi only."
The instant complaint is barred on account of lack of jurisdiction and is accordingly liable to be dismissed on this ground alone being contract to the contract between the parties. The instant complaint is also liable to be rejected with exemplary costs on account of the complainant suppressing material facts and documents viz., the Conditions of Carriage which constitute a binding contract between the complainant and the opposite parties. All the bookings generated for IndiGo's flight are governed by IndiGo's fare rules and Conditions of Carriage and the IndiGo Conditions of Carriage that are available at Airport Counters or www.goindigo.in and, as stated above, are contractually binding upon the parties, including the complainant . The complaint is also liable to be rejected with exemplary costs in view of the fact that the complaint is entirely frivolous and vexatious and the contents of which are false to the complainant's knowledge. The complainant has clearly improved upon his version of the actual facts and events in order to extort monies from the Opposite Parties on entirely false and untenable grounds as is evident from the following facts :
a. That on arrival of the complainant at Delhi Airport on 30.11.2013, the complainant approached the officials of the OPs and informed that his baggage bearing Tag No.0312987968 was missing.
//7 // b. Accordingly, the officials of the OPs, in terms with the Conditions of Carriage, immediately gave the complainant a PIR form which is a Property Irregularity Report with the particulars of the missing baggage to enable the OPs to find the baggage. However, despite best efforts of the OPs, the missing bag could not be traced, therefore, the OPs vide email dated 20.12.2013, in terms of the Conditions of the Carriage offered to compensate the complainant an amount of Rs.3,000/- (Rupees Three Thousand Only) as the maximum liability that can be compensated, The complainant for the reasons best known to him did not accept the said amount and has filed instant complaint clearly exaggerating its claim to extort money from the OPs.
c. In this regard, the complainant vide email dated 17.12.2013 particularly mentioned that the missing baggage contained clothes and other essential only. In the email, no value of clothes and essentials were mentioned by the complainant. But under the application for compensation made before the District Forum, the complainant had included the flowing damages :-
i. Daily used items, clothes and woollen clothes Rs.42,673/-
ii. Cash Rs.20,000/-
iii. Suitcase. Rs. 5,000/-
iv. Daily used items and new apparels
(purchased at Delhi) Rs.25,000/-
//8 //
To ascertain the value of the following damages, no basis is given by the complainant with supporting evidences or tax invoices. Also, under the aforesaid email nowhere the values of lost items including cashing amounted to Rs.25,000/- (Rupees Twenty Five Thousand Only) was mentioned and therefore, it is clearly an improvement of facts with exaggerated claims. For that, in the event there was such a loss, the same would also have been mentioned in the email sent by the complainant to the OPs. The OPs cannot be held liable for the loss caused apart from the admitted liability admissible under the conditions of Carriage, fact of which has already been communicated to the complainant. According to the OPs Condition of Carriage :
"IndiGo shall have no liability whatsoever for damage to articles not permitted to be contained in Checked Baggage as per the provisions of these Terms & Conditions (including, without limitation, fragile or perishable items, items having a special value such as money/."
Therefore, in the light of the aforementioned Conditions of Carriage, the submissions with respect to the suitcase with Tag No.0312987968 allegedly containing Rs.25,000/- in cash is denied for want of knowledge and further the OPs cannot be held responsible for the purported loss caused, if any. On inquiring with the OPs staff, the complainant was guided //9 // towards filling the Property Irregularity Report (PIR) which would assist the OPs to trace the missing luggage on the basis of description provided therein. The OPs made all efforts to trace the missing baggage but could not be found and therefore, offered the complainant an amount of Rs.3,000/- (Rupees Three Thousand Only) towards compensation in terms of the maximum liability as per Conditions of Carriage. The complaint is liable to be dismissed.
4. The respondent (complainant) filed documents. Annexure 1 is original Boarding Pass P.N.R. No.G-3 I.S.S.R. dated 30.11.2013, Annexure 2 is original Property E Regularity Report dated 30.11.2013, Annexure 3 is original ticket dated 16.11.2013, Annexure 4 are original email dated 08.12.2013 to 22.01.2014, Annexure 5 are photocopies of the bills of the items purchased by the respondent (complainant) dated 02.08.2013 to 15.11.2013, Annexure 6 is original legal notice dated 23.01.2014 sent by Shri Fizi Gwalre, Advocate to the appellants (OPs), along with original postal receipts, Annexure 7 is original acknowledgement dated 24.01.2014, Annexure 8 is original acknowledgement dated 25.01.2014, Annexure 8 is Tack Result for EC980608905IN.
5. The appellants (OPs) have also filed documents. Document Annexure R/1 is copy of the Indigo Conditions of Carriage, Annexure R/2 is copy of email dated 17.12.2013 from the complainant, Annexure R/3 is copy of email dated 20.12.2013 to the complainant.
//10 //
6. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint of the respondent (complainant) and directed the appellants (OPs) to pay compensation to the respondent (complainant), as mentioned in para 1 of this order.
7. Shri Ankit Jain, learned counsel appearing for the appellants (OPs) has argued that the District Forum, Raipur (C.G.) has exceeded its territorial jurisdiction in view of specific clause 18 of the Terms and Conditions of Carriage. He further argued that the impugned order passed by the learned District Forum, is erroneous and the District Forum has wrongly fastened liability on loss of baggage of the respondent on the appellants (OPs). The respondent (complainant) is only entitled to get Rs.200/- per kg and maximum Rs.3,000/- in respect of loss of baggage from the appellants (OPs). The appellants (OPs) are ready to pay the said amount to the respondent (complainant), but the respondent (complainant) is not willing to receive the said amount form the appellants (OPs). Learned District Form has wrongly awarded a sum of Rs.47,673/- (Rs.42,673/- + Rs.5,000/-) - and a sum of Rs.10,000/- towards compensation for mental agony to the respondent (complainant) which are highly exorbitant. The respondent (complainant) is not entitled to get any compensation from the appellants (OPs), therefore, the appeal of the appellants (OPs) be allowed and the impugned order be set aside. He placed reliance on A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem, 1989 AIR 1239, //11 // 1989 SCR (2) 1; Appeal (Civil) 7653 of 2004 - Shree Subhlaxmi Fabrics Pvt. Ltd. Vs. Chand Mal Bardia and others decided by Supreme Court on 29.03.2005; Civil Appeal No.4925 of 2011 - InterGlobe Aviation Ltd. Vs. N. Satchidanand, decided by Supreme Court of India on 04.07.2011; Appeal Case No.153/2010 - Mr. Rajeev Mehta Vs. The C.E.O. Go Airlines (India) Pvt. Ltd. and another, decided by State Consumer Disputes Redressal Commission, Union Territory Chandigarh on 28.04.2011; Revision Petition No. 28 of 2008 - Shiv Garg Vs. Lufthansa German Airlines & Ors. decided by National Consumer Disputes Redressal Commission on 24.04.2012; and First Appeal No.A/12/250 - Adil Irshad Saiyed Vs. Jetlite India Ltd. decided by State Consumer Disputes Redressal Commission, Maharashtra on 14.08.2012.
8. Shri Narendra Sahu, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the learned District Forum and submitted that the impugned order, does not call for any interference by this Commission. He placed reliance on Spicejet Ltd. & Anr. Vs. Atanu Ghose (Dr.) I (2016) CPJ 385 (NC).
9. We have heard arguments of both the counsel and have also perused the record of the District Forum.
10. Section 11(2) of the Consumer Protection Act, 1986 runs thus :-
"(2) A complaint shall be instituted in District Forum within the local limits of whose jurisdiction -
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the //12 // complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or, carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry or business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
11. We have perused the complaint filed by the respondent (complainant) before the District Forum.
12. The respondent (complainant) pleaded in para 2 of the complaint that on 30.11.2013 he decided to go Chandigarh from Raipur via Delhi. In para 3 of the complaint, the respondent (complainant) further pleaded that he purchased a ticket of Indigo Air Lines for Flight No.6 E 454 Schedule Time 7.25 P.M. from Raipur to New Delhi. At the cost of Rs.5,097/- at Raipur. It appears that the place of boarding through air journey was Raipur and the luggage was also booked at Raipur Air Port. The branch office of Indigo Inter Globe Aviation Limited is also situated at Mana Air Port, Raipur (C.G.). It appears that the appellants (OPs) are carrying their business at Raipur and a part of cause of action has accrued at Raipur (C.G.), therefore, merely mentioning by the appellants (OPs) in Conditions of Carriage that all disputes are subject to Courts of Delhi, it is not sufficient to ousted the jurisdiction of the District Forum, //13 // Raipur, therefore, we find that the District Forum, Raipur has jurisdiction to take cognizance in the matter.
13. The respondent (complainant) pleaded that he booked suitcase which contained clothes of daily use and woollen clothes valuing Rs.42,673/- and cash amounting to Rs.25,000/- and the weight of the suitcase was 15 kg and seat No.20A was allotted to the respondent (complainant) and luggage tag no.0312987968 was also issued to the respondent (complainant). The appellants (OPs) did not dispute regarding issuance of tag No.0312987968 to the respondent (complainant). It appears that the respondent (complainant) booked suitcase and above tag number was issued by the appellants (OPs) to the respondent (complainant). It is also not disputed that the suit case of the respondent (complainant) had not been received by him and the suitcase was lost. The respondent (complainant) sent email (Annexure 4) to the office of the appellants (OPs) in which he specifically mentioned that when the respondent (complainant) reached Delhi Airport, he found that his luggage was missing from conveyer belt and he waited for some time and thereafter reported to airline counter and he lodged Property Irregularity Report (PIR). It appears that the respondent (complainant) immediately reported to the authorities of the appellants (OPs). In para 20 of the written statement, the appellants (OPs) admitted that on being inquired with the appellants (OPs), the respondent (complainant) was guided towards filling the Property Irregularity Report (PIR). It appears that the respondent (complainant) had not received his suitcase, which //14 // was lost from the appellants (OPs). In the appeal memo the appellants (OPs) mentioned that According to the Carriage by Air Act, 1972 the respondent (complainant) is only entitled to get compensation @ Rs.200/- per kg with a maximum of Rs.3,000/- only which was already offered to the respondent (complainant) vide email dated 20.12.2013. The above submission of the appellants (OPs) is not acceptable.
14. In Spicejet Ltd. & Anr. Vs. Atanu Ghosh (Dr.) (Supra), Hon'ble National Commission has observed thus :-
"4. Counsel for the petitioner has also cited a judgment of this Commission reported in Egypt Air v. Saileelavathi, II (2006) CPJ 43 (NC), wherein, it was held that liability of carrier USD 20 per kilo, subject to maximum of 20 kg was accepted. Payment of Rs.30,000/-
awarded in that case.
5. All these arguments have left no impression upon us. The consumer Court is bound to take the 'down to earth' view. It must be borne in mind that a hand-baggage/attache, without any contents, itself costs about Rs.9,000/- to Rs.10,000/-. The statement made by the complainant clearly mentions that the said luggage contained goods worth Rs.90,000/-.
6. The State Commission has mentioned that the Hon'ble Supreme Court in the case of Consumers & Citizens Forum v. Karnataka Power Corporation, 1994 (1) CPR 130, has laid down that the provisions of this Act give the 'consumer', additional remedies, besides, those they may be available under other existing laws. The Apex Court's above authority was followed in case titled as Emirates v. Dr. Rakesh Chopra, III (2013) CPJ 500 (NC), by this Commission in First Appeal No.204 of 2008 decided on 11th April, 2013 wherein it was held :-
//15 // "In the instant case, no doubt the Appellant Airlines had sought to settle the consumer's 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 Respondent's 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 Appellant's 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 lakh. We see no reason to disagree with the compensation awarded, which we feel, is fully justified under the circumstances."
15. In Devraj Sharma Vs. KLM North West Airlines, I (2014) CPJ 85 (NC), Hon'ble National Commission has observed that "Journey of complainants was not within United States, but it was international journey from United States to Delhi. As per terms and conditions of ticket, liability was limit up to $20 per kg. meaning thereby, every passenger was entitled to maximum 640 US $ in check baggage. District Forum rightly held that limit of US $ 2500 per baggage cannot apply. Impugned order upheld."
16. The respondent (complainant) pleaded that in the suitcase he kept clothes and cash amounting to Rs.25,000/- the total value of the goods kept in the suit case was Rs.67,673/-.
17. Learned District Forum has observed in para 8 of the impugned order that the respondent (complainant) has filed copy of bills regarding //16 // purchase of the clothes, but the respondent (complainant) is unable to prove that he kept cash amount to Rs.25,000/- in the suitcase. In Property Irregularity Report (PIR), the respondent (complainant) has not mentioned regarding cash amount, therefore, learned District Forum held that the respondent (complainant) is not entitled to get Rs.25,000/-
and it awarded Rs.42,673/- to the respondent (complainant) i.e. cost of the clothes and Rs.5,000/- i.e. cost of the suitcase.
18. Learned District Forum has rightly awarded a sum of Rs.42,673/- to the respondent (complainant) and a sum of Rs.10,000/- towards compensation for mental agony and Rs.2,000/- towards cost of litigation. The impugned order dated 10.08.2015, passed by learned District Forum is just and proper and does not suffer from any irregularity or illegality and does not call for any interference.
19. Therefore, the appeal filed by the appellants (OPs) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S.Sharma) (Ms. Heena Thakkar) (D.K.Poddar) (Narendra Gupta)
President Member Member Member
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