State Consumer Disputes Redressal Commission
British Airways, vs Stefano Pelle,, on 15 November, 2007
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: 15-11-2007 Appeal No. A-1036/2004 (Arising from order dated 06-09-2004 passed by District Forum-VII, Sheikh Sarai-II, New Delhi in complaint Case No.237/2004/DF) British Airways, Appellant 11th Floor, Dr. Gopal Das Bhawan, Through 28, Barakhamba Road, Mr. M. Wadhwani, New Delhi-110001. Advocate. Versus 1. Stefano Pelle,, Respondent No.1 Farm House No. 30, Rajkori Adjacent to Ashok Country Resort, New Delhi-37. 2. Alitalia, Respondent No.2 2 H, DCM Building, Through 16, Barakhamba Road, Mr. Lalit Bhasin with New Delhi-110001. Ms. Mriganka Prabhati, Advocates. 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) This appeal arises from the order dated 06-09-2004 passed by the District Forum, whereby the appellant has been directed to pay Euro 355.9 or its equivalent in Indian rupees to the respondent on account of expenditure incurred by him in purchasing necessary clothing and toiletries at Milan. The following five questions of facts and law arise out of the present appeal :-
(i) Whether liability of the appellant-Airlines for compensating the consumer, i.e. the passenger for loss of baggage is limited in terms of amended Convention known as Hague Protocol in terms of section 2 of the Carriage by Air Act, 1972 and nothing beyond that?
(ii) Whether at the most the appellant-Airlines has the limited liability under rule 22 of the Schedule II of the Carriage by Air Act providing that liability of the Carrier for each passenger is limited to US $ 20 per kg. which in this case is US $ 260?
(iii) Whether the liability of the Carrier under rule 25 of the said schedule can be extended in the absence of any act of omission or commission of the Carrier or its service?
(iv) Whether the provisions of the Consumer Protection Act, 1986 are application or invokable in view of the Carriage by Air Act, 1972 based upon International Convention known as Hague Protocol which is an amended convention as the Act was given effect to the Convention for the uniformity of certain rules relating to International Carriage by Air Act signed in Warsaw on 24-10-1999?
(v) Whether the Airlines whose services were availed as the main service provider is not liable if it avails the services of another Airlines in the midway of the destination either in case of emergency or in an eventuality that the consumer or passenger misses connected flight of main Airlines i.e. the service provider, particularly in view of the provisions of sub-rule (3) of Rule 31 of the said Schedule providing that the passenger or the consigner who lost the baggage has right of action against the first carrier as also against the last carrier and all the carriers who performed the carriage during which the loss of baggage took place are jointly and severally liable to compensate the consigner or the consignee.
2. Relevant facts for adjudicating the aforesaid propositions or questions need to be culled out in brief. Respondent No.1 booked a flight of appellant-Airways from Delhi to Milan with a stop over at London. He boarded flight NO. BA 142 on 22-12-2003 and checked in one baggage before boarding the flight at the International Airport at New Delhi. The said baggage weighed 13 kgs and contained his clothes including Pashmina Shawls, Silk Shawls, Toys, Video CDs and other items.
He was to board connecting flight of British airways from London to Milan. The flight from Delhi reached London late due to bad weather and the respondent missed the connecting flight. He was to reach Milan to attend important meeting on 23-12-2003 and on his request appellant-Airways booked the respondent in the flight of respondent No.2-Alitalia. On reaching Milan by flight of Alitalia bearing NO. AZ-247, he noticed that his baggage was not traceable. He immediately lodged a complaint with appellant and respondent No.2 but his baggage was not traced and handed over to him. He lodged several complaints with the appellant and respondent No.2 in the month of January 2004 but when his baggage was not restored to him and he being without clothing, he was forced to purchase clothes and toiletries etc. worth Euro 355.9. He did not get any response either from the appellant or from the respondent No.2 to his several written communications and then he sent a legal notice on 24-03-2004 but his baggage remained untraceable though from time to time he was assured by the appellant and respondent No.2 Airlines that the tracing continues and he may check later. He has sought reimbursement of the cost of his baggage worth Euro 1730 equivalent to Rs. 90,825/- and Euro 355.9 equivalent to Rs. 18,684.50, the amount he spent for purchasing essential warm clothing and toiletries due to loss of the baggage. He also sought compensation for mental tension, agony and inconvenience as also harassment suffered by him to the tune of Euro 10,000 equivalent to Rs. 5,25,400/- and Euro 500 equivalent to Rs. 26,250/- towards the total expenditure incurred by him on making telephone calls, sending communications and taking steps to follow up with the appellant to know the status of his lost baggage.
3. Admittedly the baggage was checked in at New Delhi International Airport from where the passenger boarded the flight of appellant-Airlines for Delhi to Milan. The flight was not a direct flight and the connected flight was to be provided by the appellant to the respondent from London to Milan. Since the original flight from Delhi got so much delayed, that the connecting flight left and the passenger i.e. the respondent was stranded at the Airport at London. It was in view of this the eventuality that the appellant-Airlines availed the services of respondent No.2-Alitalia. However, it was at Milan that the respondent was not handed over the baggage booked by him with the appellant-Airlines.
4. Relevant provisions relied upon and referred to by the learned counsel are as under:-
Rule 22 (1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of 2,50,000 francs. Where, in accordance with the law of the Court seized of the case, damages may be awarded in the form of periodical payments equivalent capital value of the said payments shall not exceed 2,50,000 francs.
Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
22 (2) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the passenger or consignor has made at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In the instant case the carrier will be liable to pay a sum not exceeded the declared sum, unless he proves that the sum is greater than the passengers or consignors actual interest in delivery at destination.
25.
The limits of liability specified in rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that the action was within the scope of his employment 31(3) .-
As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which the destination, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.
5. Supreme Court has held in case after case that the remedy under the Consumer Protection Act by virtue of Section 3 is an additional remedy and not in derogation of any other law for the time being in force.
6. Section 3 of the Act provides as under:-
3. Act not in derogation of any other law.- The provisions of this Act shall be in additional to and not in derogation of the provisions of any other law for the time being in force.
7. Recently in case 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) has held that irrespective of there being several laws and acts like Contract Act, 1972, Sales of Goods Act, 1930, Indian Penal Code, 1860 The Standard of Weights and Measures Act, 1976 and the Motor Vehicles Act, 1988, MRTP Act, 1969 and the Prevention of Adulteration Act, 1954 or any other law governing relationship of service provider or the consumer , Section 3 of the Consumer Protection Act, 1986 has an effect of seeking additional remedy for the simple reason that under the Consumer Protection Act, 1986 the consumer is entitled for a compensation arising out of mental agony, harassment, emotional sufferings etc. etc. or any other expenses incurred by him on account of deficiency in service on the part of service provider or sale of defective goods by the trader and the manufacturer or for unfair trade practice or restrictive trade practice as no other statute provides such remedy to a consumer.
For instance in the instant case it is uniformly applicable rule to compensate a consumer as to the weight of the baggage as the person having less valuable goods but having heavy weight gets more compensation than the person having baggage containing many valuable items but lesser weight gets less. Thus it is uniformally applicable rule irrespective of any consideration as to the value of the contents or to the mental suffering, physical discomfort, emotional suffering suffered by a particular consumer.
8. Observations of the Supreme Court in respect of scope of Section 3 in different judgments are as under:-
(i) Secretary, Thirumurugan Coo-operative Agricultural Credit Society Vs. M. Lalitha (Dead) through LRS and Ors. Civil Appeal No. 92 of 1998 decded 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.
9. So far as the Consumer Protection Act is concerned, Section 14 (1) of the Consumer Protection, 1986 the Consumer Forums and Commissions established under it are conferred wide and vast powers to order the erring party to do one or more of the following things:-
(a) To remove the defect pointed out by the appropriate laboratory from the goods in question.
(b) To replace the goods with new goods of similar description which shall be free from any defect.
(c) To return to the complainant the price, or as the case may be, the charges paid by the complainant.
(d) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
[Provided that the District forum shall have the power to grant punitive damages in such circumstances as it deems fit]
(e) to remove the effects or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrict trade practice or not to repeat them;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(ha) to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature.
(hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently.
Provided that the minimum amount of sum so payable shall not be less than five per cent of the value of such defective goods sold or services provided, as the case may be, to such consumers.
Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed.
(hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement.
(i) to provide for adequate costs to parties.]
10. The word compensation appearing in section 14 (1) (d) payable to the consumer pertains to the actual loss suffered by him as well as the injury which includes mental agony, harassment, emotional suffering or physical discomfort or the injustice done to the consumer for the act of deficiency in service or negligence or unfair trade practice or restrictive trade practice or sale of defective goods as may be deemed reasonable and adequate by the Forum and Commissions.
11. In Ghaziabd Developmetn Authority Vs. Balbir Singh (2004) 5, SCC 65, the Supreme Court has widened the connotation of the word compensation appearing in Consumer Protection Act to such an extent that it takes in its fold each and every element which one suffers on account of the offences mentioned in the Consumer Protection Act namely deficiency in service, sale of defective goods, restrictive trade practice, unfair trade practice etc. etc. The observations made in this regard are very pithy and need to be quoted in full. These 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.
12. The aforesaid view taken by the Supreme Court shows that every consumer has an additional remedy under the Consumer Protection Act by virtue of Section 3 irrespective of there being any other law governing the relationship of consumer and service provider and the trader or a purchaser of goods. Thus any other law, for instance Carriage by Air Act for that purpose Hague Protocol, Warsaw Convention or any other kind of convention provide limited liability as these are interse arrangement of liability between the two Carriers for the purpose of unification and uniformity of certain rules like Rules 22, 25, 32, 31(3) whereas Section 3 of Consumer Protection Act, 1986 provides independent and additional remedy for compensation arising from the offence of deficiency in service or unfair trade practice or sale of defective goods.
13. Now we come to the last question whether in the instant case respondent-Alitalia Airlines was liable to compensate the consumer even in terms of Rule 31(3) for the limited purpose of indemnifying the loss to the passenger in terms of Rule 22 or Rule 25 of the Schedule. Rule 31(3) provides that the passenger who has lost his baggage has right of action against the first carrier as also against the last carrier and all the carriers who performed the carriage during which the loss of baggage took place as both carriers are jointly and severally liable to the passenger or the consigner or the consignee.
14. Rule 31(3) has to be interpreted and applied on the facts of each and every case as facts of no two cases are akin. In the instant case privity of contract was between the appellant and the respondent No.1 and not between respondent No.2-Alitalia and respondent No.1.
15. The contract provided that the appellant shall take the passenger upto destination i.e. Milan and handover the baggage to him at Milan. It was perhaps due to deficiency in service on the part of the appellant at the place of start of the flight from Delhi which got delayed that the connecting flight for which the appellant had to make the arrangement for the passenger to take him to Milan had already left. It was by way of goodwill or gesture or internal relationship of the Airlines or for better relationship, that the appellant availed the services of the respondent No.2-Airlines, perhaps without ensuring that the goods and baggage kept in their carrier have been duly transferred in the carrier of the respondent No.2 or not. Thus the sole liability for deliveryof luggage at Milan was of the appellant-Airlines in ensuring that the passenger is handed over the baggage at Milan which was registered with it at Delhi. Respondent No.1 only availed the services of respondent No.2 provided by the appellant for carrying him to the destination because of unforeseen and unanticipated eventuality.
16. Rule 25 casts additional right with the passenger to claim the amount of actual loss suffered by him as declared at the time of booking of the luggage if it is due to the act of willful misconduct or by such default on his part. This right is in additional to the compensation to be given in terms of Rule 22 in case passenger proves misconduct of the employee of the Airlines. So far as loss of baggage or non-delivery of full baggage is concerned it is independent and per se amounts to deficiency in service for which passenger is entitled to additional compensation as contemplated by Section 14 of the Consumer Protection Act, 1986. Every act or conduct of the service provider is assessed on the anvil of definition of word deficiency provided by Section 2 (1) (g) of the 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 undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Thus loss of baggage per se amounts to deficiency in service.
17. Loss indemnified in terms of weight is limited. In case deficiency in service stands proved by non-delivery of the baggage which was the obligation of the Airlines or any kind of such service provider consumer is entitled to compensation in terms of the provisions of Section 14 of the Consumer Protection Act, 1986.
18. Thus appellant alone was liable qua the respondent No.1 for its acts of omission and commission and deficiency in service as in this case sub-rule (3) of Rule 31 of the Schedule is not attracted. Even if it is attracted choice is of the consumer from whom he should seek compensation on the doctrine of joint and several liability.
19. The contention of the counsel for the appellant that the respondent No.1 had not produced and proved having incurred expenses of Euro 355.9 does not hold water.
It appears that this figure was arrived at by the District Forum on production of receipts produced by the respondent. Even if the receipts were not produced still the passenger was entitled to such an expenditure which on the face of it appears to be reasonable for a man landing at foreign land would incur. In our view this expenditure incurred was in terms of the rule 31(3). The passenger is also entitled for adequate compensation arising out of the miseries and emotional sufferings and physical discomfort he encounters in such a situation when everything which was required on the day and for the subsequent days was lost. Any person who is stranded in such a situation in foreign land suffers immensely.
20. In our view the District Forum has taken a very reasonable view in awarding compensation as well as the expenses incurred by the respondent No.1 in purchasing necessary clothing and toiletry at Milan which is one of the costliest cities.
21. Foregoing reasons persuade us to dismiss the appeal being wholly devoid of merit.
22. Payment shall be made within one month from the date of receipt of this order.
Payment already made by the appellant shall be adjusted.
23. 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.
24. Copy be sent to Presidents of all the District Fora.
25. Announced on the 15th November, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj