State Consumer Disputes Redressal Commission
Jet Airways (India) Ltd. vs Govinder Kapoor on 23 March, 2009
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 23.03.2009 First Appeal No.2009/72 (Arising from the order dated 08.10.2008 passed by District Forum(South West) Sheikh Sarai-II, New Delhi in Complaint Case No.677/2007) Jet Airways ( India) Ltd. Appellants Branch Office Palam Airport, New Delhi. Versus Mr. Govinder Kapoor . Respondent 33/17, NEA, Pusa Road, New Delhi. 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, President(ORAL)
1. Short question arising in this appeal preferred against the impugned order dated 08.10.2008 is whether the liability under the Carriage by Air Act pertaining to loss of baggage is absolute or not and whether any additional remedy is available under the Consumer Protection Act 1986 seeking compensation as to the mental agony as well as harassment.
2. Vide aforesaid order passed by the District Forum the appellant has been directed to pay Rs.50,000/- as cost of the goods to the respondent besides Rs.12,000/- as compensation and cost of litigation.
3. It is settled law that the remedy under Consumer Protection Act is in addition to and not in derogation of any other law for the time being in force, including the provision of CPC or any other law i.e. Carriers Act etc. While widening the scope of Section 3 of Consumer Protection Act, Supreme Court in large number of cases has taken a view that even if there is remedy available in any other legal forum or even if there is arbitration between the parties, still the aggrieved party can file complaint under Section 12 of the Consumer Protection Act 1986 seeking indemnification of the loss, compensation for mental agony, harassment, physical discomfort and other injustices suffered by him. This view has been taken in respect of wide connotation of word compensation in Ghaziabad Development Authority Vs Balbir Singh-(2004) 5 Supreme court Cases 65, which includes each and every element of suffering as referred above, which no other statute provides as all other statutes have limited liabilities and do not take care of the compensation part arising on account of deficiency in service resulting in mental injury, physical discomfort, harassment, humiliation etc. On the scope of Section 3 of Consumer Protection Act 1986, Supreme Court has laid down following law.
(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.
4. In identical cases we have taken a view that the remedy under the Carriage by Air Act is limited liability uniformally applicable to all the consumers as per the weight of the baggage and irrespective of the value of the contents etc. contained therein.
5. Recently Supreme Court has awarded compensation of Rs.1 lac in the matter of loss of baggage by taking the remedy under the Consumer Protection Act as an additional remedy arising from the deficiency in service and not in derogation of any other law for the time being in force, which includes the Carriage by Air Act also.
6. The liability is absolute so far as the weight is concerned but so far additional remedy is concerned it arises from the charge of deficiency in service which on the face of it proved by non-delivery, mis-delivery or pilfered delivery of any item/baggage, which is defined by Section 2(1)(g) of 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 undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service.
7. 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 non-delivery, the OP shall be liable to compensate the passenger in term of the value of the contents 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, which means each and every element of suffering by the consumer at the hands of service provider, which includes mental agony, harassment, physical discomfort, emotional sufferings, actual loss, expected loss, and other injustice suffered by the consumer. 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.
8.
For instance if a person lands up in foreign land and his baggage is not delivered to him he would suffer unimaginable agony and harassment and therefore to say that the agony of consumer would be met by paying Rs.5000/- or Rs.10,000/- forthwith is untenable. So far as the merit of the case, the counsel for the appellant has taken the plea that the bag was never handed over to the appellant and was never checked in. This plea on the face of it is false as the person who is travelling in the executive class, ordinarily the staff of the airlines has takes his bag for facilitating the passenger. The very fact that, it was checked in and the appellant issued Property Irregularity Report for the missing baggage falsifies the claim of the appellant.
9. Foregoing reasons persuade us to dismiss the appeal being devoid of merit. The order shall be complied with within one month from the date of receipt of this order.
10. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
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 23rd day of March 2009.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri