State Consumer Disputes Redressal Commission
Balwant Singh Cheema vs Air India Express on 5 October, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1170 of 2011
Date of institution : 03.08.2011
Date of decision : 05.10.2015
Balwant Singh Cheema son of Parkash Singh, resident of Village
Lehrrian, P.O. Bhaowal, Tehsil Anandpur Sahib, District Ropar
(Punjab).
.......Appellant-Complainant
Versus
1. Air India Express through its Chairman, Air India Building,
Nariman Point, Mumbai-400 021.
2. Air India Express through its Manager, M.K. Hotel, District
Shopping Centre, Ranjit Avenue, Amritsar, Punjab-143 006.
3. Air India Express Baggage Claims Service Department through
its Manager/Supervisor, M.K. Hotel, District Shopping Centre,
Ranjit Avenue, Amritsar, Punjab-143 006.
......Respondents-Opposite Parties
First Appeal against the order dated
22.6.2011 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Shri Vinod Kumar Gupta, Member.
Present:-
For the appellant : Shri Ramneek Vasudeva, Advocate. For the respondents : Shri S.R. Chaudhary, Advocate. First Appeal No.1170 of 2011. 2 JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant, Balwant Singh Cheema, has preferred this appeal for modification of the order dated 22.6.2011 passed by District Consumer Disputes Redressal Forum, Amritsar (in short, "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") was partly allowed and the respondents/opposite parties were directed to pay equivalent to 60US$ to him and Rs.5,000/-, as lump sum compensation and litigation expenses.
2. As per the allegations, made in the complaint, on 4.10.2009 the complainant at Dubai International Airport Terminal-II, while boarding Flight No.IX-192 from Dubai to Amritsar, delivered to the opposite parties two locked bags against tag bag Nos.XH-842638 and XH- 842639; which contained household articles, golden ornaments, electronic appliances and mobiles etc. Those bags were not received at Rajasansi International Airport, Amritsar and he was informed by the Authorised Officer of the opposite parties on duty at that Airport that the bags were missing and assured him to deliver the same at his residence. He remained in touch with opposite parties Nos.2 and 3 and was informed by them on 8.10.2009 that the bags had been located by them. When he went to Amritsar to collect those bags, he found that the locks, which he had put at the time of boarding at Dubai, were missing and for the same the said opposite parties could not give any convincing reply. The weight of one of the bags was First Appeal No.1170 of 2011. 3 found to be less by 3 Kilograms and when he opened the bags, he found that valuable items, including 6 gold bangles weighing 140 grams, 3 Nokia mobiles, one Laptop battery, 1 Yashica Handicam, 1 Emergency Light etc., were missing and the market price thereof was 22629 Dubai Dirham; which comes to Rs.2,94,177/- in Indian currency. About the loss of those articles, he registered his complaint dated 4.10.2009 and he made request to the opposite parties to make good the loss as the same was caused on account of deficiency in service on their part. Subsequently, he also issued legal notice dated 21.12.2009 through registered post, which was duly received by them but no reply was received nor the said loss was made good. On account of this deficiency in service on their part, he suffered mentally and financially. He had purchased the said articles from Dubai with intention to give the same to his relatives residing in India and, as such, his emotions and feelings were attached with the same. The loss caused to him cannot be compensated in terms of money. He prayed for issuance of directions to the opposite parties to pay Rs.3,19,000/- (Rs.2,94,000/- for the loss of articles and Rs.25,000/- as compensation due to mental sufferings) along with interest at the rate of 18% per annum and the litigation expenses.
3. The opposite parties filed joint written reply before the District Forum, in which they did not dispute that the complainant travelled in the Flight, mentioned in the complaint, from Dubai International Airport to Rajasansi International Airport at Amritsar and delivered First Appeal No.1170 of 2011. 4 two locked bags at the time of boarding the Flight and that the same were lost and were subsequently found and were handed over to the complainant. They admitted that the baggage was found to be less by 3 kilograms at the time the same was handed over to the complainant. While denying the other allegations made in the complaint, they averred that the gold ornaments and other articles, as mentioned in the complaint, were not part of the baggage and if the complainant was to keep the same in the baggage, he was duty bound to disclose that fact to the authorities concerned but he never made any such disclosure to their authorities. He even did not pay for the charges of alleged valuable articles for providing extra care to the same. As per the Rules of the Warsaw Convention; which was applicable to all the International Airlines, he was entitled to 20US$ per kilogram of the baggage and his claim comes to 60US$. He is not even entitled to that amount as he did not disclose the nature of the articles at the time of handing over the baggage and the same was not to form the part of the baggage itself. He is estopped by his own act and conduct from claiming any such amount. There was no such negligence or deficiency in service on their part. The complainant has no cause of action to file this complaint and the same is not legally maintainable. The complainant has suppressed the material facts and has not come to the District Forum with clean hands. He has no legitimate and genuine claim. They prayed for the dismissal of the complaint with costs.
First Appeal No.1170 of 2011. 5
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf partly allowed the complaint vide aforesaid order. Aggrieved by the same, the appellant-complainant filed the present appeal for the modification of the order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that the District Forum committed an illegality while allowing the meagre amount of Rs.5,000/-, as lump sum compensation and litigation expenses, while totally ignoring the fact that the value of the lost articles was Rs.2,94,177/- and that loss was directly attributable to the negligence of the opposite parties; who failed to take the proper care of the luggage booked with them. The District Forum should have taken into consideration the value of the articles while assessing that compensation and, as such, the same is liable to be enhanced. On account of the loss of these valuable articles, the complainant not only suffered financially but mentally also and he was subjected to harassment. For that he is entitled to the compensation to the extent of the value of the goods. In support of his arguments, he relied upon the following judgments:-
i) 2000(1) CLT 700 (S.C. Nagpal v. United Airlines and others); and
ii) 2008(3) CLT 185 (Air France v. Sonali Arora & Anr.) (NC).First Appeal No.1170 of 2011. 6
7. On the other hand, it was submitted by the learned counsel for the opposite parties that the complainant was not entitled to any such compensation for the alleged harassment or financial loss suffered by him, as he himself was negligent in placing the alleged valuable articles in the baggage without making any declaration. As per the terms and conditions of the carriage of the opposite parties, such like items were not to be kept in the baggage and if the complainant had done so, he had done at his own risk. The liability of the opposite parties for the loss of the baggage is limited by the Carriage by Air Act, 1972, which has been enacted on the basis of Warsaw Convention and the complainant was not entitled to more amount than was permissible under the same. Therefore, there is no ground for enhancement of the compensation so awarded to him by the District Forum.
8. The opposite parties in the present appeal placed on record the Air India Express's Terms and Conditions of Carriage. The relevant Article 8.2 thereof is reproduced below:-
"8.2 Valuable and Fragile Goods Passengers are strongly advised not to check in such items as baggage. If they are checked in as baggage, passengers agree they send for carriage such items at their own risk. Such items include money, jewellery, precious metals, silverware, electronic devices, computers, cameras, video equipment, First Appeal No.1170 of 2011. 7 negotiable papers, securities or other valuables, passports and other identification documents, title deeds, artifacts, manuscripts and the like."
This Article makes it very much clear that the complainant was not required to check in such like items as baggage and if he had done so, he had done at his own risk. No reason has come forth as to why he checked in these valuable items in the baggage and why he had not carried the same in the bag, which he was supposed to take inside the Plane itself to be kept in the cabinet meant for that purpose above the particular seat allotted to him. If the opposite parties were negligent in the loss of those items, there was contributory negligence on the part of the complainant also by checking the same in the baggage, but the fact remains that there was loss caused to him on account of the deficiency in service on the part of the opposite parties. Can it be said that the compensation so awarded by the District Forum for that deficiency in service is inadequate?
9. In S.C. Nagpal's case (supra); out of three bags one bag of the complainant was found missing after he landed at Delhi after returning from New York and that bag was delivered to him after three weeks and several valuables were found missing. For collecting that bag he had to stay per force at New Delhi even after landing. The compensation of Rs.5,200/- was given to him by the Airlines and finding the same to be inadequate the District Forum made an order to pay further compensation of Rs.10,000/-. He First Appeal No.1170 of 2011. 8 preferred an appeal against that order and the State Commission of Union Territory, Chandigarh awarded additional compensation of Rs.7,500/-. In Air France's case (supra) the State Commission awarded compensation of Rs.50,000/-, on the basis of guess work, for the loss of Souvenirs, Camera, photographs and other stuff valued at Rs.4,00,000/- during the Carriage by Air. That order was challenged before the Hon'ble National Commission on the ground that the compensation was on the higher side but the same was dismissed on the ground that there was no legal infirmity in the order.
10. In Emirates (M/s Emirates Airlines) v. Dr. Rakesh Chopra 2013 (2) CLT 581 (NC) for the loss of the baggage of the complainant, the Airlines offered 50US$, as interim relief which he refused to accept. Subsequently 150 US$ were offered; which he accepted in order to enable him to purchase some essential items for daily use. He had to purchase a new suitcase etc. and for the harassment and acute mental pain suffered by him and his wife he filed the complaint against the Airlines for issuance of directions to restore his misplaced baggage and to pay 10000$, as compensation, which included the value of the lost items. The Airlines came up with the plea that its liability was to the extent of 280$ and was ready to pay 130$, after deducting 150$ already paid to the complainant, as interim relief. The State Commission allowed the complaint and for the deficiency in service on its part directed the Airlines to pay a lump sum compensation of Rs.2,00,000/-. In the appeal before the Hon'ble First Appeal No.1170 of 2011. 9 National Commission that order was upheld on the ground that due to the negligence and deficiency in service on the part of the Airlines, which was entrusted with the safe custody and delivery of the passengers luggage failed to do so; as a result of which the complainant had to undergo mental tension, harassment and loss of professional face and that the Consumer Protection Act has been enacted to give relief to the consumers for deficiency in service and was an additional remedy besides the other remedies available under the existing laws.
11. However, in EGYPT AIR v. SAI LEELAVATHI II (2006) CPJ 43 (NC) the complainant made a claim of Rs.1,89,436/- for the loss of baggage, which according to him was lost while she was travelling from London to Cairo and contained valuable items. On behalf of the opposite party it was asserted that as per the Carriage by Air Act, 1972, its liability was limited to 20 US$ per kilogram. The District Forum allowed the claim to the extent of Rs.1,17,000/-, along with interest, which was upheld in the appeal filed by the opposite party before the State Commission. However, the Hon'ble National Commission in the revision filed before it against that appellate order held that specific provision under the Carriage by Air Act, 1972, Schedule-II Rule 22 provides for the maximum limit of compensation in such cases. The compensation was reduced to 400 US$ keeping in view that Rule.
First Appeal No.1170 of 2011. 10
12. Recently same question arose before the Hon'ble National Commission in Jet Airways (India) Ltd. & others v. M.V.V.S. Murthi (Dr.) 2015(2) CLT 240 (NC). While relying upon the judgment of the Hon'ble Supreme Court rendered in Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 SCC 704 it was held that the compensation is to be awarded only to the extent of contract between the parties and the complainant was not entitled to get any other benefit. The compensation of Rs.1,00,000/- awarded for mental agony etc. was not upheld. However, for the mental agony suffered by the complainant for obtaining the duplicate copies of the Identity Card, Driving Licence and the PAN Card, which were in the baggage, so lost during carriage by air, he was awarded a compensation of Rs.25,000/-.
13. From the above discussed judgments, it becomes very much clear that when the statute itself prescribes the compensation to be paid in the case of loss of baggage, no amount in excess thereof, can be awarded for the alleged mental harassment or agony suffered by the complainant. No doubt, the Act provides additional remedy but it is mentioned in Section 3 thereof that it shall not be in derogation of any other law in force. When the Carriage by Air Act, 1972 itself prescribes the amount of compensation to be paid, the same cannot exceed the prescribed limit. Moreover, in view of the above reproduced "Terms and Conditions of Carriage" of the opposite party- Airlines, the complainant was not to carry these valuable articles in First Appeal No.1170 of 2011. 11 the check-in luggage and if he was to carry the same in check-in luggage, he was duty bound to disclose the nature thereof and to pay extra amount for taking special care of that luggage. He failed to do so. Thus, he violated the Terms and Conditions of Carriage. Therefore he is not entitled to compensation in excess of the amount mentioned in the said Act/Rules.
14. We do not find any merit in this appeal and the same is hereby dismissed.
15. The arguments in this case were heard on 16.9.2015 and the order was reserved. Now, the order be communicated to the parties.
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (VINOD KUMAR GUPTA) MEMBER October 05, 2015 Bansal First Appeal No.1170 of 2011. 12