State Consumer Disputes Redressal Commission
A. P. Sharma vs United Airlines on 11 March, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 11.03.2008 Complaint No.- C-60/1999 Sh. A. P. Sharma, .. Complainant Proprietor, M/s Anigh Export International, House No.395, Sector-19, Faridabad. Versus M/s United Airlines, .. Opposite Party Ambadeep Building, Kasturba Gandhi Marg, Connaught Place, New Delhi-1100 01. CORAM: Justice J.D. Kapoor, .. President Ms. Rumnita Mittal, .. Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. The complainant is engaged in the business of export of herbal and handi-crafts products. He was to participate in a trade fair in Mexico City from 3rd March to 9th March, 1998 to display his products. He reached San Francisco by Lufthansa flight and from there to Mexico he travelled on the OP Airlines flight and when he reached Mexico city, he found that his baggage containing the products to be displayed in the trade fair was missing. Complainant lodged complaints with the representative of the OP. However, the baggage could be traced and handed over to the complainant only on 12.03.98 by which time the trade fair had already concluded. According to the complainant, due to non-display of the goods in the trade fair, he suffered loss of business as well as mental agony and inconvenience. Complainant has claimed a total of USD 26,727/- on various counts including USD 20,000/- on account of mental agony.
2. According to the OP, complainant was carrying three pieces of baggage with him and only one of these was delayed and not lost as alleged and the same was handed over to the complainant on 12.03.1998. It is further stated that OP is not liable for any consequential damage arising out of delay/loss of baggage and in any case such compensation is subject to proof of actual loss and damage suffered and cannot exceed USD 635 as per the terms of the Warsaw Convention and the terms printed on the ticket jacket of the OP which limits the liability of the OP.
Plea of territorial jurisdiction has also been raised as the cause of action arose only at San Francisco.
3. The complainant has filed a rejoinder stating that the lost baggage contained the goods which were to be displayed in the trade fair. As to the territorial jurisdiction, it is stated that OP works for gain in India and has its office in Delhi and hence, this Commission has the territorial jurisdiction in the matter.
4. It is an admitted case of delay in delivery of three days i.e. bags were to be delivered on 09.03.1998 but they were delivered on 12.03.1998. As regards the liability of the OP in term of Warsaw Convention, the said liability is of limited nature and is universally applicable in respect to ticket jacket. So far as the liability for compensating the consumer for the loss or injury suffered by him due to deficiency in service on the part of the service provider, it is in addition to and not in derogation of any other law for the time being in force, which includes Warsaw Convention also. Section 3 of the Consumer Protection Act is clear and has been interpreted by the Supreme Court in large number of cases that under this provision a consumer is entitled for compensation as to the mental agony, harassment, physical discomfort and any other suffering suffered by him due to negligence of the OP. Deficiency in service has to be adjudicated on the anvil of definition of word deficiency provided by Section 2(1)(g) of the Consumer Protection Act 1986 which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
5. Circumstance of late delivery of baggage is perse a deficiency in service. Off late Supreme Court has discussed the scope of Section 3 of the Consumer Protection Act 1986 wherein reference of provisions authorities has been made. The observation of the Supreme Court in this regard are as under: -
(i) Secretary, Thirumurugan Coo-operative Agricultural Credit Society Vs. M. Lalitha (Dead) through LRS and Ors. Civil Appeal No. 92 of 1998 decided on 11-12-2003.
Reported in S.C. & N.C. Consumer cases (1996-2005).
10. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to an not in derogation of the provisions of any other law for the time being in force.
From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide better protection of the interest of the consumer and for that purpose to provide better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principle of a specific nature and to award, whenever appropriate compensation to the consumers and to impose penalties for non-compliance of their orders.
(ii) Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi, 1996 (6) SCC 385.
It would, therefore be clear that the legislature intended to provide a remedy in addition to the consequent arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure.
In view of the object of the Act and by operation of section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.
(iii) Smt. Kalawati and others Vs. M/s United Vaish Co-operative Thrift and Credit Society Ltd. R.P. No. 823 to 826 of 2001, SC & NC Consumer Law Cases (1886-2005) 275, wherein the National Commission observed that
4. Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPA shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to litigant for redressal by that remedy a litigant can go to Dist. Forum if he is a consumer under CPA. That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction.
6. It is settled law that the parties are governed by the term of the contract and in the instant case there was no term of contract between the parties that in case of late delivery, the OP shall be liable to compensate the passenger in term of the value of the bag but it does not mean that the service provider is not liable to compensate the consumer at all, if it is found to be guilty for deficiency in service. The word compensation has been given very wide connotation by the Supreme Court in case after case and lately in Ghaziabad Development Authority Vs Balbir Singh (2004) 5 SCC 65. The observations of the Supreme Court are quote worthy and are as under:
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
7. In the instant case the complainant did not disclose at the time of booking to the OP as to the purpose of the baggage being carried by him. Merely because the goods were not delivered in time does mean that the OP has to compensate him as to the loss of business.
8. In similar case we have awarded compensation of Rs.50,000/- as to the loss or injury suffered by the consumer either in respect of business or in respect of personal discomfort or purchase of articles of daily use contained in the loss or delayed baggage.
9. We allow this complaint with the direction to the Op to pay Rs.50,000/- as lump sum compensation for the mental agony, harassment and the loss and other sufferings suffered by the consumer and also to pay Rs.10,000/- as cost of litigation.
10. The order shall be complied with within one month from the date of receipt of this order.
11. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 11th day of March 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri