State Consumer Disputes Redressal Commission
Lufthansa German Airlines vs Mr. Pankaj Kumar Jain on 6 August, 2013
DRAFT
State Consumer Disputes Redressal
Commission
West
Bengal
BHABANI BHAVAN (GROUND FLOOR)
31, BELVEDERE
ROAD, ALIPORE
KOLKATA 700 027
S.C. CASE NO.FA/424/2012
(Arising out of order dated 08/06/12 in
Case No.CC/192/2009 of District Consumer Disputes Redressal Forum, Kolkata,
Unit-I)
DATE OF
FILING:23/07/12 DATE OF FINAL ORDER:06/08/13
APPELLANT : Lufthansa German Airlines
12th Floor, DLF Building
No.10
Tower B, DLF City,
Phase-II
Gurgaon, Haryana-122 002
RESPONDENT : Mr.
Pankaj Kumar Jain
26, Prince Anwar Shah Road
Kolkata-700
033
BEFORE : HONBLE
JUSTICE : Sri Kalidas Mukherjee
President
HONBLE
MEMBER : Smt.
M. Roy
FOR THE APPELLANT : Imran Karim
Ld. Advocate
Mr.
Abhishek Datta
Ld.
Advocate
Mr.
Siddhartha Ghosh
Ld.
Advocate
FOR THE RESPONDENT : Ms.
Ruchira Chatterjee
Ld.
Advocate
: O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-I in case no.CC 192 of 2009 allowing the petition of complaint and directing the OP to pay Rs.65,690/- towards the value of the lost goods, compensation of Rs.30,000/- and litigation cost of Rs.10,000/- within 45 days from the date of communication of the order failing which interest @ 9% shall accrue on the said amount till realization.
The case of the respondent/complainant, in short, is that he had undertaken a trip abroad and he was scheduled to return from Jacksonville, USA to New Delhi, India, via connecting flight in the following manner:
(i) On August 2, 2008 by Continental Airways Flight No.CO 2046 from Jacksonville, USA to Newark, USA (departure time being 12.05 hrs. local time).
(ii) On August 2, 2008 by British Airways Flight No.BA 0184 from Newark, USA to London, U.K. (departure time being 18.30 hrs. local time) and
(iii) On August 3, 2008 by British Airways Flight No.BA 0143 from London, U.K. to New Delhi, India (departure time being 09.55 hrs. local time).
However, due to thunderstorm in Jacksonville, USA, the complainants Continental Airways Flight No.CO 2046 from Jacksonville to Newark got inordinately delayed and, as such, it was not possible for the complainant to board the already scheduled connecting flights of British Airways being Flight No.BA 0184 from Newark, USA to London, U.K. and therefrom to New Delhi. Under such circumstances, the Continental Airways rescheduled the connecting flights of the complainant in the following manner:
(i) On August 2, 2008 by Continental Airways Flight No.CO 2046 Y (departure time being 18.00 hrs. local time) from Jacksonville, USA to Newark, USA.
(ii) On August 3, 2008 by Continental Airways Flight No.CO 50 J from Newark, USA to Frankfurt, Germany (departure time being 19.25 hrs. local time) and
(iii) On August 4, 2008 by Lufthansa Flight No.LH 760 from Frankfurt, Germany to New Delhi, India (departure time being 13.45 hrs. local time).
Thus the complainant has availed the services of the OP Lufthansa German Airlines from Frankfurt to New Delhi on August 4, 2008. The complainants baggage which was checked in at Jacksonville, USA bearing tag no.CO-5642437 (allotted by Continental Airways and maintained by Lufthansa Airways) was loaded on the aforesaid Lufthansa Flight being Flight No.LH 760 from Frankfurt to New Delhi. The fact that complainants baggage was loaded on the Lufthansa Flight was confirmed by Lufthansa staff at Frankfurt after duly checking their computer system. The complainant arrived at New Delhi on August 5, 2008 at 12.30 a.m. from Frankfurt. After arrival at New Delhi he was utterly shocked to learn that his baggage did not arrive at New Delhi by the said Lufthansa Flight. The complainant immediately approached the OPs Airport Baggage Section at New Delhi Airport and reported the loss of his baggage and duly filled in a Property Irregularity Report. The OP on the same day confirmed the loss/damage of the complainants baggage and as a token of acknowledgement of loss/damage, the OP granted an interim compensation of Rs.4,000/- on the spot. The complainant confirmed the receipt of the payment of interim compensation by signing a cash receipt. The complainant gave his permanent address and his local hotel address in New Delhi to the OPs staff at New Delhi Airport who assured him that they would inform the status of the baggage to the complainant and in case the complainants baggage was retrieved by the OP the same would be delivered to the complainant at his address of the hotel in New Delhi. The complainant stayed there in New Delhi till the morning of August 7, 2008, but no information was received by him from the OP about the status of the baggage. Thereafter on August 8, 2008 without any prior intimation to the complainant two members of the staff of the OP came to the complainants residence in Kolkata with the complainants baggage which was in a broken condition. The baggage was broken, one lock was removed and the chain was cut from one corner.
The baggage was checked and the complainant found that all the valuable items were missing and only some clothes were left in haphazard manner. At the time of check in at Jacksonville Airport on August 2, 2008 his baggage weighed 23.4 kgs and when the damaged baggage was weighed at the complainants residence on August 8, 2008 it weighed 14.5 kgs. The complainant asked the said two staff of the OP to prepare an inventory of the articles found in the complainants baggage and sign the same, but they refused to prepare any such inventory. The complainant, under such circumstances, was forced to return the baggage.
Thereafter on the very same day complainant received a telephone call from the office of the OP at New Delhi and the OP assured the complainant that they would register the complainants claim and release the payment for the lost/missing items. Pursuant to such discussion, the complainant sent an e-mail to OPs office at New Delhi on August 11, 2008 and August 12, 2008 stating his claim along with the list of the items which were originally in the baggage with quantity and value. On August 13, 2008 the complainant got an e-mail from Kolkata office of the OP confirming the receipt of the aforesaid e-mail. On August 23, 2008 the complainant received a cryptic e-mail from the New Delhi office of the OP where on the one hand the OP confessed that complainants baggage might have been damaged and/or pilfered when in their custody and tendered their apology in that regard and, on the other hand, they denied their liability for the loss or damage caused to the baggage of the complainant. Under such circumstances, the complaint was filed before the Learned District Forum.
The Learned Counsel for the appellant has submitted that on the spot compensation of Rs.4,000/- was paid to the respondent/complainant. It is contended that when the flight was rescheduled it was the duty of the Continental Airways to see that the baggage was handed over to Lufthansa Airlines.
It is submitted that Continental Airways has not been impleaded in this case. It is contended that the baggage was not booked with Lufthansa Airlines and the OP was the changed carrier. It is submitted that original custodian was Continental Airways and the OP was not in anyway responsible for any loss or damage to the baggage of the respondent/complainant.
The Learned Counsel for the respondent has submitted that the receipt of Rs.4,000/- as on the spot compensation is an admitted fact. It is contended that with the reschedule of the flights Lufthansa Airlines took all the responsibilities from Continental Airways and the OP ought to have received the baggage of the complainant. In this connection the Learned Counsel has referred to the rules of the International Carriage and submitted that the changed carrier is also responsible for the loss or damage to the baggage. It is submitted that the appellant did not urge for addition of party before the Learned District Forum. The Learned Counsel has referred to the decision reported in IV (2007) CPJ 154 (NC) [Indian Airlines Ltd. Vs. Prakrithi Shetty].
We have heard the submission made by both sides.
It is an admitted fact that there was reschedule of flight and the respondent/complainant availed Lufthansa Airlines. It is also an admitted fact that when the baggage was found missing, the OP made on the spot compensation to the tune of Rs.4,000/-. But, subsequently, when the baggage was produced by the staff of the OP at the residence of the respondent/complainant it was found that the chain in one portion was cut and there was pilferage of some articles. It is the consistent plea of the respondent/complainant that he had sent the list of articles lost by e-mail which the OP/appellant received.
The point for consideration is whether the OP was under any responsibility for the loss/damage to the baggage of the respondent/complainant. The Continental Airways endorsed the ticket to the OP and OP accepted the same. In this connection the Learned Counsel for the respondent has referred to the provision contained in Article 45 of the Convention for Unification of certain rules for International Carriage by Air which reads as under:
In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the court seized of the case.
It appears from the provision contained in Article 45 of the aforesaid Convention that the actual carrier or the contracting carrier both are responsible together or separately. In the instant case, the complaint was filed against Lufthansa Airlines without impleading Continental Airways. According to Article 45 as aforesaid, such complaint against OP is maintainable. Having regard to the circumstances aforesaid, we are of the considered view that when the OP/appellant accepted the offer made by Continental Airways it also undertook the responsibility with regard to the passenger and the baggage as well.
We are of the view that the Learned District Forum considered all the aspects of the case and rightly passed the impugned judgment and order. There is no ground to interfere with the findings of the Learned District Forum.
In the result, the appeal fails and the same stands dismissed with cost of Rs.5,000/- to be paid by the appellant to the respondent/complainant.
MEMBER(L) PRESIDENT