State Consumer Disputes Redressal Commission
Sarabjit Singh vs Jet Airways on 29 March, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
First Appeal No. 760 of 2016
Date of institution: 05.10.2016
Date of reserve: 03.03.2017
Date of Decision: 29.03.2017
Sarabjit Singh son of Sh. Gursewak Singh Cheema, resident of H. No. 33,
Cheema Market, Chakki Wali Gali, Moga.
Appellant/Complainant
Versus
1. Jet Airways, Branch Office, Raja Sansi International Airport, Amritsar
143001 (Phone No. 0183-3209847)
2. Airport Authority, through its Manager, Shri Guru Ram Dass Ji
International Airport, Amritsar.
Respondents/Ops
First Appeal against the order dated
01.09.2016 passed by the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Sarabjit Singh, in person
For respondent No.1 : Sh. Rajesh Bhatia, Advocate
For respondent No.2 : Sh. Gurpreet Jayia, Advocate for
Sh. Jagdish Manchanda, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
First Appeal No. 760 of 2016 2
The appellant/complainant (hereinafter referred as
complainant) has filed the present appeal against the order dated 1.9.2016 passed by the District Consumer Disputes Redressal Forum, Amritsar (hereinafter referred as the District Forum) in consumer complaint No. 50 dated 3.2.2016 vide which the complaint filed by complainant was dismissed.
2. Complaint was filed by complainant under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against respondents/opposite parties (hereinafter referred as Ops) on the averments that complainant booked 6 Air Tickets from Op No. 1 through Cleartrip bearing Trip ID-1411032615 having ticket No. 5895854404434 to 39 Airline PNR JxVADQ. The date of journey was 13.12.2014 and return journey on 17.12.2014. The journey was from Amritsar to Kathmandu through Delhi. Complainant had gone to Op no. 2 and got the boarding pass and then handed over the entire 11 bags to Op No. 2. They went through the screening of all these bags and then sent it to the baggage department. Complainant alongwith family members were going to Kathmandu to attend the marriage function and possessed the gold jewellery. Complainant's wife had gold jewellery set in one of the baggage coloured red. When the complainant arrived at Kathmandu Airport at 4.00 p.m., complainant and whole family members had to wait for baggage for about 1 to 1½ hours. When they received the baggage from the baggage chain, to their utter dismay and surprise, the seals of the bags were broken. Immediately they approached to the Airport Authorities and Jet Airways employees. Then complainant inspected the whole baggage First Appeal No. 760 of 2016 3 in the presence of the Airport Authority and Jet Airways employees, Mr. Laxman, Sandeep and Sushil Kumar Security Incharge. During inspection, complainant found that one gold jewellery set of 5 tolas worth Rs. 1,40,000/- and one wrist watch worth Rs. 18,000/-, brand Guess were found stolen. The complainant asked the higher authorities of the Airport to get the matter investigated. They suggested the complainant to file the complaint before Lost and Found Department at Airport Kathmandu, accordingly, the complaint was lodged. On 14.12.2014, the complainant lodged online complaint at emails address [email protected]. Thereafter, Op No. 1 sent an acknowledgement receipt through email mentioning that Ms. Anita Rao will handle the matter. Complaint was registered under reference No. BOM/CC/AR/151214/3378216 and asked to revert to the complainant latest by 29.12.2014. On 24.12.2014, Op No. 1 emailed to complainant vide which the claim of the complainant was rejected. Alleging deficiency in service on the part of Ops, complaint was filed before the District Forum for seeking directions against Ops to pay Rs. 1,58,000/- on account of loss of his jewellery and watch, Rs. 1 Lac as compensation and Rs. 50,000/- as litigation expenses.
3. Complaint was contested by Op No. 1 as Op No. 2 was ex-parte before the District Forum. Op No. 1 in its written reply took the preliminary objections that the complaint is liable to be dismissed under Section 26 of the Act being false, frivolous and vexatious to the knowledge of the complainant; the District Forum has no territorial jurisdiction to entertain the complaint in view of the judgment of the First Appeal No. 760 of 2016 4 Hon'ble Supreme Court "Sonic Surgical vs. National Insurance Co. Ltd.", in Civil Appeal No. 1560 of 2004; complaint is not maintainable as he has sought redressal of others also, who have not authorized the complainant to file the complaint on their behalf; there is no warranty as per the Carriage by Air Act, 1972 as amended by Carriage by Air (Amendment) Act, 2009, unless special declaration of interest in respect of the baggage and has paid a supplementary sum, the carrier shall be liable to pay a sum not exceeding the declared sum, unless it is proved that the sum is greater than the passenger's actual interest in delivery at destination and that the complainant did not declare the value of the contents of the said baggage. On merits, it was denied that the complainant alongwith family members were going for attending the marriage or they possessed the gold jewellery as alleged by them in the complaint. It was denied that the complainant inspected the whole baggage in the presence of Airport Authorities and the staff of the Ops and found gold jewellery set and watch missing from the Bag. As per the terms and conditions available on its official website, the complainant was required to clearly indicate the valuable in the baggage, otherwise, carrier's liability will be according to the Carriage by Air Act, 1972 as amended by Carriage by Air (Amendment) Act, 2009. However, in the present case no such declaration was made by the complainant and no supplementary sum for the same was paid while check-in at Amritsar Airport. It was denied that the Ops are liable to pay Rs. 2,58,000/- as claimed by the complainant in his complaint. Complaint is without merit, it be dismissed.
First Appeal No. 760 of 2016 5
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CW-1/A and documents Exs. C-1 to C-13. On the other hand, opposite party No. 1 had tendered into evidence affidavit of Vishal Luthra Ex. Op-1/1 and terms and conditions Ex. Op-1/2.
6. After going through the allegations in the complaint, written version filed by the OP, evidence and documents brought on the record, the complaint was dismissed on the ground that District Forum, Amritsar has no territorial jurisdiction to entertain the complaint and that no special declaration was filed by the complainant in respect of the baggage and has not paid a supplementary sum for safe passage of the jewellery, therefore, the complainant himself is to be blamed.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the appellant, who is appearing in person and counsel for respondent No. 1 Sh. Rajesh Bhatia, Advocate and counsel for respondent No. 2 Sh. Gurpeet Jayia, Advocate.
9. It was argued by the complainant that the findings recorded by the District Forum that District Forum did not have any territorial jurisdiction are incorrect. The jurisdiction of the District Forum is governed under Section 11 of the Act, which reads as under:-
First Appeal No. 760 of 2016 6
"11. Jurisdiction of the District Forum.--(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs.
(2) A complaint shall be instituted in a 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 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 the 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 on 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."
10. According to Clause 11 (c) in case a part of cause of action arises within the territorial jurisdiction of that Forum then that First Appeal No. 760 of 2016 7 Forum has the territorial jurisdiction to entertain the complaint. As per the averments in the complaint, the journey of the complainant and his family members was from Amritsar to Kathmandu. Copy of the Air tickets have been placed on the record as Ex. C-11 from Amritsar to Kathmandu and they had boarded the flight from Amritsar, therefore, a part of cause of action had arisen at Amritsar and according to Section 11(c) of the Act, District Forum has the jurisdiction to entertain the complaint. The District Forum while discussing the territorial jurisdiction of the District Forum, Amritsar has not referred all these documents and wrongly referred that no part of cause of action had arisen at Amritsar when averments in the complaint and above referred documents show that the flight was taken by the complainant and his family members from Amritsar and baggage was handed over to the staff of the Ops at Amritsar, therefore, we are of the opinion that District Forum, Amritsar has the territorial jurisdiction to entertain this complaint as a part of cause of action has arisen at Amritsar.
11. It was further argued by the complainant that the District Forum has wrongly observed that special declaration and supplementary sum for the same was not paid. It has been stated that their terms and conditions are on their website [email protected]. However, specifically it was not brought to the notice of the complainant, otherwise, prominent terms and conditions should have been printed on the ticket itself. Some of them has been referred, which are reproduced as under:- First Appeal No. 760 of 2016 8
"Use your Trip ID for all communication with us about this booking.
Check-in counters for International flights close 90 minutes before departure.
Your carry-on baggage shouldn't weigh more than 7kgs. Carry photo identification, you will need it as proof of identity while checking-in.
For hassle free refund processing, cancel/amend your tickets with your Agent instead of doing so directly with Airline."
12. There is no reference that in case there is any valuable item, its declaration form is to be filled in. The baggage of the complainant had gone through screening and in the screening, they must have come to know about the metal articles i.e. gold jewellery and the watch and at that time, it was not pointed out to the complainant that its value is to be declared. In case specific terms and conditions were not brought to the notice of the complainant then Ops cannot take the benefit of those terms and conditions. To support that the complainant is entitled to the loss suffered and compensation for harassment and mental agony due to act of Ops, has relied upon 2008(2) CPJ 202 "Air France versus Sonali Arora and Anr." In that case, there was loss caused on account of missing of the baggage in Airline. Handbag within permissible limits, not allowed to be carried inside the plane. Compensation and cost alongwith damages for mental agony, inconvenience were allowed by the State Commission and Revision Petition was dismissed by the First Appeal No. 760 of 2016 9 Hon'ble National Commission. He has further referred to the judgment of the Union Territory Consumer Disputes Redressal Commission, Chandigarh 2004(1) C.P.J. 483 "P.N. Wanchoo versus Air France and Ors.". In that case, complainant's bag was ruptured due to mishandling and items missing. Negligence/deficiency in service proved and Ops were directed to pay the loss. In this case, as per the averments in the complaint, the complainant was to attend the marriage in his relation. Marriage card has been placed on the record as Ex. C-4. Then he has placed on the record the photograph of the baggage Exs. C-5 to C-8 showing the breaking and the loss. On the same day, complaint was lodged with the Lost and Found Section at Airport, Kathmandu in which it is specifically mentioned missing of gold set jewellery about 50 grams and one wrist watch. Lateron on 17.11.2014, another complaint Ex. C-11 was lodged. There are emails from Anita Rao of Ops dated 26.12.2014 in which it was referred that "please allow me to share that guests may pay valuation charge of checked in baggage at the time of check-in. If such a bag is missing or damaged, the insurance company will settle the claim." However, in this case, there is no insurance coverage. There is another email dated 14.12.2014 in which there is reference of reporting incident of locks of 2-3 bags were found in broken condition and one gold jewellery set and watch was found missing during travel on flight 9W 2662/ 262 on 13.12.2014. It has also been referred that guest seldom check unless visibly damaged. Therefore, from these facts it is clear that visibly the bags were damaged and locks broken, therefore, there was a chance for the complainant to check the First Appeal No. 760 of 2016 10 baggage and on checking the above referred articles were found missing. Moreover, this fact was explained to the staff of Ops but they have not been able to give any satisfactory explanation. Further according to Section 151 and 152 of the Indian Contract Act, Ops are bound to take as much care of the goods as a man of ordinary prudence.
"Section 151 : In all cases of bailment the bailee is bound to take as much are of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take care of his own goods of the same bulk, quality and value as the goods bailed.
Section 152: The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he had taken the amount of care of it described in Section 151."
A reference has also been made to 74 Indian Cases Page 18 (Sanjiva Row's Indian Contract Act Page 1681 6th Edition), wherein it was held as under:-
"In cases governed by the provisions of Sections 151 and 152, the loss or damage of goods entrusted to a bailee is prima facie evidence of negligence, and the burden of proof, therefore, to disprove negligence lies on the bailee."
In I.L.R. 1957 Madras page 840 at 844, the High Court of Madras had held that it is for the bailee who seeks to be relieved of his responsibility for the loss, destruction or First Appeal No. 760 of 2016 11 deterioration of the goods, to prove that he had taken proper care of the goods to the extent required by Section 151 of the Contract Act. It is also well-established that a bailee is responsible for the damages caused to the goods bailed by the negligence of his servants acting in the course of their employment about the use or custody of the goods. (Harsthmal v. Rafiuddin, AIR 1953 Bhopal 5 and Cooch Vihar Commercial Company v. Union of India, AIR 1960 Calcutta 455 at 45). The proof of loss by private steath committed by a third party is not sufficient to rebut the presumption of negligence of the bailee. (Narasimha Swami v. Muthnkrishna, AIR 1962 Madras 244). It may also be pointed out that under Section 106 of the Indian Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person. It is therefore for the opposite party to come and to explain how the goods were dealt with while they were in its custody in its warehouse."
13. The facts and the judgments referred by the complainant have not been rebutted by the counsel for the Ops. Since loss was suffered by the complainant on account of negligence on the part of employees of the Ops, therefore, Ops are liable to indemnify the same to the complainant. The District Forum has not discussed the facts and evidence on the record in a right perspective, therefore, the order passed by the District Forum is liable to be set-aside. First Appeal No. 760 of 2016 12
14. Sequel to the above, we accept the appeal. Impugned order is set-aside. Consequently, the complaint filed by the complainant is allowed with the direction to Ops:-
(i) to pay the value of the lost articles i.e. Rs. 1,58,000/- i.e. cost of 50 gm. gold and wrist watch alongwith interest @ 9% p.a. w.e.f. 1.1.2015 till the date of payment;
(ii) pay Rs. 10,000/- as compensation; and
(iii) Rs. 10,000/- as litigation expenses.
15. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran) Presiding Judicial Member March 29, 2017. (Surinder Pal Kaur) as Member