National Consumer Disputes Redressal
Jet Airways (India) Ltd vs Vijay Kumar on 25 October, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.438 of 2011 (From the Order dated 19.08.2011 in Complaint Case No.01/08 of the State Consumer Disputes Redressal Commission, Andaman & Nicobar Islands) Jet Airways (India) Ltd. Regd. Office at Sahar Airport Road, Andheri (East), Mumbai-400 099 .. Appellant Vs. Vijay Kumar Bamboo Flat Jetty Ferrargunj Tehsil South Andaman ..Respondent BEFORE: - HONBLE MR. JUSTICE D.K. JAIN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Sunil Attri, Advocate For the Respondent : N E M O (Respondent proceeded exparte vide order dated 08.03.13) O R D E R
(Pronounced on 25th October, 2013) D.K. JAIN, J., PRESIDENT This appeal under section 19 of the Consumer Protection Act, 1986 (for short the Act) is directed against the order dated 19.08.11, passed by the State Consumer Disputes Redressal Commission, Andaman & Nicobar Islands, Port Blair, (for short the State Commission) in Complaint Case No. 1/2008. By the impugned order, the State Commission has allowed the complaint filed by the Complainant (Respondent herein) for delay in the delivery of the remains of his father, booked as cargo with the Appellant Airlines. The State Commission has awarded a sum of `2,45,000/-
as compensation to the Complainant by the Airlines on account of deficiency in service and mental agony, with interest @ 12% p.a. from the date of filing the complaint till the recovery of the amount.
2. The father of the Complainant expired on 27.05.2008 at Bangalore. As the last rites of the deceased were to be performed at Andaman & Nicobar Islands on 28.05.2008, the Complainant decided to carry the remains of his father by air from Bangalore to Port Blair. The human remains were booked on 28.05.2008 as passengers luggage by an early morning flight to Bangalore-Chennai-Port Blair under an airway bill. A sum of `8,230/- was paid by the Complainant as carriage charges on a chargeable weight of 100 kgs.
In the airway bill, the nature and quantity of goods was shown as human remains. The Complainant also travelled in the same flight. The scheduled time of arrival of the flight at Port Blair was 11.15 A.M. All the relatives were informed that the funeral ceremony would be performed at 12.00 noon on 28.05.2008. However, when the flight reached Port Blair, it was discovered that the package containing the human remains was not in the aircraft as it was not loaded on the flight proceeding from Chennai to Port Blair. The package was infact delivered to the Complainant on the following day i.e. 29.05.2008. Alleging gross negligence and serious deficiency in service, resulting in attack of Angina Pectoris to his mother who had come to the airport to receive the body of her husband, mental agony and pain, the Complainant filed the complaint before the State Commission claiming a compensation of `40 lakhs for deficiency in service and a further sum of ` 40 lakhs for mental agony.
3. The complaint was contested by the Airlines. Denying any deficiency in service or suffering of mental agony by the Complainant, it was pleaded that the cargo was not loaded in the flight to Port Blair inadvertently due to human error which do occur sometimes. It was stated that realizing the mistake, the cargo was dispatched to Port Blair by the Airlines on 29.05.2008 without charging any additional amount.
4. On analysis of the evidence adduced by the Complainant, the State Commission observed as follows:-
So far as the case is concerned there is no dispute by the opposite parties about delayed despatch of the human remains of the father of complainant. Their contention appears that due to human error the cargo was not despatched in the scheduled flight and there was no negligence on the part of the opposite parties. In his evidence as PW-1, complainant has denied the suggestion that due to inadvertence the cargo was not off loaded at Chennai Airport for its onward journey to Port Blair. In this connection, if we look into exhibit-6 which is a letter issued on behalf of the opposite party no.1 wherein it is recorded, I sincerely apologize for this erroneous mistake. So it is evident that the opposite party Jet Airways tried to brush off the entire matter as error on the part of the respondent. It may be pointed out that the respondent Jet Airways being a reputed concern was duty bound and contract bound to send the human remains of the father of the complainant in the manner and on the date as agreed. The flight from Chennai to Port Blair reached on schedule on 28.05.08 minus the human cargo. This cannot be avoided by the opposite party simply by taking the plea that the entire incident took place due to inadvertence by the men of the opposite party.
The opposite party cannot avoid their responsibilities and from the document itself it is evident that there was gross negligence on the part of the respondents to send the cargo in the manner as agreed between the parties.
It is further evident that complainant came from Chennai to Port Blair in the same flight where the cargo was supposed to be despatched and complainant has categorically stated that he made repeated inquiries in order to ensure that the cargo is despatched in the flight.
The process is clear if exhibit-4 in which condolence message of deceased P.Sai Krishna was published in Daily Telegrams dated 28.05.08. In the condolence message it is stated that the funeral ceremony will take place on 28.05.08 at 12.00 noon. So it is evident that in anticipation of the arrival of the human remains on 28.05.08, necessary arrangement was made to perform the last rites of the departed soul.
The opposite parties did not adduce any evidence in order to show as to how the cargo was dealt after the same was off loaded at Chennai. It is not disputed that the complainant along with the human remains of his father boarded the flight from Bangalore to Chennai and the flight was scheduled to come to Port Blair from Chennai. At Chennai complainant repeatedly reminded the respondent authority that the cargo is to be loaded in the flight to Port Blair. Respondent has denied that complainant made any such exercise as claimed.
We are unable to agree with the respondent simply in view of the fact that it was quite natural on the part of PW-1 to make necessary efforts to ensure that the human remains arrive at Port Blair so that the last rites of the departed soul could be performed on 28.05.08 as already announced in the newspaper.
5. The State Commission thus held that there was serious deficiency in service on the part of the Airlines for which, they were solely responsible and as such the Complainant had succeeded in establishing his case about the deficiency in service. Having held so, the State Commission, while restricting the amount of compensation for deficiency in service to `45,000/- (`450 x 100 kgs.), in terms of Section 22 (2) (a) of the Carriage By Air Act, 1972 (in short, the Air Act), in exercise of its jurisdiction under Section 3 of the Act, proceeded to award an additional sum of `1 lakh as compensation on the same count by observing thus:-
Even after failing to despatch the cargo the opposite parties failed and neglected to take proper care of the cargo which is human remains and as such we are of the view that the deficiency in service is further compounded by the negligence on the part of the opposite parties.
6. On the question whether the Complainant suffered any mental agony, the State Commission held as under:-
Loss of father was certainly painful to the complainant. He made arrangements only to perform last rites of the departed soul but he failed to perform it on the given date solely due to latches and gross negligence on the part of the opposite parties. His emotional sufferings is certainly a ground for awarding compensation for mental agony.
Following the decision of the Honble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held that the word compensation is of wide connotation and may extend to compensation under the Act for mental or even emotional suffering, the State Commission awarded a sum of `1 lakh as compensation in favour of the complainant for mental agony. As noted above, interest @ 12% has also been awarded to the Complainant. Hence, the present appeal by the Airlines.
7. Ld. Counsel appearing for the Appellant assailed the findings recorded by the State Commission relating to negligence and deficiency on the part of the Airlines on the ground that since the Airlines was operating only one flight from Chennai to Port Blair, the cargo could be dispatched to its destination on the next flight operated by the Appellant Airlines. It was also pleaded that the compensation awarded to the Complainant is highly excessive, unreasonable and imaginary and has been determined without any basis, more so, when in terms of Section 22 (2) (a) {as amended by the Government of Indias Notification No. S.O 242} of the Air Act, an Air Carrier is not liable for damage caused by delay in the carriage.
8. We are of the opinion that there is no merit in this appeal. It is manifest from the afore extracted paragraphs that the findings by the State Commission to the effect that there was serious deficiency in service on the part of the Airlines in not dispatching the human remains from Chennai to Port Blair and thus the Complainant had suffered mental agony on account of the delay in delivery of the cargo, is based on cogent evidence adduced by the Complainant. In fact, the error in not off loading the coffin containing human remains of the father of the deceased at Chennai Airport and then loading it on the connected flight to the Port Blair is not denied by the Airlines.
The short plea was that the error was on account of human error which do occur sometimes. We are unable to comprehend as to how a package weighing 100 Kgs. was left unattended in the cargo section of the aircraft when admittedly the concerned flight from Bangalore terminated at Chennai and all the passengers travelling to Port Blair were required to de-plain and board another aircraft for onward journey. As noted above, the human remains were being carried by the Complainant as checked in baggage and was required to be off loaded at Chennai. A baggage weighing 100 Kgs. could not remain hidden so as to escape the attention of the ground staff. We have no hesitation in upholding the finding of the State Commission that it was a case of gross negligence and deficiency in service on the part of the Airlines. We are of the view that the facts emanating from record speak for themselves and, therefore, the principle of res ipsa loquitor is clearly attracted. The tone and the tenor of letter dated 28.05.2008 by some un-named ground staff tendering apology to the Complainant for the erroneous mistake amounts to adding insult to injury. We also feel that non-removal of the baggage at Chennai was a serious security lapse indicative of gross negligence on the part of the Airlines. Be that as it may, we refrain from commenting further on this aspect as no such plea seems to have been raised before the State Commission.
9. As regards the plea that an Airlines cannot be made liable for damage caused by delay in carriage in terms of Government of Indias Notification No. S.O. 242, we are of the view that there is no substance in the stand of the Airlines.
The Notification reads as follows:-
.....
5 (a) The carrier is not liable to the shipper or any other person for any damage, delay or loss of whatsoever nature (hereinafter collectively referred to as damage) arising out of or in connection with the carriage of goods unless such damage, excluding the delay is proved to have been caused by the negligence or wilful fault of the carrier and there has been no contradictory negligence of the shipper, consignee or other claimant. The carrier will not be liable for damage caused by delay in the carriage.
..............
In the light of a clear and categorical finding by the State Commission and affirmed by us, that the delay in delivery of the cargo was caused because of negligence on the part of the Airlines, the said notification has no bearing on the facts at hand.
10. As regards award of an additional sum of `1 lakh over and above `45,000/- , as per Section 3 the provisions of the Act being in addition to and not in derogation of the provisions of any other law for the time being in force, these have to be interpreted broadly, positively and purposefully, in the context of the facts of a particular case. { See: Secy. Thirumurugan Coop. Agricultural Credit Society Vs. Ma. Lalitha - (2004) 1 SCC 305 and Trans Mediterranean Airways Vs. Universal Exports and Anr.- 2011 (10) SCC 316} In the instant case, as we have already noticed, undoubtedly, there was negligence and deficiency in service on the part of the Airlines in not delivering the booked cargo on time. The plea that the cargo could not be delivered on time because of non-availability of another flight, in our opinion, is without any substance particularly having regard to the nature of the cargo i.e. the human remains.
Except for the said bald plea, the Airlines did not lead any evidence to show that it was not possible, under any circumstances, to make an alternative arrangement for delivery of the human remains on 28.05.2008. In that view of the matter, we see no reason to interfere with the award of the said additional amount by the State Commission.
11. In so far as the question of quantification of amount of compensation on account of mental agony is concerned, it is virtually impossible to measure in monetary terms the value of emotions and sentiments, particularly so when a person is already grieving over the demise of a loved one. Timely customary cremation is one of the basic rights of an individual. In the light of observations by the State Commission as to the scene at the Airport on 28.05.2008 on account of non arrival of the body of the deceased when the relatives, including the mother of the Complainant, had come to receive the body and the consequent delay in performance of the last rites, we feel that a cumulative effect of all these circumstances does not warrant any interference with the decision of the State Commission on the question of determination of compensation for mental agony.
12. For aforegoing reasons, the appeal deserves to be dismissed. It is ordered accordingly.
13. While issuing notice to the Complainant, by way of an interim relief, the operation of the impugned order was stayed subject to the condition that 50% of the decretal amount shall be deposited by the Airlines with this Commission within 30 days of the said order. The said amount shall be remitted to the Complainant forthwith. The balance decretal amount shall be paid by the Airlines to the Complainant within four weeks from today failing which, the said amount shall carry an interest @ 15% p.a. from the date of order of the State Commission till the date of actual payment, instead of @ 12% as directed in the impugned order.
14. Since the Respondent remains unrepresented, there will be no order as to costs.
.. . . . . .
(D.K. JAIN, J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER . . . . . . . . . . . . . . . .
(VINAY KUMAR) MEMBER Yd/*