State Consumer Disputes Redressal Commission
Sri Barij Baran Das vs The Officer, Customer Affairs, ... on 12 August, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. CC/08/57 DATE OF FILING: 13.10.2008 DATE OF FINAL ORDER: 12.08.2009 COMPLAINANT Sri Barij Baran Das S/o Late Tara Pada Das 63, Sarat Bose Road Kolkata 700 025 OPPOSITE PARTIES 1) The Officer Customer Affairs, Emirates Group Headquarters P.O. Box 686, Dubai, United Arab Emirates 2) The Manager, Emirates Trinity Tower, 83, Topsia Road (South) Kolkata 700 046 3) The Sales Manager-East, Emirates Trinity Tower, 83, Topsia Road (South) Kolkata 700 046 4) Emirates Airline C/o Emirates P.O. Box 686, Dubai, United Arab Emirates BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER FOR THE COMPLAINANT : Mr. S. Banerjee, Advocate FOR THE OPPOSITE PARTIES : Mr. D. Ghosh, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT The brief facts as stated in the complaint are that the complainant, a senior citizen, purchased e-Tickets for himself and his wife on 03.9.07 from the agent of Emirates Airlines at a cost of Rs.70,512/- for a trip from Kolkata to Manchester via Dubai and back from Manchester to Kolkata via Dubai for visiting his daughter a resident of Lancashire for medical check up. The journey was scheduled on 24.9.07. The complainant and his wife reached Manchester from Kolkata by the flight of the OPs 2 to 4 being flight No.EK 547 via Dubai. The return journey was scheduled on 30.3.08 by the flight of the OP in flight No.EK 018 and from 31.01.08 from Dubai to Kolkata by flight No. EK 546. The complainant made telephonic arrangements with Emirates London to ensure provision of a wheel chair at Manchester and Dubai Airports for the petitioner to prevent his physical discomfort as the time between the flight arriving in Dubai and the connecting flight from Dubai to Kolkata only 1hour 45 minutes. The complainants daughter explained everything to the Airlines Authority when the OP Emirates confirmed wheelchair services. Before the journey date the complainants daughter again made a telephonic reconfirmation with the Emirates Airlines London when the Emirates Office reconfirmed. The flight from Manchester took off an hour late and on reaching Dubai the officials of OP informed the complainant that no wheelchair would be available for at least one hour and such information was given at the very last minute leaving only 45 minutes in complainants hand to transit from one flight to the connecting flight which was not possible for the complainant and complainant missed the connecting flight from Dubai to Kolkata. As a result at Dubai the complainant was given a boarding pass of Emirates flight No.EK 506 upto Mumbai.
The complainant was told that his luggage would accompany his flight upto Mumbai instead of Kolkata. Arriving at Mumbai International Airport the complainant found that his luggage containing medicines and medical advice did not arrive at Mumbai. The complainant was forced to board another plane of Jet Airways from Mumbai to Kolkata. The luggage of the complainant did not reach him at all. As no relief could be obtained inspite of repeated efforts by the complainants, this complaint was filed praying for Rs.30 lacs as compensation.
After the written version was filed and the parties adduced evidence followed by questionnaire and reply, the case was taken up for final hearing.
Heard Mr. Shyamal Banerjee, the Ld. Advocate for the Complainant who contended that luggage of the complainant was finally lost and never reached the complainant and on demand the OPs offered only $ 600 although the contents and the suitcase itself were of much high value and even such insufficient amount was offered long after the loss of the luggage. Demand has been made by the complainant for further damage and compensation. The second contention of the complainant is that inspite of proper request and confirmation by the Airlines Authority, wheelchair was not provided to the complainant at Dubai Airport which resulted not only in physical inconvenience but also the connecting flight was missed particularly by reason of the fact that the flight reached Dubai late leaving a shorter time gap and in absence of the wheelchair the complainant could not reach in time to avail the flight. It is argued that the consequence of flight missing was not only harassment but the complainant was not provided with a ticket to a Kolkata bound flight but in a flight to Mumbai wherefrom the complainant was required to purchase his ticket for Kolkata from his own funds.
In respect of loss of luggage for the fault of airlines, it is argued that fault stood admitted when damage of $ 600 was offered and such damage being insufficient a proper damage and compensation should be directed. In support of his contention the Ld. Advocate for the complainant relied on the judgments in the cases of Alok Tandon-Vs-Scandinavian Airlines Systems reported in 2008(4) CPJ 357, Air France-Vs-Sonali Arora reported in 2008(2) CPJ 202, Subodh C. Gupta(Dr.)-Vs-Scandinavian Airlines Systems reported in 2008 (4) CPJ 48 and Air Decan (Decan Aviation Ltd.)-Vs-Jyoti Swaroop Sharma reported in 2009(2) CPJ
101. It is argued that in all those cases though goods were missing for a sort while and ultimately reached the owner, huge compensation had been directed and in the case of the complainant in the present case the goods were lost finally and never could reach the complainant and, therefore, compensation of much higher quantum may be granted in favour of the complainant. With regard to not providing wheelchair service the complainant contended that he not only suffered physically being deprived of the wheelchair service but he missed the flight to Kolkata in which he was having a confirmed booking and he was again made to travel to Mumbai wherefrom he had to spend money and procure ticket for availing another flight from Mumbai to Kolkata. For the harassment and mental agony, compensation has been asked for. As regards the value of the lost articles the documents produced by the complainant having not been challenged by the OPs, the compensation has been prayed taking into consideration the said value. Baggage Inventory Report has been also relied upon.
Mr. D. Ghosh, the Ld. Advocate for the Respondent argued that Sections 18 of the Carriage by Air Act, 1972 read with Rules 22 and 25 of the Rules framed under the said Act entitles the claimant for loss of goods @ 20 $ per Kg. In the case of the complainant, it is argued that declared weight of the goods was 17 Kg. but still for 20 Kg. being the maximum weight for which payment was to be made in case of loss of goods, the total $ 400 was offered. On request of the complainant further $ 200 as compensation was offered as a goodwill gesture. Articles 8.3, 8.33 and 15.5.3 of the schedule to the Rules were referred to show the limited liability of the Airlines Authority in case of loss of articles.
It is argued that while insisting on inconvenience due to missing medicines etc. Rules are prevailing providing that such articles were not to be kept with the check in luggage. It is argued further that complainant never gave any declaration as regards special nature of the contents of the luggage which could entitle him to a larger damage. In this connection reference was made to judgment in the cases of Dr. S. Venkatesh-Vs-Elal Israel Airlines reported in 2000(3) CPJ 161, Mrs. Helen Wallia-Vs-Cathay Pacific Airways Ltd. reported in 2002 CCC 11 and The Manager, Air India Ltd.-Vs-India Everbripht Shipping & Trading Co. reported in 2001(2) CPJ 32.
The Ld. Advocate also relied on the judgment in the case of Gargi Parsai-Vs-K.L.M. Royal Dutch Airlines reported in 1996(1) CPJ 2.
Considering the respective contentions of the parties with regard to the loss of luggage we find that the fact of lass of luggage is admitted. The OPs already offered $ 600 relying on their Rules. It is also correct that the valuation of the articles lost has been disclosed by the complainant. The OPs have not effectively disputed such value declared by complainant either in pleadings or in questionnaire to complainant. Therefore, the same having not been disputed by OPs can be a safe basis for assessment of compensation. The Baggage Inventory Form on record shows vital personal papers at serial no.15 do not indicate what papers were lost and how their value has been assessed. Same is the position regarding Miscellaneous items at serial no.17. For the rest of the items the purchase price declared comes to little over Rs.2 lakhs. Value of such used articles on the date of loss can be assessed at Rs.1 lakh and, therefore, we are of the opinion that the sum offered by the Airlines Authority was not sufficient to protect the value of the articles. Over and above the same the complainant is entitled to compensation for loss of the articles like books and for mental agony suffered.
With regard to withholding of service of wheelchair, we find the complainant has pleaded in his complaint that for wheelchair his daughter talked to the Airlines Authority and got a confirmation from them and the said daughter again got it confirmed from the authorities before the journey of the petitioner. But we find that the daughter has not even affirmed any affidavit disclosing the actual facts and the substance of the talks between herself and the Airlines Authority are not available on record. There being no documentary evidence the daughter was the only person who could prove the confirmation by the Airlines Authority regarding the request for wheelchair service. But such evidence having been kept withheld and no explanation having been given for such withholding, the case of the complainant that a request for wheelchair service was made and promise for such service was given on behalf of the Airlines Authority has not been proved. In such circumstances not providing wheelchair service by the OPs to the complainant at Dubai Airport did not amount to any deficiency in service.
It is the case of the OPs that they provided wheelchair to the complainant at Manchester and in Dubai on oral request could not provide wheelchair earlier. The mere fact that wheelchair was provided on request in Manchester, does not prove itself that the complainant was booked formally as wheelchair passenger. For the missing medicines as the rules say that those are not to be kept in check-in luggage, deprivation of such materials has no consequence as regards compensation. From the materials on record as the request for wheelchair service and the confirmation thereof by Airlines Authority, has not been proved, this contention of the complainant cannot be accepted.
As regards delay in arrival at Dubai of the flight the complainant has not been able to show how he missed the flight for Kolkata. It is not his case that he cannot walk at all. Thus, even if wheelchair was not provided there was no reason for the complainant not to reach the place for boarding the flight within the time admittedly available to him. It has not been explained by the complainant how even the time 45 minutes was found short for taking the connecting flight and whether any effort was made for the same. In view of the above finding the consequences of missing the Kolkata flight having confirmed ticket for the complainant and taking a flight to Mumbai and then to Kolkata, does not entitle the complainant any compensation as the OP/Airlines Authority are not found responsible for such consequences in view of our finding as regards withholding of wheelchair service to the complainant. With regard to extra expenditure for the Kolkata flight the amount having not been disclosed with proof, the reimbursement cannot be directed.
The law cited in various cases regarding compensation for delayed luggage delivery helped us in assessing the compensation for the loss of goods/articles of the complainant.
In view of the above findings the complaint is allowed and the OPs are directed to pay to the complainant Rs.1,00,000/- on account of loss of luggage and Rs.50,000/- as compensation within a period of sixty days from the date of this order and in case of default the complainant will remain entitle to recover the above amount from the OPs with the assistance of this Commission along with interest @ 9% per annum for the period of default. There will be no order as to costs.
(S. Majumder) (Justice A. Chakrabarti) MEMBER(L) PRESIDENT